Criminal Justice Research Paper free essay sample

1. Fred is drunk and driving his dad’s car. Fred is a 21 year old student at Columbia College. Fred rams into a parked car at 10th and Rogers. Thinking no one saw him; Fred moves his car and parks it on an adjacent lot. He sprints to his dorm room in Miller Hall. A neighbor saw the wreck and Fred running to the dorm. Police are called and they arrive ten minutes after the wreck. The officers see several empty beer cans and a bottle of tequila (half full) in the front seat. The tags are traced to Fred’s dad, who is called by police. Dad says that Fred is a student at Columbia College. Police run Freds record and determine that he has two prior DWIs within the past five years. The third DWI in 10 years is a felony. Police contact Columbia College security who leads them to Fred’s dorm. Fred is passed out, so security lets them in. The officers smell intoxicants, give Fred some Field Sobriety tests (he fails) and confirm that he was driving the car. Fred is arrested for DWI. It is his third offense, a felony under Missouri law. Fred is given a breath test, which registers at . 13 on the scale. During the processing of his arrest paperwork, the officers search Fred’s possessions which he brought to the station, and a small quantity of cocaine is found in Fred’s pocket. Fred is charged with DWI, leaving the scene, and possession of cocaine. What issues do you see? How should they be resolved? (50 points) First of all this, is a legal arrest. A neighbor saw the wreck and Fred running to the dorm. That is sufficient in itself to establish probable cause to arrest Fred for leaving the scene of an accident. The follow-up police investigation added more factors to establish probable cause to arrest for DUI and leaving the scene. A prosecuting attorney will present evidence that a) Fred has no alibi for the time and date the crime occurred, b) he left evidence at the scene and in his vehicle, c) he failed the Field Sobriety Tests, d) he blew a . 13 on the breathalyzer, e) and he has past records of DWI, and f) he was found to have possession of cocaine. The prosecuting attorney uses this series of specific examples to prove Fred committed the crimes. There would be an issue of whether it was legal for the security guard to give access to Fred’s room. This issue would be resolved because it is totally legal for security guard to give access due to exigent circumstances. 2. Cole County deputies obtain a search warrant for Mike’s trailer for controlled substances. The warrant was based upon information provided by an informant, some officer corroboration, and the fact that Mike has a past record for drug offenses. The deputies execute the warrant. As it turns out, Mike has no past record for drugs, the court clerk made an error. This means the warrant will be found lacking in probable cause by the appellate court. While executing the warrant, they observe large quantities of controlled substances, which they seize. While they are executing the warrant a man drives up and knocks on the door. The officers detain the man during the search. The dog accompanying the officers begins to bark at the man’s trunk. The officers open the trunk and see large trash bags with a substance which smells and looks like marijuana. This man (Larry) is arrested for possession of marijuana. Mike is charged with possession of a controlled substance. Are the drugs admissible in Court against Mike? Why or why not? What about Larry’s case, are the drugs admissible? Why or why not? (50 points) Whether this search is legal or not depends on the exact circumstances under which it was conducted. In a situation like this, the police have the authority to stop and detain anyone coming to or leaving the residence as they arrive to execute the search warrant. Once you are lawfully detained, they have the right to conduct at least a pat down search for officer safety purposes. If the drugs were found as a result of the pat down search, there is no doubt that it was a legal search and seizure. Whether they could go further than a simple pat down would depend on other factors, such as conversation between the cops and the detainee, as well as other activity in the immediate vicinity and possibly even statements by other people at the scene. Determining for sure whether there are grounds to object to the search and seizure requires review of all of the reports regarding the case. Depending on the nature and quantity of the drugs seized, this could possibly be a serious case. In any event, the person involved should consult with a criminal defense attorney or, if he cannot afford private counsel, with the public defender if he is charged. Officer had probable cause to affect a traffic stop after he observed defendant following too closely. Defendants and passengers behavior after stop provided reasonable suspicion to expand the detention, and a positive drug dog sniff provided basis for search of vehicle. Im not aware of reason that the interpretation of the 4th Amendment would be any different in Oklahoma than it is in any other state. All states have to follow the US Supreme Courts decisions on 4th Amendment issues. It would be true that once an officer has conducted a pat down search and determined that there are no weapons, he is not allowed to go further in searching without either consent or a warrant. On the other hand, it is not the law anywhere that such a search must be limited to the feel of a gun. Any object which might possibly be used as a weapon can be retrieved during a pat down search. Whether retrieval of a bag of dope from the suspects pocket would go beyond the allowable scope of the pat-down search would still depend on the totality of the circumstances, including what the bag of dope felt like (for example, was it a hard object that could be a weapon or a soft plastic baggie). There is another issue, as well. If this person is leaving a place for which a search warrant has been issued, the police already have a reasonable suspicion of involvement in criminal activity which would justify a detention beyond a simple pat-down and identification. What else is said and done by others at the scene (cops and suspects) and what is found in the search may justify extending the detention of the person who was leaving as a possible suspect in drug sales or possession. The search you asked about occurred under similarly exigent circumstances, the evidence was easily disposable and the intrusion was very limited. So, it seems to me, the evidence seized under the circumstances you described would still be admissible. 3. Kyle and Mel are detectives in the property crimes unit. They are investigating a case of leaving the scene of an accident. The victim’s car suggested an impact on the right front bumper of victims car. While canvassing a neighborhood on another matter, Mel sees a car parked in a garage. The garage is attached to the house, but the door is open. The car shows physical damage to the left rear quarter panel with smudges similar to those on victims car. Mel and Kyle approach the garage and take photographs of and samples from the outside of the car. The samples link to the crime, and the resident is charged. Assess the police conduct. Will the evidence be admissible? Why or why not? (50 points) We first consider whether the police officers had the lawful right to be in Defendants driveway. ? While the Fourth Amendments protections extend to the curtilage of a persons home, this does not mean that police cannot enter a curtilage area without a warrant when investigating a crime or conducting other official business. ?â€Å"To the contrary, ‘it is altogether proper for police with legitimate business to enter the areas of curtilage open to the public. ’? † ? State v. Edwards, 36 S. W. 3d 22, 26 (Mo. App. 2000) (quoting Kriley, 976 S. W. 2d at 22); ? see also State v. Akers, 723 S. W. 2d 9, 14-15 (Mo. App. 1986). Whether a driveway or other area of the curtilage of the home should be deemed â€Å"open to the public† and therefore subject to warrantless entry by the police is determined on a case-by-case basis, and will hinge upon whether a resident has a reasonable expectation of privacy in that area. ? Edwards, 36 S. W. 3d at 26 n. 2. 6 â€Å"If in a particular case an occupant has taken effective steps to protect areas of the property from view and from uninvited visitors, then a privacy interest may be found in that area sufficient to preclude police from coming onto it for investigative purposes without permission. † ? Id. at 27. ? Alternately, â€Å"[i]f an occupant permits visitors to enter onto portions of the property, such as the driveway or front walk, so as to reach the door, or if such areas are visible from outside the property, then the occupant is generally held not to have a reasonable expectation of privacy in those portions of the property. † ? Id; ? see also United States v. Ventling, 678 F. 2d 63, 66 (8th Cir. 1982). Here, the record does not suggest that Defendant sought to prevent public entry to her property via a fence, gate, or other measure. ? Defendant parked the van on her driveway to her home in plain view of anyone who drove past her house. ? The damage to the van was readily apparent to anyone in this public area. ? Such factors fail to suggest that Defendant had any expectation of privacy regarding her driveway and her property on the driveway. ? As such, police officers had the lawful right to be present on Defendants driveway as they approached the front door of Defendants home. ? See Edwards, 36 S. W. 3d at 27; ? Kriley, 976 S. W. 2d at 22. We next consider whether the officers had probable cause to believe that the evidence seized-in this case the van and paint chips and other items from the van-were connected to a crime. ?â€Å"Probable cause exists where the apparently incriminating character of the item is obvious. † ? Johnston, 957 S. W. 2d at 742-43. ? Probable cause also is a â€Å"flexible, common-sense concept. † ? Rowland, 73 S. W. 3d at 822 (quoting State v. Hampton, 959 S. W. 2d 444, 451 (Mo. banc 1997)). ? No precise test exists to determine whether probable cause exists. ?Rowland, 73 S. W. 3d at 822. ? Rather, probable cause exists when the â€Å" ‘officers knowledge of the facts and circumstances is sufficient to warrant a prudent persons belief that the suspect is committing or has committed the offense. ’ ? † Adams, 51 S. W. 3d at 99 (quoting State v. Neal, 849 S. W. 2d 250, 258 Mo. App. 1993)). In the present situation, the officers had not yet made an arrest but believed from the apparent, incriminating character of the evidence that Defendants van was involved in the commission of a crime. ? See Adams, 51 S. W. 3d at 99. ? As the record shows, based upon the type of injuries received by Ms. Cory and evidence found at the scene of the accident, police officers believed Ms. Cory had been struck by a blue Ford van or truck. 7 Sergeant Latch testified that he saw another Ford Econoline van with a headlight assembly very similar to that recovered at the scene of the accident. ? A canvass of the neighborhood revealed a van matching that description parked in Defendants driveway. ? Sergeant Latch and other officers observed damage to the van consistent with the evidence found at the scene of the accident-i. e. the missing headlight assembly, damage to the grille, damage to the hood, damage to the front right fender, and damage to the reflector. ? We find that these facts and circumstances warranted police officers belief that the van had been used to commit a criminal offense, giving rise to probable cause for a search of the van. ? See id. Furthermore, we determine that exigent circumstances also existed which justified the seizure of the paint chips, the piece of â€Å"Bondo,† and the van itself. ?â€Å" ‘As a practical matter, exigent circumstances exist whenever an automobile is involved; ? the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search. ’? † ? Middleton, 995 S. W. 2d at 458 (quoting State v. Milliorn, 794 S. W. 2d 181, 183 (Mo. banc 1990)); ? see also State v. Jordan, 978 S. W. 2d 36, 40 (Mo. App. 1998); ? State ex rel. Boling v. Malone, 952 S. W. 2d 308, 311 (Mo. App. 1997). As discussed, the police officers had the lawful right to be in Defendants driveway and had probable cause to believe that the van was involved in the accident. ? While Defendant was detained, interrogated at the police station, and eventually arrested, Sgt. Latch remained with the van to protect against the loss of potential evidence of its involvement in the accident. ? Sgt. Latch testified that he noted paint chips and a piece of Bondo were loose and in danger of falling should the van be moved. ? To prevent the loss of what he deemed important evidence, Sgt. Latch collected samples of those paint chips and Bondo from the van. Our Supreme Court determined in Middleton that a search and seizure under similar circumstances was appropriate and the evidence obtained was properly admitted. 4. Police officers received an anonymous tip that a building at 401 S. Main was being operated as a â€Å"crack house. † Based on that tip, two vice squad officers were assigned to place the above building under surveillance. The officers viewed the premises from their nearby automobile and observed a fair amount of traffic going in and out of the building over a three day period. One evening, Jim Smith left the above described premises and walked toward the officers unmarked car. As he approached the car, and seemed to recognize the officers (who were in street clothing), Smith turned, walked in the opposite direction and entered an alley. The officers decided to pursue Smith and stopped him in the alley. Smith was told to lean over the hood of the car with his arms extended, and head kept down. One officer patted down Smith and felt a â€Å"suspicious bulge† in his jacket pocket. The officer quickly reached into the pocket and removed a package which contained a couple of ounces of a white substance which on later analysis turned out to be cocaine. In connection with Smith being charged with the unlawful possession of Cocaine, a controlled substance, his attorney seeks to suppress the cocaine. What legal issues are involved in this endeavor and, what result would you reach? (50 points)Unreasonable Searches Seizures – The First Defense to a Drug Charge Every drug defense must start with a Fourth Amendment evaluation. The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures. This means that a police officer must have a constitutionally valid reason to stop, detain and/or search you. If the police officer makes an illegal stop or search of you, any evidence he seizes can possibly be excluded from your prosecution. If the evidence cannot be used against you, then your case may be dismissed. For example, an officer cannot just detain you and search you. An officer cannot just pull your car over and conduct a search of your vehicle without a permissible reason. These issues often arise in drug cases and provide a defense to your charge. As part of my defense of drug charges, I always consider: How the officer came into contact with you How long the officer detained you What legal reason the officer had to search you, your car, or your home The search warrant if any If it was a search incident to arrest, if the arrest was valid 5. State police pulled over Banks ostensibly for operating a motor vehicle without a seat belt, a violation subject to a maximum of a $100 fine. Trooper Smith questioned Banks and his passenger Jones about where they were headed. Banks and Jones gave the trooper different answers and Banks seemed nervous, according to Smith. Trooper Smith delayed writing the ticket for some 20 minutes, awaiting a backup unit. He retained Banks drivers license during the interim. After this unit arrived there were now three troopers, and two patrol cars on the scene. The cars were parked immediately in the front and rear of Banks car. Smith asked: â€Å"Are there any weapons or drugs in this vehicle? † Banks, standing some 10 feet away from his car, said no. Smith then said, â€Å"You probably wont mind if we search then, right? † Banks said, â€Å"If you gotta do it, do it. † A search of the vehicle produced a half pound of cocaine under the front seat and Banks and Jones now seek to suppress this evidence in connection with their forthcoming trial on illegal possession of Cocaine. Discuss all issues that you see with the Police conduct. (50 points) On a defendants motion to suppress cocaine discovered in and taken from a secret compartment in his vehicle, alleging that the search of the vehicle violated his Fourth Amendment rights, the district courts granting of the motion is reversed, where: 1) the search of the defendants vehicle was justified by probable cause, as the police were in possession of information that made it more likely than not that drugs were located in the vehicle; and 2) the officers search was supported by the defendants voluntary consent to search the vehicle for drugs and to determine whether it was stolen. While the government concedes that some pretense existed surrounding the traffic stop at issue based on the suspended license due to the officers reliance on the informants tip, it is well-settled that any traffic violation provides a police officer with probable cause to stop a vehicle, even if the officer conducted the valid traffic stop as a pretense for investigating other criminal activity; and 2) the officers had probable cause to search the vehicle, irrespective of Gant, under the automobile exception. In a prosecution for possession of marijuana with the intent to distribute, a denial of defendants motion to suppress evidence seized from his car is affirmed where: 1) a sergeants questions about defendants destination and vehicle were routine, within the scope of a valid traffic stop; and 2) the detention was not prolonged as the sergeant was still processing a warning when he received defendants consent to search his vehicle. Denial of defendants motion to suppress drug evidence seized from a valid vehicle stop is affirmed where: 1) under the totality of circumstances test, the trooper did not violate the Fourth Amendment when he expanded beyond the scope of the traffic stop, extended its duration by asking questions about contraband, and requested permission to search the vehicle; and 2) viewing defendant-driver and a passengers interactions during the stop, the trooper reasonably believe that the passenger had common authority to consent to a full search of the vehicle. 6. Federal (DEA) agents received an anonymous tip that one Perez was engaged in a money laundering operation in connection with a major narcotics ring. The anonymous caller said that Perez picked up money from various locations in the City and always took money in a laundry bag to 61 Corona Avenue in the City. \ DEA agents placed Perez under surveillance and on two occasions he was observed traveling by cab to various locations where he would enter a building with a laundry bag, then emerge with what appeared to be the same bag, and terminate at 61 Corona Avenue where he would enter with a full laundry bag and then leave without the bag. During the third surveillance, after Perez made two stops, his cab began to take evasive action with Perez nervously looking out the rear window. Agents decided to close in and forced the cab to the curb. One agent approached the cab with a revolver drawn and four others surrounded the cab. The agent ordered Perez out of the cab and when he emerged, he was handcuffed. An agent asked the cab driver if they could search the cabs interior and trunk and the driver readily agreed. In the trunk, the agents discovered a laundry bag containing $13,000 in cash and ten pounds of marijuana. An agent then asked, â€Å"Perez, is this your bag? † Perez said it was but that he was â€Å"just carrying it for a friend. † In connection with federal criminal charges, Perez seeks to suppress the bag and its contents. Assess the issues and rule on Perezs motion. (50 points) Defendants conviction for unlawful possession of a firearm is reversed where police lacked probable cause to search the trunk of his car. The Court affirmed denial of defendants motion to suppress evidence and decided, under the Fourth Amendment, that a police officers finding of suspicious items in the passenger compartment of defendants car gave rise to probable cause to search the trunk of the car as well. Defendant consented to the search of his vehicle, and his consent was confined by neither time nor location; two and one half hour detention did not violate the durational limitations on investigative stops; a canine alert toward the passenger area of a vehicle gives rise to probable cause to search the trunk as well. The Fourth Amendment Protects Us from Unreasonable Search Seizure. The Fourth Amendment, as it is generally understood, protects you from unreasonable search and seizure. The Supreme Court has looked at a number of cases involving Fourth Amendment rights and warrantless searches. In most instances, the officer can conduct a search if they have probable cause to do so. This is essentially a hunch backed up by reasonable suspicion. There may be something in your behavior, your physical appearance, or the physical appearance of your vehicle that would prompt an officer to search. For example, you might have been pulled over because you were driving erratically. However, a smell coming from the car or signs of slowed reflexes on your part may have indicated you are using some type of drug or alcohol. If the officer decided to search your car from glove box to trunk based on the suspicion that you are using and possibly transporting an illegal substance, this would be probable cause. Search Seizure of Cars Other cases involving the search of cars have involved the plain view standard and the right of police to search passengers belongings found in a car. In Chimel v. California, the court held that police may search the person and all areas under a persons control or reach. Anything in plain view can be seized. This standard includes car searches. In Wyoming v. Houghton(1999), the court ruled that if the officer has probable cause to search the car, they can also inspect passengers belongings. The idea is that the item, a purse for example, might conceal the object of an officers search. Search Seizure of the Trunk of a Car The same reasoning can be applied in the case of a trunk. It would be in control of the cars driver, and barring some unusual circumstance, within his or her reach. A trunk generally conceals its contents. So, an officer may look there if there is a belief that what he is searching for might be in the trunk. 7. Police have a warrant to arrest Terry for murder. He is one of two current suspects in a Homicide. They plan to arrest him at his home, which is a two story house. When serving the warrant, Terry is found upstairs, and he surrenders peacefully. Police go downstairs and open two closet doors. One of the closet doors opened reveals a sawed-off shotgun, the suggested murder weapon. One of the officers proceeds to open a downstairs desk drawer, and observes and seizes a disguise, a passport, and a plane ticket to Argentina. There is no search warrant. What, if any, evidence is admissible against Terry? Why? (50 points) If an individual voluntarily consents (agrees to) a search, no warrant is needed. The key question in this kind of search is what counts as a voluntary agreement? In order for a consent search to be legal, the individual must be in control of the area to be searched and cannot have been pressured or tricked into agreeing to the search. A police officer that spots something in plain view does not need a search warrant to seize the object. In order for a plain view search to be legal, the officer must be in a place he has the right to be in and the object he seizes must be plainly visible in this location. If a suspect has been legally arrested, the police may search the defendant and the area within the defendants immediate control. In a search incident to arrest no warrant is necessary as long as a spatial relationship exists between the defendant and the object. Following an arrest, the police may make a protective sweep search if they reasonably believe that a dangerous accomplice may be hiding in an area near where the defendant was arrested. To do so, police are allowed to walk through a residence and complete a cursory visual inspection without a warrant. If evidence of or related to a criminal activity is in plain view during the search, the evidence may be legally seized. 8. Jay is an 18 year old (therefore not a Juvenile) taken into police custody as a suspect in a Homicide. The police read Jay his rights under Miranda, and when asked if he understands his rights and wants to talk, Jay says, I want to talk to my Dad. Police attempt to discourage Jay from speaking with his Dad and they encourage him to spill his guts. They ask Jay again if he understands his Miranda rights and wants to talk and Jay says â€Å" I guess so, if its like you say it shouldnt be so bad† The interrogation begins and Jay confesses to the homicide in a videotaped confession. Included in this confession is a description of the location of the murder weapon and the body of the victim, which were found at the bottom of a pond on Jays dads property. Police were in the process of obtaining a search warrant for this pond which was grantedat the time of Jays statement. Jays father is a prominent attorney known to virtually everyone in town ( including the police ) Discuss the issues surrounding the use of Jays statement and the derivative evidence in the pond. Is anything admissible? Why or Why not? 50 points The Miranda warning, also referred to as Miranda rights, is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. The Miranda warning is part of a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. Law enforcement officers are not allowed to question a suspect in their custody who has previously asked for a lawyer to be present during custodial questioning; According to the U. S. Supreme Court, â€Å"custodial interrogation† is â€Å"questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. † In another case, the U. S. Supreme Court said that deciding whether a suspect has been â€Å"interrogated† depends upon whether the police have coerced or forced the suspect to speak. If you first say you dont want a lawyer, can you still demand one during questioning? A. Yes. A person being questioned by the police can terminate the interrogation at any time by asking for an attorney and stating that he or she declines to answer further questions until an attorney is present. However, any statements made up until that point during the interrogation may be used in court. If a suspect decides to start talking to police officers and then changes his or her mind, what must that suspect do or say in order to halt the interrogation? A: A suspect must clearly declare that he or she no longer wishes to speak without an attorney present. Some courts have found that statements such as â€Å"maybe I should get a lawyer† are not usually enough to stop an interrogation. Nevertheless, most courts require that police officers must at least stop and clarify a suspect’s intentions when the suspect responds in this fashion. It is always best to seek the advice of a qualified lawyer before being questioned by the police, regardless of your knowledge or involvement However, police are not held accountable for â€Å"offhand remarks† that produce unexpected results. As long as the suspect isn’t interrogated or coerced into speaking by some other method, any statement the suspect makes will be considered voluntary, even if it’s an admission of guilt. Such a freely given statement can be used in court against the suspect. 9. Suspect has been Charged with Controlled Substance Distribution and is in jail awaiting trial on that charge. He is represented by Bart, a prominent local attorney on this controlled substance charge. Bart admonishes the police not to question his client regarding any aspect of the drug offense and police assure Bart that no questioning will take place. One of the informants on this controlled substance investigation has been missing for a week and police believe suspect had something to do with the disappearance. Police place an undercover officer in Suspects cell block and instruct him to see if he can draw information from suspect on informants disappearance. Suspect confides to the undercover officer that he is sure that the informant â€Å"wont be seen or heard from again if you know what I mean However, suspect says nothing else regarding details of victims fate, but offers that he is concerned about his wife turning on him. Police next approach suspects wife who is in the process of divorcing suspect. Some of suspects belongings are still at her house. Police ask if she will consent to a search of her home and to forensic testing of any evidence and she gladly agrees. During the course of this consent search, police locate some helpful evidence, including a sawed off shotgun and a slip indicating suspect has rented a storage shed. Police approach the storage shed owner and request his consent to search suspects shed. The owner agrees to consent, observing that suspect is in default under his agreement and that he was about ready to deem suspects shed as abandoned. During the course of searching suspects shed, police observe a car and numerous boxes of clothing. The car contains signs of a violent act including blood and bone fragments. Possessed with this information, police approach suspect and ask if he would like to discuss informants disappearance. Suspect agrees and police read him Miranda. Suspect waives his rights and agrees to talk. Police present a detailed theory of informants murder to suspect, including references to a sawed off shotgun and the storage shed, and falsely tell suspect that all of the scientific evidence points to him as the killer. ( In fact no testing has yet been done) Suspect breaks down and confesses to the murder of informant. Discuss all issues that you see regarding this case , including the admissibility of (1 Suspects statements to the officer in the cell block, (2)the evidence obtained from the search of wifes dwelling, (3)the evidence obtained from the search of the shed, and (4)the evidence obtained from suspect during his confession to the murder. 50 points Statements made by a suspect during an undercover operation are not compelled in violation of the 5th Amendment. The suspect relied on his misplaced confidence that the person he revealed information to would not reveal it Police undercover officers or informers are not required to give Miranda warnings during undercover questioning (custody and questioning by known Police officer require warning). An undercover Police officer may record a conversation he has with a suspect without the suspects knowledge or Consent, 18 U. S. C.  § 2511 (2)(c). (3) With prior Consent from an informer Police may record an undercover informer’s conversation with suspects, 18 U. S. C.  § 2511(2)(c). See #1a,1b, 7. (4) If an UCO / UI hears with his naked ear a conversation between suspects, he may record the conversation even if he is not a participant in the conversation. 18 U. S. C.  § 2510(2)(No REP in Oral Communication). See #1c, 7 (5) An UCO /UI may deny (lie about) his true identity and purpose (witness at Trial) during undercover activity, Weatherford v. Bursey, 97 S. Ct. 837 (1977). No 5th Amendment Due Process violation. Undercover Activity Before Arrest – Police may conduct undercover activity and questioning before a suspect is arrested. For a suspect to have a 5th Amendment right to silence and an attorney, he must be in custody and be questioned by someone he knows is a Police officer (Police dominated atmosphere), Miranda (1966). For a suspect to have a 6th Amendment right to an attorney he must already be formally charged with a crime, Massiah (1964), #h below. f. Undercover Activity After Arrest But Before Formal Charge – Police may continue undercover activity after arresting a suspect and before formally charging the suspect. There is no 5th Amendment or 6th Amendment violation for the same reasons described in 15 e. , above. This undercover activity can take place in a patrol car, a police station, and in jail. g. Undercover Activity Before Formal Charge – Suspect Represented by Attorney Same reasoning as 15e and f, above. Police working undercover on a suspect who has not been formally charged with a crime and who is represented by an attorney does not violate the 5th Amendment Miranda rules or American Bar Association Code, DR 7-104, U. S. v. Cope, 312 F. 3d 757 (6th Cir. 2002). State rule of professional conduct for attorneys cannot trump the Federal Rules of Evidence, McDade Amendment, 28 U. S. C.  § 530B, U. S. v. Lowery, 166 F. 3d 1119 (11th Cir 1999). h. Undercover After Formal Charge – Undercover questioning must stop once a suspect is formally charged with crime X at the Initial Appearance, Indictment or Information, whichever occurs first; many States use a Complaint for a formal charge. The suspect is now a defendant and has the 6th Amendment right to an attorney for the charged crime, Massiah v. U. S. , 84 S. Ct. 1199 (1964). (1) However, an UPO or UI may legally act as a listening post for crime X and any incriminating statement may be used against the defendant at Trial, Kuhlman v. Wilson, 106 S. Ct. 2616 (1986). (2) A defendants incriminating statement made to a jailhouse Police informer, even if obtained in violation of his 6th Amendment right, may be used at Trial as impeachment evidence if the defendant takes the witness stand (rare) and gives a conflicting statement, Kansas v. Ventris (2009). (3) Note: A private person who is not an officer or informer may ask the suspect questions and later reveal the answers to Police. The 5th and 6th Amendments are restrictions on government only. Examples: friends, relatives, and cell mates who are not informers at the time of the questioning. i. Undercover After Formal Charge X Regarding Uncharged Crime Z After the 6th Amendment right for crime X exists, undercover questioning about uncharged crime Z is legal, Hoffa, above, Maine v. Moulton, 106 S. Ct. 477 (1985). (1) Even if the suspect is in jail, Illinois v. Perkins, 110 S. Ct. 2394 (1990). \ (2) Even if the suspect asked for and was appointed an attorney for crime X, Alexander v. Connecticut, 917 F. 2d 747 (2nd Cir 1990), U. S. v. Cook, 599 F. 3d 1208 (10th Cir. 2010). (3) Even if the uncharged crime occurred at the same time as the charged crime, Texas v. Cobb, 121 S. Ct. 1335 (2001). 10. Local police strongly suspects Shansky of murdering his estranged wife. Months of investigation, however, failed top develop a strong enough case for the Prosecutor to file charges. The prosecutor suggested to Detective Hardy that Shansky be invited in to just talk things over. Hardy called Shansky and said, we know how upset you must be about your wifes death and how slow we are going. Would you come down and talk to us and maybe we can get another angle? Shansky agreed. When he arrived at the station house, he was introduced to Sharon Caring, described as a social worker involved in victim counseling. Shansky agreed to talk with Caring until the Detective was free. During his talk with Caring, Shansky broke down into tears. Caring presses him for more details and after Caring agrees to confidentiality, Shansky described how he snapped when he realized his marriage was over, and that he thinks he strangled his late wife during an alcoholic blackout. Caring was in fact a police officer who was assigned to get what she could from Shansky. She tells Hardy everything that Shansky said. Hardy enters the room and begins speaking with Shansky. He presents a detailed theory of the homicide to Shanksy. Shansky blurts out, you know I did it, lets get it over with. Hardy then reads Miranda to Shansky, who signs a Miranda waiver and gives a full written confession. Shansky is charged with his ex-wifes murder. Are Shanskys statements to Caring and Hardy admissible in the homicide trial? Why or why not? Discuss all issues. 50 points. An UCO /UI may deny (lie about) his true identity and purpose (witness at Trial) during undercover activity, Weatherford v. Bursey, 97 S. Ct. 837 (1977). No 5th Amendment Due Process violation. If an undercover officer had to tell a person that he/she was undercover, it would defeat the purpose of being undercover. This would also pose a huge threat to the officers safety. Entrapment is when a person is coaxed or coerced into committing a crime, by an officer, that the person would not have committed otherwise.