Criminal Procedure Baxter Winter 2011

CRIMINAL PROCEDURE WINTER 2013
The 4th Amendment Right to be Secure against Searches (Threshold)

Applies only to official searches and seizures If there is a search, the 4th Amendment applies. Threshold Question whether that conduct constitutes a search or a seizure 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Until Katz, Olmstead was the applicable doctrine - wiretapping was not a search because no "actual physical invasion." - Leads to Katz decision Katz v. US OVERVIEW: D was convicted of transmitting wagering information by telephone in violation of a federal statute. At the trial, the government was permitted to introduce evidence of D's convos. OUTCOME: The Court reversed defendant's conviction. The 4th amendment protects people NOT places! Does the person have a reasonable expectation of privacy? What did the person expect? If it is a search, it does not end our analysis. We must ask is it reasonable. Two prong test: o Is it a search? o Is it reasonable? Katz Test (2 prong test): o A person must have exhibited an actual (subjective) expectation of privacy. o The expectation must be one that society is prepared to recognize as reasonable. If Mr. Katz knew the phone was tappedhe would not have an expectation of privacy so it wouldnt be a search. Even if it looks like the police are searching, if the person doesnt have an expectation of privacy, its not a search. What you knowingly expose to the public, you cannot expect to be private. US v. White PROCEDURAL POSTURE: The government sought review of a decision of the United States Court of Appeals for the Seventh Circuit, which reversed the trial court's judgment convicting defendant under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U.S.C.S. 4705 (a) and 21 U.S.C.S. 174 and sentencing him as a second offender to 25-year concurrent sentences. OVERVIEW: Defendant was convicted under two consolidated indictments charging him with various illegal transactions in narcotics and sentenced as a second offender to 25-year concurrent sentences. The lower appellate court reversed respondent's conviction, and the

government sought writ of certiorari. The Court concluded that the lower appellate court misinterpreted both Katz and U.S. Const. amend. IV and erred in applying Katz to events that occurred before that decision was rendered by the court. The Court concluded that under pre-Katz law, the electronic surveillance of defendant involved did not violate his rights to be free from unreasonable searches and seizures. The Court concluded that the Fourth Amendment did not bar from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant and a government informant, and which the agents overheard by monitoring the frequency of a radio transmitter carried by the informant and concealed on his person. OUTCOME: The lower appellate court's judgment reversing defendant's conviction for various illegal transactions in narcotics was reversed because the testimony of governmental agents who related certain conversations which had occurred between defendant and a government informant, and which the agents overheard by monitoring the frequency of a radio transmitter carried by the informant and concealed on his person was not precluded by the Fourth Amendment. The 4th Amendment only applies to a government actor. If 2 people are talking and no government actor is acting, there is no 4th amendment problem. Difference between White and Katz: The 3rd person is a government informant in White. o Society says you take a risk that anytime you talk to a person, they may be a government agent (false friend). o If they arent an agent, it is a search - if they are an agent, it is not. This is not an expectation of privacy that society is willing to except.
Smith v. Maryland PROCEDURAL POSTURE: Petitioner challenged an order of the Court of Appeals of Maryland that determined that the use of a pen register without a warrant to obtain the identity of numbers petitioner dialed from his home telephone did not violate petitioner's U.S. Const. amend. IV rights. OVERVIEW: After the victim of a robbery began receiving phone calls from the person who claimed to be the robber, the police installed a pen register, without a warrant, at the central telephone system in order to determine the identity of the numbers that petitioner, a suspect, was dialing. After the police discovered that petitioner had called the victim, they charged him with robbery. Petitioner alleged that use of the pen register constituted an illegal search within the meaning of U.S. Const. amend. IV. On review of the state court's decision that it did not, the Court determined that petitioner's U.S. Const. amend. IV rights were not violated. The Court found that petitioner

did not have a legitimate expectation of privacy regarding the numbers he dialed on his phone because those numbers were automatically turned over to a third party, the phone company. The Court also ruled that even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation was not one that society was prepared to recognize as "reasonable." Thus, the Court concluded that installation of the pen register was not a "search" and no warrant was required. OUTCOME: The Court affirmed the order from the state court, ruling that petitioner's Fourth Amendment rights were not violated by warrantless use of a pen register. Is it reasonable for a phone user to think the phone company doesnt get the numbers they dial? NO.
California v. Ciraolo PROCEDURAL POSTURE: Plaintiff, the State of California, petitioned for writ of certiorari from decision of the Court of Appeals of California, First Appellate District, which reversed trial court's denial of defendant's motion to suppress evidence of search on ground that the warrantless aerial observation of defendant's yard violated U.S. Const. amend. IV.OVERVIEW: The trial court denied defendant's motion to suppress evidence of a search, and defendant pled guilty to a charge of cultivation of marijuana. The appellate court reversed on the ground that the warrantless aerial observation which led to the issuance of a search warrant violated U.S. Const. amend. IV. On certiorari, the Court held that, although defendant's yard was within the curtilage of his home, this did not bar police observation. The Court stated that Fourth Amendment protection of the home had never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor did the mere fact that defendant had erected a 10foot fence around his yard preclude an officer's observations from a public vantage point where he had a right to be and which rendered activities clearly visible. Defendant's expectation that his yard was protected from observation was unreasonable and not an expectation that society was prepared to honor. OUTCOME: The court reversed the appellate court's judgment and found that defendant's motion to suppress was properly denied. Open Fields Doctrine: permits police officers to enter and search a field without a warrant. o Not a search, no 4th amendment protection Curtilage: the land immediately surrounding and associated with the home. o Is a search, therefore there is 4th amendment protection Dunn Factors (Curtilage)

o Proximity to home o Whether the area is within an enclosure surrounding the home o Precautions taken to protect the privacy of the area; and o The uses to which the area has been put. In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The 4th Amendment simply does not require the police travelling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye. o Anything below 400 feet is probably a search (FL v. Riley)
Bond v. US PROCEDURAL POSTURE: Petitioner challenged the judgment of the United States Court of Appeals for the Fifth Circuit convicting him of conspiracy to possess, and possession with intent to distribute, methamphetamine in violation of 21 U.S.C.S. 841(a)(1), on grounds that the court improperly affirmed the denial of his motion to suppress the drugs. OVERVIEW: Petitioner was convicted of conspiracy to possess, and possession with intent to distribute, methamphetamine in violation of 21 U.S.C.S. 841(a)(1), after the lower courts denied his motion to suppress the drugs on grounds that they were seized in an illegal search violative of U.S. Const. amend. IV. Petitioner was a passenger on a bus boarded at a permanent checkpoint by a border patrol agent who found the drugs in petitioner's carry-on luggage, stored in an overhead rack above his seat, by physical manipulation of the luggage. The court reversed the lower court's judgment, holding that the agent's manipulation of the bag was a search within the meaning of the Fourth Amendment; petitioner's personal luggage was protected by the Amendment because he had a privacy interest in it. The court held further that the search violated the Fourth Amendment because petitioner sought to preserve privacy in the luggage by using an opaque bag and placing that bag directly above his seat and because the agent's physical manipulation of the bag went beyond the handling that petitioner could reasonably have expected. OUTCOME: The judgment was reversed because petitioner's motion to suppress evidence should have been granted. The search by which the drugs were obtained was illegal because the physical manipulation of petitioner's carry-on luggage violated his reasonable expectation of privacy. Kyllo v. US PROCEDURAL POSTURE: Petitioner was indicted of manufacturing marijuana after police discovered an indoor growing operation using a thermal-imaging device from the street.

The United States Court of Appeals for the Ninth Circuit affirmed the denial of petitioner's motion to suppress. Petition for writ of certiorari was granted to determine whether the thermal-imaging was a search under U.S. Const. amend. IV.OVERVIEW: The police had aimed a thermal-imaging device at petitioner's residence after a police detective suspected that petitioner was growing marijuana. Based on the thermal-imaging information, police obtained a search warrant for the residence. The lower court held that petitioner had shown no subjective expectation of privacy as he had made no attempt to conceal the heat escaping from his home and even if he had, there was no objectively reasonable expectation of privacy because the imager did not expose any intimate details of petitioner's life. The appellate court concluded that obtaining information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, such as petitioner's private residence, constituted a search, at least where the technology was not in general public use. Since thermal imaging technology was not in general public use, such a surveillance was a search and was presumptively unreasonable without a warrant. Whether the search warrant was supported by probable cause without the surveillance evidence was for the trial court to determine in the first instance. OUTCOME: Judgment was reversed and the case was remanded. Kyllo Search Standard: Where, as here, the Government used a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.
4Th Amendment Summary so far Protects people not places Reasonable expectation of privacy (Katz) What things arent reasonable? o Voluntary disclosure to a third party who is cooperating with government (false friend) o Failure to take precautions to safeguard privacy o The public exposure of ones activities. Is it a search? o Threshold question o If not search, the inquiry ends o If there is a search, move to the next question Is the search Reasonable?

o Probable cause is one of the things that contributes to the reasonability of a search. Probable Cause Must have probable cause for both arrest and search. Probable cause to arrest exists where facts and circumstances within officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested Probable cause to search - exists where facts and circumstances within officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched.
Spinelli v. US PROCEDURAL POSTURE: Defendant was convicted of traveling across the state line from Illinois to Missouri with the intention of conducting gambling activities proscribed by Missouri law. The United States Court of Appeals for the Eighth Circuit rejected his contention that the search warrant that led to incriminating evidence against him was not supported by probable cause and affirmed his conviction. The Court granted certiorari of that decision. OVERVIEW: Defendant challenged the constitutionality of the warrant that authorized the Federal Bureau of Investigation (FBI) search, which uncovered the evidence necessary for his conviction. The warrant was granted by a magistrate judge upon an affidavit stating that the FBI had observed defendant's travels to and from an apartment and that a confidential reliable informant had informed the authorities that defendant was operating a gambling operation. On certiorari, the court found that the application for the warrant was inadequate because it failed to set forth the underlying circumstances necessary to enable the magistrate to independently judge the validity of the informant's information. Also the affiant-officers failed to support their claim that their informant was "credible" or his information "reliable." The bald assertion that defendant was "known" as a gambler was entitled to no weight in appraising the magistrate's decision and the Court rejected as imprecise the "totality of circumstances" approach embraced by the court of appeals. Thus, the affidavit fell short of providing probable cause as necessary to support the issuance of the search warrant. OUTCOME: The Court reversed the judgment from the court of appeals, which affirmed the petitioner's conviction after finding the search warrant supported by probable cause. The court remanded the case to the court of appeals for further proceedings.

Aguilar/Spinelli: Must prove both 1) Basis of Knowledge ( How does the informant actually know this?) and; 2) Veracity (Is the informant credible or reliable?) a. Look to past tips by that informant, etc. Illinois v. Gates PROCEDURAL POSTURE: Petitioner state appealed a judgment from the Illinois Supreme Court, which affirmed the decisions of lower state courts granting a motion to suppress evidence against respondents, a husband and wife, as having been obtained pursuant to a search warrant improperly issued on the basis of a confidential informant's tip in violation of the Fourth Amendment. OVERVIEW: A state supreme court ruled to suppress evidence against respondents, a husband and wife, reasoning that the search warrant was based on a confidential informant's tip that did not satisfy the purported "veracity" and "basis of knowledge" prongs for probable cause. Holding instead that probable cause was determined by a traditional totality-of-the-circumstances analysis, the Court reversed. The Court held that probable cause determinations were not susceptible to the rigid, technical methodology that had been read into Fourth Amendment jurisprudence. The Court held that the elements of an informant's veracity and knowledge should be understood simply as issues that could illuminate the commonsense inquiry of whether there was probable cause to issue a search warrant. The Court held that this approach comported with the standard of proof for a warrant, which required only the "probability," and not a prima facie showing, of criminal activity. The Court held that the informant's recitation of detailed facts, though relating to innocent activities, when corroborated by observation by police officers, afforded probable cause to believe that respondents had drugs in their possession. OUTCOME: The Court reversed the judgment that suppressed evidence against respondents, a husband and wife, because the suppression was based on an erroneous application of an overly rigid and technical standard for determining whether a confidential informant's tip established probable cause; under the proper, commonsense approach, the corroboration by police of the facts of the tip established probable cause to believe that respondents possessed drugs. Court thought standard from Aguilar was too rigid and that one rule wouldnt apply to all circumstances. Many states have turned away from this because states are free to give their citizens more protection, they just cant give them less. o Aguilar gives more freedom to the citizens Probable Cause after Gates o To have probable cause to arrest there must be a fair probability that:

That particular individual; Has committed or is committing a particular offense o To have probable cause to search there must be a fair probability tthat: Something that is properly subject to seizure by the government, ie, contraband or fruits, instrumentalities, or evidence of a crime; Is presently; In the specific place to be searched. Whren v. US PROCEDURAL POSTURE: On grant of certiorari, defendants challenged a judgment of the Court of Appeals for the District of Columbia Circuit that upheld their convictions for various federal drug law violations after holding that defendants' motion for suppression was justifiably denied by the trial court. Defendants had sought suppression of evidence that was seized following a traffic stop. OVERVIEW: Plainclothes vice-squad officers were patrolling "high drug area" in an unmarked car. An officer who had observed traffic violations approached a vehicle that was occupied by defendants. When the officer approached defendant driver's car window, he observed two large plastic bags of what appeared to be crack cocaine in defendant passenger's hands. Defendants were arrested and illegal drugs were retrieved from the vehicle. On appeal, defendants accepted that the officer had probable cause to believe the traffic code was violated, but argued that the test for traffic stops should have been whether a police officer, who acted reasonably, would have made stop for the given reason. Court disagreed because the officer's motive did not apply outside the context of inventory search or administrative inspection, and performance of balancing analysis was unnecessary where probable cause existed and a traffic stop out of uniform did not remotely qualify as an extreme practice. OUTCOME: Judgment affirmed; officer's probable cause to believe petitioners violated traffic code rendered the vehicle stop reasonable and the evidence seized admissible. Pretextual stop We dont care what the actual motivations of the officers are, as long as there is probable cause for a stop somehow. Subjective intentions play no role. Under the 4th Amendment racial profiling is not a problem. (However, we could turn around and sue for Equal Protection)
Wrapping up Probable Cause Judged from an objective standpoint (pretext is okay) Is now looked at under a totality of the circumstances (Gates)

Review: o Threshold question o Was it a search? Reasonable expectation of privacy Kylo o Is the search reasonable Probable Cause Gates To have probable cause to search there must be a fair probability that: o Something that is properly subject to seizure by the government, ie, contraband or fruits, instrumentalities, or evidence of a crime, o Is presently o In the specific place to be searched
Warrants Johnson v. US PROCEDURAL POSTURE: Defendant sought a writ of certiorari to review a judgment of the United States Court of Appeals for the Ninth Circuit, which affirmed her conviction on four counts of violating federal narcotics laws, including I.R.C. 2553(a) and the Narcotic Drugs Import and Export Act, 21 U.S.C.S. 174. OVERVIEW: Police received information from a confidential informer that unknown persons were smoking opium in a hotel. The police went to the hotel with federal narcotics agents, and they all recognized the strong odor of burning opium, which led them to defendant's room. The officers knocked on the door, talked to defendant, and asked her about the opium smell, which defendant denied noticing. The officers arrested her and searched the room, turning up incriminating opium and smoking apparatus. The evidence was admitted at trial over defendant's objection, she was convicted, and her conviction was affirmed on direct appeal. On defendant's petition for certiorari review, the United States Supreme Court reversed the convictions for violating I.R.C. 2553(a) and the Narcotic Drugs Import and Export Act, 21 U.S.C.S. 174. The Court held that the warrantless arrest and search violated the Fourth Amendment, even though officers may have had probable cause to obtain a search warrant. The Court found no exigent circumstances. Nor was the inconvenience and slight delay in preparing papers and presenting the evidence to a magistrate a sufficient basis to justify bypassing the warrant requirement. OUTCOME: The Court granted the petition and reversed, holding that the warrantless arrest and search violated the Fourth Amendment even though the officers may have had probable cause to obtain a warrant. Common Law Constructs:

4th Amendment doesnt require a neutral magistrate but its read in to the law. Search is conducted outside the legal process without a warrant
US v. Watson PROCEDURAL POSTURE: The government sought review of a judgment from the United States Court of Appeals for the Ninth Circuit, which reversed defendant's conviction for possession of stolen mail in violation of 18 U.S.C.S. 1708.OVERVIEW: Defendant's conviction for possession of stolen mail, 18 U.S.C.S. 1708, was reversed when the appellate court determined that the warrantless arrest of defendant violated his Fourth Amendment rights and that the post-arrest search of defendant's car was coerced. On certiorari, the United States Supreme Court reversed. The Court first ruled that defendant's arrest did not violate the Fourth Amendment because (1) it was based upon probable cause, as the government acted upon information from a reliable informant that defendant possessed stolen cards; and (2) the arrest was made pursuant to 18 U.S.C.S. 3061(a)(3) and 39 C.F.R. 232.5(a)(3), which authorized the government to make warrantless felony arrests upon reasonable grounds. Therefore, the Court ruled the post-arrest search of defendant's car to which defendant consented to, and which yielded the credit cards upon which his conviction was based, had not been the product of an illegal arrest. That defendant was not informed of his right to refuse consent to the search did not render the search invalid. OUTCOME: The Court reversed the judgment of the court of appeals. Atwater v. City of Lago Vista PROCEDURAL POSTURE: Petitioners sued respondents under 42 U.S.C.S. 1983, alleging that respondent officer violated petitioner arrestee's Fourth Amendment rights by arresting her for a seatbelt violation without a warrant. The United States Court of Appeals for the Fifth Circuit affirmed a grant of summary judgment in favor of respondents. Petitioners filed a petition for writ of certiorari to the appellate court, which was granted. OVERVIEW: Respondent officer arrested petitioner arrestee for seatbelt violations and placed her in jail until she was released on bond. Petitioners sued respondents, alleging a Fourth Amendment violation. Respondents were granted summary judgment. On certiorari review, the court affirmed the judgment in favor of respondents. The court determined that the Fourth Amendment does not limit police officers' authority to arrest without warrant for minor criminal offenses. Respondent officer had probable cause to believe that petitioner arrestee had committed a crime in his presence; therefore, respondent officer was authorized to make a custodial arrest without balancing costs and benefits or determining whether or not the arrest was in some sense necessary. The court rejected petitioners' argument that peace officers' authority to make warrantless arrests for

misdemeanors was restricted at common law to instances of breach of the peace. The court also rejected petitioners' argument for a modern arrest rule. OUTCOME: Summary judgment in favor of respondents was affirmed because the Fourth Amendment did not limit respondent officer's authority to arrest petitioner arrestee without a warrant. A misdemeanor must be committed in the officers presence in order for a warrantless arrest. Felony Arrest in Public dont need a warrant Felony Arrest in private(home) need warrant
US v. Grubbs PROCEDURAL POSTURE: Defendant pled guilty to one count of receiving a visual depiction of a minor engaged in sexually explicit conduct, 18 U.S.C.S. 2252(a)(2), but appealed the denial of his motion to suppress the evidence seized during the search of his residence. The United States Court of Appeals for the Ninth Circuit ruled that the search was illegal since a triggering condition was not listed in the warrant. Certiorari was granted. OVERVIEW: Defendant purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Postal inspection officers arranged a controlled delivery of a package containing the videotape to defendant's residence. A postal inspector submitted a search warrant application to a magistrate judge accompanied by an affidavit describing the proposed operation in detail. The magistrate judge issued the warrant on the basis of an affidavit explaining that the warrant would be executed only after the controlled delivery, but that triggering condition was not listed in the warrant. The Court held that anticipatory warrants were lawful and that the occurrence of the triggering condition plainly established probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied since although it was possible that the defendant could have refused delivery of the videotape he had ordered, that was unlikely. OUTCOME: The judgment of the Court of Appeals for the Ninth Circuit was reversed, and the case was remanded for further proceedings. Triggering Event We need probable cause when we actually sign the warrant, not when we seek it.
Anticipatory Warrants O.K. if: There is a fair probability that items will be in the place to be searched after the triggering condition occurs; AND There is a fair probability that the triggering condition will occur.

Franks Hearing A warrant is not constitutional IF: o A Defendant shows by preponderance of the evidence that a falsehood was included knowingly and intentionally, or with reckless disregard for the truth, and o The PC showing is deficient w/o the falsehood.
Andresen v. Maryland PROCEDURAL POSTURE: Certiorari was granted to review from a judgment of the Court of Special Appeals of Maryland, which held that search warrants were supported by probable cause and did not authorize a general search in violation of U.S. Const. amend. IV, and that the search had not violated petitioner's U.S. Const. amend. V rights because petitioner was not compelled to do anything. OVERVIEW: The introduction of petitioner's business records into evidence was not a violation of his U.S. Const. amend. V, selfincrimination privilege. Petitioner, as the closing attorney, was convicted of false pretenses for defrauding a purchaser of property. Investigators obtained a search warrant to search petitioner's offices for evidence of the crime. Petitioner argued that the admission of his business records, which contained statements made by petitioner, compelled petitioner to testify against himself in violation of U.S. Const. amend. V. The court disagreed, holding that petitioner was not asked to say or to do anything. Thus, the introduction into evidence of petitioner's business records seized during an otherwise lawful search did not offend or undermine any of the policies undergirding the privilege. The court also rejected petitioner's argument that the searches were unreasonable because they were based on general warrants. The warrants referred only to the crime of false pretenses and were sufficiently specific. OUTCOME: The court affirmed the judgment. Warrant Requirements: Supported by Probable Cause Signed by a detached and neutral magistrate Supported by oath or affirmation Particularly describes the place to be searched
Wilson v. Arkansas PROCEDURAL POSTURE: Defendant appealed a judgment of the Supreme Court of Arkansas that affirmed her conviction for delivery and possession of drugs, finding no authority for the theory that U.S. Const. amend. IV required police officers to knock and announce themselves before entering a residence when executing a search warrant.

OVERVIEW: Defendant was convicted of delivery and possession of drugs after police officers, in executing a search warrant, entered through an unlocked screen door without first knocking or announcing their presence. The trial court denied defendant's motion to suppress the evidence seized during the search. The state supreme court affirmed defendant's conviction on appeal, finding no authority for the theory that the Fourth Amendment required police officers to knock and announce themselves before entering a residence when executing a search warrant. The United States Supreme Court reversed, holding that the common-law knock and announce principle formed a part of the Fourth Amendment reasonableness inquiry and a search or seizure of a dwelling might be constitutionally defective if police officers entered without prior announcement, and remanded the case to determine whether the unannounced entry was reasonable under the circumstances. OUTCOME: The court reversed the judgment and remanded for further proceedings. Knock and Announce Officers SHOULD: o Give notice of presence and authority o Not enter until they give a reasonable amount of time UNLESS o Officers can establish a reasonable suspicion that announcement would be dangerous or futile or would inhibit the effective investigation of crime.
Steps to 4th Amendment Analysis Was there a Search? Was the search Reasonable? o Was there Probable Cause? o Was there a Valid Warrant? o No Warrant, was there a Valid Exception?
Chimel v. California PROCEDURAL POSTURE: Petitioner appealed from a judgment of the Supreme Court of California, affirming judgments from the lower court convicting him of burglary. OVERVIEW: Police came to petitioner's home with an arrest warrant to arrest him for an alleged burglary. When petitioner returned from work, police arrested him. Police then asked for permission to "look around." Even though petitioner objected, the officers conducted a search. They looked through the entire house and had petitioner's wife open drawers and physically remove contents of the drawers so they could view items. Police

seized a number of coins and medals, among other things, that respondent State later used to convict petitioner of burglary. Reversing the appeals court's affirmance of conviction, the court held that the search was "unreasonable." It found that there was no justification for searching any room other than that in which the arrest occurred. Even searching through desk drawers or other closed or concealed areas of the room where the arrest occurred was not appropriate. Extending the search to the entire house was not proper, and the court overturned the conviction. OUTCOME: The court reversed the judgment. SILA = Search (of person) Incident to a Lawful Arrest Two Justifications for SILA: Weapons o To remove any weapons the defendant might seek to use to resist arrest or affect his escape. Evidence o To search and seize any evidence on the defendants person in order to prevent its concealment or destruction.
**** SILA justifies a search of the areas from within which an arrestee might realistically gain possession of a weapon or destructible evidence his person and the area within his immediate control. US v. Robinson PROCEDURAL POSTURE: The United States sought review of the judgment from the United States Court of Appeals for the District of Columbia, which reversed defendant's conviction for possession and facilitation of concealment of heroin in violation of 26 U.S.C.S. 4704(a), and held that a search of defendant's person violated U.S. Const. amend. IV. OVERVIEW: Defendant was pulled over by a police officer. The officer had probable cause to arrest defendant for driving after his license had been revoked. The officer then searched defendant and felt an object under defendant's coat. The officer reached into the coat and pulled out a cigarette package. The officer felt there was something in the package that was not cigarettes. The officer opened the package and found what was later determined to be heroin. The Court reversed the appellate court's decision and found the search permissible under U.S. Const. amend. IV. A search incident to a lawful arrest was clearly authorized. The appellate court's decision was incorrect in that it concluded that even with probable cause for an arrest, an officer was only allowed to conduct a protective frisk for weapons. When an officer had probable cause for an arrest, as the officer in the present case did, a more

extensive exploration of the suspect's person was authorized. This was to protect the officer, but also to preserve evidence. The fact that defendant was to be arrested for a driving offense did not lessen the officer's right to search defendant. OUTCOME: The Court reversed the appellate court's decision, finding a police officer was clearly authorized to reach into defendant's coat as part of his search because the officer had probable cause to arrest defendant. Once probable cause to arrest defendant was established, a full search incident to that arrest was authorized in order to protect the officer's safety and to preserve evidence. An officer who chooses to make a full custodial arrest of a suspect for any offense currently has the authority to search every part of the person and every belonging found during that search.
New York v. Belton PROCEDURAL POSTURE: The state sought review of a decision of the Court of Appeals of New York that reversed a judgment of the Appellate Division of the New York Supreme Court, which upheld the constitutionality of a warrantless search of the passenger compartment of an automobile incident to a custodial arrest of defendant, an occupant thereof. OVERVIEW: Defendant was a passenger in an automobile that sped by a police officer at a fast rate. Upon stopping the car, the officer smelled marihuana smoke and saw an envelope on the car's floor that was marked with a name for marihuana. He therefore required the occupants to get out of the vehicle and proceeded to search them. He opened the envelope and found that it contained marihuana. He also searched defendant's jacket in the vehicle and found cocaine. In defendant's subsequent drug prosecution, the trial court denied his motion to suppress the items seized in the search of the vehicle. However, the final state appellate court reversed, holding that the search of the jacket was not incident to defendant's arrest. The state was granted certiorari, and the Court reversed the decision of the state court, holding that the items seized in the warrantless search of the vehicle's passenger compartment, incident to defendant's lawful custodial arrest, were justifiably seized because of the exigencies of the situation. Thus, the search did not violate the safeguards of U.S. Const. amend. IV and U.S. Const. amend. XIV. OUTCOME: The Court reversed the judgment of the lower state court and held that items seized in the warrantless search of a passenger compartment of a vehicle, incident to a lawful custodial arrest, were lawfully seized during the exigencies of the situation and such seizure did not violate the safeguards of the Fourth and Fourteenth Amendments of the constitution. Arizona v. Gant

PROCEDURAL POSTURE: A trial court denied respondent's motion to suppress evidence seized from his car. Respondent was convicted of possession of a narcotic drug for sale and possession of drug paraphernalia. The Arizona Supreme Court reversed, finding that the search of respondent's car was unreasonable under the Fourth Amendment based on the search-incident-to-arrest exception. Petitioner State of Arizona petitioned for certiorari, which was granted. OVERVIEW: After respondent was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. The Court determined that the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement did not justify the search because (1) police could not reasonably have believed that respondent could have accessed his car at the time of the search since the five officers outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched respondent's car, and (2) police could not reasonably have believed that evidence of the offense for which respondent was arrested might have been found in the car since he was arrested for driving with a suspended license, an offense for which police could not expect to find evidence in the passenger compartment of his car. Also, the doctrine of stare decisis did not require adherence to a broad reading of Belton; the safety and evidentiary interests that supported the search in Belton simply were not present in the instant case. OUTCOME: The Court affirmed the judgment of the state supreme court. 5-4 decision; 1 concurrence; 2 dissents. Gant Rule SILA when in a vehicle Police may search a vehicle incident to a recent occupants arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Payton v. New York PROCEDURAL POSTURE: Defendants sought review of an order from the Court of Appeals of New York, which held that N.Y. Penal Law 140.15(4), 120.80, authorized police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest. Defendants contended that the statutes violated the constitutional prohibition against illegal searches and seizures. OVERVIEW: Two cases on appeal challenged the constitutionality of N.Y. Penal Law 140.15(4), 120.80. In the first case, police officers established probable cause against defendant in a murder case, and went to defendant's apartment to arrest him. Police officers entered without a warrant and found incriminating evidence in plain view that was admitted at defendant's trial. In the second case, police officers entered defendant's house to arrest him without a search warrant and found narcotics in the dresser. On appeal, the United States Supreme Court reversed and

remanded the cases for further proceedings because the Fourth and Fourteenth Amendments prohibited the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The Court held that to be arrested in the home involved not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which was too substantial, absent exigent circumstances, even when it was accomplished under statutory authority and when probable cause was present. OUTCOME: The Court reversed and remanded the cases for further proceedings because the Fourth and Fourteenth Amendments prohibited the police from making warrantless and nonconsensual entry into suspects' homes in order to make routine felony arrests. A search warrant is not required to arrest a person in their own home. Need an arrest warrant. You must have a search warrant to arrest in a 3rd partys home.
Payton Exception: ABSENT EXTINGENT CIRCUMSTANCES---An arrestee is entitled to the protection of an arrest warrant AND reason to believe (PC) that the arrestee is within. HOWEVER: For an entry into a home to arrest someone for a felony, an innocent third party resident is entitled to the protection of a search warrant (Steagald)
Steagald v. US PROCEDURAL POSTURE: Petitioner sought review of a judgment of the United States Court of Appeals for the Fifth Circuit, which affirmed the denial of petitioner's suppression motion and held that petitioner's U.S. Const. amend. IV rights were not violated when law enforcement officers searched for the subject of an arrest warrant in petitioner's home without first obtaining a search warrant. OVERVIEW: Based on information received from a confidential informant, Drug Enforcement Administration agents entered petitioner's home with an arrest warrant in an attempt to locate a federal fugitive. The agents did not have a search warrant. The fugitive was not found in the house, but the agents did observe cocaine while in the house. After obtaining a search warrant, the agents uncovered additional incriminating evidence. Petitioner was arrested and indicted on federal drug charges. The court reversed the judgment of the appellate court, which affirmed the denial of petitioner's suppression motion. The court concluded the arrest warrant was not adequate to protect the U.S. Const. amend. IV interests of petitioner, who was not named in the warrant and whose home was searched without his consent, and in the absence of

exigent circumstances. While the arrest warrant protected the fugitive from an unreasonable seizure, it did nothing to protect petitioner's privacy interest in being free from an unreasonable invasion and search of his home. OUTCOME: The court reversed the judgment that affirmed the denial of petitioner's suppression motion where petitioner's U.S. Const. amend. IV rights were violated when drug enforcement officers, in the absence of consent and exigent circumstances, entered petitioner's home and searched for the subject of an arrest warrant without first obtaining a search warrant.
Reasonable Searches without Warrants: The Nature and Scope of the Exception to the Warrant Requirement Exigent circumstances and Vehicle and Container Searches Warden, Maryland Penitentiary v. Hayden PROCEDURAL POSTURE: Petitioner warden sought review of an order from the United States Court of Appeals for the Fourth Circuit granting habeas corpus relief to respondent inmate after the inmate was convicted of armed robbery. OVERVIEW: The inmate was convicted of armed robbery. Items of his clothing, including a cap, jacket, and trousers, were seized during a search of his home and were admitted into evidence without objection. After unsuccessful state court proceedings, the lower court granted habeas corpus relief to the inmate, finding that the clothing was improperly admitted into evidence because the items had evidential value only and were not subject to seizure. On appeal by the warden, the Supreme Court found that neither the entry of the inmate's home nor the search for him without a warrant was invalid. Under the circumstances of the case, the exigencies of the situation made that course imperative. The Court further found that the seizure of clothing occurred prior to or immediately contemporaneous with the inmate's arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. Finally, the Court found that the seized clothing matched the description of those worn by the robber and the police could have reasonably believed that the items would aid in the identification of the culprit. OUTCOME: The Court reversed the order granting habeas corpus relief to the inmate. Exigent Circumstances Probable Cause Exigency some examples 3 Types: o Hot Pursuit

o Public Safety to prevent harm to others o Preserve Evidence Does not have to be a life threatening injury just has to be some kind of emergency assistance/emergency aid Factors to look at for exigency o The likelihood that a government interest will be frustrated; and o The nature and importance of that interest Scope o Broad as necessary to prevent suspect from resisting or escaping
Vale v. Louisiana PROCEDURAL POSTURE: Defendant sought review from a judgment of the Supreme Court of Louisiana, which affirmed his conviction for possession of heroin and rejected his claim that evidence introduced at trial was the product of an unlawful search and seizure. OVERVIEW: Police officers, who had warrants for defendant's arrest, observed defendant engaged in what the officers believed was a narcotics sale. The officers arrested defendant on the street outside of his dwelling, searched defendant's dwelling, and recovered additional narcotics. Defendant was convicted in state court of possessing heroin and was sentenced as multiple offender to 15 years' imprisonment at hard labor. The state supreme court affirmed his conviction and rejected defendant's claim that evidence introduced at trial was the product of an unlawful search and seizure. Defendant appealed. The Court dismissed the appeal but treated defendant's papers as a petition for certiorari. In granting the petition and reversing defendant's conviction, the Court declined to hold that an arrest on the street outside of defendant's dwelling justified a warrantless search of defendant's dwelling as providing its own "exigent circumstance" so as to justify a warrantless search of defendant's house. The Court concluded that the Louisiana courts committed constitutional error in admitting into evidence the fruits of the illegal search. OUTCOME: The court reversed the judgment and remanded the case for further proceedings. Chambers v. Maroney PROCEDURAL POSTURE: Petitioner, convicted of robbery, sought review of a ruling from the United States Court of Appeals for the Third Circuit, which affirmed the denial of his petition for writ of habeas corpus. The principal issue addressed on appeal was the admissibility of evidence seized from a car, in which petitioner was riding at the time of his arrest, after the car was taken to a police station and was there thoroughly searched without a warrant. OVERVIEW: Based on descriptions by a robbery victim and witnesses, police stopped a car in which petitioner was riding. He and the other occupants were arrested and charged with armed robbery. The car was taken to the police station, where

officers conducted a warrantless search producing guns and stolen property. This evidence was admitted at trial, and petitioner was convicted for robbery. After unsuccessful habeas proceedings in state court, petitioner sought a writ of habeas corpus in district court. His petition was denied without a hearing, and the court of appeals affirmed. On certiorari, the court affirmed, holding that the warrantless search of the car at the police station did not constitute a violation of petitioner's rights under U.S. Const. amend. IV. The court reasoned that the police had probable cause to arrest the car's occupants for robbery and to search the car for the fruits of the crime; that an immediate warrantless search of the car at the time and place of arrest would have been constitutionally permissible; that the probablecause factor still obtained at the police station; and that it was reasonable for police to take the car there before making the search. OUTCOME: The court affirmed the denial of petitioner's request for writ of habeas corpus, holding, inter alia, that the warrantless station search of the car in which petitioner was riding at the time of arrest did not violate petitioner's Fourth Amendment rights. Vehicle and Containers under Carroll A warrantless search of a vehicle is permissible if: Probable Cause Vehicle being used on the highways
Some Additions Coolidge o Exception doesnt apply to cars parked in private places o Dicta You can ALWAYS take car to station to search Johns o Cant indefinitely delay search though no set time o 3 days was ok White o Turns Dicta into law so you CAN always take car to station to search
Texas v. White PROCEDURAL POSTURE: Petitioner prosecution filed an application for a writ of certiorari to the Court of Criminal Appeals of Texas, which reversed respondent's conviction of knowingly attempting to pass a forged instrument. The appellate court found that certain checks were illegally obtained without a warrant and were improperly admitted into evidence against respondent. OVERVIEW: Police officers received a tip that a man who matched respondent's description and driving a car like respondent's car had

attempted to negotiated four checks on a nonexistent bank account. A bank teller gave the police officers other checks respondent had attempted to negotiate. While parking his car as directed by the police officers, respondent was seen stuffing something between the car seats. After respondent was arrested, taken to the police station, and questioned, respondent's car was searched. The first four checks which respondent had attempted to negotiate were discovered. The trial court admitted the four checks seized from respondent's car into evidence. The appellate court reversed respondent's conviction based on a finding that the four checks were improperly seized from the car. The court reversed the appellate court's decision. The court held that because the police officers had probable cause to search respondent's car when respondent was arrested, the police officers could constitutionally search the car later, at the police station, without first obtaining a warrant. OUTCOME: The application for certiorari was granted. The order reversing respondent's conviction was reversed and the case was remanded for further proceedings. California v. Carney PROCEDURAL POSTURE: The State challenged a ruling of the Supreme Court of California that a warrantless search of defendant's motor home was unreasonable because the vehicle exception to the warrant requirement did not apply as expectations of privacy in a motor home were more like those for a home than an automobile. OVERVIEW: After receiving information that the exchange of marijuana for sex was taking place at defendant's motor home, which was parked on a public lot, law enforcement officials observed defendant and a youth enter the mobile home. The youth later stated that he received marijuana in exchange for sexual contacts with defendant. Without a warrant or consent, one agent entered the motor home and observed marijuana. Defendant was convicted for possession of marijuana for sale. Ultimately, the state supreme court reversed, holding that the warrantless search of the motor home was unreasonable as the vehicle exception to the warrant requirement did not apply. On certiorari, the United States Supreme Court reversed, holding that defendant's motor home clearly fell within the vehicle exception to the warrant requirement because it was readily mobile and was situated in a way or place that objectively indicated that it was being used as a vehicle. OUTCOME: The Court reversed the judgment and remanded for further proceedings, holding that while defendant's motor home possessed some attributes of a home, it clearly fell within the vehicle exception to the warrant requirement because it was readily mobile and was situated in a way or place that objectively indicated that it was being used as a vehicle. Vehicle Exception under Carney A warrantless search of a vehicle is permissible if:

o Probable cause o Vehicle stopped on public roads OR o Is readily capable of such use and is found stationary in a place not regularly used for residential purposes-temporary or otherwise. Scope: Officer may search anywhere probable cause justifies, and may transport to the station or perform the search there. o Truck is fair game as long as there is probable cause to search there (Under SILA, its out. Here its in)
US v. Chadwick PROCEDURAL POSTURE: The United States sought review of the order from the United States Court of Appeals for the First Circuit, which affirmed the suppression of marijuana seized from defendants. OVERVIEW: After arresting defendants, agents opened and searched defendants' locked foot locker without a warrant and seized marijuana from the locker. After several appeals, the appellate court affirmed the suppression of the seized marijuana holding that probable cause was not sufficient to sustain a warrantless search. On review, the Court held that by placing personal effects inside a double-locked footlocker, defendants manifested an expectation that the contents would have remained free from public examination. The Court held that the expectation of privacy was no less than one who locked the doors of his home to intruders and that defendants were due the protection of U.S. Const. amend. IV's Warrant Clause. The Court held that there being no exigency it was unreasonable for the government to have conducted a search without the safeguards a judicial warrant provided. The Court held that the search was too remote to have been considered incident to arrest. The Court affirmed the order from the appellate court. OUTCOME: The Court affirmed the order from the appellate court that affirmed the suppression of marijuana seized from defendants. Container Searches Chadwick o Tells us - - Warrants are required for containers
Container Searches in Vehicles US v. Ross o If a police officer had probable cause to believe there was contraband or evidence of a crime somewhere in a vehicle, he could search every part of the vehicle, including containers within that could hold the object of the search.

o In contrast, if the officer had probable cause to believe evidence of a crime would be found in a container in the car and nowhere else in the car, then the officer had to get a warrant in order to search that container.
o o If you have PC to search the car and you find a bag, you can search it. If you have PC to search a container, once you find the container, you must stop searching the car.
California v. Acevedo PROCEDURAL POSTURE: Defendant pled guilty to possessing marijuana for sale, but appealed the denial of his motion to suppress marijuana found in a paper bag in a car's trunk. The Court of Appeal of California, Fourth Appellate District concluded that the marijuana should have been suppressed. The State was granted certiorari. OVERVIEW: Defendant placed a bag in the trunk of a car. Police officers stopped him, opened the trunk, and found marijuana. The Court held that the Fourth Amendment did not require the police to obtain a warrant to open the sack in a movable vehicle simply because they lacked probable cause to search the entire car. The same probable cause to believe that a container held drugs allowed the police to arrest the person transporting the container and search it. The police had probable cause to believe that the paper bag in the car's trunk contained marijuana and probable cause allowed a warrantless search of the paper bag. The Fourth Amendment did not compel separate treatment for an automobile search that extended only to a container within the vehicle. The police could search containers found in an automobile without a warrant if their search was supported by probable cause. OUTCOME: The judgment concluding that marijuana found in a paper bag in the trunk of a car should have been suppressed was reversed, and the case was remanded for further proceedings consistent with the Court's opinion. Acevedo The Law as of Today The Automobile Exception If police have probable cause to believe that evidence of a crime is somewhere inside a vehicle, they can search anywhere within the vehicle that might contain the object of the search, including any and all containers in the vehicle that could hold the object of the search. If you have probable cause, you can search anything in the car including possessions. NOTE: Just because you leave a known drug dealers house, it is not enough for probable cause.

Reasonable Search without a Warrant - Inventory Searches (Exception) South Dakota v. Opperman PROCEDURAL POSTURE: State sought review of the judgment from the Supreme Court of South Dakota, which held that local police violated U.S. Const. amend. IV, as applicable to the states under U.S. Const. amend. XIV, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances. The issue on appeal was whether the search and seizure was unreasonable pursuant to U.S. Const. amend. IV. OVERVIEW: State appealed the judgment that held that local police violated U.S. Const. amend. IV when they conducted a routine inventory search of an automobile lawfully impounded by police, contending that the search and seizure was not unreasonable. On appeal, the judgment was reversed and remanded on the basis that the police were indisputably engaged in a caretaking search and such was not unreasonable. The court reasoned that the owner, having left his car illegally parked for an extended period and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. Further, the inventory itself was prompted by the presence in plain view of a number of valuables inside the car. The court held that there was no suggestion whatever that the standard procedure was a pretext concealing an investigatory police motive. The court concluded that in following standard police procedures the conduct of the police was not unreasonable under U.S. Const. amend. IV. OUTCOME: The judgment that held that local police violated the constitution when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances was reversed because the conduct of the police was not unreasonable. The court reasoned that the police were indisputably engaged in a caretaking search of a lawfully impounded automobile. Government Interests Involved in an Inventory Search: To protect the police and the public from dangerous instrumentalities that might be hidden in the car, To protect the police against claims of lost or stolen property, and To protect the owners property while it is in police custody.
All of these interests are NOT available all the time. Must have one Showing Needed for Inventory of a Car Car must be impounded, AND Impoundment must be lawful

o To be lawful, must have adequate justification such as serving interest in traffic flow, public safety, and public convenience. Scope? o Search should be confined to areas where vandals would have ready and unobstructed access.
Illinois v. Lafayette PROCEDURAL POSTURE: On certiorari, the State challenged a judgment from the Appellate Court of Illinois, Third District, which affirmed a trial court's decision granting defendant's motion to suppress narcotics that were found in his shoulder bag during a post-arrest, warrantless search at a police station. OVERVIEW: Defendant was arrested for disturbing the peace. When he arrived at the police station, he removed cigarettes from the shoulder bag he was carrying and then placed it on the counter in the station. As part of a routine booking procedure, an officer emptied and inventoried the contents of the bag. Narcotics were found in the bag and defendant was subsequently charged with violating the state's controlled substances statute. On defendant's motion, the state trial court suppressed the drugs and that judgment was affirmed on appeal. On certiorari, a majority of the Court held that the search was not invalid under the Fourth Amendment. Specifically, the Court held that because the search was conducted as a part of a routine administrative procedure that was incident to defendant's arrest and incarceration, the search was not unreasonable. In such circumstances, the police could search any container in defendant's possession. The Court reasoned that such a search was supported by the State's interest in safeguarding defendant and his property as well avoiding possible claims of theft by the police. OUTCOME: The Court reversed and remanded the judgment below. The warrantless search of defendant's shoulder bag, which was conducted pursuant to standard booking procedures as an inventory of defendant's belongings, was not unreasonable under the Fourth Amendment. The narcotics found in the bag were thus improperly suppressed. Inventory of a Person A Lawful Arrest Prospective Incarceration; and Standard Inventory Procedures Scope o The arrestee and all his belongings
SILA v. Inventory Searches SILA INVENTORY

Time and Place Who can be searched? Procedures Scope Must be contemporaneous Any Arrestee No Standard Procedures Area of immediate control (no strip search, no trunk) Can only search immediate wingspan No Problem Only if within the wingspan/area of immediate control Must be at Station Only those who are going to be incarcerated Must have standard procedures Cant look like investigation Only Person (strip search and trunk ok) Can search anywhere in car thief can get to. Only if other legitimate reasons too Yes
Pretext Containers Pretext = Wren
Reasonable Searches without Warrants: Consent (Exception) Colorado v. Bertine PROCEDURAL POSTURE: Defendant filed a motion to suppress the evidence found during an inventory search of the closed backpack and containers in his impounded vehicle after he was arrested, which he alleged exceeded the permissible scope of such search under the Fourth Amendment. The district court granted the motion based on the Colorado Constitution. On the State's interlocutory appeal, the Supreme Court of Colorado affirmed. The State petitioned for certiorari. OVERVIEW: The state court held that searches of closed trunks and suitcases violated the Fourth Amendment. The United States Supreme Court reversed. There was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. The police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Reasonable police regulations relating to inventory procedures administered in good faith satisfied the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure. The trial court found that the police department's procedures mandated the opening of closed containers and the listing of their contents. The discretion afforded the police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. There was no showing that the police chose to impound defendant's van in order to investigate suspected criminal activity. OUTCOME: The Court reversed the suppression of evidence.

Search must be in good faith and pursuant to the standard operating procedure. Can you inventory closed containers? Again, it depends on the SOPs. Florida v. Wells says that officers have the latitude to make rules and use discretion. Inventory policy must mandate either all or no containers must be opened. However, if the officers are unable to determine what is inside the container from examining the outside, they have the discretion to open it.
Schneckloth v. Bustamonte PROCEDURAL POSTURE: Petitioner sought certiorari to review a decision of the United States Court of Appeals for the Ninth Circuit, which vacated an order that denied a writ of habeas corpus to respondent and that remanded the case for further proceedings. The court of appeals held that consent to a search could not be found solely from the absence of coercion and a verbal expression of assent. OVERVIEW: Respondent was brought to trial on a charge of possessing a check with intent to defraud. Respondent moved to suppress the introduction of certain material as evidence against him on the ground that the material had been acquired through a warrantless search and seizure that were unconstitutional. The court of appeals vacated an order that denied the petition for habeas corpus relief on grounds that there was insufficient proof that respondent knew that he had a right to refuse to give his consent to the search. The Court disagreed that proof of knowledge of the right to refuse consent was a necessary prerequisite to demonstrating "voluntary" consent. Rather, the Court held that individual consent could only be ascertained by analyzing all of the circumstances. The traditional definition of voluntariness, which the Court adhered to, did not require proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search. OUTCOME: The Court reversed the decision of the court below, reinstating the affirmation of respondent's conviction and the denial of a writ of habeas corpus to respondent, on the grounds that the determination of voluntariness did not require proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search. Consent must be: Voluntary o Must be the product of a free and deliberate choice rather than intimidation, coercion or deception. (Court says they dont have to be told that they can consent) Obtained by someone with Common Authority Scope? o Cannot exceed consent granted EX: If you give the ok to have your passenger side for your car searched, they cant search the trunk.

U.S. v. Matlock PROCEDURAL POSTURE: In connection with defendant's trial for bank robbery, the government challenged a judgment from the United States Court of Appeals for the Seventh Circuit, which affirmed the district court's judgment that the government had not satisfactorily proved a third party's actual authority to consent to a search. OVERVIEW: The question before the Court was whether the evidence presented by the government with respect to the voluntary consent of a third party to search defendant's living quarters was legally sufficient to render the seized materials admissible in evidence at defendant's criminal trial for bank robbery. The Court reversed the judgment, finding that the government had proven the third party's actual authority to consent to the search. The Court noted that defendant's own out-of-court admissions would have surmounted all objections based on the hearsay rule both at the suppression hearings and at the trial itself, and would have been admissible for whatever inferences the trial judge could have reasonably drawn regarding joint occupancy of the east bedroom. The Court also noted that, under the circumstances, there was no apparent reason for the trial judge to distrust the evidence and to exclude the third party's declarations from his own consideration. Finally, the Court noted that because the third party was a witness for defendant at the suppression hearing, she was available for cross-examination. Thus, the risk of prejudice, if any, from the use of hearsay was reduced. OUTCOME: The judgment of the lower court upholding a judgment in favor of defendant was reversed and remanded for reconsideration. Georgia v. Randolph PROCEDURAL POSTURE: Defendant's motion to suppress evidence of his cocaine use that was seized as a result of a warrantless search to which he explicitly did not consent, but to which his wife did consent, was initially denied, but the Supreme Court of Georgia sustained a reversal of the denial. Certiorari was granted on whether one occupant may give effective consent to search shared premises against a co-tenant who is present and refuses the search. OVERVIEW: Police were called to a home for a domestic dispute. Defendant's wife told the police officers that defendant was a cocaine user and that there was evidence of such in the house. When asked for permission to search the house, defendant unequivocally refused. His wife, however, readily gave consent to search and led an officer to defendant's bedroom where a section of a drinking straw with a powdery residue was found. Further evidence of drug use was seized after obtaining a search warrant. Defendant was indicted for possession of cocaine. The Court held that since the wife had no recognized authority in law or social practice to prevail over her husband, her disputed invitation, without more, gave police no better claim to reasonableness in

entering than they would have had in the absence of any consent at all. The Court noted that disputed permission was no match for the central value of the Fourth Amendment, and the State's other countervailing claims did not add up to outweigh it. For example, police might lawfully enter over an objection in order to provide any protection that might be reasonable. OUTCOME: The judgment of the Supreme Court of Georgia was affirmed. Third Party Consent? Third parties can give consent o UNLESS there is a physically present objecting tenant OR o Officers have removed a potentially objecting tenant, for the sake of avoiding a possible objection.
Illinois v. Rodriguez PROCEDURAL POSTURE: Defendant was charged with possession of a controlled substance with intent to deliver. Defendant's motion to suppress evidence seized at the time of his arrest was granted by the state trial court. The Appellate Court of Illinois affirmed the trial court's decision. The Illinois Supreme Court denied the State's petition for leave to appeal. The State sought review, and the Court granted certiorari. OVERVIEW: The State argued that defendant's former roommate still retained control over defendant's apartment and, therefore, had common authority over the premises to consent to the police search. The State also argued that even if the roommate lacked control or authority, the search and seizure was still proper under the Fourth Amendment because the police reasonably believed that she had authority to consent. Defendant asserted that permitting a reasonable belief of common authority would cause his Fourth Amendment rights to be "vicariously waived." The Court held that "common authority" rested on mutual use of the property and that there was sufficient proof in the record that the State failed to satisfy its burden that defendant's former roommate had joint access or control over the apartment. The officers' reasonable belief that the roommate had common authority over the apartment could have validated the search, but the lower courts failed to render a decision on the issue. OUTCOME: The judgment was reversed and the case remanded for further determination whether the police officers possessed a reasonable belief that defendant's former roommate had common authority over the apartment. Apparent Authority When the surrounding circumstances would lead a reasonable person to believe that the person possesses actual authority.
Consent must be:

Voluntary Obtained by someone with common real or apparent authority (can be 3rd party) Scope cannot exceed consent granted. - Kids probably dont have authority to consent - Even if you dont have real authority (on the mortgage), a 25 yr old would have apparent authority and could consent. Plain View Doctrine Exception to seizures, Not searches Need Lawful Vantage Point Right to Access Object Incriminating Character (Right to Seize) Immediately Apparent. o A reasonable plain view seizure requires probable cause to seize.
Horton v. California PROCEDURAL POSTURE: Petitioner sought certiorari review of a judgment from the Court of Appeal of California Sixth Appellate District, which affirmed his conviction for the armed robbery of the treasurer of a coin club following denial of his motion to suppress weapons seized by police from his residence. OVERVIEW: Petitioner was convicted of the armed robbery of the treasurer of a coin club following denial of his motion to suppress weapons seized by police from his residence. After an appellate court affirmed the conviction, petitioner sought certiorari. The Supreme Court affirmed. The Court concluded that, though inadvertence was a characteristic of most legitimate plain view seizures, it was not a necessary condition, so that the items seized from petitioner's home were discovered during a lawful search authorized by a valid warrant. When the weapons were discovered, it was immediately apparent to the police officer that they constituted incriminating evidence. The officer had probable cause, not only to obtain a warrant to search for the stolen property, but also to believe that the weapons and handguns had been used in the crime he was investigating. The search was authorized by the warrant, and the seizure was authorized by the plain view doctrine. The scope of the search was not enlarged in the slightest by the omission of any reference to the weapons in the warrant. OUTCOME: The court affirmed petitioner's armed robbery conviction because weapons seized from his residence were discovered during a lawful search authorized by a valid warrant and the seizure was authorized by the plain view doctrine Arizona v. Hicks

PROCEDURAL POSTURE: The State sought certiorari review of a judgment from the Court of Appeals of Arizona, which affirmed the trial court's grant of defendant's motion to suppress evidence seized in plain view during a warrantless search of a private area as violative of the Fourth Amendment. The Arizona Supreme Court denied review. OVERVIEW: When law enforcement officers entered defendant's apartment under exigent circumstances after a bullet was fired into the apartment below, two sets of expensive stereo equipment were noticed by one of the officers. He thought these anomalous in the context of the squalor of the apartment, and moved some of the components in order to read and record their serial numbers. When, after phoning the numbers into headquarters, it was confirmed that a turntable had been taken in an armed robbery, the officer seized the equipment, and defendant was subsequently indicted for robbery. The Court affirmed the appellate court's affirmance of the trial court's order granting defendant's motion to suppress the evidence that had been seized, holding that the officer's moving of the equipment constituted a "search" separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry. Such a search was not "reasonable" under the Fourth Amendment because it was not sustainable under the "plain view" doctrine absent probable cause, which was not present by the State's admission. OUTCOME: The Court affirmed the judgment granting defendant's motion to suppress evidence due to a violation of the Fourth Amendment. Was not immediately apparent incriminating character Problem is that they picked the turntable up and moved it over. Must have probable cause to seize
Where weve been Was there a search? o Was there reasonable expectation of privacy? Was the search reasonable? o Was there probable cause? o Was there a warrant? Did the warrant meet the requirements? If no warrant, was there a valid exception to the Warrant Requirement? If not, can we balance interests?
Balance What are we going to be balancing? o The nature and extent of the intrusion affected by a search or seizure. o WITH

o The government interests served by the search or seizure Balance First we will look at how this came about Next, we will discuss what a seizure is Then, we will discuss what you have to show to justify a stop and frisk Then, we will discuss the scope Then, we will wrap it up with special circumstances that require balancing
Terry v. Ohio PROCEDURAL POSTURE: Petitioner sought review of a judgment from the Supreme Court of Ohio that affirmed petitioner's conviction for carrying a concealed weapon. Petitioner contended that the weapon seized from his person and introduced into evidence was obtained through an illegal search, under U.S. Const. amend. IV, and that the trial court improperly denied his motion to suppress. OVERVIEW: Petitioner sought review of his conviction for carrying a concealed weapon, contending that the weapon seized from him was obtained through an illegal search, under U.S. Const. amend. IV, and that the trial court improperly denied his motion to suppress. On certiorari the court affirmed petitioner's conviction. The court ruled that despite the fact that the arresting police officer lacked probable cause to arrest petitioner at the time he made the "stop and frisk" warrantless intrusion upon petitioner that produced the weapon at issue, the search satisfied the conditions of U.S. Const. amend. IV: the officer had a reasonable suspicion, based upon his experience, that petitioner and his companions were about to commit a daytime robbery, and his belief that petitioner was presently armed, dangerous, and posed a threat to him and to others justified both the officer's "stop" of petitioner and the "frisk," or pat-down, of petitioner's overcoat. Furthermore, the court ruled that the search of the outer clothing of petitioner and his companions was properly limited in time and scope in order for him to determine the presence of weapons and to neutralize the danger posed. OUTCOME: The court affirmed a judgment that affirmed petitioner's conviction for carrying a concealed weapon because the "stop and frisk" tactics used by the police in the search of petitioner's person and the seizure of the weapon produced from the search were reasonable under the Fourth Amendment, as the arresting officer reasonably concluded that petitioner was armed and was about to engage in criminal activity. Reasonable Suspicion less than PC but more than a hunch Frisk limited pat down of the body. o Includes anywhere a weapon can be stored.

Terry When there is reasonable suspicion (more on this later) that Criminal activity is afoot AND That the person with whom the officer is dealing may be armed and dangerous An officer may stop and frisk
Dunaway v. New York PROCEDURAL POSTURE: The court granted certiorari on a decision from the Appellate Division, Supreme Court of New York, Fourth Judicial Department for clarifying the Fourth Amendment's requirements as to the permissible grounds for custodial interrogation. Petitioner had been convicted of murder. OVERVIEW: A murder occurred during an attempted robbery. An informant supplied a possible lead that implicated petitioner. The police questioned the informant but did not have enough information to get a warrant for petitioner's arrest. The police located petitioner and took him into custody. Although he was not told he was under arrest, he would have been restrained if he had attempted to leave. He was taken to the police headquarters, and questioned after being given Miranda warnings. Petitioner waived his right to counsel and made incriminating statements. On appeal, the Court held that the detention for custodial interrogation intruded on the interests protected by the Fourth and Fourteenth Amendment of the constitution and held that the police violated the constitution when, without probable cause, they seized petitioner for interrogation. The Court held that while proper Miranda warnings were given and petitioner's statements were "voluntary" for purposes of the Fifth Amendment, they were inadmissible since no intervening events broke the connection between petitioner's illegal detention and his confession. OUTCOME: The Court reversed the lower court's judgment that convicted defendant of murder because the police violated the Fourth Amendment and the Fourteenth Amendment by illegally detaining petitioner for interrogation without probable cause. Case is the path not often taken by the court.
Seizures of Persons US v. Mendenhall PROCEDURAL POSTURE: The United States appealed the judgment from the United States Court of Appeals for the Sixth Circuit, which reversed defendant's conviction for possessing heroin with intent to distribute. OVERVIEW: Defendant was convicted of possessing heroin with intent to distribute after the district court denied her motion to suppress the introduction of the heroin at trial. The lower appellate court reversed, holding that

defendant's consent to the search of her person had not been voluntarily given. On appeal, the court reversed the judgment of the lower appellate court. The court held that defendant was not seized when she was approached by the federal agents who asked to see her ticket and identification, even though defendant was not expressly told that she was free to decline to cooperate with their inquiry. The court held that a person had been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that she was not free to leave. The court held that the totality of the evidence was adequate to support the district court's findings that defendant voluntarily consented to accompany the officers and that defendant consented to the search of her person freely and voluntarily. OUTCOME: The court reversed the judgment of the lower appellate court that had reversed defendant's conviction for possession of heroin. Seizure A person is seized when: By means of physical force or show of authority, His freedom of movement is restrained in such a way that a reasonable person would have believed he was not free to decline the officers request or otherwise terminate the encounter, Or he submits to authority.
Florida v. Bostick PROCEDURAL POSTURE: Petitioner State obtained a writ of certiorari for the review of a decision by the Supreme Court of Florida, which reversed respondent's plea of guilty for drug trafficking and held that the illegal drugs found in respondent's luggage should have been suppressed because respondent's consent to the search of his luggage was involuntary. OVERVIEW: Respondent was travelling on an inter-city bus that was at a stopover, when police boarded the bus. Without any reasonable suspicion, they asked respondent's consent to search his luggage. Respondent gave his consent, police found illegal drugs, and respondent pled guilty to drug trafficking. On appeal, the state supreme court reversed, holding that because respondent was on a bus, he was not free to leave the bus without the risk of being stranded, and his consent was involuntary. On certiorari, the court held that if the police indicated that respondent was free to refuse consent and terminate the encounter, and that the police would not detain him if he refused, his consent was voluntary. Because there was no finding by the lower court using that standard, the court reversed the decision of the state supreme court and remanded the case to determine if, under the totality of the circumstances, a reasonable person would have felt free to refuse to cooperate with the police, and thus determine if respondent's consent was

voluntary. OUTCOME: The court reversed the decision and remanded the case to determine whether respondent's consent to search was voluntary under the totality of the circumstances. California v. Hodari D. PROCEDURAL POSTURE: The State challenged a judgment of the California Supreme Court, which denied its application for review of the decision that found that defendant had been unreasonably seized under the Fourth Amendment and that evidence of cocaine had to be suppressed as the fruit of that illegal seizure. OVERVIEW: The court granted certiorari on the issue of whether defendant had been seized within the meaning of the Fourth Amendment at the time he dropped the cocaine when he saw an officer running towards him. The state appellate court held that defendant had been seized when he dropped the cocaine and that the evidence had to be suppressed. The state supreme court denied the State's application for review. The Court reversed and remanded the judgment. The Court held that with respect to a show of authority regarding the application of physical force, a seizure did not occur when the subject had not yielded. Defendant's case did not involve the application of any physical force, and he was untouched at the time he discarded the cocaine. The Court found that the test for a show of authority was an objective one and that defendant was not seized until he was tackled. The cocaine abandoned while defendant was running was not the fruit of a seizure and not excludable. OUTCOME: The Court reversed the judgment that suppressed evidence of cocaine as the fruit of an illegal seizure. The Court held that defendant was not seized until he was tackled. The Court remanded the case. If the cops pull you over, a passenger in the car is considered seized unless the officer does something that says he isnt or he gets up and leaves.
Reasonable Suspicion Reasonable and articuable suspicion that criminal activity is afoot Unprovoked flight does not ALWAYS give rise to RS, but it can Presence in high crime area not enough alone More than a hunch, but less than probable cause and preponderance of the evidence.
Illinois v. Wardlow PROCEDURAL POSTURE: The State appealed the judgment of the Supreme Court of Illinois, which upheld the grant of defendant's motion to suppress evidence, concluding that sudden flight in a high crime area did not create a reasonable suspicion justifying a Terry stop. OVERVIEW: Defendant fled upon seeing police officers patrolling an area

known for heavy narcotics trafficking. Two of the officers caught up with him, and conducted a protective pat-down search for weapons. Defendant was arrested when officers discovered a .38-caliber handgun. The trial court denied defendant's motion to suppress, but the appellate court reversed. The state supreme court agreed, concluding that sudden flight in a high crime area did not create a reasonable suspicion justifying a Terry stop. The United States Supreme Court granted certiorari and reversed. The Court found that nervous, evasive behavior was a pertinent factor in determining reasonable suspicion for a Terry stop, and that headlong flight was the consummate act of evasion. The Court found that the determination of reasonable suspicion had to be based on commonsense judgments and inferences about human behavior, and that officers were justified in suspecting that defendant was involved in criminal activity based on his presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing the police. OUTCOME: The judgment was reversed and remanded; defendant's presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing police created a reasonable suspicion justifying a Terry stop. Alabama v. White PROCEDURAL POSTURE: Certiorari was granted to review an order of the Court of Criminal Appeals of Alabama, which held that officers did not have the reasonable suspicion necessary to justify an investigatory stop of respondent's car and that the marijuana and cocaine that the officers seized were fruits of respondent's unconstitutional detention. OVERVIEW: The State sought review of a judgment holding that officers did not have the reasonable suspicion necessary to justify an investigatory stop of respondent's car based on an anonymous tip and that marijuana and cocaine seized were fruits of respondent's unconstitutional detention. On appeal, the United States Supreme Court reversed and remanded, noting that a "totality of circumstances" approach was used to determine whether an informant's tip established probable cause or the reasonable suspicion required by an officer to make a Terry stop. The level of suspicion required for a Terry stop was less demanding than that required for probable cause, and reasonable suspicion could arise from information less reliable than that required to show probable cause. When the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity. The investigative stop, therefore, did not violate U.S. Const. amend. IV. When significant aspects of the informant's predictions were verified, there was reason to believe that the informant was honest and well-informed. OUTCOME: The Court reversed the judgment of the appellate court and remanded for further proceedings because when the officers stopped respondent, the anonymous tip from the informant had been sufficiently

corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity. The investigative stop did not violate the Fourth Amendment. Hearsay and Reasonable Suspicion Hearsay CAN give rise to reasonable suspicion Can be less in quantity or content than that required for probable cause White seems to be the floor
Florida v. J.L PROCEDURAL POSTURE: The Court granted certiorari to review a judgment of the Supreme Court of Florida to decide whether an anonymous tip that respondent was carrying a gun was, without more, sufficient to justify a police officer's stop and frisk of respondent. OVERVIEW: The court affirmed a judgment holding that a Terry "stop and frisk" search of respondent based only on an anonymous tip was invalid under U.S. Const. amend. IV. Respondent was searched after an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The court held that an anonymous tip that a person was carrying a gun was, without more, insufficient to justify a police officer's stop and frisk of that person. The tip pointing to respondent lacked the moderate indicia of reliability necessary because the call provided no predictive information to enable the police to test the informant's knowledge or credibility. Further, the accurate description of respondent's appearance was not enough since the reasonable suspicion at issue required that the tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Finally, the court declined to modify the Terry standard to license a "firearm exception" since it roved too far from the court's established reliability analysis. OUTCOME: The court affirmed a judgment holding that a Terry "stop and frisk" search of respondent based only on an anonymous tip was constitutionally invalid since an anonymous tip that a person was carrying a gun was, without more, insufficient to justify a police officer's stop and frisk of that person. The permissible scope of stops, frisks, and sweeps Hayes v. Florida PROCEDURAL POSTURE: Defendant sought certiorari review of a judgment from the District Court of Appeal of Florida, Second District, claiming the fingerprint evidence entered into the record at his trial for burglary and sexual assault should have been excluded as taken in violation of U.S. Const. amend. IV. OVERVIEW: Defendant was convicted of burglary and sexual assault. The state trial court admitted fingerprint evidence obtained by the police during an involuntary detention of the defendant, the conviction of

which was affirmed on direct appeal. The United States Supreme Court granted defendant's petition for certiorari. On review, the Court found there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes. The Court found that defendant had been detained involuntarily and that the fingerprints had been obtained in violation of U.S. Const. amend. IV. The Court, therefore, reversed the judgment of the trial court. OUTCOME: The judgment of the state district court of appeals affirming the conviction of defendant was reversed because the fingerprint evidence was obtained as the result of an involuntary detention in violation of the Fourth Amendment. US v. Sharpe PROCEDURAL POSTURE: The government petitioned for a writ of certiorari from a decision of the United States Court of Appeals for the Fourth Circuit, which reversed defendants' drug convictions on the ground that the detentions of defendants constituted illegal seizures under the Fourth Amendment. OVERVIEW: The lower court reversed defendants' convictions for drug trafficking, concluding that although a police officer had an articulable and reasonable suspicion that defendants were engaged in illegal drug trafficking, the investigative stop of defendants was unlawful because the length of the stop turned it into a de facto arrest not supported by probable cause. On certiorari, the Court stated that in assessing whether a police detention was too long in duration to be justified as an investigative stop, it was appropriate to examine whether the officer diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly, during which time it was necessary to detain defendants. The Court held that because the officer pursued his investigation of defendants in a diligent and reasonable manner, and the delay was attributable almost entirely to the evasive actions of one defendant, the 20minute stop was not violative of the Fourth Amendment. OUTCOME: The court reversed and remanded the order, on the grounds that the detention of defendants was not unreasonable where the officer pursued the investigation in a diligent and reasonable manner, and defendants' actions contributed to the added delay about which they complained. Length of a Terry Stop It is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
US v. Place

PROCEDURAL POSTURE: The government petitioned for a writ of certiorari from a decision of the United States Court of Appeals for the Fourth Circuit, which reversed defendants' drug convictions on the ground that the detentions of defendants constituted illegal seizures under the Fourth Amendment. OVERVIEW: The lower court reversed defendants' convictions for drug trafficking, concluding that although a police officer had an articulable and reasonable suspicion that defendants were engaged in illegal drug trafficking, the investigative stop of defendants was unlawful because the length of the stop turned it into a de facto arrest not supported by probable cause. On certiorari, the Court stated that in assessing whether a police detention was too long in duration to be justified as an investigative stop, it was appropriate to examine whether the officer diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly, during which time it was necessary to detain defendants. The Court held that because the officer pursued his investigation of defendants in a diligent and reasonable manner, and the delay was attributable almost entirely to the evasive actions of one defendant, the 20minute stop was not violative of the Fourth Amendment. OUTCOME: The court reversed and remanded the order, on the grounds that the detention of defendants was not unreasonable where the officer pursued the investigation in a diligent and reasonable manner, and defendants' actions contributed to the added delay about which they complained. Officers can inquire into who you are providing that its reasonable and necessary
Michigan v. Long PROCEDURAL POSTURE: Petitioner state sought review of a decision of the Supreme Court of Michigan, which suppressed the evidence that was obtained from a search of the passenger compartment of respondent's vehicle on the ground that the sole justification of the search, the protection of the police officers and others nearby, did not warrant the search in this case. OVERVIEW: The police officers found marijuana in the passenger compartment and in the trunk of the vehicle that respondent was driving. The officers searched respondent's vehicle because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. At issue was whether a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. Articles inside the relatively narrow compass of the passenger compartment of an automobile were within the area into which a suspect might reach in order to grab a weapon. Protection of police officers justified protective searches when the officers had a reasonable belief that the suspect posed a danger, especially during roadside encounters. As such, the search of respondent's vehicle was permissible since it was limited to those areas where a weapon could have been placed or hidden. OUTCOME: The court

reversed, holding that the search of the passenger compartment of respondent's automobile, limited to those areas in which a weapon could have been placed or hidden, was permissible since the police officers possessed a reasonable belief based upon specific and articuable facts that reasonably warranted the belief that respondent was dangerous and could gain immediate control of weapons. Terry Search of a Vehicle Officers can search the passenger compartment of an automobile, Limited to those areas in which a weapon may be placed or hidden, If the LEO possesses a reasonable belief based on specific and articuable facts which, taken together with the rational inferences from those facts, Reasonable warrant the officers in believing the suspect is dangerous And the suspect may gain immediate control of weapons. Suspicion Required None, must be lawful arrest None, but there must be lawful impoundment of the car Probable Cause Scope Wingspan Anywhere a thief could reach Anywhere in the car that could reasonably have evidence Anywhere a weapon could be hidden Trunk? No Yes
Falls Under What Doctrine SILA Inventory search
Automobile exception Terry search
Yes
Reasonable Suspicion that the defendant is dangerous and could gain control of a weapon
No
Minnesota v. Dickerson PROCEDURAL POSTURE: The United States Supreme Court granted a writ of certiorari to hear petitioner government's case to determine whether the Fourth Amendment permits the seizure of contraband detected through a police officer's sense of touch during a protective patdown search. OVERVIEW: Respondent was arrested and charged with

possession of a controlled substance after a police officer, during a stop and frisk, retrieved a lump of cocaine from respondent's pocket. The trial court denied respondent's motion to suppress the cocaine. Respondent proceeded to trial and was found guilty. The state supreme court affirmed the state court of appeals' decision reversing the trial court. The state supreme court found that based on the record before it, the officer determined that the lump was contraband only after squeezing, sliding, and otherwise manipulating the contents of respondent's pocket which the officer already knew contained no weapon. The state supreme court held that the stop and the frisk of respondent was valid under Terry, but that the seizure of the cocaine was unconstitutional. The court affirmed. The court stated that the state supreme court was correct in holding that the police officer in this case overstepped the bounds of the "strictly circumscribed" search for weapons allowed under Terry. OUTCOME: The court affirmed the state supreme court's judgment that the police officer overstepped the bounds of the "strictly circumscribed" search for weapons allowed under Terry when the officer retrieved a lump of cocaine from respondent's pocket. Maryland v. Buie PROCEDURAL POSTURE: The State sought certiorari review of an order of the Court of Appeals of Maryland, which, at defendant's armed robbery trial, suppressed evidence seized in plain view during a protective sweep because the officer who conducted the sweep did not have probable cause to believe that a serious and demonstrable potentiality for danger existed. OVERVIEW: Following armed robbery by two men, police arrested defendant in his home after defendant came up from his basement. Police conducted a protective sweep of the basement and found, in plain view, a sweat suit like the one worn in the robbery for which defendant was arrested. The trial court denied defendant's motion to suppress and convicted defendant, but the court of appeals reversed. The Court granted certiorari and vacated the court of appeal's decision, finding that arresting officers were permitted to take reasonable steps to ensure their safety after, and during, the arrest, and that interest was sufficient to outweigh the possible intrusion. The Court found that no search warrant was required and that officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, the Court held that there had to be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing a danger. OUTCOME: The Court vacated the judgment below suppressing evidence and remanded the case to the Court of Appeals. Protective Sweeps

Law Enforcement Officer may conduct a protective sweep of home if they have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene Can only search where a person may be hiding Can last no longer than it takes to complete the arrest and depart the premises
REVIEW - - -Where weve been Was there a search? o Was there a reasonable expectancy of privacy? Was the search reasonable? o Was there probable cause? o Was there a warrant? Did the warrant meet the requirements? If no warrant, was there a valid exception to the Warrant Requirement? If not, can we balance interests? o Terry o Other Special Balancing Contexts
Special Balancing Contexts School Searches Must be justified at the inception o Which means there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school; and Must be reasonably related in scope to the circumstances that justified the search in the first place. o Which means: once initiated, the search cannot be excessively intrusive in light of the age and sex of the student and the nature of the infraction.
New Jersey v. T.L.O. PROCEDURAL POSTURE: Petitioner State of New Jersey appealed the judgment from the Supreme Court of New Jersey that reversed the lower court's judgment and suppressed evidence found during a search by school officials in an action where respondent student alleged that the school officials violated respondent's rights under the U.S. Const. amend IV. OVERVIEW: The student's purse was searched after she was suspected of having cigarettes. The principal discovered that the student had the cigarettes in her possession, and discovered evidence of marijuana and a list of alleged users from the school. The State

of New Jersey brought delinquency charges against the student. The student alleged that the search of her purse violated her Fourth Amendment rights. The Court held that the search did not violate the Fourth Amendment. The Court held that a search by a school official was permissible in its scope when the measures adopted were reasonably related to the objectives of the search and were not intrusive in light of the age and the sex of the student. Therefore, the Court reversed the judgment of the state supreme court and held that the evidence of marijuana was admissible. OUTCOME: The Court reversed the state supreme court's holding against the State of Jersey in which the evidence of drug dealing was suppressed and the Court held that the search, which resulted in the discovery of the evidence of marihuana dealing by the student, was reasonable. Checkpoints MI Dept. of State Police v. Sitz PROCEDURAL POSTURE: Petitioners, the Michigan Department of State Police and its director, sought review of a judgment from the Court of Appeals of Michigan, which affirmed the circuit court's determination that the State's sobriety checkpoint program violated U.S. Const. amend. IV. OVERVIEW: Petitioners set up programs for sobriety checkpoints, and respondents, all licensed drivers, challenged the constitutionality. Respondents argued that the analysis had to proceed from a basis of probable cause or reasonable suspicion, and there must be some governmental need beyond the normal need before a balancing analysis was appropriate. On review the court found that a three prong test was appropriate, balancing the state's grave and legitimate interest in curbing drunk driving; the checkpoints were generally effective, and the subjective intrusion on individual liberties was not substantial. The court found that a seizure occurred when a vehicle was stopped at a sobriety checkpoint. However, the court held that such stops were reasonable considering the increasing number of alcohol-related deaths and mutilation on the nation's roads. The State program was consistent with the Fourth Amendment and the balance of the State's interest in preventing drunken driving and the degree of intrusion upon individual motorists who were briefly stopped weighed in favor of the State program. OUTCOME: The judgment finding that the State's sobriety checkpoints were unconstitutional was reversed and remanded for further proceedings consistent with the court's opinion because the proper analysis was a three prong test balancing the state's grave interest in curbing drunk driving, the effectiveness of the stops, and the insubstantial subjective intrusion on individual liberties. Checkpoint Test (from Sitz) Must Balance:

o The gravity of the public concerns served by the seizure o The degree to which the seizure advances the public interest WITH o The severity of the interference with the individual liberty
City of Indianapolis v. Edmond PROCEDURAL POSTURE: Petitioners filed a petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit, which reversed the denial of respondents' motion for a preliminary injunction and determined that petitioner city's checkpoint program with the primary purpose of interdicting illegal narcotics violated the Fourth Amendment, U.S. Const. amend. IV. OVERVIEW: Petitioner city operated vehicle checkpoints to interdict unlawful drugs. At each checkpoint location, the police stopped a predetermined number of vehicles. Pursuant to written directives, an officer advised the driver that he or she was being stopped at a drug checkpoint and asked the driver to produce a license and registration. The officer looked for signs of impairment and conducted an open-view examination of the vehicle from the outside. A narcotics-detection dog walked around the outside of each stopped vehicle. Respondents were stopped at a narcotics checkpoint and filed a class action lawsuit against petitioners, claiming that the roadblocks violated U.S. Const. amend. IV. Respondents' preliminary injunction motion was denied, but this decision was reversed on appeal. On certiorari, the court affirmed the determination that the checkpoints violated U.S. Const. amend. IV because the primary purpose of the narcotics checkpoint program was to uncover evidence of ordinary criminal wrongdoing. Because the authorities pursued primarily general crime control purposes at the checkpoints, the stops could only be justified by some quantum of individualized suspicion. OUTCOME: The court affirmed the judgment determining that the checkpoint program violated constitutional law because the primary purpose of the checkpoint program was ultimately indistinguishable from the general interest in crime control. Threshold Question (from Edmond) Must determine primary purpose If primary purpose is general crime control, stops can only be justified by individualized suspicion If the primary purpose is connected to highway safety and you are doing highway stops, you dont need individualized suspicion ( so you would then go to the Sitz test)
Illinois v. Lidster

PROCEDURAL POSTURE: Respondent driver was stopped at a highway checkpoint designed to obtain more information about a recent hit-and-run accident. The driver was tried and convicted of driving under the influence of alcohol. The driver challenged the lawfulness of his arrest and conviction on the ground that the checkpoint stop violated U.S. Const. amend. IV. The Supreme Court of Illinois found the stop unconstitutional. The instant court granted certiorari. OVERVIEW: The checkpoint stop's primary law enforcement purpose was to ask vehicle occupants for their help in providing information about a crime committed, in all likelihood, by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals. An information-seeking stop was not the kind of event that involved suspicion, or lack of suspicion, of the relevant individual. A presumptive rule of unconstitutionality did not apply. Thus, the instant court had to judge the stop's reasonableness, hence, its constitutionality, on the basis of the individual circumstances. The relevant public concern was grave because police were investigating a crime that had resulted in a human death. The stop advanced the grave public concern to a significant degree, and the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs. The stops interfered only minimally with liberty of the sort the Fourth Amendment sought to protect. Each stop required only a brief wait in line. Police contact consisted simply of a request for information and the distribution of a flyer. The checkpoint stop was constitutional. OUTCOME: The judgment of the state supreme court was reversed. Drug Testing Skinner v. Railway Labor Executives Assn PROCEDURAL POSTURE: Petitioner Federal Railroad Administration appealed an order of the United States Court of Appeals for the Ninth Circuit that reversed a judgment that found the governmental interest in promulgated regulations, 49 C.F.R. 219.101- 219.301(c)(2) (1987), outweighed the U.S. Const. amend. IV rights of employees who were covered under the Hours of Service Act, 45 U.S.C.S. 61 et seq. OVERVIEW: The Supreme Court reversed a judgment that found petitioner Federal Railroad Administration's promulgation of regulations 49 C.F.R. 219.101- 219.301(c)(2) (1987), under the Federal Railroad Safety Act (Act), 45 U.S.C.S. 431(a), violated the U.S. Const. amend. IV rights of employees covered by the Hours of Service Act, 45 U.S.C.S. 61 et seq. The court found the alcohol and drug tests under Subparts C and D of petitioner's regulations were reasonable within the meaning of U.S. Const. amend. IV and no warrants or reasonable suspicion were required before any testing. The court held that railroad employers had limited discretion under the regulations and there was a strong governmental interest to regulate railroad employees' conduct to ensure public safety. The tests were not considered intrusive because there was

a diminished expectation of privacy on the information relating to the physical condition of covered employees and to reasonable means of procuring the information because the industry was highly regulated for safety. The court found that most railroads required periodic physical exams for certain employees. OUTCOME: The order in favor of respondent was reversed. Special Needs Searches These are searches that can occur without individualized suspicion. To determine: Must Balance o The nature of the privacy interests and o The character of the intrusion With o The nature and immediacy of the governmental concern at issue o And the efficacy of this means for meeting it. (would the interest be frustrated or defeated by individualized suspicion?)
Chandler v. Miller PROCEDURAL POSTURE: Petitioner candidates sought review of a judgment entered in the United States Court of Appeals for the Eleventh Circuit, which held that Ga. Code Ann. 21-2-140 was constitutional. The statute in question required candidates for designated state office to certify that they had taken a drug test and obtained negative results. OVERVIEW: The Court held that Georgia's requirement that candidates for state office pass a drug test was outside the category of constitutionally permissible suspicionless searches. The Court emphasized that the proffered special need for drug testing must be substantial-important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion. The Court found that Georgia failed to show, in justification of Ga. Code Ann. 21-2-140, a special need of that kind. Notably lacking in respondent officials' presentation was any indication of a concrete danger that demanded departure from the Fourth Amendment's main rule. The statute was not needed and could not work to ferret out lawbreakers, and officials barely attempted to support the statute on that ground. However well meant, the candidate drug test Georgia devised diminished personal privacy for a symbol's sake; state action that is prohibited by the Fourth Amendment. Where, as in this case, public safety was not genuinely jeopardized, the Fourth Amendment precluded a suspicionless search, no matter how conveniently arranged. OUTCOME: The Court reversed the appeals court's judgment. Border Searches

Full searches of persons, their belongings, and their vehicles can be conducted without a search warrant or ANY showing of cause. o At this time, this does not include strip searches, or cavity searches.
US v. Flores-Montano PROCEDURAL POSTURE: Customs officials seized 37 kilograms of marijuana from defendant's gas tank at the international border. A grand jury indicted defendant of unlawfully importing marijuana and of possession of marijuana with intent to distribute. Defendant moved to suppress the marijuana. The district court granted the motion. The United States Court of Appeals for the Ninth Circuit affirmed. The United States Supreme Court granted certiorari. OVERVIEW: The appellate court held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. The Supreme Court found that complex balancing tests to determine what was a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, had no place in border searches of vehicles. Searches made at the border were reasonable simply by virtue of the fact that they occurred at the border. It was difficult to imagine how the search of a gas tank, which should have been solely a repository for fuel, could have been more of an invasion of privacy than the search of the automobile's passenger compartment. A gas tank search involved a brief procedure that could have been reversed without damaging the safety or operation of the vehicle. While the interference with a motorist's possessory interest was not insignificant when the United States removed, disassembled, and reassembled his gas tank, it nevertheless was justified by the United States' paramount interest in protecting the border. The United States' authority to conduct suspicionless inspections at the border included the authority to remove, disassemble, and reassemble a vehicle's fuel tank. OUTCOME: The judgment was reversed, and the case was remanded for further proceedings. Higher than Usual Standards of Reasonableness Tennessee v. Garner PROCEDURAL POSTURE: On writ of certiorari from the United States Court of Appeals for the Sixth Circuit, appellant sought review of the finding that police officers could not use deadly force in the apprehension of all criminals. OVERVIEW: Appellee brought suit for violations of his son's constitutional rights against appellant city and appellant police department, and appellant state intervened after the court of appeals reversed the decision made by the district court on remand, finding the use of deadly force was unwarranted. Affirming the judgment, the Court found that the apprehension of a suspect is a seizure for the purposes of the Constitution and the use of deadly force to achieve a seizure was only

permitted under certain circumstances. The Court held that deadly force was only allowed to apprehend felons who the police had probable cause to believe were dangerous to them or to the public. The Court further found that the shooting of appellee's son, who was a suspect in a burglary, was not an acceptable use of deadly force. OUTCOME: The Court affirmed the judgment. When Deadly Force can be used: If the suspect threatens the officer with a weapon or There is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm And if, where feasible, some warning has been given.
Schmerber v. California PROCEDURAL POSTURE: Certiorari was granted to review a decision of the Appellate Department of the California Superior Court, County of Los Angeles, which affirmed petitioner's conviction of driving an automobile while under the influence of intoxicating liquor. OVERVIEW: Petitioner contended that the drawing of his blood for an alcohol analysis test without his consent denied him due process of law under the Fourteenth Amendment and violated his privilege against self-incrimination under the Fifth Amendment, his right to counsel under the Sixth Amendment, and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments. The state court affirmed the conviction and petitioner sought review. The Court upheld petitioner's conviction. It held that the privilege against self-incrimination protected an accused only from being compelled to testify against himself, or to otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis did not involve compulsion to these ends. The Court also held that the record showed no violation of petitioner's right to be free of unreasonable searches and seizures, because the arresting officer could have reasonably concluded that the delay in obtaining a warrant could result in the destruction or disappearance of evidence and because the test was conducted in a reasonable manner. OUTCOME: The Court affirmed the state court's judgment of conviction. Surgery might have been beyond the scope, but a needle extracting blood is a minor intrusion.
Winston v. Lee PROCEDURAL POSTURE: Petitioners challenged an order from the United States Court of Appeals of the Fourth Circuit, which under the U.S. Const. amend. IV, affirmed the order

from the United States District Court for the Eastern District of Virginia where petitioners sought to compel surgery to remove a bullet from respondent. OVERVIEW: Petitioners alleged that a bullet in respondent's chest was evidence that would link respondent to a crime. Petitioners sought a motion to compel surgery to remove the bullet. Such surgery required the use of a general anesthetic. Respondent alleged that removal of the bullet from his chest was a substantial violation of his rights under the Fourth Amendment, U.S. Const. amend. IV. The court held that the proper safeguards were present and exhausted. The court held that the reasonableness of surgical intrusions beneath the skin depended on a case-by-case approach, in which the individual's interests in privacy and security were weighed against society's interests in conducting the procedure. The court held the operation would substantially intrude on respondent's protected interests. The court affirmed the injunction against petitioners' request. OUTCOME: Affirmed the order of the appellate court and granted an injunction against petitioners' attempt to force respondent to undergo surgery in order to remove potential evidence from respondent's chest because such act was a substantial intrusion and violated respondent's constitutional rights. FIFTH AMENDMENT Due Process of Law and Confessions Ashcraft v. Tennessee PROCEDURAL POSTURE: Petitioner inmates filed petitions seeking review of the decision of the Supreme Court of Tennessee, which affirmed their convictions for murder and accessory before the fact. Petitioners claimed that the alleged confessions used at their trial had been extorted from them by state law enforcement officers in violation of U.S. Const. amend. XIV. OVERVIEW: Petitioner inmates filed petitions for certiorari that challenged their convictions for murder and accessory before the fact, alleging that the alleged confessions used at their trial had been extorted from them by state law enforcement officers in violation of U.S. Const. amend. XIV. The Court reversed the state supreme court's judgment that affirmed the convictions against petitioner inmates because based on the totality of the circumstances, petitioners' confessions were not voluntary but compelled. U.S. Const. amend. XIV barred a conviction of any individual obtained by means of a coerced confession. Petitioners were questioned for more than 36-hours without a break by a relay of experienced officers, without any sleep or rest. OUTCOME: The Court reversed the state supreme court's judgment affirming petitioner inmates' convictions for murder and accessory before the fact because based on the totality of the circumstances petitioners' confessions were not voluntary but coerced and violated the Fourteenth Amendment. Questions to Ask Was it Voluntary?

o Was the confession coerced? Was the defendants will overborne? Can the defendant make a meaningful choice? Spano v. NY PROCEDURAL POSTURE: The United States Supreme Court granted certiorari to the Court of Appeals of New York to determine whether petitioner's confession was properly admitted into evidence under U.S. Const. amend. XIV. OVERVIEW: The Court granted certiorari to determine whether petitioner's confession was properly admitted under U.S. Const. amend. XIV. On certiorari, the Court reversed petitioner's conviction for first-degree murder. The Court found that petitioner's involuntary confession had been wrongly admitted into evidence over appropriate objection at trial. The confession was inconsistent with U.S. Const. amend. XIV under traditional principles. Petitioner was subjected to questioning by several men for nearly eight hours. The questioning was not conducted during normal business hours, but began in early evening, continued into the night, and did not bear fruition until morning. The questioners persisted in the face of petitioner's repeated refusals to answer on the advice of his attorney. The Court found another factor that deserved mentioning was the use of petitioner's "childhood friend," now a police officer, to play upon his sympathy. The Court concluded that petitioner's will was overcome by official pressure, fatigue, and sympathy falsely aroused in a post-indictment setting. The police were only concerned in securing a statement from petitioner on which they could convict him. OUTCOME: The Court reversed petitioner's conviction because the trial court's admission of his involuntary confession was inconsistent with the Fourteenth Amendment under traditional principles. The Court concluded that petitioner's will was overcome by official pressure, fatigue, and sympathy falsely aroused in a post-indictment setting. The police were only concerned in securing a statement from petitioner on which they could convict him. Colorado v. Connelly PROCEDURAL POSTURE: On certiorari to the Supreme Court of Colorado, the State challenged a ruling that suppressed defendant's confession to murder on grounds that defendant's mental illness at the time of confession compelled him to waive his Miranda rights and violated defendant's Fourteenth Amendment due process rights. OVERVIEW: Defendant approached a police officer and, without any prompting, confessed to a murder. The officer immediately advised him of his Miranda rights and defendant said that he understood the rights. After another police officer arrived, defendant was again advised of his rights. Defendant was then held in custody and proceeded to confess to a child's murder. The next day, defendant stated for the first time that voices had told him to

confess. On defendant's motion at a preliminary hearing, the trial court suppressed his initial statements and the custodial confession because they were involuntary. On appeal, the Supreme Court of Colorado affirmed, holding that the admission of the evidence in a court of law would have violated the Due Process Clause of U.S. Const. amend. XIV. On certiorari, the Court reversed, holding that absent police coercion, defendant's confession was not barred by either Miranda or the Due Process Clause. OUTCOME: The Court reversed the state court's decision. Defendant's confession was improperly suppressed because coercive police activity, absent in defendant's case, was a necessary predicate to the finding that defendant's confession was involuntary under the due process clause. Additionally, absent police coercion, the lower court erred in holding that defendant's waiver of his Miranda rights was involuntary. The Privilege Against Self-Incrimination and Confessions Miranda v. Arizona PROCEDURAL POSTURE: Certiorari was granted to review a judgment from the Supreme Court of Arizona for this and three other similar cases, to determine the admissibility of statements obtained from defendant, who was subjected to custodial police interrogation, and the necessity for procedures assuring that defendant was accorded his privilege under the U.S. Const. amend. V not to be compelled to incriminate himself. OVERVIEW: The United States Supreme Court reversed the judgment of three cases, and affirmed the fourth. When an individual was taken into custody and subjected to questioning, the U.S. Const. amend. V privilege against self-incrimination was jeopardized. To protect the privilege, procedural safeguards were required. A defendant was required to be warned before questioning that he had the right to remain silent, and that anything he said can be used against him in a court of law. A defendant was required to be told that he had the right to the presence of an attorney, and if he cannot afford an attorney one was to be appointed for him prior to any questioning if he so desired. After these warnings were given, a defendant could knowingly and intelligently waive these rights and agree to answer questions or make a statement. Evidence obtained as a result of interrogation was not to be used against a defendant at trial unless the prosecution demonstrated the warnings were given, and knowingly and intelligently waived. Effective waiver required that the accused was offered counsel but intelligently and understandingly rejected the offer. Presuming waiver from a silent record was impermissible. OUTCOME: Three cases were reversed and one was affirmed. You must give warnings before a confession is admissible against a person
Miranda Rights

Right to Remain Silent Anything you can say can and will be used against you in a court of law Have a right to the presence of an attorney before and during questioning Will be appointed an attorney if you cant afford it. You can exercise these rights at anytime***
NY v. Quarles PROCEDURAL POSTURE: In respondent suspect's prosecution for criminal possession of a weapon, petitioner State sought review of a decision of the Court of Appeals of New York, which affirmed the trial court's suppression of respondent's statement, "the gun is over there," and the gun on the ground that the statement was made by police before they read respondent his Miranda rights. OVERVIEW: A police officer pursued respondent suspect in a supermarket after a woman identified him as the man who raped her. The officer frisked respondent and discovered that he was wearing an empty shoulder holster. After handcuffing respondent, the officer asked him where the gun was. Respondent said, "the gun is over there." After the officer retrieved the loaded gun, he placed respondent under arrest and read him his Miranda rights. In the subsequent prosecution of respondent for criminal possession of a weapon, the judge excluded the statement and the gun because the officer had not given respondent his Miranda warnings before asking him where the gun was located. The state appellate courts affirmed, rejecting petitioner State's argument that the exigencies of the situation justified the officer's failure to read respondent his Miranda rights until after he had located the gun. The Court reversed. The Court held that there was a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers could be admitted into evidence, and that the availability of that exception did not depend upon the motivation of the individual officers involved. OUTCOME: The Court reversed the decision of the state court. The Court held that under the facts of the case there was a public safety exception to the requirement that Miranda warnings be given before a suspect's answers could be admitted into evidence. Public Safety Issue Exception Prophylactic rules guarding/protecting Theres an inherent compulsion to talk when under custody. Miranda rights are used to protect against those.
Dickerson v. US PROCEDURAL POSTURE: Petitioner appealed from the judgment of the United States Court of Appeals for the Fourth Circuit, which reversed the grant of his motion to suppress his custodial statement, finding that 18 U.S.C.S. 3501 had been satisfied. OVERVIEW:

Petitioner was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, petitioner moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. The district court granted his motion to suppress. The court of appeals reversed the suppression order, holding that 18 U.S.C.S. 3501, which made admissibility turn solely on whether the statement was made voluntarily, had been satisfied. On appeal, the court reversed, finding that Miranda was a constitutional decision of the court, and therefore could not be in effect overruled by an Act of Congress. Further, following the principles of stare decisis, the court declined to overrule Miranda itself. The court held that Miranda and its progeny governed the admissibility of statements made during custodial interrogation in both state and federal courts. OUTCOME: Judgment reversed; Miranda announced a constitutional rule that Congress could not supersede legislatively, and following the rule of stare decisis, the court declined to overrule Miranda itself. Harm occurs when statement is used against you in trial.
Custodial Interrogation Berkemer v. McCarty - - > When you think of Custody, think of this case! PROCEDURAL POSTURE: Petitioner sheriff appealed a judgment of the United States Court of Appeals for the Sixth Circuit vacating respondent's conviction for petitioner's officer's failure to advise respondent of respondent's constitutional rights prior to interrogation. OVERVIEW: Petitioner's officer stopped respondent's vehicle and asked if respondent had been using intoxicants. Respondent replied in the affirmative. Respondent was arrested, asked again about the use of intoxicants, and again answered in the affirmative. Respondent was never advised of his constitutional rights. Respondent was convicted of operating a motor vehicle while under the influence of intoxicants. He appealed, asserting that the incriminating statements were not admissible as he had not been informed of his constitutional rights prior to interrogation. The appellate court reversed respondent's conviction and held such rights must be given to all individuals prior to the custodial interrogation. On review, the Supreme Court held because the initial stop of respondent's car, by itself, did not render respondent in custody, respondent was not entitled to a recitation of constitutional rights. However, after respondent was arrested, any statements made were inadmissible against him without a reading of his constitutional rights. Because it could not be determined which statements were relied upon in convicting respondent, vacation of respondent's conviction was affirmed. OUTCOME: The judgment in favor of respondent was affirmed.

Custodial Interrogation Requires Custody; and Interrogation (or its functional equivalent)
Custody Doesnt have to be an arrest, but longer than a Terry Stop Looked at from the view of a reasonable person, so the subjective belief of the officer doesnt matter.
Rhode Island v. Innis PROCEDURAL POSTURE: Petitioner, State of Rhode Island, appealed the judgment of the Supreme Court of Rhode Island, which set aside respondent's conviction for the kidnapping, robbery, and murder of a taxicab driver. The state supreme court found that respondent had been subjected to subtle coercion that was the equivalent of interrogation after respondent invoked his Miranda right to counsel. OVERVIEW: Respondent was convicted of the kidnapping, robbery, and murder of a taxicab driver after the trial court denied respondent's motion to suppress the weapon and statements made by respondent to the police about the weapon. The state supreme court set aside respondent's conviction, finding that respondent had been subjected to subtle coercion that was the equivalent of interrogation after respondent invoked his Miranda right to counsel. On appeal, the court vacated the judgment of the state supreme court. The court held that the Miranda safeguards came into play whenever a person in custody was subjected to either express questioning or its functional equivalent. The court held that the term "interrogation" under Miranda referred not only to express questioning, but also to any words or actions on the part of the police that the police should know were reasonably likely to elicit an incriminating response from a suspect. The court held that respondent was not interrogated within the meaning of Miranda when the police officers voiced safety concerns about children finding the weapon from the crime and respondent interrupted them to say he would show them where the gun was located. OUTCOME: The court vacated the judgment of the state supreme court that had set aside respondent's conviction for kidnapping, robbery, and murder. The court held that petitioner had not established that respondent's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. Just being at the police station is not in custody. You have to look to all the surrounding circumstances.

Interrogation When questions or comments are reasonably likely to elicit an incriminating response. When a reasonable officer would realize that the conduct will probably be viewed by the suspect as designed to achieve this purpose. Doesnt apply to jailhouse snitches. Perkins
Illinois v. Perkins PROCEDURAL POSTURE: Respondent prisoner made incriminating statements to an undercover agent while incarcerated. A district court granted the prisoner's motion to suppress the evidence because he had not been given Miranda warnings. The United States Court of Appeals for the Fifth Circuit affirmed the motion to suppress. Petitioner, the State of Illinois, was granted certiorari. OVERVIEW: The prisoner claimed that the statements were properly excluded because he had not been given Miranda warnings by the undercover agent. The State alleged that the statements were voluntary and not coerced, and that Miranda warnings were not required when an undercover agent was asking questions that could elicit an incriminating response. The court held that Miranda warnings were not required when the suspect was unaware that he was speaking to a law enforcement officer and gave a voluntary statement. The court found that conversations between suspects and undercover agents did not implicate the concerns underlying Miranda. The essential ingredients of a police-dominated atmosphere and compulsion were not present when an incarcerated person spoke freely to someone he believed to be a fellow inmate. Coercion was to be determined from the perspective of the suspect. Ploys to mislead a suspect or lull him into a false sense of security that did not rise to the level of compulsion or coercion to speak were not within the concerns of Miranda warnings. Miranda was not meant to protect suspects from boasting about their criminal activities. OUTCOME: The judgment of the appellate court affirming the grant of a motion to suppress was reversed. Waiver and Invocation of Rights NC v. Butler PROCEDURAL POSTURE: The North Carolina Supreme Court reversed defendant's convictions for kidnapping, armed robbery, and felonious assault, holding that no statement of a person under custodial interrogation could be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer. The State appealed. OVERVIEW: Defendant was convicted of

kidnapping, armed robbery, and felonious assault. In reversing the convictions, the state court found that defendant's incriminating statements had been admitted in violation of Miranda requirements because defendant had refused to waive in writing his right to have counsel present and there had not been a specific oral waiver. On certiorari, the United States Supreme Court held that the state court erred in its reading of Miranda. The Court noted, pursuant to Miranda, that an accused's express statement could constitute a waiver, and that the accused's silence alone after the applicable warnings could not do so. However, the Court did not hold that an accused's express statement was indispensable to a finding of waiver. Thus, the Court held that a court could find an intelligent and understanding rejection of counsel in situations where an accused did not expressly state as much. The question of waiver had to be determined on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of defendant. OUTCOME: The Court vacated the judgment of the state court and remanded the case to such court for further proceedings not inconsistent with the Court's opinion. Silence in itself is not enough for a waiver, but when facts are added to the situation, it might qualify as a waiver. o Look at the background and conduct of the accused.
Waiver Must be voluntary, knowing, and intelligent Need not be express Based on the totality of the circumstances o The particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Thompkins Case A statement in and of itself can be enough for a waiver.
Statement can be evidence of a waiver. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. In order to evoke your right to remain silent, you must do the exact opposite and speak. You must clearly speak up and invoke your right not to speak.
Colorado v. Spring

PROCEDURAL POSTURE: Certiorari was granted to review a judgment from the Supreme Court of Colorado, holding that defendant's waiver of his Miranda rights was invalid under U.S. Const. amend. V because it was not made knowingly, as government agents failed to advise defendant of a possible murder charge against him. The state supreme court reversed his conviction for first degree murder and remanded the case for a new trial. OVERVIEW: Defendant was arrested by Bureau of Alcohol, Tobacco, and Firearms (ATF) agents for firearms violations in Kansas. Defendant signed a waiver of his Miranda rights, and ATF agents questioned him about a Colorado murder as well as firearms violations. Colorado police then went to Kansas, gave defendant his Miranda rights, and questioned him about the murder. At the murder trial, the court allowed defendant's statements to Colorado police into evidence, and defendant was convicted of first degree murder. The appellate and state supreme courts reversed the convictions and remanded the case for a new trial. On certiorari, the Court overturned the judgment of the state supreme court. The Court held that the Fifth Amendment did not require ATF agents to warn defendant of a possible murder charge before defendant waived his Miranda rights. The Court found that defendant knowingly waived his Miranda rights since he knew what his right were, including the right to discontinue talking at any time. Thus, his waiver of his Miranda rights was valid. OUTCOME: The Court reversed the judgment of the state supreme court and remanded the matter. The fact that the agents failed to disclose all possible charges against defendant or all the possible consequences of the waiver did not make the waiver any less knowing or valid. What is Voluntary, Knowing, and Intelligent? Must be Voluntary o Means that it is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Knowing and Intelligent o Means that it must be made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Invocation of Rights MI v. Mosely PROCEDURAL POSTURE: Defendant was convicted of first degree murder based in part on a confession that defendant entered after interrogation. The Michigan Court of Appeals reversed the conviction and determined that the trial court should have suppressed the confession. The prosecution sought review. A writ of certiorari was granted. OVERVIEW: Defendant was arrested in connection with the investigation of robberies. After being

advised of his rights, defendant stated that he did not want to talk about the robberies. Defendant was thereafter questioned at another police station about a homicide and confessed to the murder. The trial court denied a request to suppress the confession. Defendant was convicted of first degree murder based in part on his confession. The Michigan Court of Appeals reversed the conviction and determined that the trial court should have suppressed the confession. The Supreme Court vacated and remanded the lower court's decision because the right to remain silent encompassed within the Miranda rights was not a right to permanently remain silent, but was a right that had to be scrupulously honored by the police. The Court concluded that when the questioning was for different crimes, by a different police officer, in a different station, after an extended period without questioning, the request to remain silent had been scrupulously honored. OUTCOME: The court vacated and remanded the decision that reversed the conviction of defendant for first degree murder because the police scrupulously honored defendant's request to remain silent about the subject of questioning and thereafter questioned him about other crimes for which he did not request to remain silent. Invocation of Right to Remain Silent The admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether this right to cut off questioning was scrupulously honored.
Edwards v. Arizona PROCEDURAL POSTURE: Petitioner was convicted of robbery, burglary, and first degree murder. The trial court admitted his post-arrest confession, and the Supreme Court of Arizona affirmed the admission, holding that the confession was valid despite the fact that petitioner had invoked his Fifth Amendment right to counsel during a previous interrogation. The Supreme Court granted petitioner's request for a writ of certiorari. OVERVIEW: After he was arrested and read his Miranda rights, petitioner requested an attorney. The police officers ceased questioning, but detectives from the same police department returned the next day and again interrogated petitioner. Petitioner confessed to the crimes during the second interrogation. The lower courts held that although petitioner had invoked his right to remain silent and his right to counsel, he had waived both rights during the second interrogation after again being informed of his Miranda rights. The Supreme Court held that (1) the use of petitioner's confession against him violated his Fifth and Fourteenth Amendment rights, where petitioner had asserted his right to counsel and his right to remain silent, and the police, without furnishing him with counsel, returned and secured a confession; (2) petitioner did not validly waive his right to counsel, where there was no finding that he understood his right to counsel and

intelligently and knowingly relinquished it; and (3) having requested counsel, petitioner was not subject to further interrogation until counsel had been made available to him, unless petitioner himself initiated further communication with the police. OUTCOME: The Supreme Court reversed the appellate court's holding that defendant had validly waived his right to counsel. Invocation of Right to Attorney (Edward Rule) An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Davis v. US PROCEDURAL POSTURE: Defendant sought review of a judgment of the United States Court of Military Appeals, which affirmed defendant's conviction for unpremeditated murder. The general court-martial convening authority held that defendant's alleged request for an attorney was ambiguous and that the questioning officers properly clarified defendant's wishes with respect to counsel before continuing questioning him about offense. OVERVIEW: Defendant, suspect in murder, was interviewed by the Naval Investigative Service, and was given the military equivalent of Miranda warnings, which he voluntarily waived. After the interview was under way, defendant made comments, indicating at first he might want a lawyer, but then saying he did not want a lawyer. Questioning continued. The military judge at general court-martial denied defendant's motion to suppress evidence obtained during the interview, holding that defendant's mention of a lawyer during interrogation was not a request for counsel and that the agents properly determined that defendant was not invoking his right to counsel. The NavyMarine Corps Court of Military Review and the United States Court of Military Appeals affirmed. The Supreme Court affirmed the judgment, holding that equivocal requests or comments regarding an attorney did not require questioning officers to stop interrogation so that counsel could be present and that questioning could continue unless a suspect actually requested an attorney. OUTCOME: Judgment affirmed; equivocal requests or comments regarding an attorney did not require questioning officers to stop interrogation so that counsel could be present; questioning could continue unless a suspect actually requested an attorney. Unambiguous Invocation

To invoke right to counsel, a defendant must make an unequivocal request for counsel. o Look to see whether a reasonable officer would believe the suspects statement to be a request for counsel. To see if a defendant has reinitiated look at whether the suspect has evinced a willingness and a desire for a generalized discussion about the investigation. To invoke the right to silence, one must unambiguously request his or her desire to remain silent. (See Thompkins)
Minnick v.MS PROCEDURAL POSTURE: The state court (Mississippi) denied petitioner prisoner's application for habeas corpus relief finding that his Fifth Amendment right to counsel was satisfied when counsel was made available to the prisoner. The prisoner appealed. OVERVIEW: The prisoner and his friend escaped from a county jail and broke into a mobile home. Two of the residents of such home were killed. The prisoner was arrested and requested an attorney. The prisoner spoke with his attorney. Federal Bureau of Investigation agents and the local police made persistent attempts to persuade the prisoner to waive his rights. The prisoner resisted, but eventually submitted to interviews without his attorney present. The prisoner was convicted. The prisoner filed a petition for habeas corpus relief alleging that his statements were taken in violation of his right to counsel under the Fifth Amendment. The state court denied the prisoner's application finding that since counsel was made available to the prisoner, his Fifth Amendment right to counsel was satisfied. On appeal, the court found that that the prisoner's Fifth Amendment protection was not terminated or suspended by consultation with counsel. When counsel was requested, the interrogation of the prisoner had to cease. Officials could not reinitiate interrogation without the presence of the prisoner's attorney. OUTCOME: The court reversed the decision and remanded for further proceedings because the prisoner's Fifth Amendment protection did not cease once he consulted with his attorney. 5th Amendment Right to Silence vs. Right to Counsel Once right is invoked Can police re-initiate questioning? Can they ask about a separate offense? Can they be interrogated AT ALL without attorney Right to silence Yes, so long as right to silence is scrupulously honored Yes, so long as right to silence is scrupulously honored Yes, so long as right to silence is scrupulously Right to counsel No (Edwards.) Unless 14 day break in custody No, (Roberson) Unless 14 day break in custody No. (minnick) Unless 14 day break in custody.

consent? honored
Sixth Amendment Right to Counsel What does the right to counsel mean? Right to bring a lawyer to court, be there for questioning, etc. Right to a FREE lawyer
Betts v. Brady PROCEDURAL POSTURE: Petitioner inmate requested certiorari to review an order of the Court of Appeals of Maryland from the City of Baltimore, which denied the inmate's release upon a writ of habeas corpus based upon the state trial court's refusal to appoint counsel. OVERVIEW: The inmate was indicted for robbery. He requested that counsel be appointed. The state court judge advised him that it was not the local practice to appoint counsel for indigent defendants except in prosecutions for rape and murder. The inmate was found guilty in a bench trial and sought relief. The court determined that the Fourteenth Amendment did not strictly require that a defendant be appointed counsel at a trial for every criminal offense. The inmate was not deprived of his liberty without due process of law because the Sixth Amendment guarantee of counsel only applied to trials in federal courts, and the Fourteenth Amendment did not incorporate that guarantee. There was no right to state-appointed counsel in every case in which a defendant, charged with a crime, was unable to obtain counsel. In most states, appointment of counsel was not a fundamental right, but was deemed a matter of legislative policy. Maryland defendants, such as the inmate, traditionally waived a jury trial, thereby trying their case before a judge who was in a better position to see that impartial justice was done. OUTCOME: The court affirmed the denial of habeas corpus relief for the inmate. Gideon v. Wainwright
PROCEDURAL POSTURE: Petitioner inmate's state habeas corpus petition attacking his felony conviction for breaking and entering with intent to commit a misdemeanor and his five-year prison sentence was denied by the Supreme Court of Florida. The court granted certiorari. OVERVIEW: The inmate's charged offense was a felony under Florida law. He appeared in state court without funds and without a lawyer and asked the court to appoint counsel for him. The state court refused because only a defendant in a capital offense was entitled to appointed counsel. The inmate was convicted. He challenged his conviction and sentence on the ground that

the trial court's refusal to appoint counsel for him denied him rights guaranteed by the U.S. Constitution and the Bill of Rights. The court held (1) the Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions, (2) the court had construed the Sixth Amendment to require federal courts to provide counsel for defendants unable to employ counsel unless the right was competently and intelligently waived, (3) the court looked to the fundamental nature of the Bill of Rights guarantees to decide whether the Fourteenth Amendment made them obligatory on the states, (4) the Sixth Amendment's guarantee of counsel is one of the fundamental and essential rights made obligatory upon the states by the Fourteenth Amendment, and (5) Betts v. Brady, 316 U.S. 455 (1942), was overruled. OUTCOME: The court reversed the denial of the inmate's habeas petition and remanded the case to the state supreme court for further proceedings. The poor man charged with a crime has no lobby. Ensuring fairness and equal treatment in criminal trials is the responsibility of us all. Robert Kennedy Faretta Case you are entitled to waive your counsel, but it needs to be voluntary, knowingly and intelligent. Ineffective Assistance of Counsel (Strickland) Performance was deficient (look to what other attnys would do) and; Defendant was prejudiced by deficient performance o Means that there is a reasonable probability that the outcome would have been different but for the deficient performance. Scott v. Illinois
PROCEDURAL POSTURE: Petitioner was convicted of theft and fined $ 50 after a bench trial. The state appellate court and the Supreme Court of Illinois affirmed his conviction and rejected the petitioner's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that the state provide trial counsel to him at its expense. The petitioner appealed upon a petition for writ of certiorari. OVERVIEW: A prison term was authorized but not imposed upon the petitioner. On appeal, the petitioner argued that Argersinger required state provision of counsel whenever imprisonment was an authorized penalty. The state supreme court viewed Argersinger as holding that the states only had to go so far in furnishing counsel to indigent defendants and affirmed

petitioner's conviction. The Court affirmed. The Court held that Argersinger delimited the constitutional right to appointed counsel in state criminal proceedings and adopted actual imprisonment as the line defining the constitutional right to appointment of counsel. The Sixth and Fourteenth Amendments required only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state afforded him the right to assistance of appointed counsel in his defense. OUTCOME: The Court held that the Constitution did not require a state trial court to appoint counsel where a defendant was charged with a statutory offense for which imprisonment upon conviction was authorized but not actually imposed and affirmed the petitioner's conviction. When does the Right to Counsel apply? The 6th and 14th amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.
Sixth Amendment Right to Counsel - Massiah Massiah v. U.S. PROCEDURAL POSTURE: The court granted certiorari to the United States Court of Appeals for the Second Circuit to decide whether the prosecution's use at trial of surreptitiously obtained evidence of petitioner's own incriminating statements while he was free on bail deprived him of any right secured under the U.S. Constitution. OVERVIEW: The Supreme Court reversed a judgment of a court of appeals, which had affirmed a judgment of conviction against petitioner for violation of federal narcotics laws. The Supreme Court held that petitioner was denied the basic protections of U.S. Const. amend. VI when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately and secretly elicited from him after he had been indicted and in the absence of his counsel. The court found that any secret interrogation of petitioner, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravened the basic dictates of fairness in the conduct of the criminal cause and the fundamental rights of petitioner. Petitioner was as much entitled to aid of counsel during the critical period after arraignment and until the beginning of trial as at the trial itself. Here, petitioner was seriously imposed upon since he did not even know that he was under interrogation by a government agent. OUTCOME: The judgment of a court of appeals affirming petitioner's conviction was reversed as petitioner was as much entitled to aid of counsel after his release on bail as at his trial. Federal agents' indirect procurement of incriminating statements while petitioner was free on bail and without petitioner's knowledge denied petitioner's right to counsel.

Brewer v. Williams PROCEDURAL POSTURE: The Court granted certiorari to determine whether the United States Court of Appeals for the Eighth Circuit was correct in determining that respondent was entitled to a new trial due to the deprivation of the right to counsel. OVERVIEW: Respondent was arrested for the abduction of a missing girl. His attorney advised him that police officers would be transporting him to another city, that the officers would not interrogate him, and that he should not talk to the officers until consulting with the attorney. After respondent's arraignment, another attorney similarly advised respondent. The officers gave respondent Miranda warnings. During the trip, respondent expressed no willingness to be interrogated. In the car, one officer discussed how expected snow might make recovery of the body and a Christian burial impossible, and that respondent was the only one who knew where the body was. Respondent eventually led the officers to the body. The Court held that respondent was entitled to a new trial because he was deprived of the Sixth Amendment right to assistance of counsel, as judicial proceedings had been initiated against him before the start of the car ride, and the officer deliberately set out to elicit information from him when he was entitled to the assistance of counsel. Respondent did not waive his right to counsel because he consistently relied upon the advice of counsel in dealing with the authorities. OUTCOME: The Court affirmed and held that respondent was entitled to a new trial because he was deprived of the right to assistance of counsel. Sixth Amendment Right to Counsel The 6th Amendment renders inadmissible any statement deliberately elicited from the defendant after commencement of adversary judicial criminal proceedings regarding that offense unless the accuseds lawyer is present or the accused knowingly and voluntarily waives her right to counsel. Not a waiver because the cops did the Christian Burial Speech first. Sixth Amendment is offense specific! Once you invoke it for one charge, they can still question you about another until you invoke for that one.
US v. Henry PROCEDURAL POSTURE: The government sought review of an order of the United States Circuit Court of Appeals for the Fourth Circuit, which concluded that defendant's Sixth Amendment right to assistance of counsel was violated by the admission at trial of incriminating statements made by defendant to his cellmate, an undisclosed government informant, after indictment and while defendant was in custody. OVERVIEW: Defendant challenged the admission at trial of incriminating statements made by defendant to his

cellmate, an paid undercover informant, after defendant was indicted and while he was in custody, on grounds that admission of the confession violated his Sixth Amendment right to assistance of counsel. The Court held that defendant's statements to a government informant should not have been admitted at trial because by intentionally creating a situation likely to induce the defendant to make incriminating statements without the assistance of counsel, the government had violated defendant's Sixth Amendment right to counsel. The Court held that defendant's Sixth Amendment right to counsel had attached at the time he made the statements. Further, the Court held that the government's specific mention of defendant to the undercover informant, who was paid on a contingency fee basis, constituted the type of affirmative steps to secure incriminating information from defendant outside the presence of his counsel prohibited by the Sixth Amendment. OUTCOME: The Court affirmed the lower court's order, which concluded that defendant's Sixth Amendment right to counsel had been violated by the admission of defendant's incriminating statements. Kuhlmann v. Wilson PROCEDURAL POSTURE: Petitioner sought review of a judgment of the United States Court of Appeals for the Second Circuit reversing the district court's denial of respondent's successive petition for federal habeas corpus relief. OVERVIEW: Respondent, convicted of murder, unsuccessfully sought federal habeas corpus relief, claiming his U.S. Const. amend. VI right to counsel was violated by statements he made to a police informant who shared his cell but did not attempt to elicit the statements. After a subsequent case required suppression of statements made to a paid jailhouse informant, respondent brought a successive petition for habeas. The district court denied the petition and the appellate court reversed. On appeal, the Court held that the ends of justice required consideration of a successive petition for habeas corpus where the prisoner made a colorable showing of factual innocence, which respondent could not do, and that U.S. Const. amend. VI did not forbid the admission of statements made to an informant placed in close proximity who made no effort to stimulate conversations about the crime. Judgment reversing denial of habeas relief was reversed and the case remanded. OUTCOME: The Court reversed a judgment overturning the district court's denial of respondent's successive petition for habeas corpus relief where respondent could not meet the "ends of justice" test by supplementing his constitutional claim with a colorable showing of factual innocence. Difference between Deliberate Elicitation and Custodial Interrogation Deliberate elicitation is the active inducement of statements from the defendant by a government agent (or informant)

Custodial interrogation involves the attempt to elicit statements where there is a potential for coercion. Miranda v. Massiah Right to Counsel When Applies? In Custody? Questioning? Offense Specific? Undercover Agents? Unequivocal Request Required to Invoke? When can it be Invoked? Once Invoked, can police re-initiate questioning? Miranda (5th Amendment) Can be before arraignment Yes Interrogation No Doesnt Apply Required Only during interrogation No, unless 14-day break in custody Massiah (6th Amendment) Only after arraignment Doesnt have to be Deliberate Elicitation Yes Applies None Required Anytime after arraignment No, unless for another offense
Identification and the Right to Assistance of Counsel US v. Wade PROCEDURAL POSTURE: Certiorari was granted in a case from the United States Court of Appeals for the Fifth Circuit, which reversed respondent's conviction and ordered a new trial that was to exclude courtroom identifications because the lineup that had been held in the absence of defense counsel violated respondent's Sixth Amendment right to assistance of counsel. OVERVIEW: The employees of a robbed bank identified respondent in a lineup that had been conducted without counsel being present. At trial, the employees pointed to respondent when asked to identify the robber. Respondent was convicted, but the court of appeals reversed his conviction and ordered a new trial, excluding the courtroom identifications. The court of appeals concluded that the lineup violated respondent's Sixth Amendment right to assistance of counsel. The Court remanded the action to the court of appeals to enter a new judgment vacating respondent's conviction, until a hearing could determine whether the in-court identifications had independent origins. The postindictment lineup was a critical stage of the proceedings, so respondent was entitled to have his attorney present. Based on the record, the Court could not determine whether the courtroom identifications should be excluded. Evidence had to be presented as to whether the in-court identifications were based on observations or the lineup. OUTCOME: The Court remanded the action to the court of appeals, with directions to enter a judgment vacating respondent's conviction and remanding the case to the district court for a determination as to whether the courtroom identifications had independent origins. The

Court was unable to determine whether the witness's courtroom identifications should have been excluded from evidence. Purpose of the 5th amendment is that it protects evidence of a testimonial nature. Here the evidence wasnt testimonial.
Kirby v. Illinois PROCEDURAL POSTURE: Defendant petitioned for a writ of certiorari, challenging the decision of the Appellate Court of Illinois, which affirmed defendant's conviction for robbery. OVERVIEW: Defendant had been arrested in connection with an unrelated criminal offense and was taken to the police station. The victim of a robbery was at the police station and identified defendant as the robber. At the time of the identification, no lawyer was present, defendant had not asked for legal assistance, and defendant had not been advised of any right to the presence of counsel. After the identification, defendant was indicted for the robbery and was arrested. At trial, the victim testified as to the police station identification and also made an in-court identification of defendant. Defendant was convicted of robbery, and the state appellate court affirmed. The Court granted certiorari and affirmed. Although the Sixth Amendment right to counsel existed at a post-indictment pretrial lineup, the Court refused to extend the right to an identification that took place before the commencement of any prosecution whatever. Because defendant was identified before he was arrested on the robbery charge, the pre-indictment identification was admissible, even though counsel was not present. OUTCOME: The Court affirmed defendant's robbery conviction. US v. Ash PROCEDURAL POSTURE: Petitioner government sought review of a decision of the United States Court of Appeals for the District of Columbia Circuit, which held that respondent accused had a right to have counsel present whenever the government conducted a postindictment photographic display containing the picture of respondent for the purpose of allowing a witness to attempt an identification of respondent. OVERVIEW: Prior to trial of respondent accused, petitioner government used a photographic display to determine whether witnesses would be able to make in-court identifications of respondent. Some witnesses selected his picture, but one was unable to make any selection; at trial some witnesses identified respondent. Respondent was convicted. The appellate court held that admitting the photographs into evidence constituted the introduction of a post-indictment identification. The Court reversed and held that that it applied a historical interpretation of the right to counsel and had expanded the guarantee only when new contexts appeared presenting the same dangers that gave birth to the right. The Court held that even if it were

willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, it would be unwilling to go so far as to extend the right to a portion of petitioner's trial-preparation interviews with witnesses. The Court held that U.S. Const. amend. VI did not grant the right to counsel at photographic displays conducted by respondent for the purpose of allowing a witness to attempt an identification of the offender. OUTCOME: The Court reversed the decision below and held that the Sixth Amendment did not grant the right to counsel at photographic displays conducted by petitioner government for the purpose of allowing a witness to attempt an identification of respondent accused. Wade-Kirby Doctrine A person has a 6th Amendment right to counsel at: o Any physical (sometimes referred to as a corporeal identification procedure) o Conducted after, but not before, he has been indicted or equivalent adversary judicial criminal proceedings have been commenced against him.
What about In-Court ID? If pretrial lineup is excluded, Cannot bring in an in-court ID unless the prosecutor proves by CCE that there is an independent source
Due Process and Identifications Stovall v. Denno PROCEDURAL POSTURE: Defendant presented a petition for a writ of certiorari to review a judgment from the United States Court of Appeals for the Second Circuit that affirmed the dismissal of his habeas corpus petition because the identification testimony used to convict defendant was admissible. OVERVIEW: Defendant filed a habeas corpus petition that challenged the constitutionality of the victim's identification of defendant, which led to his conviction. The identification took place in the victim's hospital room and before defendant had the opportunity to obtain counsel. The district court and appellate court denied defendant's petition. The court affirmed the judgment. The court refused to apply retroactively the rules that required the exclusion of identification evidence obtained by exhibiting the accused to identifying witnesses in the absence of his counsel. Retroactive application was inappropriate because law enforcement officials and courts relied upon the premise that the presence of counsel was not constitutionally required for pretrial confrontations for identification. Further, retroactive application would place a burden on the administration of justice. The identification was not so unnecessarily suggestive and

conducive to irreparable mistaken identification that it violated defendant's due process rights because the record revealed that the hospital identification was necessary. OUTCOME: The court affirmed the judgment denying defendant's habeas corpus petition. The reliance and burden to the administration of justice factors precluded retroactive application of the ruling that required exclusion of identification evidence obtained without the presence of defense counsel. Stovall Due Process Look to see if ID is: o Unnecessarily suggestive; and o Conducive to mistaken identification.
Manson v. Brathwaite PROCEDURAL POSTURE: The government prosecuted respondent and he was convicted of possession and sale of heroin. The United States Court of Appeals for the Second Circuit reversed the dismissal of respondent's petition for habeas corpus relief, with instructions to issue the writ unless the government gave notice to retry respondent and the new trial occurred within a reasonable time. The government sought certiorari review. OVERVIEW: Respondent, on a claim for habeas relief, proposed a per se rule of exclusion that he claimed was dictated by the demands of the Fourteenth Amendment's guarantee of due process. The Court adopted the totality of the circumstances test and concluded that the criteria applicable in determining the admissibility of evidence offered by the prosecution concerning an identification were satisfactorily met and complied with in respondent's case. The Court reasoned that the factors that had to be considered included the opportunity of the witness to view respondent at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors was weighed the corrupting effect of the suggestive identification itself. The Court determined that it could not say that, under all the circumstances of respondent's case, there was very substantial likelihood of irreparable misidentification. OUTCOME: The judgment reversing the denial of respondent's motion for habeas corpus relief was reversed. Manson Modified Test (to determine reliability) Still look to see if it is unnecessarily suggestive. If it is, then look to see if There is a substantial likelihood of misidentification. To determine that, look at: o The witnesss opportunity to view;

o o o o The witnesss degree of attention; The accuracy of the witnesss description; The witnesss level of certainty; and The time between the crime and the confrontation.
The Sources of and Rationales for the Exclusionary Rules Weeks v. US PROCEDURAL POSTURE: Defendant was charged with the use of the mails to transport coupons or tickets representing chances or shares in a lottery. The District Court of the United States for the Western District of Missouri denied defendant's pretrial petition to suppress the evidence seized in a warrantless search of his room and to return the seized property. The district court retained jurisdiction of the property. Defendant appealed the denial of his petition. OVERVIEW: In review of defendant's contention that the warrantless seizure of his private correspondence violated his Fourth Amendment rights, the Court held: 1) that the letters in question were taken from defendant's house by an official of the United States acting under color of his office in direct violation of the constitutional rights of defendant; 2) that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of defendant; and 3) that the district court should have restored the letters to defendant. In holding the private correspondence and permitting their use at trial, prejudicial error was committed. The police did not act under any claim of federal authority such as would make the Fourth Amendment applicable to such unauthorized seizure as they acted before the finding of an indictment in the federal court. The Court did not inquire as to what remedies were available to defendant, as the Fourth Amendment was not directed to individual misconduct of such officials. Its limitations reached only the federal government and its agencies. OUTCOME: The Court reversed the judgment of the district court and remanded the case. First case to say that you cant use the evidence at trial. 4th Amendment doesnt say anything about excluding evidence Not a product of the liberal Warren court unanimous decision
Mapp v. Ohio PROCEDURAL POSTURE: Defendant appealed from a judgment of the Supreme Court of Ohio, which affirmed her conviction for possessing obscene literature in violation of Ohio Rev. Code Ann. 2905.34. Defendant contended that the evidence seized during a search and that was introduced at the trial was prohibited under U.S. Const. amend. IV.

OVERVIEW: It was apparent that the materials introduced into evidence in the prosecution of defendant were seized during an illegal search of defendant's residence in violation of the Fourth Amendment. Nevertheless, the state supreme court affirmed defendant's conviction for possessing lewd material in violation of Ohio Rev. Code Ann. 2905.34 on the basis that the Fourteenth Amendment did not apply in the state court prosecution of defendant for a state crime to forbid the admission of evidence obtained by an unreasonable search and seizure. On appeal, the Court reversed the state supreme court's decision. The Court held that the due process clause of the Fourteenth Amendment extended to the States the Fourth Amendment right against unreasonable searches and seizures. And, as necessary to ensure such rights, the exclusionary rule, which prohibited the introduction into evidence of material seized in violation of the Fourth Amendment, likewise applied to the State's prosecution of state crimes. OUTCOME: The Court reversed the judgment of the state supreme court and remanded the cause for further proceedings not inconsistent with the Court's opinion. Rationales for the ER 1. Exclusion is an essential part of the right to privacy 2. The purpose of the ER is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. 3. Judicial Integrity dont taint the courts by allowing the fruits of illegal searches 4. State and Federal should be symmetrical 5. Coerced confessions are kept out, so should 4th amendment violations. Miranda Preview A true coerced confession is a violation of due process and will never be allowed in against you. We dont allow 4th amendment evidence in but we do allow 5th amendment evidence. However, 4th amendment evidence is usually the best evidence you can have and 5th is usually sort of poor. Its flip-flopped. The courts have the power to put in place safeguards to avoid violations of rights this is not in the Constitution Courts gave this power to themselves
The Scope of and Exceptions to the Exclusionary Rules The Standing Limitation Alderman v. US

The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. 4th amendment rights are personal and cannot be vicariously asserted. The main rationale behind the exclusionary rule. Rakas v. Illinois Synopsis of Rule of Law. Rights assured by the Fourth Amendment are personal rights [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure, not vicariously. Facts. Police officers stopped a car matching the description of the getaway car in a robbery. Petitioners were passengers; neither owned the car. A shot gun and ammunition were found in the car. Petitioners motion to suppress was denied for lack of standing. Issue. [W]hether standing [can] be established in the absence of ownership of the property seized. Held. No. Despite the petitioners arguments, the Court did not accept the target theory, and reaffirmed Jones v. United States. The petitioners had no standing. The Court further distinguished from Jones in that the petitioners did no have a legally sufficient interest in a place other than his own home. The petitioners could [not] legitimately expect privacy in the areas which were the subject of the search and seizure each sought to contest. Dissent. The dissenting justices were concerned that there was an open season on automobiles. Moreover, protection from bad-faith stops was undercut. To determine if a person has standing, you look to whether that person had a legitimate expectation of privacy. Whether the challenged search or seizure violated the 4th amendment rights ohh fah criminal defendant ho seeks to exclude the evidence obtained during it. That reuries determination of whether the disputed search and seizure has infringed an interest of the defendant which the 4th amendment was designed to protect. If they are just passengers and they dont have a legitimate expectation of privacy they cant object. Overnight guest in a home generally have a reasonable expectation of privacy. Minnesota v. Carter Facts of the Case: Wayne Thomas Carter, Melvin Johns, and Kimberly Thompson were arrested after a police officer observed them through a window bagging cocaine in Thompson's apartment. During the trial in Minnesota state court, the defendants moved to suppress the cocaine as evidence. They argued the officer's initial observation was an unreasonable search and seizure in violation of their Fourth Amendment rights. Subsequently, they were all convicted on state drug charges. The Minnesota trial court held that because they were not overnight social guests they were not protected by the Fourth Amendment. Moreover, the court held that the officer's window-based observation was not

a search under the Fourth Amendment. On appeal, the state intermediate appellate court held Carter did not have standing for an objection to the officer's action because his use of the apartment for drug purposes removed any legitimate expectation of privacy. The court also affirmed Johns' conviction . The Minnesota Supreme Court reversed. It held that the defendants had a legitimate expectation of privacy in the invaded place and that the officer's observation constituted an unreasonable search. Minnesota sought a writ of certiorari in the U.S. Supreme Court. Question: In accordance with the Fourth Amendment, do household visitors have the same protection against unreasonable searches and seizures as do residents or overnight social guests? Conclusion: No. The Court held, in an opinion authored by Chief Justice William H. Rehnquist, that people who visit someone's home for a short time do not have the same protection against unreasonable police searches and seizures as do the residents or their overnight guests. Short-term visits for commercial transactions are not protected by the Fourth Amendment. Furthermore, Chief Justice Rehnquist noted that nothing in the case served to show that Carter was accepted into the household. Here the defendant was in the house for a commercial purpose and didnt have a reasonable expectation of privacy. The court also looked to the fact they they were there for a short period of time, 2 hours, as a factor to look at when considering standing. * No ownership interest in the home. * Ginsberg, stevens and souter would find that any social guest would have standing. ] * Breyer- would say that any social guest would have standing also. * Almost all guest Kennedty * Closer to overnight than just leg. On premises- OConnor * Only overnight- scalia and Thomas. * There are some limits even with overnight guest. There standing only extends to the scope of their stay and privacy interest. The Independent Source and Inevitable Discovery Doctrines Silverthorne Lumber Co. v. US Facts: An indictment upon a single specific charge having been brought against the two Silverthornes mentioned, they both were arrested at their homes early in the morning of February 25th and were detained in custody a number of hours. While they were thus detained representatives of the Department of Justice and the United States marshal without a shadow of authority went to the office of their company and made a clean sweep of all the books, papers and documents found there. The evidence was turned over to the District Attorney who planned to use it against the defendants. Procedural Posture: District Court: Fined Silverthorne Lumber Company 250 dollars for contempt of court and ordered Frederick Silverthorne to be imprisoned until he should purge himself of a similar contempt. Issue(s): Whether the evidence seized through an unlawful search can be used against the defendants during trial? Judgment/Disposition: Reversed Holding: The court established the fruit of the poisonous tree rule in which good evidence, if obtained

illegally, cannot be used against the defendant. This is an extension of the exclusionary rule. Majority: The majority came up with the fruit of the poisonous tree doctrine, which prohibits the government from using evidence derived from conduct that violates the Fourth Amendment or other provisions of the constitution. Thus, the exclusionary rule remedy applies not only to the direct fruits (evidence) obtained by unconstitutional means, but also to all other evidence subsequently derived from it. The court found this rule was needed because without it the Fourth Amendment in anticipation of developing subsequent evidence that could be admitted at trial. If this was permitted it would defeat the purpose of the individuals rights as well as the exclusionary rule. * Evidence that is not casually linked to unconstitutional governmental activity is admissible pursuant to the independent source doctrine. Murray v. US * Synopsis of Rule of Law. The independent source doctrine applies . . . to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. Facts. Petitioner Murray was under surveillance by federal agents. They observed Murray and a co-conspirator drive separate vehicles to a warehouse. Inside, the two agents saw two more individuals and a tractor-trailer. The petitioner and his co-conspirator turned their respective vehicles over to other persons. Based on this, agents forced entry into the warehouse without a warrant. Observing bales of marijuana, the agents left, and kept watching the warehouse until they had a warrant. Issue. Whether, . . . assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that been observed in plain view at the time of a prior illegal entry must be suppressed. Held. No. The court applied the independent source rule formulated in Segura, permitting evidence found independently, despite an improper search. In the present case, knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if the later acquisition was not the result of the earlier entry, there is no reason why the independent source doctrine should not apply. This was applied to the tangible evidence: the bales. However, the court was uncertain as to whether the search pursuant to the warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. The agents did not reveal the original search to the magistrate issuing the warrant. Thus, they remanded to the Court of Appeals with instructions that it remand to the District Court for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense [the court] described. Dissent. The dissenting justices were concerned that by applying the independent source rule to the facts of this case, the court loses sight of the practical moorings of the independent source exception and creates an affirmative incentive for unconstitutional searches. Here the evidence came in because the independent source applies:

When the evidence is found first through lawful legal activity or is later obtained in a manner independent of the original discovery. Essentially fruit of the non-poisonous tree. Remember both the decision to seek the warrant and the warrant itself must be independent of the illegality. Nix v. Williams - Synopsis of Rule of Law. This case introduces the inevitable discovery doctrine, which postulates that if evidence will be inevitably discovered, the method in which it is obtained is not important. Facts. Defendant, Williams was arrested and read his rights for the murder of a child after he led law enforcement officials to the body of the child by making statements, in passing, to officials who were conducting the search. While the statements Williams made were not allowed as evidence against him at trial, the body of the child, as well as photographic and medical and chemical test information were admitted. At trial of the matter, the court concluded that, even if Williams had not made the statements to police, the body of the child would have been found within a reasonable time, and that evidence could still be used. Issue. Whether evidence, which ultimately results in arrest, should be excluded from trial because it was improperly obtained. Held. Under the inevitable discovery doctrine, because the evidence would have been discovered within a short period of time, the method in which it was obtained became irrelevant and it was still allowed against the defendant. Dissent. Justice Brennan dissented, noting that the inevitable discovery rule relies on a hypothetical scenario in which the evidence may or may not have been found and, because it was not found by legal means, it was still unconstitutionally obtained. Concurrence. Justices Stevens and White Concurred, maintaining the same holding. Discussion. When evidence will inevitably be found in the course of an investigation, it is not unconstitutionally obtained if it is found sooner by other means. Inevitable discovery doctrine Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means. The difference here is that there was no independent source. They just have to prove that it would have been discovered anyway. Attenuation Whether the evidence found was come at by exploitation of that illegality, or instead by means sufficiently distinguishable to be purged of the primary taint. In other words, can it be sufficiently attenuated from the original illegality?

Think of it as a rubber band, the further you stretch it, the more likely it will be admissible.
Wong Sun v. US Brown v. Illinois Three factors to look at to see if sufficiently purged of the taint: The temporal proximity of the arrest and the confession The presence of intervening circumstances The purpose and flagrancy of the official misconduct
What is the difference between verbal evidence and physical evidence? Verbal is the product of the defs free will moreso than physical evidence. Verbal is usually further away from the original illegality. You have more of a right to talk or not to talk, physical evidence is just there.
Hudson v. Michigan Knock and Announce Case Hudson Addition When the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained, it will be sufficiently attenuated.
Oregon v. Elstad Missouri v. Seibert US v. Patane Oregon v. Elstad Miranda Attenuation When subsequent Miranda warnings are not sufficient to cure the original failure to read Miranda: When Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of the rights and the consequences of abandoning them.

Or when they are two spates of integrated and proximately conducted questioning.
Derivative Evidence If LEO merely violated Mirandas extra constitutional protection, only the statements themselves are excluded, not the physical evidence derived there from. If due process is violated, physical evidence may be excluded.
Good Faith Exception and Impeachment US v. Leon Good Faith Exclusionary Rule will not bar use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found to be unsupported by probable cause. Ask: Whether a reasonably well-trained officer would have known that the search was illegal despite the magistrates authorization.
Mass. V. Sheppard The Impeachment Limitation Harris v. NY Impeachment The prosecution can use statements obtained from a defendant in violation of Miranda to impeach the testimony of that defendant Can be used solely for casting doubt on the testimony, not for a substantive finding of guilt. If ACTUALLY coerced, it cant be used, however. AND you cant impeach a defense witness with a defendants illegally obtained statement.
US v. Havens James v. Illinois -
Crim. Pro. Review

Fourth Amendment

Steps to the Fourth Amendment Analysis Was there a search Was the search reasonable o Was there PC? o Was there a warrant 1. Did the warrant meet the requirements If no warrant, was there a valid exception to the Warrant Requirement? If not, can we balance interests? o Terry o Other special balancing contexts If not is there an exception to the ER that applies?
Search or Seizure Search? o Was there a reasonable expectation of Privacy? Seizure o What kind of conduct? (Stop, frisk, arrest)? o What kind of standard? (Reasonable suspicion, probably cause?)
Probable Cause Definition: To have probable cause to arrest there must be a fair probability that: o That particular individual o Has committed or is committing a particular offense To have PC to search there must be a fair probability that: o Something that is properly subject to seizure by the government, ie contraband or fruits, instrumentalities, or evidence of a crime, o Is presently o In the specific place to be searched.
Aguilar/Spinelli Test for Informants Must prove both: Basis for knowledge AND Veracity
Warrant Requirements Supported by PC

Signed by a detached and neutral magistrate Supported by oath or affirmation Particularly describe the place to be searched.
Exceptions If no search warrant, was there an exception? 1. SILA? o Need to know Gant, etc. 2. Exigent Circumstances? 3. Vehicle and/or Container Search Need PC 4. Inventory Search 5. Consent 6. Plain View Was there probable cause for the exception? (if needed)? Terry Stops Was there reasonable suspicion to believe criminal activity was afoot? Was there a reasonable suspicion to believe person is armed and presently dangerous?
Exclusionary Rule If a violation occurred, does the exclusionary rule apply? Derivative Evidence o Fruit of the Poisonous Tree? 1. Sufficiently Attenuated? 1. Temporal Proximity 2. Intervening Circumstances 3. Purpose and Flagrancy
Exceptions to Exclusionary Rule Independent Source? Inevitable Discovery? Good Faith? Impeachment?
Confessions Due Process

Involuntary or Voluntary? Coercion by the police? Was their Will Overborne?
Miranda Custody? Interrogation? Were valid warnings given? If they did, did they invoke their right to counsel or silence? Was there a knowing, intelligent, and voluntary waiver? Was there a public safety exception situation?
6th Amendment Right to Counsel Is Information from you being Deliberately Elicited? Have Adversarial Judicial Proceedings commenced? Was there a valid waiver?
Identifications Was there a 6th Amendment Right to Counsel Violation? What type of pre-trial identification procedure was used (line-up, photo array, and show-up)? Was there a right to counsel? Should an in-court identification be permitted?
Due Process ID Was it unnecessarily suggestive? Was it unreliable (Braithwaite factors)?
Essay Question Instructions: Assume that Bill and Sookie have both filed motions to suppress based on the fact pattern above. Assume that you are the staff attorney for the trial court judge and have been asked to research and answer the question below. Please make sure that you clearly articulate the law and analyze EACH ISSUE before moving onto the nest issue. In other words, do not merely list all the rules and then analyze all the issues. Please keep the rules and analyses together for each issue. Use the many Supreme Court opinions that we have discussed in this class as your guide.

(7 Questions so far) EX: Will the sawed off shotgun be admissible against Bill?

Criminal Procedure Baxter Winter 2011

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CRIMINAL PROCEDURE WINTER 2013

The 4th Amendment Right to be Secure against Searches (Threshold)

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SILA v. Inventory Searches SILA INVENTORY

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Pretext Containers Pretext = Wren

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Consent must be:

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Falls Under What Doctrine SILA Inventory search

Automobile exception Terry search

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CRIMINAL PROCEDURE WINTER 2013

Thompkins Case A statement in and of itself can be enough for a waiver.

CRIMINAL PROCEDURE WINTER 2013