Sat, 26 Apr 2008

Self-Verifying Detail.
Q: I'm a bit confused about the concept of a "self-verifying detail." Can you explain what this is?

A: This goes to the old Spinelli requirement that the tip must demonstrate a "basis of knowledge." (Don't forget that although the Spinelli factors are no longer mandatory, they are still useful.) With a known, not-anonymous informant, the basis of knowledge might be, for example, the fact that the informant has been to the suspect's home and has observed the criminal activity first-hand.

With anonymous tipsters, on the other hand, you often won't have this kind of evidence. So, one type of basis of knowledge for anonymous tips would be an explicit statement like, "I have been in his home on repeated activity and I have witnessed the criminal activity firsthand." But usually, anonymous tipsters won't say something like that. In those cases, courts may still find some basis of knowledge through "self-verifying details." These are assertions in the anonymous tip that are so detailed, they give rise to the inference that this isn't just some rumor or educated guess. For example, knowing the fact that the tip in Gates contained so much minute detail might constitute a self-verifying detail that serves as the basis of knowledge evidence.

posted at: 15:18 | path: | permanent link to this entry

More on Terry and Seizure.
Q: I have a question based on an answer you posted: Just to clarify - If one would argue that the interaction between law enforcement and a suspect exceeded Drayton and satisfied the Mendenhall test of no longer feeling free to leave (based on the objective reasonable person in the suspect's position), then the suspect would have been "seized" for the purposes of the 4th Amendment and it would no longer be a Terry stop correct?

A: That's not correct. Terry itself refused to accept the argument that a stop and frisk was anything but a seizure. A seizure occurs, as Terry and later Mendenhall explained, when the suspect would not feel free to leave.

Terry allowed some seizures to occur with less than probable cause, so long as the police at least had reasonable suspicion. Terry stops are seizures, just like full-blown arrests are seizures. The difference is that if an encounter has not crossed the line from Terry stop to full-blown arrest (or near-full-blown arrest as in Dunaway), then it may be justified by less than probable cause.

posted at: 14:45 | path: | permanent link to this entry

Fri, 25 Apr 2008

Terry Seizure cases.
Q: I'm having trouble figuring out how Mendenhall and Drayton play into the 4th Amendment analysis. I know that they use the test "would a reasonable person feel free to leave" and they both come to the conclusion that there was no seizure. However, I don't understand when we would use this test. Is the takeaway from these cases that since there was no seizure and since the searches were consented to, the 4th Amendment was not violated? I'm just getting confused on why these cases are inbetween Terry stops and AL v. White's reasonable suspicion and how they play into the big picture.

A: According to Terry, certain seizures of people can be justified with less than probable cause. This raises the question, which seizures? That's the question whose answer is supplied by Mendenhall and Drayton (and Dunaway and Hodari D). When does police action rise to the level of a Terry stop such that it must be justified by (at least) reasonable suspicion?

posted at: 22:23 | path: | permanent link to this entry

Consent Searches and Probable Cause.
Q: In Schnekloth, The court stated that it must evaluate whether 1) there was a legitimate need for the search and 2) there was no coercion for the consent. But in the case, there was no probable cause to search so I'm not sure how the court ends up holding that it the search was valid because it does recognize this and the state even admits that there was no prob cause. So does that mean that if the D consents, there did not need to be probable cause or "a legitimate need" for the search, or both?

A: Consent, when voluntary, is a complete justification for search. No PC is required. So long as the person whose privacy is invaded consents, the police can do anything within the scope of consent.

posted at: 22:21 | path: | permanent link to this entry

Voluntariness versus Miranda.
Q: I'm struggling a little bit with when the Lisenba/Spano analysis comes into play. Is the "voluntary" test a separate due process analysis that goes alongside our Miranda analysis? In some situations doesn't Miranda overrule the voluntary test used pre-Miranda in cases like Lisenba/Spano?

A: Miranda isn't a "due process" test, strictly speaking. Instead, Miranda is tied to the Fifth Amendment's right against compelled self-incrimination.

In addition to Miranda, there is an entirely separate substantive due process analysis that follows the type of analysis in Spano and Lisenba. Confessions must be voluntary. They must not be coerced, produced from an absence of mental freedom, or the product of the confessor's will being overborne. This is a vague test, and the standard is very tough for defendants to meet. This is why Miranda is a much more robust protection than the voluntariness test.

Still, any time you analyze a confession, you must ask about voluntariness, in addition to a Miranda analysis (and a Sixth Amendment analysis too).

posted at: 22:19 | path: | permanent link to this entry

Welcome.
Welcome to the student question and answer blog for Professor Ohm's Spring 2008 Criminal Procedure, Investigative course. During the exam period, I will post student questions with my answers on this page.

I am not posting every single student question. Instead, I am only posting student questions that I believe the class, as a whole, will benefit from hearing. Some questions are too basic to deserve attention. Other questions are too advanced and nuanced. So don't take it personally if your question doesn't appear here. (Do take it personally if I don't respond to one of your questions. I might have forgotten to get to it, so if you don't hear from me in a day or two, please ask again.)

posted at: 10:46 | path: | permanent link to this entry