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A. General 1. Fourth Amendment a) Fourth 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 probably cause 2. Fifth Amendment a) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 3. Sixth Amendment a) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence 4. Eighth Amendment a) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. B. The Criminal Justice System 1. Goals of Criminal Procedure a) Correct result + fair process 2. Participants a) Defendants (1) Want to ensure constitutional rights are respected; (2) Interest to have an opportunity to zealously contest the charges against them b) Defense counsel (1) Advocate with courage and devotion and to render effective, quality representation c) Prosecutors (1) Represent victim and thus the people/community; (2) Duty is to seek justice not merely to convict; (3) Decide which cases to charge, whether to plea bargain, trial strategies and sentencing recommendations. d) Victims (1) Represented by prosecutors (2) Some states allow victims limited right to observe criminal proceedings (3) Do not control the handling of criminal cases e) Police (1) Make the initial decision of whether to investigate a case and whether to arrest and charge an individual with an offense. (2) Focus is on safety of community (3) Have enormous discretion (4) Investigative criminal procedure (5) Focuses on what procedures police may use when apprehending and investigating s (6) Addresses rules for searches, seizures and interrogations of s. f) Magistrates and judges (1) Neutral decision makers in criminal justice system. (2) Ensure s constitutional rights are respected. (3) May review police conduct to determine if evidence should be suppressed. g) Jurors (1) Grand jurors

(1) Oversee investigations of cases and decide whether to return indictments against individuals for specific crimes. (2) Trial jurors (1) Fact-finders in most criminal trials; decide whether there is sufficient evidence to convict a . (2) Ordinarily have to make key credibility decisions h) Corrections officials (1) Have responsibility of supervising s incarceration or release on parole or probation. i) Public (1) Primary concern is safety but also have financial interest in ensuring that cases are efficiently prosecuted and that govt officials respect the constitutional rights of citizens. j) The media (1) Interest in serving as check on govt powers. (2) Sometimes interest of media easily comes into conflict with a s Sixth Amendment right to a fair trial. C. Stages of the Criminal Justice Process 1. Process (typical route) a) Pre-arrest investigation (1) On-the-scene arrests b) Arrest c) Filing the Complaint d) Gerstein Review (1) When the magistrate judge must review prosecutions complaint and supporting affidavit to determine whether there is probably cause supporting initial charges against . (2) This review is done ex parte (in the interest of one side) and is based upon the filings alone. e) First Appearance/Arraignment on Complaint (1) has right to go before magistrate judge without unnecessary delay, which is usually within 48 hours of s arrest (Rule 5 of FRCP). f) Grand Jury or Preliminary Hearing (1) Grand jury (1) For federal felonies, is entitled to grand jury indictment (5th Amendment) (2) Consists of 23 members of community (3) No judge, nor is or his counsel required to be present (4) States are not bound to use grand juries nor do they have to use same procedures. (2) Preliminary hearing (1) Majority of jurisdictions use these hearings to decide whether there is enough evidence to a hold a for trial and to settle which charges prosecution will bring. (2) No jury is present; judge decides whether there is probable cause to bind the case over for trial. (3) This is an adversarial process (search for the truth) and both sides have opportunity to cross-examine witnesses. g) Arraignment on Indictment or Information (1) Where enters guilty or not guilty plea then is advised of charges and assigned counsel (if not yet assigned) (2) Trial date assigned (must comply with speedy trial) h) Discovery (1) Process by which parties seek to examine the evidence that the other party is likely to use at trial. i) Pretrial Motions (1) Help parties define scope of their own cases and to assess the relative strength of the other sides case. (2) Defense: (1) May seek to suppress evidence illegally obtained by the prosecution, move to change venue, and seek dismissal for speedy trial violations or problems with charges. (3) Prosecution: (1) May file pretrial motions in limine to get pretrial rulings on key evidentiary issues in the case. j) Plea Bargaining and Guilty Pleas (1) 90% of criminal cases never go to trial

(2) Vast majority have guilty or nolo contendere (no contest) plea (3) Guilty: (1) Admission that committed crime and waiver of all rights would have had he proceeded to trial. (2) Formal hearing is held to education about options and determine nature of plea. (3) Sentences may be reduced for guilty pleas (4) Nolo contendere: (1) Same effect in criminal case as guilty plea (2) can receive same criminal punishment as one that pleads guilty but nolo contendere has no impact on any companion civil case (unlike a guilty plea that serves as an admission for a civil case.) k) Trial (1) If doesnt plead guilty, case proceeds to trial. (2) Court/bench trial (1) Both sides must agree to waive the right to jury trial (2) Judge will hear evidence and decide proof of charges (3) Jury trial (4) General: (1) Guaranteed by Sixth Amendment for all serious offenses (offenses that carry a possible sentence of more than six months in custody) (2) States may choose to have small juries of 6 for non-capital felony cases. (3) Verdict doesnt have to unanimous. (5) Selection: (1) Panel of jurors (venire) which are weeded out through a process called yoir dire. (2) Parties can excuse jurors from jury by using challenges for cause (allegations that specific jurors that cannot reach fair verdict) or exercising peremptory challenges (reject jurors who appear to have unfavorable bias; no support of actual bias needed.) (3) Each side has unlimited number of challenges for cause and a limited number of peremptory challenges. (6) Reaching a decision: (1) If jury cant reach a decision, hung jury and court will declare mistrial. (2) Prosecution can retry . l) Sentencing (1) Hearing is often separate (2) can address the court (3) Court receives reports compiled by probation officer and input from parties (4) Systems vary greatly in U.S. m) Appeals and Habeas Corpus (1) If succeeds on either of the following, remedy is a retrial. (2) Appeals (1) challenges errors by court or prosecution at trial. (2) Burden shifts to to demonstrate why he didnt receive a fair trial (3) Habeas Corpus (1) Challenge to constitutional violations alleging that is being held unconstitutionally. (2) Primary grounds: ineffective assistance of counsel (3) Search and seizure issues not sufficient basis (4) If appellate court finds there was insufficient evidence to support the verdict, may not be retried b/c of double jeopardy issues. D. Purpose of Procedural Rules 1. Sometimes, fair procedures may not have been afforded to s GENERAL CONSIDERATIONS Without fair procedures and respect for constitutional rights, there is a strong likelihood that the s will not be treated fairly, and that persons will be held accountable for crimes they did not commit. (Hester v. U.S., 1924) Any individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. (Oliver v. United States)


Powell v. Alabama (U.S. 1932) [a.k.a. as the Scottsboro trial] (1) Facts: A group of seven illiterate black boys, one of which was 19 years old, were on a train. There was a fight between them and seven white boys, and the black boys threw six of the white boys off the train. Two white girls claimed to have been raped by six of the black boys, and identified this seven as being present. They were arrested and placed under guard in Scottsboro, a town that seemed ready to mob them, and given counsel only for arraignment, although it was assumed that the counsel would continue to help out. The jury gave death sentences to them all. (2) Held Sutherland: Under these circumstances, the s were not given the right to counsel in any substantial sense. (3) Held: The Alabama supreme court ruled that the state constitution requirement that the state provide counsel when defendant cannot afford one was not violated, and the Supreme Court cannot change that decision. (4) Held: To uphold the Fourteenth Amendment requirement of due process, in a capital case, if the defendant cannot afford an attorney and "is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like," the court must assign counsel even if not requested by the defendant. b) Patterson v. Former Chicago Police Lt. Jon Burge (N.D. Ill. 2004) (1) Facts: Area 2 police officers beat and suffocated false confessions out of people and Patterson ended up serving 13 years on death row before being exonerated and filing suit against his attacking officers. Patterson was leader of a local crime group. The cops were trying to both take Patterson down and show the public that someone was paying for the murder of this old couple. The cops may have felt the ends justify the means, but for criminal procedural fairness, this is not sufficient. Application of the Bill of Rights to the States 1. The Provisions of the Bill of Rights and the Idea of Incorporation a) General: (1) Incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. (2) Prior to the 1890s, the Bill of Rights was held only to apply the federal government. (3) Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments by virtue of the due process clause of the 14th Amendment. b) Relevant case history (1) Barron v. Mayor & City of Baltimore (U.S. 1833): SCOTUS held that the Bill of Rights applied only to the federal but not any state governments. (2) Chicago, Burlington & Quincy Railroad v. City of Chicago (U.S. 1897): Beginning of finding that at least some BOR provisions are part of the liberty protected from state interference by the Due Process Clause of the Fourteenth Amendment. SCOTUS held that Due Process Clause of 14th Amendment prevents states form taking property without just compensation. (3) Twining v. New Jersey (U.S. 1908): SCOTUS looked at whether a jury in state court could draw an adverse inference against a criminal for failing to testify and held that this didnt apply to the states but stated it was possible that some of the personal rights safeguarded by the first 8 amendments against national action may also be safeguarded against state action. This case opened the door to SCOTUS applying provisions of BOR to states finding them to be included into the Due Process Clause of the Fourteenth Amendment. (4) Gitlow v. New York (U.S. 1925): SCOTUS said that the First Amendments protection of freedom of speech applies to the states through its incorporation into the Due Process Clause and rejected the constitutional challenge to a state law that made it a crime to advocate the violent overthrow of govt by force or violence. (5) Fiske v. Kansas (U.S. 1927): SCOTUS for the first time found that a state law regulating speech violated the Due Process Clause. (6) Powell v. Alabama (U.S. 1932): SCOTUS found a states denial of counsel in a capital case denied due process, thereby in essence applying #6 to the states in capital cases. The court concluded that Due Process Clause protects fundamental rights from state interference and that this can include BOR provisions. 2. Debate Over Incorporation a) General:


(1) Once the Court found that the Due Process Clause of the Fourteenth Amendment protected fundamental rights from state infringement, there was a major debate over which liberties were safeguarded and the extent to which individuals could turn to the federal courts for protection from state and local governments. b) Views: (1) Total incorporationists believed that ALL of the BOR should be deemed included in the Due Process Clause. Justices Black and Douglas were advocates of this view. (2) Selective incorporationists believed that only some of BOR were sufficiently fundamental to apply to state and local governments. (1) Justice Cardozo: Incorporation applies to rights where neither liberty nor justice would exist if they were sacrificed. (2) Justice Frankfurter: Due Process precludes those practices that offend those canons of decency and fairness which express the notions of justice c) Cases: (1) Palko v. Connecticut (U.S. 1937) (1) Holding: Court held that the prohibition of double jeopardy does not apply to states. (2) Cardozo opinion: Allowing the state to appeal this kind of double jeopardy does not violate fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. (2) Adamson v. California (U.S. 1947) (1) Holding: States were not obligated to follow the Fifth Amendments prohibition on a prosecutors commenting on a criminal s failure to take the witness stand. (2) Dissent Black: One of the chief objects that the provisions of the Amendments first section, separately, and as a whole, were intended to accommodate was to make the BOR applicable to states. d) Key issues of the debate: (1) First, the debate was over history and whether the framers of the Fourteenth Amendment intended for it to apply the BOR to the states. Both sides claim history supports their view (2) Second, the incorporation debate was over Federalism. Applying the BOR to the states imposes a substantial set of restrictions on state and local governments. (1) Defenders of total incorporation say that federalism is not sufficient reason for tolerating violations of fundamental liberties. (2) Opponents of total incorporation argue based on federalism: the desirability of preserving state and local governing autonomy (self-govt) by freeing them from the application of the BOR. (3) Third, the debate was over the appropriate judicial role. (1) Advocates of total incorporation (Black) claim that allowing the court to pick and choose which rights to incorporate left too much to the subjective preference of the justices. (2) Advocates of selective incorporation denied this and maintained that total incorporation would mean more judicial oversight of state and local actions and thus less room for democracy to operate. 3. Current Law as to Whats Incorporated INCORPORATION TODAY Selective incorporationists prevailed in that SCOTUS never has accepted the total incorporationist approach; however, the total incorporationists largely succeeded in their objective because SCOTUS found almost all of the provisions to be incorporated. (Casebook) Five provisions never incorporated: o Amendment II: Right to bear arms o Amendment III: Right to have soldiers quartered in a persons home o Amendment V: Right to a grand jury indictment in criminal cases o Amendment VII: Right to jury trial in civil cases o Amendment VIII: Prohibition of excessive fines Technically, the BOR still applies directly only to the federal government; Barron v. Mayor & City Council of Baltimore never has been expressly overruled. Therefore, whenever a case involves a state or local violation of a BOR provision, it involves that provision as applied to the states through the Due Process Clause of the Fourteenth Amendment. The right to a jury applies to states through the Fourteenth Amendment because this right is fundamental to the American scheme of justice. (Duncan v. Louisiana)


Duncan v. Louisiana (U.S. 1964) (1) Facts: Duncan was facing a two-year punishment for simple battery and requested a jury trial and Louisiana denied him that because they only granted jury trials in capital punishment cases or cases where hard labor could be imposed. (2) Held White: A trial by jury is "fundamental to the American scheme of justice," so the Fourteenth Amendment guarantees a trial by jury in all criminal cases, which would come under the Sixth Amendment's guarantee if they were tried in federal court. (3) Concur Black: Full incorporation of the BOR into the Fourteenth Amendment is to be preferred, but selective incorporation is the next best thing. Harlan, on the other hand, believes that due process is an evolving concept, that there should be no incorporation, and that judges should have discretion to decide what constitutes due process. This gives judges too much leeway and actually constricts on states' rights by allowing a judge to make an arbitrary decision. (4) Dissent Harlan: There is no evidence that the authors of the Fourteenth Amendment meant to incorporate the Bill of Rights. At least full incorporation would be internally consistent, but this court has decided selective incorporation. Such a decision ignores whether fairness actually requires a trial by jury by the states, and instead examines the question of whether the Fourteenth Amendment incorporates such a right. 4. Content of Incorporated Rights a) In some cases, the Court has expressly stated that the BOR provisions applied in exactly the same manner whether it is federal or a state government action. b) In other cases, SCOTUS has ruled some BOR provisions apply differently to states than the federal govt: (1) Williams v. Florida (U.S. 1970): The states need not use 12-person juries in criminal cases, even though that is required by the Sixth Amendment for federal trials. (2) Apodaca v. Oregon (U.S. 1972) & Johnson v. Louisiana (U.S. 1972): States may allow nonunanimous jury verdicts in criminal cases. (3) Burch v. Louisiana (U.S. 1979): SCOTUS ruled, however, that conviction by a non-unanimous six-person jury violates due process. c) The BOR do apply to state and local governments and, in almost all instances, with the same content regardless of whether it is a challenge to federal, state or local actions. Retroactivity 1. History a) Until the middle of the 20th century, common-law systems in the U.S. operated on the premise that the law was natural and the courts only found the law. This presumption led to all decisions being retroactively applied to all prior cases that involved the issue in question. However, with the development of legal realism and the proliferation of legislatively enacted law, the courts shifted to a role of interpreting law that had been "made" rather than a role of "finding" natural law. b) Complete retroactivity was abolished by SCOTUS in Griffith v. Kentucky (U.S. 1987). 2. General Rule a) Retroactivity in law is the application of a given norm to events that took place or began to produce legal effects, before the law was approved. Most countries are guided by the general principle of irretroactivity of law, which severely restricts this kind of ex-temporary application. b) New constitutional rights are NOT retroactive. 3. Exceptions a) If it narrows the govts power to punish or the scope of the conduct that is illegal (1) Lawrence v. Texas (U.S. 2003): States may not punish private consensual homosexual activity between adults. This obviously puts such conduct beyond the reach of the criminal law and thus the decision would apply retroactively. b) If it is a watershed rule of criminal procedure and speaks to fundamental fairness (extraordinary) (1) Whorton v. Bocking (U.S. 2007): It must be a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. In order to qualify as a watershed, a new rule must (1) be necessary to prevent an impermissible large risk of an inaccurate conviction and (2) alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. 4. Possibility of Retroactivity a) It is possible that a criminal procedure decision would apply retroactively. (1) Gideon v. Wainwright (U.S. 1963): Criminal s have a right to counsel at trial in any case where the sentence potentially includes imprisonment; this is a classic case of a decision that would apply retroactively.



A. Introduction 1. Fourth Amendment a) 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 b) Reasonable/unreasonable only appears once in the U.S. Constitution and its in the Fourth Amendment. 2. Application a) The Fourth Amendment applies to actions by government officials but it does not apply to purely private conduct. b) The Fourth Amendment doesnt apply to a search by U.S. law enforcement outside of the U.S. (U.S. v. Verdugo v. Urquidez). c) 3. Whats protected and what isnt? a) The Fourth Amendment expressly protects persons, houses (including hotel rooms), papers and effects. (1) Houses now includes an area of domestics use that immediately surrounds the house (curtilage); it has also bee interpreted to include offices, stores and other commercial buildings. (Professor) b) The Fourth Amendment does not protect account records held by a bank, anything that can be seen in or across the open fields, garbage left at a curb for collection, barns, odors (cars and luggage), or anything that can be seen below when flying in public, navigable airspace. 4. Standing a) Individuals authority to challenge the lawfulness of a search or seizure conducted by a government agent. b) If there is an alleged violation of someones Fourth Amendment rights, the person needs standing to go into court and make the argument that there was a violation; it has to be the individuals personal privacy rights that are invaded; not those of a third party. 5. Remedy a) The remedy for violation of the Fourth Amendment is the exclusion of the evidence seized. 6. Of Note a) The primary theme is to balance the privacy interests protected by the Fourth Amendment with the governments need for effective law enforcement techniques. b) Govt initially looked at the Fourth Amendment with a property law type of perspective B. What is a search? 1. The Tests WHAT IS A SEARCH? In order to constitute a search according to the Fourth Amendment, two tests are used. Only one has to be satisfied. In order to constitute a search under the United States v. Jones Trespassory test, ask: o Was there a trespass? o Was that trespass one against a person, paper, effect or house (one of the enumerated items)? o Was that trespass an attempt to find something or obtains specific information? If yes to all three, then there is a trespassory search under the Jones test. In order to constitute a search under the Katz v. United States test, ask: o Did the subject have a subjective expectation of privacy? o Would society have a reasonable societal expectation of privacy in this situation? If yes to both, then there is a search under the Katz test. GENERAL RULES The Fourth Amendment protects a person from search and seizure if, under the circumstances, he has a justifiable expectation of privacy, regardless of whether an actual trespass occurred. (Katz v. United States) Government's installation of GPS tracking device on target's vehicle, and its use of that device to monitor vehicle's movements, constitutes a search, within meaning of Fourth Amendment. The trespass alone, however, does not qualify as a search, under Fourth Amendment, rather, it must be conjoined with attempt to find something or to obtain information. (United States v. Jones)


Katz v. United States (U.S. 1967) (1) Facts: FBI placed a listening device on the outside of a telephone booth and recorded a man placing illegal bets. (2) Held: Stewart: The Fourth Amendment protects people, not places, so analyzing whether a phone booth is a constitutionally protected space is not the correct analysis. The test is whether the person seeks to preserve something as private. (3) Held: The requirement that an intrusion must take place before a Fourth Amendment violation has occurred is no longer controlling. (4) Held: Recording the conversation violated the Fourth Amendment, even though it was probable an illegal action was occurring, and even though the search was restricted, because the officers did not first request permission from a judicial officer but instead imposed their own restraints. (5) Concur: Harlan: This case holds that for there to be a Fourth Amendment violation, there must (1) be a subjective expectation of privacy, and (2) that society recognizes that expectation as reasonable. [A "Reasonable Expectation of Privacy.] Goldman, requiring physical invasion, should therefore be overruled. There can still be exceptions to the rule of needing a warrant, but this is not one of them. (6) Dissent: Black: The language of the amendment itself should be followed, and the amendment refers to searches of physical things, not personal privacy. If the framers had wanted to outlaw eavesdropping (available then as well as now), they would have done so. (7) Note: Once the court says that something is not a search, they are basically saying that you have no reasonable expectation of privacy. OVERRULING Katz overruled Olmstead v. U.S. (1928), which held that electronic eavesdropping without a physical trespass is not a search within the meaning of the Fourth Amendment. REASONABLE EXPECTATIONS TEST Harlans concurrence in Katz formulated the reasonable expectations test for determining whether governmental activity constitutes a search; the test was later (WHEN?) arranged into a two-prong test for determining the existence of privacy: If the individual has exhibited an actual (subjective) expectation of privacy, and Society is prepared to recognize that this expectation is (objectively) reasonable. **This test was adopted by the majority in Smith v. Maryland (YEAR).

b) United States v. Jones (U.S. YEAR) (1) Facts: The Government obtained a search warrant permitting it to install a GPS tracking device on a vehicle registered to respondent Jones's wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle's movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. (2) Defendants arguments: (i) installing the GPS device was a search; (ii) tracking him at all was a search (whatever device was used); and (iii) at least tracking him for a long time was a search (again, whatever technology was involved). (3) Held Scalia: Attaching a GPS device to a vehicle and then using the device to monitor the vehicles movements constitutes a search under the Fourth Amendment. The defendants conviction for drug trafficking must be reversed when some of the evidence to convict him was obtained through a GPS tracking device on his car, because the attachment of the GPS tracking device and then the use of that device to monitor the cars whereabouts is a search for purposes of the Fourth Amendment. (4) Concur Sotomayor: As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice Alito that, at the very least, longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

(5) Concur Alito: The long-term monitoring violated the defendants reasonable expectation of privacy, without regard to the precise technology installed or used by the government. The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, societys expectation has been that law enforcement agents and others would notand indeed, in the main, simply could notsecretly monitor and catalogue every single movement of an individuals car, for a very long period. TRESPASSORY TEST Harlans concurrence in Katz formulated the reasonable expectations test for determining whether governmental activity constitutes a search; the test was later (WHEN?) arranged into a two-prong test for determining the existence of privacy: If the individual has exhibited an actual (subjective) expectation of privacy, and Society is prepared to recognize that this expectation is (objectively) reasonable. **This test was adopted by the majority in Smith v. Maryland (YEAR). 2. Open Fields GENERAL RULES The special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects, is not extended to the open fields (Hester v. U.S., 1924). Any individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. (Oliver v. United States) Areas outside the curtilage of a house fall under the open fields doctrine and evidence obtained from those areas are admissible. (United States v. Dunn) a) Oliver v. United States (U.S. 1984) (1) Facts: Policemen went around a no trespassing sign and found marijuana in a field. (2) Held: Powell: "Open fields, which do not have to be "fields" or "open, are not protected by the Fourth Amendment, even if trespassing is involved, except in the area immediately surrounding the house ("curtilage"). The open fields doctrine permits police officers to enter and search a filed without a warrant even if the field is highly secluded, not accessible for any public point, and posted with no-trespassing signs. Open fields are not effects and the Fourth Amendment does not protect the merely subjective expectation of privacy. (3) Dissent Marshall: The majoritys reasoning is flawed. If the majority bases its opinion off the enumerated items in the Fourth Amendment, then why are phone booths and offices entitled to Fourth Amendment protection and not fields? Further, is the curtilage a house or an effect? Why cant a field be similarly covered? Another flaw is that society doesnt recognize as reasonable ones expectation of privacy in a field. He posted no trespassing signs and expressed his right to exclude others. (4) Note: The differences in the majority and dissent regarding a reasonable expectation of privacy go to show that this test is inherently vague. b) United States v. Dunn (U.S. 1987) (1) Facts: Officers tracked chemicals to make controlled substances to respondents property. They ignored fences and no trespassing signs to get to the barn. Specifically, the agents traveled a one-half mile off a public road, over respondents fenced-in property, crossed over three additional wooden and barbed wire fences, stepped under the eaves of the barn and then used a flashlight to peer through fishnetting. (2) Held White: The search was permissible. There are four factors in determining curtilage: (1) proximity of the area from the home, (2) whether the area is included within an enclosure surrounding the home, (3) how the area is being used, and (4) the steps taken by the resident to make the area private. Here, the barn was outside the enclosure, 60 yards from the house, and there was no indication the barn was used in connection to the house.

(3) Dissent Brennan: A barn is an integral part of a farm home and therefore lies within the curtilage. There are several factors to support this. (1) The distance between the house and the barn does not militate against the barn or barnyards presence in the curtilage; (2) The configuration of fences is not determinative of the status of an outbuilding; (3) The nature of the uses to which the area is put is a badly misunderstood and misapplied factor by the Court; (4) Respondent took several measures to protect the barn area from observation: he locked his driveway, fenced in his barn, and covered its open end with a locked gate and fishnetting. FACTORS FOR DETERMINING CURTILAGE There are four factors for determining whether or not an areas is classified as curtilage: Proximity of the area from the home; Whether the area is included within an enclosure How the area is being used, and The steps taken by the resident to make the area private. **The court notes that the factors above are only analytical tools in determining whether or not the areas in question is so intimately tied to the home itself that it should be placed under the homes umbrella of Fourth Amendment protection. 3. Aerial Searches GENERAL RULES A warrantless naked-eye aerial observation of a fenced-in backyard from 1,000 feet does not violate the Fourth Amendment. (California v. Ciraolo) Aerial surveillance and photography of an industrial plant complex from navigable airspace was not a search prohibited by the Fourth Amendment. (Dow Chemical v. United States, U.S. 1986) Surveillance of the interior of a partially covered greenhouse in a residential backyard from a helicopter at 400 feet does not constitute a search for which a warrant is required under the Fourth Amendment. (Florida v. Riley) a) California v. Ciraolo (U.S. 1986) (1) Facts: Ciraolo put up high fences to hide marijuana beside his house, but officers, based on information received from a tip, decided to fly over Ciraolos house at an altitude of 1,000 feet and saw it. (2) Held Burger: The flight was not a search, as anyone could legally fly over and see inside the fence. Ciraolos expectations of privacy were unreasonable. Fourth Amendment does not require the police traveling in the public airways at that altitude to obtain a warrant in order to observe what is visible to the naked eye. (3) Dissent Powell: This ruling ignores Katzs two-part test; Ciraolo had a reasonable expectation of privacy as the actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. People do not knowingly expose their backyards to the public merely by failing to build barriers that prevent aerial surveillance. AERIAL SURVEILLANCE & THE FOURTH AMENDMENT Aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a search if the surveillance: occurs from public navigable airspace; is conducted in a physically non-intrusive manner; and does not reveal intimate activities traditionally connected with the use of a home or curtilage. b) Florida v. Riley (U.S. 1989) (1) Facts: Officers hovered at 400 feet in a helicopter to inspect a back yard based on a tip that was growing marijuana there in a greenhouse. From the helicopter, police could see through the partially opened sides that there was marijuana growing inside and got a warrant based on these observations. (2) Held White: Following Ciraolo, this was not a search as anyone could legally hover over the back yard in a helicopter.

(3) Concur O'Conner: A must bear the burden of proving that his expectation of privacy was a reasonable one and thus that a Fourth Amendment search even took place. The introduced no evidence that his expectation was a reasonable one. The analysis should be on whether public access was ordinary, not legality of public access, but Riley offered no proof this wasn't ordinary. Public use of lower altitude may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations. (4) Dissent Brennan: Emphasis should be on whether public access is ordinary. A vantage point of 400 feet above the backyard is not one any citizen could readily share. The issue is not the legality of the officers viewing position but whether the public observation of s curtilage was so commonplace that s expectation of privacy in his backyard could not be considered reasonable. (5) Dissent Blackmun: Because private helicopters rarely fly over curtilages at 400 feet, the government should have the burden of proof of showing that lacked a reasonable expectation of privacy or whether public access is ordinary. It didnt do either in this case. 4. Thermal Imaging GENERAL RULE The use of a thermal-imaging device aimed at a home from a public area to detect relative amounts of heat within constitutes a search because the govt is gathering evidence from a constitutionally protected area to which it would not otherwise have access to without a warrant. (Kyllo v. United States) Kyllo v. United States (U.S. 2001) (1) Facts: Police officers used a thermal imaging device, not generally available to the public, to determine that a particular area of a home was warmer than another. Based upon this information and utility bills, they secured a warrant and searched the house, finding lamps used for growing marijuana as well as the plants themselves. (2) Held Scalia: Is it a search for the government to use a device not generally available to the public to explore details of a home that would not have been accessible without intrusion? Scalia: Yes. The home has always been a special place, and after the rule for search went from place to people, the home had special emphasis. It was then still not a search to visually inspect a home. But in this case, technology not available to the public allows looking at a house's contents, getting information usually not available without a physical intrusion. That heat emanates from the wall, making this indirect information, is irrelevant: most information retrieved is somehow indirect. The argument that the device did not detect intimate activities is also erroneous: one cannot tell ahead of time with all devices (and even this one) whether the activities picked up will be erroneous. (3) Dissent Stevens, O'Conner, Kennedy: This observation only involved inferences of information and indirect deductions emanating from the walls, so it was not a search. Because the majority relies on general available of the technology to the public, what officers can do will change as soon as this technology is available to the public. The majority hasn't even defined what they mean by "generally available." What happens when there are sensors that replace drug-sniffing dogs (which are allowed), and only sense bomb-making materials? 5. Searches of Trash GENERAL RULE Garbage left in a public space for collection may be searched without warrant. (California v. Greenwood) a) California v. Greenwood (U.S. 1988) (1) Facts: Officers had a trash collector gather 's garbage from the curb and the officers then inspected the trash. (2) Held White: Inspection of the trash was not a search, even though a city ordinance required disposal of garbage on the curb, because the owner sufficiently exposed the garbage to the public and potentially to "animals, children, scavengers, snoops," etc. Thus, had no reasonable expectation of privacy in the trash. No warrant was needed. a)

(3) Dissent Brennan: Trash can testify to the personal habits of people, like sexual and health practices. The Fourth Amendment is designed to protect this kind of intimate activity. The trash bags shouldnt be deprived of that protection just b/c they were used to discard rather than transport personal effects. Further, he was required by ordinance to leave trash there. 6. Observation & Monitoring of Behavior GENERAL RULES Police use of enhanced surveillance capabilities to monitor areas where there is no legitimate expectation of privacy does not violate the Fourth Amendment. (United States v. Knotts) The delivery of an electronic tracking device in a container of chemicals to a buyer who is without knowledge of the device does not violate the Fourth Amendment. (United States v. Karo) Surveillance via third parties is allowed if the defendant is aware the third party is listening, because the third party might at any time decide to voluntarily turn the information over to the police. (United States v. White, US 1971) The inspection of bank records are not searches under the Fourth Amendment because customers know the banks are privy to their information, so there is no disclosure interest to protect. (California Bankers Assn v. Schultz, US 1974) The installation and use of a pen register does not constitute a search under the Fourth Amendment. (Smith v. Maryland) Government's installation of GPS tracking device on target's vehicle, and its use of that device to monitor vehicle's movements, constitutes a search, within meaning of Fourth Amendment. The trespass alone, however, does not qualify as a search, under Fourth Amendment, rather, it must be conjoined with attempt to find something or to obtain information. (United States v. Jones) a) United States v. Knotts (U.S 1983) (1) Facts: Police planted a beeper, a type of tracking device, inside the vat of chemicals which were then bought by . Signal was traced to a cabin owned by . Beeper was not used for surveillance once the location of the cabin was initially determined. (2) Held Rehnquist: Warrantless surveillance using a beeper tracking device does not violate the Fourth Amendment because there is a lesser expectation of privacy when traveling in a car. Nothing in the Fourth Amendment prohibits augmenting the sensory faculties of birth with technological enhancements. While had an expectation of privacy in his cabin, this expectation of privacy did not extend to police watching the arrival of vehicles from the air. (3) Concur Stevens: The use of electronic detection techniques in the Fourth Amendment context raises especially sensitive concerns though the use of electronic surveillance did not violate the Fourth Amendment. Stevens also noted the contrary conclusion reached in Katz. b) United States v. Karo (U.S. 1984) (1) Facts: Based on informants tip of a drug operation, govt agent arranged to have a beeper placed in a can of chemicals. The beeper allowed the police to monitor the movement of a container inside various homes as well as public places. (2) Held White: The delivery of an electronic beeper in a container of chemicals to a buyer without knowledge of the device does not violate the Fourth Amendment. Although the monitoring of the device may have constituted a search, the mere transfer of the can to did not. However, monitoring of the beeper while in a private residence violated the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. (3) Concur in Judgment OConnor: The touchstone test should be the s interest in the container in which the beeper is placed. If one lacks ownership of the container or lacks the power to move the container at all, that person can have no reasonable expectation that the movements of the container will not be tracked by a beeper within the container. A should be allowed to challenge evidence obtained by monitoring a beeper installed in a closed container only if (1) the beeper was monitored when visual tracking of the container was not possible, so that the had a reasonable expectation that the containers movements would remain private and (2) the had an interest in the container itself sufficient to empower him to give effective consent to a search of the container. (4) Concur/Dissent Stevens: The majority concludes that a search occurs when the beeper surveillance reveals the locale of property concealed from public view but it overlooks the necessary conclusion that the attachment of the beeper was a seizure. had the right to exclude the world from his property; by attaching the bug, the govt infringed upon that right.

United States v. White (U.S. 1971) [note case] (1) Facts: A third party with whom the defendant was speaking was bugged, transmitting information to the police. (2) Held White: Surveillance via third parties is allowed if the defendant is aware the third party is listening, b/c the third party might at any time decide to voluntarily turn the info over to police. d) California Bankers Assn v. Schultz (U.S. 1974) [note case] (1) Facts: The Bank Secrecy Act of 1970 required that banks files reports with the federal govt of certain types of transactions. (2) Held: The inspection of bank records are not searches under the Fourth Amendment because banks are parties to any transactions and thus have knowledge of them. e) Smith v. Maryland (U.S. 1979) (1) Facts: Police installed pen registers in phone companies without a warrant to monitor and record phone numbers dialed. (2) Held Blackmun: There was no search, as customers voluntarily turn over dialed numbers to the phone company, and there is "no legitimate expectation of privacy in information voluntarily turns over to third parties." Even if had some subjective expectation of privacy, this expectation is not one that society is prepared to recognize as reasonable. Further, since the register was installed at the phone company, there was no physical intrusion of s property. (3) Dissent Stewart: The numbers dialed from a telephone are worthy of as much protection as the telephone conversation itself because they are an integral part of that conversation. The information obtained by the pen register surveillance of a private telephone is info as to whch the subscriber has a legitimate expectation of privacy. 7. Use of Dogs to Sniff for Contraband GENERAL RULE There is no overall answer to the question of whether it is a search if the police use drug-sniffing dogs but SCOTUS has found the use of such dogs is not a search in a couple of contexts. Police officers may, without a warrant, temporarily seize luggage on the basis of reasonable suspicion that it contains narcotics, in order to investigate further, such as to conduct a dog-sniff test of the luggage. (United States v. Place, U.S. 1983) The use of a drug-sniffing dog during a routine traffic stop does not constitute a search under the Fourth Amendment. (Illinois v. Caballes) a) United States v. Place (U.S. 1983) [note case] (1) Facts: Police held Place's luggage for 90 minutes until a narcotics-sniffing dog came, which sensed cocaine. (2) Held O'Conner: A drug-sniffing dog is not a Fourth Amendment search, because the investigation only uncovers illegal activity, violating none of the other individual privacy interest. Holding the luggage while waiting for the dog to come was an illegal seizure as it exercised control over Place's property. b) Illinois v. Caballes (U.S. 2005) (1) Facts: was stopped for speeding and a drug-sniffing dog used during the routine traffic stop found marijuana in the trunk of his car. The lower court found that the dogs alerting provided sufficient probable cause to conduct the search of the trunk. (2) Held Stevens: Using a drug-sniffing dog during a routine, lawful traffic stop is not a search. But the traffic stop need not be prolonged beyond the time reasonably required to complete the stop. Further, there is no legitimate privacy expectation in contraband. The dog sniff revealed no information other than the location of the contraband. Conducting a dog sniff does not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner. (3) Dissent Souter: The use of the dog was not justified. This holding will authorize suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks. Once considered a search, a dog sniffs reasonableness must be determined under the Fourth Amendment, which generally provides that the object of enforcing criminal laws does not, without more, justify suspicionless intrusions. (4) Dissent Ginsburg: The second officer came to the scene to conduct a dog sniff. The nonconsensual expansion of the seizure from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that ran afoul of the Fourth Amendment.


C. Requirement for Probable Cause GENERAL INFO Probable cause: the facts and circumstances before the officer are such to warrant a man of prudence and caution in believing that the offense had been committed. (Carroll v. United States, U.S. 1878) Probable cause is required as a basis for (1) arrest and search warrants and (2) all arrests (regardless of whether an arrest warrant is required). Not all searches and seizures need to be founded on probable cause. A lesser standard of reasonable suspicion may apply where the intrusion is minor. For example: o Police do a general pat-down for weapons. o In schools, searches of students purses require only the lesser standard of reasonable suspicion. (New Jersey v. T.L.O., U.S. 1986) o Sometimes searches are allowed without any individualized suspicion, such as random drug testing for student athletes. (Vernonia School Dist. 47J v. Acton, U.S. 1995) o Furthermore, where the intrusion on a persons privacy is especially slight and societys interest in conducting the search or seizure is significant, there may be no need for individual suspicion, such as for society and border checkpoints and certain administrative searches. 1. What is sufficient belief to meet the standard for probable cause? GENERAL RULES Probable cause is more than the lesser standard of reasonable suspicion, and it is thought to be less than preponderance of the evidence. (Casebook) In dealing with probable cause, SCOTUS deals with probabilities; more than bare suspicion, but less than evidence which would justify conviction. (Brinegar v. United States, U.S. 1949) A magistrate may issue a warrant if the totality of the circumstances presented in the affidavit indicates probable cause for the search, even if the veracity and basis of knowledge factors (regarding the informant) of the Aguilar v. State of Texas (U.S. 1964) and Spinelli v. United States (U.S. 1969) cannot be satisfied. (Illinois v. Gates) The passenger of a vehicle, even if separated from the drugs, has sufficient constructive possession of drugs located in the vehicle to give rise to probable cause for the passengers arrest. (Maryland v. Pringle) a) Illinois v. Gates (U.S. 1983) (1) Facts: In response to a tip about s drug run to Florida, a detective arranged for surveillance of a flight to Florida. Agents watched s in Florida until they drove off on an interstate heading north. Based on this activity and observations, a warrant was issued to search s home and car in Illinois. Police searched their car and found marijuana, weapons and other contraband. (2) Issue: May a magistrate issue a warrant if the informant doesnt meet Aguilar-Spinelli? (3) Held Rehnquist: If the totality of the circumstances presented in the affidavit indicates probable cause for a search, a magistrate may issue a search warrant. Probable cause for a warrant is a practical, nontechnical consideration which is most often made by non-lawyers, so the rigid two-pronged test is not appropriate. Totality of the circumstances allows a balance of relevant factors. The Aguilar-Spinelli factors are highly relevant but not necessary elements of probable cause. (4) Dissent Brennan: Two-pronged test should not be abandoned b/c it requires police to provide crucial info to the magistrate and provides a structure to aid the magistrate in making the probable cause determination. ABANDONED PREVIOUS TEST Gates abandoned the rigid Aguilar-Spinelli basis of knowledge and veracity two-pronged test, which said that if an informant was not knowledgeable or credible and reliable then there was no probable cause. BUT these factors remain highly relevant in determining the value of an informants tip but are no longer treated as separate, independent requirements. TOTALITY OF THE CIRCUMSTANCES TEST The totality of the circumstances test for probable cause determinations requires the magistrate to balance the relative weights of all the various indicia of reliability (and unreliability) attending an informants tip. The Aguilar-Spinelli factors are among those considered in the totality.

b) Maryland v. Pringle (U.S. 2003) (1) Facts: was the front-seat passenger in a car that was stopped for speeding. Upon stopping the car, the arresting officer found money in the glove compartment and cocaine in the back-seat armrest. All occupants were arrested; argued that probable cause to arrest him did not exist. (2) Held Rehnquist: When finding contraband in an automobile, there is probable cause to arrest its occupants, regardless of their proximity from the contraband. The passenger has sufficient constructive possession of drugs located in the vehicle to give rise to probable cause for the passengers arrest. The drugs were accessible to all the occupants; it is reasonable to infer that any or all of the occupants has knowledge of or exercised dominion/control over the drugs. (3) Note: The court makes clear in this case that the probable cause standard is incapable of precise definition or quantification into percentages b/c it deals with probabilities and depends on the totality of the circumstances. The standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent persons act. It is a fluid concept, turning on the assessment of probabilities in particular factual contexts, not readily, or even usually, reduced to a neat set of legal rules. 2. Is it an objective or subjective standard? GENERAL RULES The test for probable cause is an objective one (standard focusing on what the reasonable officer in the circumstances would do) as opposed to a subject standard, which focuses on the subjective knowledge and intent of the particular officer. The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendments prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. (Whren v. United States) The test for probable cause is objective, not subjective. Subjective intent of the arresting officer, however it is determined, is simply no basis for invalidating an arrest. (Devenpeck v. Alford, U.S. 2004) a) Whren v. United States (U.S. 1996) (1) Facts: A truck stopped at an intersection for an unusually long time attracted the attention of a vice-squad officer patrolling a high drug area of D.C. When the police officer made a U-turn, the truck turned and sped off. The officer caught up with the truck, and forced it to pull over. The officer went to the truck and immediately saw two bags of crack cocaine. (2) s argument: There should be an objective standard under the reasonable officer test. That test would be whether a police officer, acting reasonably, would have made the stop for the reason given. SCOTUS emphasized its unwillingness to go through such a burdensome exercise as to second-guess an officers intentions. (3) Held Scalia: The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. In this case, the police have reason to believe that various traffic violations had occurred. Ulterior motives, even if held by police officers during a traffic stop, do not invalidate police conduct if the police had justifiable probable cause that a violation of the law has occurred. Further, contrary to s assertions, the balancing inherent in the Fourth Amendment inquiry does not require the courts to weigh governmental and individual interests implicated in a traffic stop. (4) Note: Anytime police turn on the blue lights and pull someone over, there has been a seizure. It has to be reasonable. EFFECT OF WHREN After Whren: Some evidence suggests that there has been an increase in racial profiling in traffic stops because officers were much more likely to conduct searches of minorities. Fourth Amendment provides no protection against racial profiling; its more than likely an equal protection clause violation, but even that may not result in a suppression of evidence.

D. The Warrant Requirement GENERAL INFO Fourth Amendment: 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. o Warrantless searches and seizures are presumptively unconstitutional (unless theyre not.) o To say that the search is presumptively reasonable means that the has the burden of challenging the legality of the search, whereas if conduct is presumptively unreasonable the burden is on the govt to demonstrate its legality. There is dispute among the Justices about whether or not there is a warrant requirement or whether the Fourth Amendment requires that searches and seizures be reasonable. To say that the search is presumptively reasonable means that the has the burden of challenging the legality of the search, whereas if conduct is presumptively unreasonable, the burden is on the government to demonstrate its legality. (Groh v. Ramirez, U.S. 2004) Four issues regarding warrants: o What information must be included in the application for a warrant? o What form must the warrant take in order to be valid? o What are the requirements police must follow in executing a warrant? o When is a warrant required? 1. What information must be included in the application for a warrant? a) Fourth Amendment requires that the warrant be based on probable cause and supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. b) Federal Rules of Criminal Procedure: A warrant may be sought for evidence of a crime; contraband, fruits of a crime, or other items illegally possessed; property designed for use, intended for use, or used in committing a crime; or a person to be arrested or a person who is unlawfully restrained. (FRCP 41) c) The affidavit: (1) Supports the request for warrant; (2) Must include the info that provides a basis for concluding that there is probable cause; and (3) Can be based on hearsay. d) The warrant: (1) Will specify the time period for its execution; officer must execute the warrant within a specified time not longer than 10 days. (FRCP 41) (2) For a tracking device must specify a reasonable length of time that the device may be used (cannot exceed 45 days) (FRCP 41) (3) Must be issued by a neutral and detached magistrate whos capable of determining whether probable cause exists. (Coolidge v. New Hamp., U.S. 1971; Shadwick v. Tampa (U.S. 1972) (4) Example of violation: When the judge who issued the warrant essentially became the leader of the search party which was essentially a police operation. (Lo-Ji Sales v. New York, U.S. 1972) 2. What form must the warrant take? GENERAL RULES A warrant must detail with specificity that which is to be searched and seized. (Andresen v. Maryland) Even if the affidavit included specifics, if the warrant has no specifics in it, then the warrant does not comply with Fourth Amendment standards. (Groth v. Ramirez) Anticipatory warrants, where the affidavit for a search warrant states that the search will occur only if certain events take place, are valid so long as the probability requisites are met. (United States v. Grubbs, U.S. 2006) a) Andresen v. Maryland (U.S. 1976) (1) Facts: was real estate attorney who was involved in fraudulent sale of property. The officers had probable cause and obtained a warrant to search 's law office and his company's office. The officers seized documents from the defendant's offices and these documents were used to convict the .

(2) Held Blackmun: s Fourth Amendment rights were NOT violated when the warrant specifically state what documents could be taken, although the final catch-all clause was extremely vague. The evidence seized, which did not directly relate to the subject lot, was relevant to prove s complex real estate scheme. It was properly seized under the warrant. (3) Dissent Brennan: The statement in the warrant authorizing the seizure of evidence relevant to crimes not listed rendered the warrant a general warrant and therefore invalid under the Fourth Amendment. b) Groh v. Ramirez (U.S. 2004) (1) Facts: A concerned citizen informed special agent Groh that thru a number of visits to Ramirezs ranch the visitor had seen a large stock of weaponry. The agent prepared a search warrant, which was for any automatic firearms or parts to automatic weapons, destructive devices. The affidavit/application described the place to be searched and the contraband expected to be found, but the warrant was less specific; it failed to identify any of the items that petitioner intended to seize; petitioner typed a description of respondents two-story blue house rather than the alleged stockpile of firearms. (2) Held Stevens: A warrant that fails to describe with particularity the person or thing to be seized it unreasonable and violative of the Fourth Amendment. The fact that the application adequately described those things did not save the warrant; Fourth Amendment interests are not necessarily vindicated when another document says something about the objects of the search, but that documents contents are neither known to the person whose home is being searched nor available for her inspection. B/c the warrant didnt describe the items at all, it was so obviously deficient the search must be regarded as warrantless and thus unreasonable. (3) Dissent Thomas: Even if the warrant is defective, there is no Fourth Amendment violation so long as the search is reasonable. The majority should not have treated this as a case of a warrantless search, since that type of case typically involves a search with no warrant at all, rather than with a defective warrant. Because the majority characterized the case as one involving a warrantless search, it failed to reach the key issue presented here: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable. The magistrates review should save the reasonableness of the search. And since the search was conducted within the scope of what the magistrate authorized, it was reasonable. POSSIBLE POLICY ISSUE A Fourth Amendment case may present two separate questions: (1) whether the search was conducted pursuant to a warrant issued in accordance with the second Clause (the Warrant Clause), and if not (2) whether it was nevertheless reasonable within the meaning of the first (the Unreasonable Clause). Some Justices will view the Warrant Clause as an independent requirement and others will view the Warrant Clause in conjunction with the Unreasonableness Clause. The precise relationship between the Warrant Clause and the Unreasonableness Clause is unclear. Some Justices may emphasize that neither clause explicitly requires a warrant. The Court has vacilitated between imposing a categorical warrant requirement and applying a general reasonableness standard.


United States v. Grubbs (U.S. 2006) [note case] (1) Facts: Federal law enforcement officers obtained a search warrant for respondents house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. (2) Held Scalia: There is essentially no difference in principle between anticipatory warrants and ordinary warrants but issuance is dependent upon the probability that the event will take place/condition is met. (3) Note: An anticipatory warrant is where the affidavit for a search warrant states that the search will occur only if certain events take place.For a conditioned anticipatory warrant to comply with the Fourth Amendments requirement for probable cause, two prerequisites of probability must be satisfied: (1) if triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in the place; and (2) there is probable cause to believe the triggering condition will occur.

3. What are the Requirements in Executing Warrants? GENERAL WARRANT REQUIREMENTS & INFORMATION The warrant must command the officer to execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time. (FRCP 41) Daytime means the hours from 6 a.m. to 10 p.m. (FRCP 41(a)(2)(B)) Congress has also enacted a statues limiting searches of newsrooms; the Privacy Protection Act of 1990, 42 U.S.C. 2000a prohibits law enforcement from searches of those reasonably believed to be engaged in disseminating information to the public unless there is probable cause to believe that the person committed a crime or that giving notice by subpoena likely would result in the loss of evidence. This statute was in response to SCOTUS ruling in Zurcher v. Standford Daily (U.S. 1978) in which the Court said that valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities or evidence of a crime will be found. The Court expressly rejected any special First Amendment protection for newsrooms. a) How Might Police Treat Those Who Are Present When a Warrant is Being Executed? GENERAL RULES A person who happens to be present in premises that are subject to a search cannot be searched just by virtue of being there but the search must be supported by probable cause particularized with respect to that person. (Ybarra v. Illinois, U.S. 1979) However, SCOTUS had held that when there is a search of a residence, those present at the time of the search may be detained. Allowing such detentions prevents flight in case incriminating evidence is found, minimizes harm to police and helping the police complete the search in the event questions arise. (Michigan v. Summers, U.S. 1981) It is not a violation of the Fourth Amendment to handcuff residents of premises for the duration of a search of the premises for armed and dangerous individuals and contraband; it is also not a violation of the Fourth Amendment for the police to question an individual being detained during a search about the individuals immigration status where doing so does not prolong the search. (Meuhler v. Mena)

(1) Meuhler v. Mena (U.S. 2005) (1) Facts: was detained in handcuffs and held for 2-3 hours in a garage during a search of the premises they occupied. Police had executed a warrant for deadly weapons and evidence of gang activities in investigation of a gang-related drive-by shooting. Because most gang members were illegal aliens, an officer from INS was involved and asked the detainees for info and immigration documentation. sued the officers saying she was detained for unreasonable time and in an unreasonable manner. (2) Held Rehnquist: Menas detention in handcuffs for the length of the search did not violate the Fourth Amendment. Because a warrant existed to search the premises, and was an occupant of the premises at the time of the search, her detention for the duration of the search was reasonable under Summers. Further, the use of handcuffs was reasonable force under Summers b/c the govt interest in minimizing the risk of harm to both officers and occupants outweighed the marginal intrusion. Although the duration of a detention can affect the balance of interests, the 2-3 hour detention in handcuffs in this case does not outweigh the govts continuing safety interests. | It is also not a violation to question about immigration status where doing so does not prolong the search; this questioning did not violate s Fourth Amendment rights. Mere police questioning does not pertain a seizure so police are not required to have independent reasonable suspicion in order to so question . (3) Note: This case cited Michigan v. Summers (U.S. 1981) as authority for justifying the detention of ; that case said that detaining incident to a search is categorical and does not depend on the quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure. Inherent in Summers authorization to detain is the authority to use reasonable force to effectuate the detention. b) Do Police Have to Knock and Announce Before Searching a Dwelling?

GENERAL RULES Absent exigent circumstances, the police must knock and announce their presence before entering a residence to execute a search warrant. (Casebook; Wilson v. Arkansas) To justify a no-knock entry when executing a search warrant, the police must have a reasonable suspicion that knocking and announcing their presence, under the circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. (Richards v. Wisconsin) A blanket exception to the knock-and-announce rule to situations involving criminal activity would contain considerable overgeneralization and creates a slippery slope regarding what other categories to expand the exception to. (Id.) SCOTUS has been deferential to law enforcement held that the police did not violate the Fourth Amendment when they waited only 15-20 seconds if they had reason to believe that waiting longer would provide the opportunity for the suspects to destroy contraband. (United States v. Banks, U.S. 2004) The exclusionary rule does not apply to evidence gained after police violate the knock-andannounce requirement. (Hudson v. Michigan, U.S. 2006) [discussed in next chapter] (1) Wilson v. Arkansas (U.S. 1995) (1) Facts: Based on drug sales to an informant, a warrant was issued to search s home and to arrest . The police found the door open. While already entering, police identified themselves stating that they had a warrant. Once inside, they seized various drugs and found flushing drugs down the toilet. (2) Held Thomas: The knock-and-announce rule has never been held to be part of the reasonableness inquiry under the Fourth Amendment until today. Under some circumstances, announcement will not be required. But because a search or seizure of a dwelling that is otherwise reasonable might violate the Fourth Amendment if police officers fail to knock and announce before entering, the presumption is in favor of announcement. (3) Note: The rationale for dispensing with the knock-and-announce rule when entering to effect a search warrant are the same as entering the premises without a warrant based on exigencies. However, because a warrant is issued in the former case, the proof of the exigencies need not be as compelling as in the latter case. (2) Richards v. Wisconsin (U.S. 1997) (1) Facts: Officers requested a warrant that would have given them advance authorization for a no-knock entry into a hotel room where they believed had drugs. The magistrate chose not to include such a provision. One officer dressed as a maintenance man asked to enter Richards' hotel room. Richards saw an officer in uniform behind the first officer, and quickly closed the door. The police kicked down the door and found trying to escape out of a window and drugs. (2) Held Stevens: To justify a "no-knock" entry the officer must have a reasonable suspicion that knocking would be dangerous or futile or allow evidence to be destroyed. A "noknock" entry justified in this case because it was reasonable to believe that, once aware of the presence of the officers, would attempt to destroy the drugs. (3) Note: This case also dealt with a Wisconsin law holding that the Fourth Amendment permits a blanket categorical exception to the knock-and-announce requirement for the entire category of criminal activity. While SCOTUS upheld the Wisconsin courts judgment and rationale in allowing a no-knock entry given the facts at hand, it though the court erred in the blanket exception. What If There Are Unforeseen Circumstances or Mistakes While Executing a Warrant? GENERAL RULES A good-faith, factual mistake in describing the area to be searched does not automatically invalidate a warrant because it fails to meet the particularity requirement of the Fourth Amendment. (Maryland v. Garrison) A search is neither unreasonable nor violative of the Fourth Amendment where police officers find residents, who are not the same race as the suspects being sought, unclothed in bed and force the residents to stand naked at gunpoint for a few minutes while the officers ascertain that the suspects are not present. (Los Angeles County, California v. Rettele)



(1) Maryland v. Garrison (U.S. 1987) (1) Facts: Maryland police obtained and executed a valid warrant to search the third-floor apartment and the person of Lawrence McWebb. In fact, the third floor was divided into two apartments, one occupied by the . The search led to the discovery of contraband in s apartment. (2) Held Stevens: While Fourth Amendment requires that the place to be searched must be described with particularity in order to ensure that the search does not become a wideranging, exploratory search, some latitude is given to officers for good-faith mistakes. In the present case, if the officers actually knew or should have known that the third-floor apartment was actually two different apartments, then they would be required to discontinue the search of s apartment. But the officers conduct and the limits of the search were based on info which became available as the search proceeded. (3) Dissent Blackmun: This search violated the Fourth Amendment. While it may make some sense to excuse a good-faith mistake when collecting evidence against a person the police already have probable cause to suspect, the same reasoning does not apply to someone who has not been singled out and who is the victim of police error. The conclusion that this was good faith is questionable because it should have been obvious that there were separate quarters, not one large apartment. (2) Los Angeles County v. Rettele (U.S. 2007) (1) Facts: Sheriffs deputies obtained a valid warrant to search a house but were unaware that the suspects being sought, who were considered armed and dangerous, had moved out three months earlier. When police executed the warrant, they found residents naked in bed and at gunpoint forced them to stand and did not let them get dressed for several minutes until they were certain the suspects, who were of a different race, were not present. (2) Held Per Curiam: Merely b/c the residents were a different race than the suspects did not diminish the officers concern for their safety b/c it was possible that the suspects were still in the house. The officers had no way of knowing if the residents were associates of the suspects or not. They had the authority to detain the residents as part of the search. They were not required to turn their backs while residents retrieved clothing. The officers did not have the residents stand naked for longer than necessary to secure the premises. Exceptions to the Warrant Requirement EXCEPTIONS TO THE WARRANT REQUIREMENT The exceptions to the warrant requirement include: searches incident to arrest; searches made in hot pursuit; searches of things in plain view; automobile searches; inventory searches; border searches and checkpoints; searches at checkpoints; searches of those on probation and parole; searches with consent; special needs situations; and exigent circumstances. These exceptions are not mutually exclusive; more than one can apply in a situation. And in creating the exceptions to the warrant requirement, SCOTUS has balanced the privacy interests involved against the extent to which adhering to the warrant requirement would unduly hamper effective law enforcement. 1. Searches Incident to Arrest GENERAL RULES Aside from those areas within a residence to which the search-incident-to-arrest exception applies, the police may not search the entire house without a warrant; a search incident to a lawful arrest is limited to the suspects person and the area within which he could reach for a weapon or evidence. (Chimel v. Cali.) Police may search a person incident to arrest regardless of the crime that led to the arrest, including driving with a suspended license, even if there is no reason to believe that the individual has weapons. (United States v. Robinson) However, there must actually be an arrest; the search incident to arrest rule doesnt apply when an officer temporarily detains a suspect. (Knowles v. Iowa) a) Chimel v. California (U.S. 1969) (1) Facts: Police arrived at the home of , were allowed in by his wife, and when he came home police arrested him in connection with a burglary at a coin shop. Then they searched his entire house, seizing coins, medals, and other objects.

(2) Issue: Is the search of the house justified "in incident to a lawful arrest?" (3) Held Stewart: No. When arresting someone, police are allowed to search that person for weapons or evidence that might be destroyed, and to search the area under the "control" of the suspect so that the suspect won't grab a weapon or destroy evidence, for example. But searching an entire house has no relevance to the arrest and is really no different than searching a person's house after arresting him when he is at a neighbor's house. (4) Dissent White, Black: A search without a warrant is allowed when there is probable cause and getting a warrant is impractical. Many times an arrest will make getting a warrant impractical, because "confederates" of the arrested could come and move crucial evidence. b) United States v. Robinson (U.S. 1973) [note case] (1) Facts: Robinson was stopped by police officers for driving with an expired drivers license. When he got out of the car, the officer told him he was under arrest for operating after revocation and obtaining a permit by misrepresentation. The officer then effected a full custody arrest. The officer searched Robinson and found heroin. (2) Held Rehnquist: Police may search a person incident to arrest regardless of the crime that led to the arrest. A search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. A search may be made of the person of the arrestee by virtue of the lawful arrest and a search may be made of the area within control of the arrestee. Further, it doesnt matter if there is no reason to believe that the individual has weapons. c) Knowles v. Iowa (U.S. 1998) (1) Facts: was stopped for speeding and the officer issued a citation then conducted a full search of the car. (Under Iowa law, officers could issue citations in lieu of arrest and this does not affect their authority to conduct an otherwise lawful search.) When marijuana and a pipe were found, was arrested. (2) Held Rehnquist: Officers may not conduct a full search of a car and driver when the police elect to issue a citation instead of making a custodial arrest. The two historical rationales for the search incident to arrest exception are the need to disarm the suspect in order to take him into custody and the need to preserve evidence. The threat to officer safety form issuing a traffic citation is a good deal less than in the case of a custodial arrest. Once was stopped for speeding and issued a citation, no further evidence was necessary to prosecute that offense so there was no need to discover or preserve any evidence. This search was thus conducted without probable cause or s consent. (3) Note: SCOTUS reversed the Iowa Supreme Courts interpretation of the Iowa law. 2. Searches Made in Hot Pursuit GENERAL RULE The courts have recognized that entering a home in hot pursuit of a suspected felon might be an exception to the need of a warrant. (Warden, MD. Penitentiary v. Hayden) Absent exigent circumstances, the police may not make a warrantless, nonconsensual entry into a private residence to make a routine felony arrest. (Payton v. New York) a) Warden, MD. Penitentiary v. Hayden (U.S. 1967) (1) Facts: s home was searched without a warrant but the search was justified by exigent circumstances. s personal items were seized from his home and introduced against him as evidence at trial for armed robbery. (2) Held: Officers had the ability to do more of a general search in this case b/c of hidden dangers. Police were able to look around in places where they knew wasnt hiding because they were looking for dangers (b/c it was an armed robbery), evidence of the crime, and ensuring that no one else was in the house. The premise (see below) that property interests control the right of governmental searches has been discredited. The Fourth Amendment is designed to protect privacy, and a search directed at purely evidentiary objects is no more intrusive than one for instrumentalities of crime. So long as the requirements of the Fourth Amendment are followed (probable cause and the intervention of a neutral, detached magistrate) there is no viable reason for maintaining a mere evidence limitation. s items were properly seized.

(3) Note: Prior to this case, the Court had supported a distinction between items that were mere evidence from instrumentalities, fruits of a crime or contraband. This rule was based on the premise that the right to search for and seize property depended on the assertion of the govt of a superior interest. The purpose of apprehending and convicting criminals was not considered sufficient. | The latter part of this search was questionable law and is revisited in subsequent cases but the court here upheld it. (Professor) b) Payton v. New York (U.S. 1980) (1) Facts: Having probable cause to believe had murdered someone, police entered his apartment to effect a routine felony arrest but without a warrant. Even though he was not there, seized a shell casing that was in plain sight and was later admitted into evidence at his trial. (2) Held Stevens: The Fourth Amendment does not permit the police to make a warrantless and nonconsensual entry into a private resident to effect a routine felony arrest in the absence of exigent circumstances. The Fourth Amendment draws a firm line at the entrance to the house and that threshold cannot be crossed without a warrant absent exigent circumstances. The police acted impermissibly without a warrant in entering s home. (3) Dissent White: Instead of adopting a rule which will severely hamper effective law enforcement, the Court should embrace and clear and simple rule comporting with the carefully crafted restrictions on the common law power of arrest entry. After knocking and announcing their presence, police may enter the home to make a daytime arrest without a warrant when there is probable cause to believe that the person to be arrested committed a felony and is present in the house. 3. Plain View GENERAL RULES If an officer has a warrant to search a home for X and after lawfully entering the home finds illegal Y out on a table, Y may be seized and used as evidence. (Coolidge v. New Hamp.) It must be immediately apparent that the seized item is illegal. (Arizona v. Hicks) Items seized in plain view during a lawful entry do not need to be discovered inadvertently as laid out in Coolidge but should follow a three-part test. (Horton v. California) Police are allowed to use all of their senses in a search when they are lawfully present but to some limits. (Minnesota v. Dickerson) a) Coolidge v. New Hampshire (U.S. 1971) [note case] (1) Pertinent points: In plain view cases, police have to have had prior justification for an intrusion in the course of which they came across a piece of evidence incriminating the accused. It cannot be used to extend a general exploratory search from one object to another until something incriminating at last emerges. There are some limits in that (1) plain view alone is never enough to justify the warrantless seizure of evidence and (2) that the discovery of evidence in plain view must be inadvertent. b) Arizona v. Hicks (U.S. 1987) [note case] (1) Facts: Arizona police searched Hicks' apartment for a shooter, other victims, and weapons after a bullet went through the floor of the apartment, injuring a man below. Officers turned over a stereo that looked out of place, phoned in serial numbers, and found it had been stolen. (2) Held: Looking under the turntable was a search, and as there was no warrant the search violates the Fourth Amendment. Seizing an object during an unrelated search must be subject to the same warrant and probable cause requirements as would have been needed had the officers known the object was on the premises to begin with. (Even it were under a glass table would be beyond the warrant.) c) Horton v. California (U.S. 1990) (1) Facts: Sergeant LaRault searched the house of plaintiff, convicted of robbing the treasurer of the San Jose Ring Club, on a search warrant for search for stolen rings. The application for a warrant had listed weapons. During the search LaRault found the weapons in plain view. He was interested in finding the weapons, so the discovery was not "inadvertent." (2) Issue: Does the discovery of materials in plain view have to be "inadvertent" before they can be seized? (3) Held Stevens: No. Inadvertency is a subjective measure, and we're more interested in objective standards of conduct that don't address an officer's state of mind. The specificity of the warrant is enough to prevent general searches without an inadvertency requirement.

(4) Dissent: Brennan: The inadvertency requirement doesn't further privacy interests, but it does further possessory interests. Police might use the lack of an inadvertency requirement to speed the warrant issuance process by only listing a few things they want to find (such as rings), and really search for everything that might be more in "plain view" and therefore not restricted by the search for the warranted items. CHANGE IN RULE In Horton, the Court moved away from the inadvertent requirement as set out in Coolidge v. New Hampshire. After Horton, items seized in plain view do not have to be discovered inadvertently. PLAIN VIEW DOCTRINE FACTORS Horton expanded Coolidge and Hicks and included a three-part test requiring that the police officer finding evidence in plain view: Be lawfully present at the place where the evidence can be plainly viewed; Have a lawful right of access to the object; and Find the incriminating character of the object immediately apparent. Probable cause of backpack on street still needs a warrant in order to search. d) Minnesota v. Dickerson (U.S. 1993) (1) Facts: An officer patted down Dickerson for weapons after he came out of house known for drug activity. After feeling a small, hard, pea-shaped object in the pocket, he examined it with his fingers and it felt like crack cocaine in cellophane. He removed it, and it was crack. (2) Issue: Is there a "plain touch" exception to the warrant requirement? (3) Held White: Yes, the seizure of contraband other than weapons during a lawful patdown search is justified by analogy to the plain view doctrine, in that something that's discovered by lawful touching/patdown that's immediately obvious to be incriminating and if they have a lawful right to access it can be seized. Thus, if the officer lawfully pats down a suspects outer clothing and feels an object whose contour or mass makes its identify immediately apparent, there has been no invasion of the suspects privacy beyond that already authorized by the officers search for weapons. If the object is contraband, its warrantless seizure could be justified by the realization that resorting to a neutral magistrate under such circumstances would be impracticable and would do little to promote the Fourth Amendments objectives. This search, however, exceeded the bounds of what is necessary to determine if the detainee has a weapon. PLAIN FEEL RULE It must be immediately apparent that a seized item is illegal. The police may seize contraband detected solely through an officer's sense of touch if, comparable to plain view, the officer had a right to touch the object in question, and upon doing so, its identity as contraband was immediately apparent. However, if further probing is necessary to identify the nature of the object, the search falls outside the plain touch doctrine, and a warrant is necessary to continue the search. 4. Automobile Exception GENERAL RULES & EXCEPTIONS General: Cars and other movable vehicles can be searched without a warrant if there is probable cause b/c a vehicle is different than a home in that it can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (Carroll) This same exception applies to a mobile home with an ignition and a motor even if that home has some characteristics of a residence. (California v. Carney) Even if the automobile has been taken to the police station and thus is not movable, the automobile exception still applies. (Chambers v. Maroney) Containers within: SCOTUS originally held that containers, such as luggage, can be searched without a warrant only if there are exigent circumstances (United States v. Chadwick, 1977); however, the court later said if there is probable cause to search a vehicle, the probable cause extends to the containers within it (California v. Acevedo, 1991) thereby confirming Carroll.

Passengers: Originally, passengers could not be searched without probable cause simply b/c the automobile was lawfully stopped by police (United States v. Di Re, U.S. 1984) BUT the court later held that police do not violate the 4th Amendment when they search a passengers personal belongings inside a car that they have probable cause to believe contains contraband (Wyoming v. Houghton, U.S. 1999) [note cases] Searches of parts or entire vehicle: When police arrest the driver of a vehicle, the officer may, as a contemporaneous incident of that arrest, search the vehicle as part of a search incident to arrest. (New York v. Belton) If a car is already stopped and the driver has exited and an arrest has been made, police can still search the car as long as its clear that the individual was a recent occupant. (Thornton v. U.S.) Later the court said that searches need to be limited to areas that are within the immediate reach/control of the arrestee. (Arizona v. Gant) If officers have reasonable suspicion, they can conduct a patdown search of the person who has been pulled over. (CASE) Search incident to arrest exception requires reasonable belief; probable cause supersedes search incident to arrest. (CASE) a) The Exception and Its Rationale (1) Carroll v. United States (U.S. 1925) [note case] (1) Facts: Agents had probable cause that was transporting alcoholic beverages in his car in violation of the law. They searched his vehicle without a warrant. (2) Held: Taft: The search did not violate the Fourth Amendment and a warrant was not needed to search the car. There is a difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (2) California v. Carney (U.S. 1985) (1) Facts: A DEA agent stopped a young boy coming out of s motor home. The boy told the agent that he has exchanged sexual favors for drugs. The agents searched the motor home and found marijuana. (2) Issue: Does the automobile exception to the warrant requirement apply to motor homes? (3) Held Burger: The automobile exception applies to motor homes. The reason for the exception is two-fold: Autos are inherently mobile and can be taken away before a warrant is issued. Also, autos, unlike homes, are subject to regulations that lower the owners expectation of privacy; vehicles are highly regulated and inspected areas. The motor home in the present case is inherently mobile and is subject to the same licensing as a regular automobile. (4) Note: While auto searches do not require warrants, probable cause is still necessary, and the search cannot be more intrusive than necessary to obtained the required evidence. CLASS HYPOS Q: What if its lost its wheels? A: Then the exception goes away and this looks more like a house. It has to be licensed for mobility and able to move on public streets. Q: What if its a boat or a houseboat? A: Its still mobile so the exception applies. The exception turns on mobility. Q: What if the mobile home is connected to electricity and the axel has been taken off? A: Then this may be treated like a house; if its mobile, itll be treated like a car. (3) Chambers v. Maroney (U.S. 1970) [note case] (1) Facts: Petitioner was riding in a car at the time of his arrest and the car was taken to the police station and searched it. (2) Held: White: Even if the automobile has been taken to the police station and thus not movable, the automobile exception still applies. b) Searches of Containers in Automobiles (1) California v. Acevedo (U.S. 1991) (1) Facts: Officer Coleman was tipped off that a Federal Express package containing marijuana was to be delivered, so they followed Daza after he picked up the package. Acevedo came to Daza's house and left with bags that appeared to be from the shipment. Acevedo put the bag in the trunk of his car. Officers stopped the car and searched the trunk and the bag, finding marijuana.

(2) Held: Blackmun: Officers may search a car and all containers inside without a warrant, pursuant to a valid search of the vehicle with probable cause. United States v. Ross, U.S. 1982, said that generally searching a car allowed the search of a bag found inside when there was probable cause to search the car. The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. The Fourth Amendment does not compel separate treatment for a car search and a container within that car. (3) Dissent: White Dissent Stevens, Marshall: When the police have probable cause to search a particular container, they can seize that container and have no need to search an entire vehicle. The majority creates a situation in which a search of a container is prohibited while the owner is carrying it in the open but allowed once the owner has placed the container in a locked trunk. Its an anomaly that a person has less protection by taking a container and placing it in a locked trunk than by keeping it with him on the street. EFFECT OF ACEVEDO Before Acevedo: Probable cause of backpack on street = cant search without warrant; Probable cause to search car but not backpack = can open the bag (?) If in car but no probable cause to search car = cant search backpack without warrant. After Acevedo: Probable cause of car extends to packages within; If probable cause has ended and we have seized what we had probable cause to search and seize, then our probable cause to search further has ended and we will not be able to search further; and Probable cause of backpack on street still needs a warrant in order to search but can seize it. c) Searches Incident to Arrest (1) New York v. Belton (U.S. 1981) (1) Facts: Belton was a passenger in a car driven by another individual. The vehicle was stopped for speeding. It was discovered that none of the occupants owned the car, or was related to the owner of the car. During this time, the officer smelled burned marijuana and spotted an envelope on the floorboard, which he suspected contained marijuana. Everyone was ordered out of the car and arrested for possession of marijuana. After searching each individual, the officer searched the passenger compartment of the car. He found a jacket, a jacket belonging to Belton. He unzipped a pocket and found cocaine. Belton maintained that the search of the jacket was unreasonable. (2) Held Stewart: No straightforward rule has emerged regarding the proper scope of a search of the interior of an auto incident to a lawful arrest of its occupants. s jacket was in the passenger compartment of the car, where he had just been located and could have had immediate access before he was removed. When police make a lawful custodial arrest of the occupant of a car, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the car. (3) Dissent Brennan: The court turns back today on the careful analysis by Chimel v. California and applies an arbitrary rule extending to recent occupants of automobiles. This rule fails to reflect the policy behind Chimel. While in Chimel the arrestee was not within reach of the area searched at the time of the arrest, in this case was handcuffed in a patrol car while the passenger compartment of the car in which he had been riding was searched. Upholding this search is a retreat from the Courts search-incident-to-arrest analysis. (2) Thornton v. U.S. (U.S. 2004) (1) Facts: An officer watched drive his car into a parking lot and get out. The officer accosted and informed him that his license tags did not match the vehicle he was driving. agreed to a patdown. The officer found drugs and placed under arrest. The officer then searched the vehicle and found a gun under the drivers seat.

(2) Held Rehnquist: Even if the car is already stopped and the driver has exited and the arrest is made, police can still search the car. So long as the arrestee is a recent occupant of a vehicle, officer may search that vehicle incident to arrest. Belton governs even when an officer does not make the vehicle search until the person has left the vehicle. In all relevant aspects, the arrest of a suspect who is next to a vehicle and just left that vehicle presents identical concerns regarding officer safety and the destruction of evidence as the one who is inside the vehicle. It would make little sense to apply two different rules to what is, at the bottom, the same situation. (3) Concur Scalia: If Belton searches are justifiable, it is not b/c the arrestee might grab a weapon or evidentiary item from the car but simply b/c the car might contain evidence relevant to the crime for which he was arrested. was arrested for a drug offense and it was reasonable for the officer to believe that further contraband might be found in the vehicle from which he has just alighted and was still in the vicinity. (4) Dissent Stevens: The only genuine justification for extending Belton to cover search of a vehicle after the arrestee has exited is the interest in uncovering potentially valuable evidence. Such a goal must give way to the citizens constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian. (3) Arizona v. Gant (U.S. 2009) [TWEN] (1) Facts: was arrested by police charged with driving on a suspended license. Police arrested in a friend's yard after he had parked his vehicle and was walking away. and all other suspects on the scene were then secured in police patrol cars. The officers then searched 's vehicle. The found a weapon and a bag of cocaine. (2) Held Stevens: Belton does not authorize a vehicle search incident to a recent occupants arrest after the arrestee has been secured and cannot access the interior of the vehicle. Further, circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. (3) Concur Scalia: When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety and a means that is virtually always employed; ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. We should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto 'reasonable' only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Because respondent was arrested for driving without a license, I would hold the present search unlawful. (4) Dissent Alito: The court has effectively overruled Belton and Thornton. The Courts decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law. While the court purports to base its analysis on Chimel, it actually undermines Chimel. NEW RULE The court essentially adopts a new rule in Gant under which a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if The arrestee is within reaching distance of the vehicle at the time of the search, OR The officer has reason to believe that the vehicle contains evidence of the offense of the arrest. 5. Inventory Searches GENERAL RULES Police may inventory the contents of a car/property lawfully in their possession, and this extends to vehicles impounded for a parking violation and not a criminal offense. (South Dakota v. Opperman) Police may search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. (Illinois v. Lafayette) a) South Dakota v. Opperman (U.S. 1976)

(1) Facts: After Oppermans car received two tickets for being parked in the prohibited area, it was towed to the city impound lot. At the tow lot, an officer noticed a watch on the dashboard, and other items of personal property in view in the car. At the officers direction, the car was unlocked and inventoried, using a standard form designed for that purpose. The passenger compartment of the car was inventoried, including the glove compartment, which was unlocked. Marijuana in a plastic bag was found in the glove compartment. Opperman later appeared to claim his property. Subsequently, he was arrested for possession of marijuana. (2) Held Burger: SCOTUS decided that b/c of the lesser expectation of privacy in vehicles, no exigent circumstances are necessary to search a vehicle lawfully in police custody. When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars contents. These procedures have been widely sustained as reasonable under the Fourth Amendment, and this search was reasonable under the circumstances. (3) Dissent Marshall: The rule announced by the majority, permitting the inventory search of the closed compartments of a vehicle without the owners consent and without any evidence that the impounded automobile contains contraband, evidence or valuables or presents any danger to the police or the public, is contrary to the Fourth Amendment. In regards to a balancing test, the governments interests are absent. b) Illinois v. Lafayette (U.S. 1983) (1) Facts: Lafayette was arrested for partaking in an altercation with a movie theater manager. When he was taken to the police department, he had a purse-type shoulder bag with him. While at the station, Lafayette took a pack of cigarettes out of the bag and the officer found drugs in the cigarette package. (2) Held Burger: A warrantless police inventory search of an arrestees personal effects incident to incarcerating the arrestee does not violate the Fourth Amendment. It is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification in this case is not based on probable cause and thus a warrant is immaterial. (3) Concur Marshall: While an administrative inventory search is justified by the practical necessities of securing persons and property in a jailhouse setting, arrest itself cannot be used as the sole justification for the search of an arrestees effects. Instead, a warrantless search incident to arrest must be justified by a need to remove weapons or prevent the destruction of evidence. Here, there would not have been justification for such a search. 6. Checkpoints GENERAL RULES Brief suspicionless seizures (yes, this is a seizure for purposes of #4) a highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants is constitutional. (Michigan Dept. of State Police v. Sitz) Highway checkpoints should be limited to situations in which the search was designed to serve special needs, beyond the normal need for law enforcement; the subjective intent and purpose of the checkpoint can be taken into consideration; you cant just set up a checkpoint for general crime control or for the purpose of detecting possession and/or use of illegal drugs; it needs to be a special need or more related to safety of the roadways. (City of Indianapolis v. Edmond, U.S. 2000) Using a roadblock to permit police to seek public help in investigating a deadly hit and run is constitutional. (Illinois v. Lidster, U.S. 2004) Professor NOTE: Theres no perfectly logical web of reasoning with the checkpoints but police will examine the purpose of the checkpoint and look at what is reasonable. If there is a danger of terrorism, a checkpoint will be okay. You can also setup a checkpoint in search of a particular felon who is on the run. a) Michigan Dept. of State Police v. Sitz (U.S. 1990) (1) Facts: Police established a sobriety checkpoint with guidelines concerning checkpoint operations, site selection and publicity. Under those guidelines, all vehicles passing through a checkpoint would be stopped and drivers checked for intoxication. If the officer detected such signs, the motorist would be pulled out of the traffic flow and further examined, and if appropriate, arrested. All other drivers would be allowed to continue. Drivers sued seeking injunctive relief from the checkpoints.

(2) Held Rehnquist: The Michigan courts relied upon language in previous SCOTUS cases to perform a balancing test, between the rights of the motorists and the needs of the State to curb drunken driving. However, while the Court agreed that the stops were seizures, it determined such stops were reasonable, given the limited intrusion on law-abiding citizens and the tremendous problem with drunken driving in the United States. (3) Dissent Stevens: The majority misapplies the Fourth Amendments balancing test. The record indicates that the net effect of sobriety checkpoints is infinitesimal, if not negative, and the record supports the inference that more conventional police efforts would have resulted in more driving-under-influence arrests. The checkpoints are made at night, are random and require surprise. It seems the majority overvalues the law enforcement interest in using sobriety checkpoints and undervalues the citizens freedom. (4) Note: On the first day, 126 vehicles passed through the checkpoint in 75 minutes, with the average delay being 25 seconds. Two drivers were further held for field sobriety testing, and one of the two was arrested. (A third vehicle drove through the checkpoint without stopping, and was later stopped and arrested for DUI.) b) City of Indianapolis v. Edmond (U.S. 2000) (1) Facts: Indianapolis police directives set guidelines for roadblocks for the specific purpose of drug interdiction. Signs were posted giving notice of a narcotics checkpoint, and persons stopped at such checkpoints were advised they were being stopped briefly at a drug checkpoint and were asked to produce a drivers license and vehicle registration. Edmond and Palmer were stopped at one of the narcotics checkpoints; neither was arrested. Both filed a class action lawsuit (with themselves as representative members of the class) claiming that such stops are unreasonable under the Fourth Amendment. (2) Held OConnor: Traffic roadblocks intended to catch offenders who are an immediate, vehicle-bound threat to life and limb, such as sobriety checkpoints, remain permissible, as they bear a close connection to roadway safety. This case does not fall in that category. The Court declined to allow a roadblock that has as its primary purpose the uncovering of evidence of general criminal wrongdoing (in this case, narcotics interdiction). To allow such actions would remove the requirement of individualized suspicion in detaining persons. (3) Dissent Rehnquist: The program in issue here complies with our previous decisions regarding roadblock seizures of cars, and the addition of a dog sniff does not change the intrusiveness of the stop. It is constitutionally irrelevant that the officers also hoped to intercept narcotics. c) Illinois v. Lidster (U.S. 2004) [note case] (1) Facts: A bicyclist was killed in a hit and run. A week later at the same time of day and at the same location, the police erected a roadblock. They stopped each passing motorist and handed them a flyer asking for info about the hit and run. Lidster approached the checkpoint but swerved and was stopped. He was tried and convicted for DUI. (2) Held Breyer: The stop in the case was a minimum intrusion and was justified by the importance of the investigation; it was more reasonable and less intrusive. The motive behind the checkpoint is more understandable. Checkpoint was constitutional b/c of the circumstances and it only interfered minimally with liberty of the sort the Fourth Amendment seeks to protect. An Edmond-type presumptive rule of unconstitutionality does not apply here; but we must judge the reasonableness of such stops on the basis of the individual circumstances. 7. Consent GENERAL RULES Consent in general: A search is permissible without a warrant or even probable cause if there is voluntary consent. Consent can be revoked at anytime. Scope of consent is tied to apparent authority (State v. Lacy, year). Voluntary consent and knowledge of consent: Voluntary consent and proof that consent was coerced is more important and the govt has the burden of proof in showing voluntary consent (Schneckloth v Bustamonte). In determining whether a s will was overborne or whether consent was voluntary in a particular case, the Court assesses the totality of the surrounding circumstances both characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamonte) The test for consent is whether it was given voluntarily under the totality of the circumstances (United States v. Drayton, U.S. 2002).

A person lawfully stopped by the police but free to leave does not need to be informed by police of his or her ability to leave before police seek permission to search the motorists car (Ohio v. Robinette, U.S. 1996). Third parties and consent: Police can obtain voluntary consent from a third party who possessed common authority over the premises sought to be searched; this is the co-occupant consent rule (United States v. Matlock, U.S. 1974). If police reasonably believe a third party has apparent authority over the premises when they get consent from that third party, their warrantless search may be considered valid (Illinois v. Rodriguez, U.S. 1990). Roommates: Roommate A lets police in, police would have apparent authority based on Roommate As scope of consent; this consent will not get you into B, C and Ds rooms unless A has some sort of apparent authority over those specific spaces, e.g., if A shared a room with B then A and Bs room could be searched. (Professor) Has to be shared property or spaces; but police have some wiggle room here b/c if they reasonable look at something that could be the consenting persons then those items are okay to be searched. a) Schneckloth v. Bustamonte (U.S. 1973) [knowledge of refusal and voluntary consent] (1) Facts: California police officer stopped a car early in the morning carrying six men, only one of which had a license. That person claimed the car was his brother's, and when the officer asked if he could search the car, the man complied, opening the trunk. Inside the officer found stolen (2) Issue: Can consent, even in the absence of knowledge of a right to refuse, allow a search to proceed in the absence of a warrant without violation Fourth Amendment rights? (3) Held Stewart: Yes. While the lack of knowledge that the search can be refused can be taken as evidence to determine the "totality of circumstances" of whether there was consent, but it isn't dispositive of a lack of consent and the state does not need to prove that the person consenting knew that he had a right to withhold consent. Here the person wasn't under arrest, there were no threats, and the suspect gave no indications of unwillingness. Consent to a search isn't like waiving rights to a trial, so something like the Miranda warning isn't required, which would be impractical under the informal conditions of most searches. (4) Dissent Brennan: How can someone voluntarily waive a constitutional right they don't know they have? In order to waive a constitutional right, a citizen must be aware of its existence. Citizens should be advised of their right to refuse to consent to a search before consent is granted. (5) Dissent Marshall: Consent should be taken literally to mean a knowing choice. The government should bear the burden of showing consent, which a warning could satisfy. If the police were to inform the that he has the right to refuse consent before a search it would strongly establish the prosecutors burden under this proposed rule. Still, the police should have the option of merely asking for permission to search. This would give the police a practical advantage, but this would be achieved at the cost of permitting the police to disregard limits of the constitution. b) Georgia v. Randolph (U.S. 2006) [Consent of Third Parties] (1) Facts: and his wife were separated and she returned to the marital house. After a domestic dispute with , who left with her son, she called the police. When returned, the wife told the officers that there were drugs in the house. One of the officers asked for permission to search; said no. The police asked the wife for permission and she said yes. Police found cocaine in s bedroom. (2) Held Souter: In cases of residents of equal status, if one resident of a house consents to a search while another resident present at the scene does not, police need a search warrant to search that house; a physically present co-occupants stated refusal to permit entry prevails rendering the warrantless search unreasonable and invalid as to him; the third party cannot consent over the objections of a present co-occupant. (3) Dissent Roberts: Precedent is clear and should dictate the outcome of this case. If an individual shares a place with another, he assumes the risk that the other person will in turn share access to that place with the government. If that person wants to protect his possessions from search consented to be his co-inhabitant, he is free to put the items in an area over which others do not share access or control. The source of the majority rule is not privacy but a random provision of privacy based on social expectations that are limitless in variation with a variety of consequences. Theres no basis for deciding one co-inhabitant should prevail over the other. (4) Note: This would not work if the 15-year-old kid says something different than another resident.

8. Exigent Circumstances GENERAL RULES General: SCOTUS generally has been reluctant to find exigent circumstances and rejected a claim that there should be a blanket exception to the warrant requirement for all murder scenes. (Mincey v. Arizona, U.S. 1978) Emergency situations: You do not need probable cause in emergency aid situations because the police are serving a different function; they are acting as a community caretaker. In an emergency, police can search without a warrant if there is a probable cause (Casebook). Police may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant is or is about to be seriously harmed or are in danger (Brigham City v. Stuart, U.S. 2006). An officers decision to enter a home without a warrant was a reasonable exception b/c the man inside appeared injured and was bleeding and emergency aid was needed (Michigan v. Fisher, U.S. 2009) Hot Pursuit: In order to use hot pursuit as an exigent circumstance, that pursuit must be immediate or a continuous pursuit from the scene of the crime. (Welsh v. Washington, U.S. 1984) When Police Create the Exigency: Police may enter a home without a warrant in response to an emergency (including the imminent destruction of evidence) so long as the police do not themselves create the emergency through conduct that violates the 4th Amendment; exigent circumstances rule applies when the police do not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment. (Kentucky v. King, U.S. 2011) a) Welsh v. Washington (U.S. 1984) (1) Facts: was driving erratically a pulled off a road. A passerby observed his behavior and called the police. Meanwhile, had exited his car and walked to his home a short distance away. Police arrived and proceed to the house where they found naked in bed. He was arrested for DUI. (2) Held Brennan: The warrantless, nighttime entry of petitioners home to arrest him for a civil, non-jailable traffic offense was prohibited by the Fourth Amendment. The exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only minor offense has been committed. The gravity of the suspected offense is a factor to be considered in determining whether the exigent circumstances exception should be used. This underlying offense is relatively minor. b) Brigham City Utah v. Stuart (U.S. 2006) (1) Facts: Police saw a fight through a window in a home where they were at in response to a noise complaint. They saw four adults restraining a teenager against a refrigerator. The teenager broke free and punched one of the adults. The police decided to enter the house without a search warrant. (2) Held Roberts: Police may enter a home without warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. The role of an officer is to prevent violence and restore order, not simply rendering first aid to casualties. Under the circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. c) Michigan v. Fisher (U.S. 2009) [TWEN] (1) Facts: Officers responded to a disturbance complaint and were directed to a residence where a man was "going crazy." The officers found a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. The officers could see inside the house, screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. The officers knocked, but refused to answer. They saw had a cut on his hand and asked if he needed medical attention. ignored them and demanded that the officers get a search warrant. One of the officers then pushed the front door partway open but saw pointing a long gun at him. The officer withdrew.

(2) Held Per Curiam: A straightforward application of the emergency aid exception, as in Brigham City, dictates that the officer's entry was reasonable. Just as in Brigham City, the police officers here were responding to a report of a disturbance. Just as in Brigham City, when they arrived on the scene they encountered a tumultuous situation in the house -- and here they also found signs of a recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers could see violent behavior inside. Although the officers did not see punches thrown, as did the officers in Brigham City, they did see screaming and throwing things. It would be objectively reasonable to believe that 's projectiles might have a human target (perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short, we find as we did in Brigham City that the officer's entry was reasonable under the Fourth Amendment. KEY POINTS AFTER FISHER Where an officers personal observations or reliable information would lead a reasonable officer to conclude that ongoing violence is occurring in a residence, officers may enter without a warrant under the exigency exception to the warrant requirement. Officers who are faced with an on-going violent situation in a home need not wait until serious injury results before making an entry. Officers are given broader deference for exigency under the emergency aid exception as opposed to other types of exigency such as destruction of evidence. d) Kentucky v. King (U.S. 2011) [TWEN] (1) Facts: Police followed a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment; they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found , along with drugs and drug paraphernalia. (2) Analysis: A "bad faith" requirement would be inappropriate because only objective reasonableness is relevant; that a "reasonable foreseeability" test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would "unjustifiably interfere with legitimate law enforcement strategies and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would "fail to provide clear guidance for law enforcement officers; and that a test that examines whether the police action "would cause a reasonable person to believe that entry is imminent and inevitable" turns on too many "subtleties." (3) Held Alito: The exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside. "Occupants who . . . elect to attempt to destroy evidence have only themselves to blame for the warrantless exigentcircumstances search that may ensue," the Court warns. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed. (4) Dissent Ginsburg: The Court's decision "arms police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct." (5) Note: Do not use King as evidence of when police can enter. (Professor)


Seizures and Arrests GENERAL Both arrests and stops are seizures within the meaning of the Fourth Amendment. A seizure can occur if a person is stopped pursuant to a stop and frisk. Probable cause for arrest is probable cause that a crime has been committed and that the is the one who committed the crime. a fair probability 1. Is a Warrant Needed for Arrests? GENERAL RULE Government officers are permitted to arrest without a warrant for both misdemeanors and felonies committed in the presence of the officer or when there is probable cause to do so. (United States v. Watson) a) United States v. Watson (1976) (1) Facts: was arrested after he was placed under surveillance by a postal official for possession of stolen mail. The official acted on information from an informant who had supplied reliable information in the past. (2) Held White: Probable cause arrests are valid without a warrant. The Fourth Amendment did not change or modify the ancient common law rule that police officers may make warrantless arrests were probable cause exists. Because there is no constitutional barrier, the Court here must look to the statute. The postal regulations empower inspectors to arrest suspects when they have probable cause to believe the postal laws have been violated. In this case, there was probable cause to arrest and the arrest is thus valid. (3) Dissent Marshall: Arrests should be subject to the same warrant requirements as searches. OTHER HYPOTHETICAL SITUATIONS Other situations (Professor): If police are at someones door and the door is closed, then police need a warrant to arrest. If door is open, police need a warrant. If door is open but the screen door is closed, police need a warrant; if screen door is cracked, police do not need a warrant. If youre in a car on a public street (but not in your garage or on the driveway), they can arrest you without a warrant. If youre standing in your (front) driveway, police can arrest you without warrant; but there are some arguments that they cannot arrest you if youre standing on a driveway behind your house (some courts have drawn a distinction here b/c its in the curtilage.) If youre working at a business open to the public, the general rule is that police do not need a warrant to arrest you. If youre working in a reception area open to customers only, general rule is that you dont need a warrant. If its a private office, the courts have drawn some distinctions here. 2. When is a Person Seized? GENERAL RULES A person is seized is a reasonable person under the circumstances would believe that he or she was not free to leave. (United States v. Mendenhall) A seizure occurs when, by means of physical force or show of authority, a persons freedom of movement is restrained by an officer. (Terry v. Ohio, U.S. 1968) The test is not whether a reasonable person feels free to leave but whether a person feels free to decline officers requests or terminate the encounter (Florida v. Bostick, U.S. 1991). If a reasonable person would feel free to terminate the encounter, then he or she has not been seized; the reasonable person test is objective and presupposes an innocent person. (United States v. Drayton, U.S. 2002, finding that there was not a seizure when three police officers boarded a bus and asked the passengers for permission to search their bags. Occupants in a car are seized when they are riding in a car stopped by police (Brendlin v. California, U.S. 2007). A foot pursuit is not a seizure; a seizure occurs when physical force has been applied to a person or when a person submits to the assertion of authority. (California v. Hodari) Some courts may find that blocking or impeding a suspect is a seizure; some courts consider that the police holding a Passport or other form of identification may be a seizure; length of questioning can also be considered in what constitutes a seizure (Professor).


United States v. Mendenhall (U.S. 1980) (1) Facts: Mendenhall was stopped by agents of the DEA in the airport and was asked to produce her ID and airline ticket. The names did not match. She was asked to accompany the agents to the DEA office in the airport and did so. She was asked to consent to a search from a female officer and did. Mendenhall removed two packages containing heroin from her underclothing. She was subsequently arrested. (2) Held Stewart, Marshall (not majority): No seizure occurred because this was request, not a demand, that occurred in a public place and the defendant was "free to leave" at any time. If the person doesn't attempt to leave, a seizure doesn't occur unless there is some threatening presence, a display of a weapon, physical touching, or the use of language or tone compelling compliance. ["Free to leave" is the "Mendenhall test."] (3) Dissent White: Mendenhall was seized; she was not free to refuse to go to the DEA Office. Consent cannot be presumed from a showing of acquiescence to authority. Further, it is undisputed that Mendenhall was not free to leave but somehow according to Justice Stewart wasnt seized b/c a reasonable person would have believed that she was free to leave. (4) Note: The Court in this case is putting a big burden upon people to exercise their right/freedom to leave. (Professor) MENDENHALL TEST Person is seized only when by physical force or show of authority, his freedom of movement is restrained; test for the existence of a show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement but whether the officers words and actions would have conveyed that to a reasonable person. A person is seized only if, in view of all circumstances surrounding, a reasonable person would have believed he was not free to leave.

b) California v. Hodari (U.S. 1991) (1) Facts: Officers approached a group of young people, including Hodari. When they fled, one officer pursued the group, but took a slightly different route, one that brought him face-to-face with Hodari. However, Hodari was watching for pursuit behind him, and did not see the officer until they were almost upon each other. When he spotted the officer, he tossed away a small rock, later proved to be crack cocaine. The officer tackled him and the police recovered the rock. Hodari was also in possession of $130. (2) Issue: Will a s right against unlawful arrest operate to suppress evidence found prior to physical restraint? (3) Held Scalia: A s right against unlawful arrest will not operate to suppress evidence found prior to physical restraint. The Fourth Amendment protects against unlawful seizure. Seizure, when applied to the person, as it must be in the context of arrest, can only refer to physical restraint. The term seizure, as it is commonly understood, implies some form of custody or control. Consequently, any evidence found prior to such custody or control cannot be said to be the fruit of an illegal seizure. In this case, there had been no contact between and the officer prior to discarding the cocaine. The court stated that [A]n arrest requires either physical force or where that is absent, submission to the assertion of authority. Mendenhall did not say that an arrest was necessarily effected when movement is restrained but rather than an arrest cannot occur absent such restraint. (4) Dissent Stevens: The court has essentially concluded that an unlawful attempt at an arrest does not implicate the Fourth Amendment. This is at odds with precedent and logic. 3. For What Crimes May a Person Be Arrested? GENERAL A person can be arrested for a crime that has no possibility of a prison sentence, such as a seatbelt violation. (Atwater v. City of Lago Vista) An officer can arrest an individual even if he has no authority under state law if it is deemed constitutional according to the Fourth Amendment. (Virginia v. Moore) a) Atwater v. City of Lago Vista (U.S. 2001)

(1) Facts: Woman is pulled over for not wearing a seatbelt; has children in the car. Officer is very accusatory and isnt sympathetic. He is authorized by statute to arrest her for not wearing a seatbelt. She was arrested. Woman filed suit saying that the arrest violated Fourth Amendment. (2) Issue: Is an arrest for a minor offense that is not a breach of the peace a violation of the Fourth Amendment? (3) Held: Souter: No. The Court says that if an officer has probable cause that a person has violated even a minor criminal offense in his presence, he may, without violating the 4th Amendment, arrest the offender. Atwater's proposed distinction between minor offenses requiring jail time and those that do not is not a "bright line" for officers, as many times the distinction requires an evaluation of facts, such as a specific weight of drugs in question. Many times officers need to arrest those cited to keep them from endangering others, such as the compulsive speeder. Officers have an incentive not to arrest anyway, as this takes up time and resources. (4) Dissent O'Conner: An arrest for a minor offense risks violating an individual's interests of liberty and privacy, as happened here, so the standard should go beyond "probable cause" to "legitimate reason" for arrest, as in Terry v. Ohio. Here there was no reason to arrest Atwater, as she lived in a town of ~2500 people and she wasn't going anywhere. The majority's view allows abuse by police officers. (5) Note: Court essentially wants to draw a bright line rule b/c its concerned that police officers may not be able to use the balancing test to determine the reasonableness of the arrest on the fly. The in the presence language is not considered a constitutional holding in this case. But this requirement is in most state laws. b) Virginia v. Moore (U.S. 2008) [TWEN] (1) Facts: Police officers had probable cause to suspect that was driving with a suspended license. Virginia state code authorizes the police to give a summons to, but not arrest, someone who is driving with a suspended license. The police, however, arrested Moore, and in a search subsequent to the arrest he was found to be carrying crack cocaine. (2) Held: This officer had no authority under Va. state law to arrest Moore. But SCOTUS says that they are not concerned with what the state law says b/c if they let state law interpret the Fourth Amendment, they would have 50 different interpretations. A warrantless arrest for driving with a suspended license was reasonable under the Fourth Amendment even if it was not permitted under state law; s search incident to arrest was thus admissible. (3) Concur Ginsburg: If we reach a different resolution of this case, then lawmakers in Va. would amend the statute. We dont want to create bad incentives for states to not protect individuals rights of privacy. Ginsburg felt there was less precedent for the majority opinion than is alluded to by Justice Scalia. Her primary line of reasoning for ruling with the other eight justices lies in the fact that while 's arrest itself violated state law, Virginia statute does not identify the suppression of evidence as a consequence of this violation. G. Stop and Frisk STOP AND FRISK GENERAL INFO There is an important difference between arrests and stops under the Fourth Amendment. For example, for an arrest there must be probable cause, but for a stop there only has to be reasonable suspicion. If a person is arrested, police can do a search incident to the arrest. But if a person is stopped, there can be a frisk only if there is reasonable suspicion that the person has a weapon that might endanger police. 1. The Authority for Police to Stop and Frisk GENERAL RULE Police have the power to stop individuals if they have reasonable cause to believe that the individuals are conducting themselves suspiciously based on specific facts of behavior or the situation (a hunch alone isnt enough); police have the power to frisk individuals based on reasonable suspicion that they might be armed and dangerous to the officer or innocent victims; the frisk is often essential to the proper performance of the officers investigatory duties. (Terry v. Ohio) a) Terry v. Ohio (U.S. 1968)

(1) Facts: Police officer had reasonable suspicion that individuals were casing a place to rob it when they walked by a store front multiple times and stopped, peered in, then met up to allegedly confer. The officer approached them and identified himself as a police officer, asked their names, and then when they "mumbled something" he grabbed one, patted him down for weapons, and found a concealed gun. He marched them into a store, put them against a wall, and found a gun on another one. He never reached under their outer clothes before finding the guns. The men were charged with carrying concealed weapons. (2) Held Warren: This "stop and frisk" behavior is within the purview of Fourth Amendment. To make distinctions between "stop" and "seize" or "arrest" or between "frisk" and "search" is to ignore the protection of the Fourth Amendment from invasion of personal privacy. If a police officer observes unusual conduct that, in light of the officer's experience, is indicative of criminal activity, a stop and frisk is a reasonable seizure and search. The reasonableness of a search can only be determined by balancing the government's needs with the privacy interests of the individual. A police officer can question anyone, and the officer may, without a warrant or probable cause, search the outer clothing of the individual, not to prevent the destruction of evidence, but to ensure his own protection. Each case must be decided on its own facts. (3) Dissent Douglas: Yes, a stop is a seizure and a frisk is a search. The Fourth Amendment requires there to be probable cause that a crime was committed, is being committed, or will soon be committed or the search and/or seizure will be unreasonable. This stop and frisk was unreasonable under the Fourth Amendment. TERRY BALANCING TEST In reasonableness of a Terry stop and search can only be determined by balancing: The governments need for the stop WITH The degree of invasion of the privacy interests of the individual. TERRY STOP AND FRISK REQUIREMENTS following is required for a stop and frisk in a Terry situation: There is a reasonable belief that there may be criminal activity; There is a reasonable belief that the detainees are dangerous; After the officer announces who he is to the suspect and , after the some questions, the officer is not convinced that the subject is not dangerous; AND If the above are present, a patdown may be made.


2. The Distinction Between Stops and Arrests GENERAL DISTINCTIONS Under Terry v. Ohio, both stops and arrests are seizures within the meaning of the Fourth Amendment. Arrests though must be based on probable cause, while stops require only reasonable suspicion. There is often not a bright line to distinguish when a stop becomes an arrest. The Court has made clear that if a person is detained for sustained interrogation that is an arrest within the meaning of the Fourth Amendment. An arrest has occurred if police officers take a suspect to the station house for questioning because detention for custodial interrogation, regardless of its label, intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. (Dunaway v. New York, US. 1979) Taking a suspect from the public area of an airport into a small room constituted an arrest. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop and the investigative methods employed should be the least instrusive means reasonably available to verify or dispel the officers suspicion in a short period of time. (Florida v. Royer, U.S. 1983) Taking a suspect to the police station for fingerprinting was an arrest and had to be based upon probable cause. (Hayes v. Florida, U.S. 1985) The Fourth Amendment was violated when police fingerprinted and questioned 25 African-American men to match fingerprints found at a rape scene. (Davis v. Mississippi, U.S. 1969) However, fingerprinting, if done in the field as part of a brief encounter, is not always held to constitute an arrest. (Casebook)

Duration matters in determining whether there is a stop or arrest and the court found that detaining a persons luggage for 90 minutes was a seizure under the Fourth Amendment. (United States v. Place, U.S. 1983) However, there is not a rigid time limit in determining when a stop become an arrest and the court found that it was a stop and not an arrest when a police officer detained suspects between 30 and 40 minutes while waiting for the arrival of a DEA agent. (United States v. Sharpe, U.S. 1985) If an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop but there is no hard-and-fast time limit. (Id.)

3. What May Police Do When They Stop an Individual? GENERAL RULES Officer can do a search for firearms of the immediate area under a Terry stop even if they havent arrested the individual yet (Michigan v. Long, U.S. 1983). Officers can conduct a protective sweep in a house to see if other people are in the home if they have reasonable suspicion that a person might be there who poses a threat to them (Maryland v. Buie, U.S. 1990) When the police frisk a person, they may seize any evidence that is apparent to their experienced plain feel but there is a difference between plain touch and the police manipulating the lining of a persons clothes to look for evidence, which is not permitted. (Minnesota v. Dickerson, U.S. 1993) Statutes requiring suspects to identify themselves when stopped for police investigations do not violate either the Fourth or Fifth Amendment. (Hiibel v. Sixth Judicial District) a)

Hiibel v. Sixth Judicial Dist. Court of Nevada (U.S. 2004) (1) Facts: Police received a call reporting an assault and when police arrived to the scene, it was a truck stopped on the side of a road and what looked like to be an intoxicated man. refused to reveal his identity to the policeman. The stop itself wasnt challenged; the just ID part. (2) Held Kennedy: Statutes requiring suspects to identify themselves during police investigations do not violate either the Fourth or Fifth Amendment. s refusal to disclose his name was not based on a fear that his name would be used to incriminate him or that it would like him to a crime. He only thought his name was none of the officers business. (3) Dissent Breyer: The Courts Fourth Amendment precedents do not require a Terry detainee to respond to a police officers questions. There are sound reasons for adhering to this precedent, since answers to any number of questions may be incriminating and would require police to determine which were and were not. This precedent ought not to be eroded with special exceptions. (4) Note: This is not a blanket exception; if an individual reasonably believes that the knowledge of his name could be used in a criminal prosecution or could lead to other evidence that might be so used even if the statement itself is not incriminating, then that person can not give his name. An example of this would be if that person had an outstanding warrant against him. (Professor) 4. What is Sufficient for Reasonable Suspicion? REASONABLE SUSPICION GENERAL INFO There is no bright line rule for determining what is sufficient for reasonable suspicion. But SCOTUS has considered this question in a number of contexts. A few of these include reasonable suspicion for stopping cars, reasonable suspicion based on informants tips, reasonable suspicion based on a persons trying to avoid a police officer, and reasonable suspicion based on profiles. This is not an exhaustive list. GENERAL RULES Reasonable suspicion for stopping cars: Several different facts, which themselves are not evidence of any crime, can be taken together under the totality of the circumstances to create reasonable suspicion to stop a car. (United States v. Arvizu) Reasonable suspicion can be established with information different in quantity or content than that required to establish probable cause, and can arise from information that is less reliable than that required to show probable cause. (Alabama v. White) An anonymous tip that a person is carrying a gun is not sufficient to justify a police officers stop and frisk of that person. (Florida v. J.L.) Flight from police is sufficient to support a finding of reasonable suspicion and to justify a police officers further investigation. (Illinois v. Wardlow) Use of a drug courier profile in an airport provides reasonable suspicion for a Terry stop. (U.S. v. Sokolow)


Reasonable suspicion for stopping cars: (1) United States v. Arvizu (U.S. 2002) (1) Facts: Magnetic sensors were placed in a rural portion of Arizona as part of a bordercontrol checkpoint. An officer received a signal consistent with smuggling. When he approached the target area, he saw driving a minivan and observed suspicious activity (erratic driving and other behavior). He stopped the vehicle and was granted permission to search it. He found a lot of marijuana. (2) Held Rehnquist: Although s acts may have been innocent in themselves, under the totality of the circumstances test, when taken together, those acts reasonably constituted grounds for a search. While the concept of reasonable suspicion is somewhat abstract, the Court has deliberately avoided reducing it to a neat set of legal rules. It is quite reasonable that a drivers slowing down, stiffening of posture and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance while quite unusual in another. The officer was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the areas inhabitants. b) Reasonable suspicion based on informants tips: (1) Alabama v. White (U.S. 1990) (1) Facts: Officer received an anonymous tip state that would leave her apartment at a particular time in a specific car and would drive to a motel and that she was in possession of cocaine. The officer proceed to the apartment and observed leave the building empty handed, get in the described car, and drive to the motel. Pursuant to a consensual search, marijuana was found in a case in the car. (2) Held White: Reasonable suspicion can be established with information different in quantity or content than that required to establish probable cause and can arise from information that is less reliable than that required to show probable cause. Reasonable suspicion, like probable cause, is dependent upon both the content of info possessed by police and its degree of reliability as determined by the totality of the circumstances test. The only difference is that the level of suspicion required to establish reasonable suspicion is less than required to established probable cause. This is a close case but the informants ability to predict s activities (a totality of the facts) established the requisite reasonable suspicion to stop . (3) Dissent Stevens: Millions of people leave their apartments at the same time every day carrying an attach case and heading for a destination known to their neighbors. This activity does not establish the requisite reasonable suspicion. The dissent also took issue with the records silence on whether police made any attempt to determine the identity, motivation and basis of knowledge of the anonymous phone caller. (4) Note: This is one of the weakest factual scenarios held to satisfy the reasonable suspicion standard. (2) Florida v. J.L. (U.S. 2000) (1) Facts: An anonymous caller reported to police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Two officers were instructed to respond. They approached , frisked him and seized a gun from his pocket. (2) Held Ginsburg: An anonymous tip that a person is carrying a gun is not sufficient to justify a police officers stop and frisk of that person. The tip lacked the moderate indicia of credibility. The caller provided no predicative info. The tip in this case does not show that the tipster has knowledge of concealed criminal activity. There may be some situations that are so dangerous in nature that we would allow a Terry stop even if we dont have reasonable suspicion, e.g., if there was a tip of a bomb; however, this is not the case here. An anonymous tip lacking indicia of reliability of the kind contemplated in White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm. (3) Note: The Court adhered to the view that the concept of reasonable suspicion is not readily or even usefully reduced to a neat set of legal rules but must be determined by looking to the totality of the circumstances. c) Reasonable suspicion based on a persons trying to avoid a police officer (1) Illinois v. Wardlow (U.S. 2000) (1) Facts: Officers observed standing next to a building holding an opaque bag. When saw the officers, he fled. The officers eventually cornered him and conducted a pat-down search for weapons. The opened the bag and found a gun.

(2) Held Rehnquist: Flight from police is sufficient to support a finding of reasonable suspicion justifying an officer in further investigation. An individuals presence in an area of expected criminal activity is not sufficient, without more, to support a reasonable, particularized suspicion that the person is committing a crime, the officers may take into consideration the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion. The officer was justified in suspecting was involved in criminal activity and in investigating further. (3) Concur, dissent Stevens: While I agree with the courts rejection of both per se rules, the testimony of the officer who seized does not support the conclusion that he had reasonable suspicion to make the stop. (4) Note: The State asked for a per se rule authorizing the temporary detention of anyone who flees at the mere sight of an officer; asked for the opposite per se rule, that the fact that a person flees upon seeing police can never justify a temporary investigative stop. d) Reasonable Suspicion Based on Profiles (1) United States v. Sokolow (U.S. 1989) (1) Facts: has paid for two round trip tickets in cash and traveled under a name that did not match the name under which his telephone number was listed. He also traveled to Miami for only 48 hours and appeared nervous during his trip. He wore a black jumpsuit and gold jewelry and did not check any luggage. Based on this info, DEA agents stopped upon his arrival in Honolulu and based on searches with drug sniffing dogs, found a lot of cocaine. (2) Held Rehnquist: The use of a drug courier profile by government agents can provide reasonable suspicion for stopping an individual who fits the profile. It is settled law that the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if they lack probable cause. Reasonable suspicion entails some minimal level of objective justification for making a stop, i.e., something more than an inchoate and unparticularized suspicion or hunch but less than the level of suspicion required for probable cause. Here, the facts taken together support such a reasonable suspicion. (3) Dissent Marshall: The reflexive use of and reliance on a criminal profile runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This is exacerbated by the profiles ability to adapt to any set of observations. By saying that the use of the profile is irrelevant to determination of whether the agents had a reasonable suspicion, the majority avoids serious issues related to a questionable law enforcement practice. CLASS HYPOS Officers come across car; smell marijuana and person has a huge number of air fresheners in their car and enforcement had some prior hints that this person was involved in drugs; yes, PC Officers come across late at night a car driven by a 51 year old man; run plates and the color of the car on file vs. what it is now doesnt match up. So the officer pulls over the individual and strikes up a convo with the driver and passenger. Passenger looks young and not related to driver. So officer asks her for ID and he decides that theyre lying. He believes that shes under 16 and it might be a kidnapping or prostitution. So he searches. No PC; not enough basis to look. Officers are watching a house and have never seen this particular at the house before and he comes out of the garage. The house has been connected with a drug trade. The follow the man to a gas station and strike up a convo voluntarily. Ask him where hes coming from. He says he was visiting his girlfriend on 22nd avenue but the house was on 17th avenue so he lied. PC? No. Police are investigating drug transactions in a rural area and someone pulls up who is believed to be involved with drug kingpin. He is asked for ID but says he doesnt have it and that hes there to purchase puppies. Officers think the car looks familiar and it turns out it was loaned to him by the drug kingpin. Court says this is enough for PC b/c of the totality of the circumstances. Police are at a gas station in a crime-ridden area and notice a guy standing at the corner of the parking lot outside of view of security cameras. Police think he looks odd b/c he doesnt have a car and is on his cellphone. As police start to leave, they notice the guy sneak up all the sudden to a gas attendant outside. The 4th Circuit thought there was enough reasonable suspicion to warrant a stop. on a warm spring day was walking down the street with a hooded sweatshirt on and appears to be holding an object in the front pocket of sweatshirt in a manner an officer could suspect a gun. Cir. CoA said no reasonable suspicion. Officers notice a man walking down the street that appears to have a bulge above his waistband and the bulge disappeared as he went behind some newspaper boxes. There is a lot of room for argument here; it is not always clear.


A. General 1. The Rule a) This is the rule that material obtained in violation of the constitution cannot be introduced at trial against a criminal . b) Applies if there is substantial causal connection between the illegal police behavior and the evidence. c) There is no explicit, express statement in the Fourth Amendment that the exclusion will result. d) The rule excludes less reliable evidence. 2. Purpose a) SCOTUS has often expressed deterrence as a key purpose of the exclusionary rule. b) The rule is defended as a key way of deterring police misconduct b/c police officers know that if they violate the Constitution they know that if they act in an unconstitutional manner that the fruits of their efforts will be excluded. c) The exclusionary rule is also justified based on concerns for judicial integrity; the view is that courts are tainted if they convict people based on illegally obtained evidence. d) There is also a notion that the exclusionary rule sends a powerful message that the government cannot and will not benefit from wrongdoing by its officers. e) Constitutional rights under amendments are hollow and unfair to the if there is no such exclusionary rule and evidence can be obtained improperly. 3. Critics a) Critics of the rule focus on its cost in letting potentially guilty people go free; the existence of the exclusionary rule may make judges less likely to find a Fourth Amendment violation since they know that the outcome of the case might be determined by the loss of key evidence. (Cardozo) b) Exclusionary rule is unnecessary (Scalia); the rules costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application. She says that if your rights are violated according to the constitution, instead of excluding evidence, sue them in civil court for private damages. (Hudson v. Michigan, U.S. 2006) B. Is the Exclusionary Rule a Desirable Remedy for Unconstitutional Police Behavior? 1. Hudson v. Michigan (U.S. 2006) a) Facts: Police entered and searched s home with a warrant but failed to knock first and only waited 3 to 5 seconds after announcing themselves before entering. was found with cocaine and a gun. He argued that the evidence against him should be seized in violation of the knock-and-announce rule of the Fourth Amendment. b) Held Scalia: Violation of the knock-and-announce rule does not require the suppression of all evidence found in a warranted search. Evidence seized in violation of the knock and announce rule can be used against a in a later criminal trial without violating the Fourth Amendment and judges cannot suppress such evidence for that kind of violation alone. The rule has never purported to protect ones interest in preventing the govt from seeing or taking evidence described in a warrant. In addition, the cost of excluding evidence based on the violation would be serious, amounting to providing dangerous criminals with a get-out-jail-free card. c) Note: This case is premised on the insufficient connection between the failure by the police to knock and announce and the evidence found in the house, thus rendering exclusion of that evidence based on the violation unjustifiable. The case might stand for a broader application of the rule, which might curb altogether the exclusionary rule based on knock-and-announce violations. C. The Origins of the Exclusionary Rule GENERAL RULES The warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment. There needs to be a remedy to exclude such evidence to deter such conduct by govt officials. (Weeks v. United States) The Court initially ruled that the exclusionary rule did not apply to the states (Wolf v. Colorado) but later held that the exclusionary rule applies to the states; evidence obtained in violation of the Fourth Amendment may not be used in criminal prosecutions in state courts as well as federal courts. (Mapp v. Ohio)

1. Weeks v. United States (U.S. 1914) a) Facts: Weeks was arrested and during the apprehension, the arresting officer performed a search of Weeks home, although he did not have a search warrant. The search turned up evidence of violation of federal law, whereby U.S. mail was used to send lottery tickets. His residence was searched a second time (again without warrant) and seized some letters and documents. Weeks filed a complaint styled as a motion to return property to retrieve the papers and petitioned to have the illegally seized material excluded from the trial. b) Held Day: Where the police obtain evidence of criminal activity through a warrantless search in violation of the Fourth Amendment, the evidence must be excluded and returned to the accused. The Fourth Amendment puts limitations on the courts and federal government officials so as to ensure that all people, whether innocent or criminals, are protected from unreasonable searches and seizures. c) Note: At this time, Bill of Rights did not apply to the states. 2. Wolf v. Colorado (U.S. 1949) [note case] a) Held: The court held that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, however, the exclusionary rule was not. b) Note: There are a lot of ways to remedy these constitutional violations. It doesnt have to be through the exclusion rule. It is not an essential ingredient of the Fourth Amendment. (Professor) 3. Mapp v. Ohio (U.S. 1961) a) Facts: was convicted of possessing lewd books based on evidence seized illegally without a search warrant. b) Held Clark: The exclusionary rule under the Fourth Amendment applies in state prosecutions. The rationale behind applying the rule federally applies equally to the states. Evidence obtained in derogation of constitutionally protected rights cannot be admitted to support a prosecution. This is essential to deter oppressive police conduct. The exclusionary rule is a critical component of the enforceability of the Fourth and Fourteenth Amendments. | Court recognizes the inequality between the federal justice system and the state justice system. Because the exclusion is not allowed in federal court, federal agents would pass this evidence along to state officials b/c they were allowed to use it in state court. c) Note on majoritys rationale: If we dont have this rule, were inviting lawlessness by rewarding people for violating constitutional rights. There is a cost-benefit analysis of social rights of exclusion v. the benefit achieved by deterring obtaining evidence by violating constitutional rights. d) Dissent Harlan: Uniformity of sanction is not a logical reason to extend the exclusionary rule to states. e) Note: Mapp changed law enforcement across the country; after Mapp, the number of warrants obtained increased exponentially. OVERRULING In Mapp, SCOTUS decided that evidence obtained in violation of the Fourth Amendment may not be used in state law criminal prosecutions in state courts, as well as in federal criminal law prosecutions in federal courts (which had previously been the law) thus overruling Wolf v. Colorado, which held that while the Fourth Amendment was applicable to the States through the Fourteenth Amendment, the exclusionary was not.

D. Who Can Object to the Introduction of Evidence and Raise the Exclusionary Rule? GENERAL RULES Traditionally, SCOTUS ruled that anyone can legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him (Jones v. US, U.S. 1960). However, SCOTUS changed the approach to determining who may raise the exclusionary rule and held that only those whose Fourth Amendment rights were violated may raise the exclusionary rule; a person must show a violation of those rights. (Rakas v. Illinois) Whether the person raising the exclusionary rule had a reasonable expectation of privacy in the area searched is the exclusive test for determining that that person may challenge a search. (Rawlings v. Kentucky) In order to claim the protection of the Fourth Amendment, a must demonstrate that he personally has an expectation of privacy in the place searched and that his expectation is reasonable; someone merely present in the house does not have this expectation. (Minnesota v. Carter) An arrest warrant is required to arrest an overnight guest at the home of a third party, as there is a sufficient expectation of privacy. (Minnesota v. Olsen) If police stop a car, it is a seizure of both the driver and any passengers; those passengers in a persons car can raise an improper seizure under the exclusionary rule. Before, the seizure was only of the driver. But you only have a standing if the police officer stopping the car did so lawfully. If its not their car and not their stuff that is seized and searched, then its not their reasonable expectation. (Brendlin v. California) 1. General a) Rakas v. Illinois (U.S. 1978) (1) Facts: Defendants were in a car owned and driven by another person, when the police stopped it, searched it, and seized gun shells. Defendants attempted to sue because of violation of their Fourth Amendment rights based upon Jones. (2) Issue: Do the defendants have standing to exclude the evidence because of unreasonable search and seizure when the items were seized on someone else's property simply because defendants were the "target" of the seizure? (3) Held Rehnquist: The legitimately on the property requirement of Jones v. United States for challenging the legality of a police search, was too broad. A need show a reasonable expectation of privacy in the place searched in order to be eligible to challenge the search. For example, an overnight guest in a friends apartment has such standing. The court ruled that vehicular passengers in a car they did not own had no such legitimate expectation. (4) Dissent White: The majority decision requires an ambiguous determination of whether private parties have granted defendants sufficient possessory interests to give the defendants a privacy interest, and increases incentives for bad-faith searches because mere passengers cannot complain. (5) Note: Salvucci finally overruled the "automatic standing" of Jones by saying that one could possess property but not have a sufficient Fourth Amendment privacy. MOVED AWAY FROM PREVIOUS RULING In Rakas, the court moved away from its traditional standing that anyone can legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him (Jones v. United States, U.S. 1960). NOW, that only those whose Fourth Amendment rights were violated may raise the exclusionary rule. b) Rawlings v. Kentucky (U.S. 1980) [note case] (1) Held: A man cannot raise the exclusionary rule when contraband belonging to him was found inside a womans purse when he and the woman were visiting premises that were searched. The man had no reasonable expectation of privacy under the circumstances and thus could not raise the exclusionary rule. (2) Note: Why wasnt it an unreasonable seizure? B/c its contraband. The officer recognizes it as contraband and it was immediately apparent. This was not improper. Rawlings was arguing that it was an improper search but Rawlings had no standing on this b/c it wasnt his purse. 2. Visitors in Anothers Home a) Minnesota v. Olsen (U.S. 1990) [mentioned in Carter]

(1) Held: An arrest warrant is required to arrest an overnight guest at the home of a third party, as there is a sufficient expectation of privacy. b) Minnesota v. Carter (U.S. 1998) (1) Facts: Defendants were in an apartment for approximately 2.5 hours with the permission of the person who resided there, for the purpose of bagging cocaine to sell. A police officer looked through an opening in the window shade and saw the defendants. (2) Issue: Did the defendants have a sufficient privacy interest to protect in the apartment? (3) Held Rehnquist: No. There was no evidence of ongoing acceptance by the resident, and they were not social overnight guests as in Minnesota v. Olson. They were there strictly for business, and illegal business at that. The "automatic standing" rule was overruled in Rakas. The Court doesn't need to decide therefore whether the officer's viewing the defendants was a search under the Fourth Amendment, as there was no Fourth Amendment right to protect in the first place for the defendants. (4) Analysis: There is a difference between business invitees and social guests. This is a commercial business relationship. The court is saying we are not going to respect the reasonable expectation of privacy of people who dont deserve that and we feel that only people that are social guests deserve that reasonable expectation of privacy. (5) Concur Kennedy: As a general rule, almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches in their hosts home; however, the s in this case have established nothing more than a fleeting and insubstantial connection with the home or the owner. (6) Dissent Ginsburg, Stevens, Souter: Even short-term guests in a home should have a privacy interest, as the home is a specially protected place. This does not mean reversion to the "legitimately on the premises" rule or extend to casual visitors such as pizza delivery persons. A home dweller can exclude, as well as include guests, and the included guests have privacy interests. FACTORS IN DETERMINING STATUS OF GUESTS In deciding whether or not guests have a reasonable expectation of privacy, lower courts look to several factors: The relationship between the homeowner and guest; The context or duration of the visit; The frequency or duration of previous visits; and Whether the guests keep any possessions in the home. Note: The court is essentially trying to track Justice Kennedys analysis. 3. Passengers in a Car a) Brendlin v. California (U.S. 2007) (1) Facts: Officers stopped a car to check its registration without reason to believe it was being operated unlawfully and recognized , a car passenger, who was a parole violator. The officers ordered him out of the car and arrested him and searched him, the car, and the driver. They found drug paraphernalia. (2) Held Souter: Car passengers are seized within the meaning of the Fourth Amendment when the car in which they are riding is held at a law enforcement traffic stop. A person seized is entitled to challenge the governments action when officers, by physical force of a show of authority, terminate or restrain the persons freedom of movement. There is no seizure without that persons actual submission. However, when a person does not manifest a desire to leave for reasons unrelated to the police presence, whether the encounter is coercive can be measured by asking whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. was seized b/c no reasonable person in his position would have believed himself free to terminate the encounter between the police and himself when the car was stopped. (3) Note: If you have one car and police properly pull over the who owns the car. There is an improper search of the vehicle. The driver can go into court and seek suppression of the evidence but the passengers cant. They have no standing to challenge it even if it was an unconstitutional search of the vehicle. (4) Note: This would not apply to passengers of a cab or bus that was pulled over for a traffic violation committed by the driver. The relationship is not the same in a common carrier.


Exceptions to the Exclusionary Rule 1. Independent Source GENERAL RULES Even if police obtain evidence in violation of the Fourth Amendment, it is still admissible if it is also obtained through a source independent of the police misconduct and untainted by the illegal actions of the police. (Segura v. United States, U.S. 1984; Murray v. United States) Police officers illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry. (Segura v. United States) Under the independent source doctrine, evidence initially uncovered, but not seized, during an illegal search will not be suppressed if the police later obtain a search warrant which does not rely on any facts discovered during the illegal search, and then seize the evidence during a second search pursuant to the warrant. (Murray v. United States) The purpose of this rule is to avoid putting the police in a worse situation than they would have been absent this unconstitutional entry. If they would have obtained this info thru an independent source anyway, we dont want to punish them. (Professor) a) Murray v. United States (U.S. 1988) (1) Facts: Murray was under surveillance and was observed driving separate vehicles to a warehouse. Inside, the agents saw other individuals and a tractor-trailer. Murray and another individual turned their respective cars over to the other people, who in turn were followed and ultimately arrested and the vehicles lawfully seized. Both contained pot. Agents then converged on the warehouse and in plain view saw many bales of pot. They left without disturbing anything to get a search warrant. (2) Held Scalia: The independent doctrine does apply if the evidence was seen during an unlawful search but is later obtained during a lawful search, as long as the evidence in question was not the basis for probable cause to issue the warrant. Under the doctrine, evidence initially uncovered but not seized during an illegal search will not be suppressed if the police later obtain a search warrant which does not rely on any facts discovered during the illegal search and then seize the evidence during a second search pursuant to the warrant. (3) Dissent Marshall: Police are going to use this exception to essentially go and check to see if it is even worthwhile to get a warrant and are going to engage in reckless searches. (4) Note: The Majority isnt concerned about the dissents point b/c if the govt had gone and obtained aw arrant without this unconstitutional entry based on probable cause, would the govt have to have show that it would have entered the warehouse anyway? This would add layer of complexity. The burden would then be on the govt to prove that they were going to obtain a warrant anyway and that they didnt rely on any info obtained thru that unconstitutional search. INDEPENDENT SOURCE TEST To apply the Independent Source exception, the government is going to have to show that It didnt rely upon any of the evidence that was improperly obtained in getting the warrant, AND They would have obtained the warrant anyway. The doctrine applies if the challenged evidence is: First discovered during lawful police activity, OR If discovered unlawfully, the evidence is later obtained lawfully in a manner independent of the original discovery.

2. Inevitable Discovery GENERAL RULES Closed related to the independent source exception is the inevitable discovery exception. If the police can demonstrate that they inevitably would have discovered the evidence, even without a violation of the Fourth Amendment, the exclusionary rule does not apply and the evidence is admissible. The police/govt had the burden to show by a preponderance of the evidence that normal police investigation would have inevitably led to the discovery of the evidence. (Nix v. Williams)

Nix v. Williams (U.S. 1984) (1) Facts: Williams was arrested for the murder of a 10-year-old girl whose body he disposed of along a gravel road. State law enforcement officials engaged in a search for the childs body. During the search, in response to an officers appeal for assistance, Williams made statements to the police (without an attorney present) which helped lead them to the body. Williams was only read his Miranda rights after he was arrested. (2) Analysis: Rationale for the rule is that police misconduct is sufficiently deterred and the interests of society are better served by putting police in the same position that they would have been in without the rights violation, not a worse position. (3) Held Burger: If evidence obtained in the unlawful search would almost definitely have been found eventually even without said search (inevitable discover), the evidence may be brought forth in court. 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 . (4) Concur Stevens: The constitutional violation in this case was an intentional interference with the Sixth Amendment right to counsel. The prosecution should not be able to escape the responsibility of the violation through speculation as to whether or not the evidence inevitably would have been found. (5) Dissent Brennan: There should be a heightened burden of proof such as clear and convincing evidence. 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. 3. Inadequate Causal Connection Attenuation of the Taint GENERAL RULES If the link between the illegal police act and the evidence is attenuated (thinned/weakened), then the evidence is admissible. (Wong Sun v. United States, U.S. 1963) A Miranda warning is not going to essentially make everything that happens after that admissible. This is not a cure-all action by police. (Brown v. Illinois) a) Wong Sun v. United States (U.S. 1963) [note case] (1) Held: Wong Suns statements to the police at the time of his arrest had to be excluded as the fruits of his unlawful arrest. BUT the court said that Wong Suns later confession was admissible b/c the connection with the earlier illegal police activity became so attenuated as to dissipate the taint. (2) Rule: Presentation of verbal evidence and recovered narcotics where they were both fruits of an illegal entry are inadmissible in court except where there is a break in the chain of evidence. b) Brown v. Illinois (U.S. 1975) (1) Facts: Richard Brown was climbing the stairs to his apartment when two detectives arrested him at gunpoint, handcuffed him, and took him to the station for questioning. The detectives gave two Miranda warnings, one 90 minutes and the other seven hours after the arrest, and both times Brown confessed. The Illinois Supreme Court found that the arrest was without probable cause. (2) Issue: Do the Miranda warnings allow the confessions to be introduced as evidence, even though they were the result of an illegal arrest? (3) Held Blackmun: No. Just because the Miranda warning is sufficient to prevent evidence exclusion under the Fifth Amendment doesn't make it dispositive in allowing evidence under the Fourth Amendment. The test of whether evidence can be introduced that would not come to light but for illegal police actions, as in Wong Sun, is whether the evidence was produced by exploiting the illegality or "by means sufficiently distinguishable to be purged of the primary taint," some element that shows free will on the part of . The Miranda warning can only be evidence of this and cannot be a per se rule. Here the confessions were made shortly after the arrest and were clearly the result of an investigative arrest. The first statement came less than two hours after his illegal arrest, with no intervening event of significance whatsoever. The arrest appeared to have been calculated to cause surprise, fright, and confusion.


(4) Concur Powell: Powell, Rehnquist: While the Miranda warning can not be a per se rule to allow evidence inclusion, the case should be remanded to determine if in this case it provided enough to separate the confession from the arrest. The Miranda warning cannot be enough for "fragrant violations" of the Fourth Amendment, is enough for "technical violations," and may or may not be enough for the in-between cases. DETERMINING ATTENUATION OF THE TAINT If a Miranda warning sufficiently breaks the causal chain between an illegal arrest and a confession, the taint has sufficiently been attenuated. To analysis this, look at these factors: Proximity in the time between the illegal act and obtaining the evidence. Intervening circumstances, AND The purpose for flagrancy of the official misconduct. The closer in the proximity of the illegal act and obtaining the evidence, the less likely the government will win its case. In addition, the more flagrant the official misconduct, the harder it is for the government to show sufficient attenuation. Examples of Sufficient Attenuation of the Taint: (1) In Rawlings v. Kentucky (U.S. 1980), SCOTUS said that the taint was sufficiently attenuated so as to allow challenged statements to be admitted because there was a lack of flagrant police misconduct, lack of a coercive atmosphere, and because the statements in question were a spontaneous result of the discovery of the evidence. (2) In New York v. Harris (U.S. 1990), SCOTUS found that a statement made by a suspect at the police station was admissible even though it followed an illegal search of the suspects home. The Court said that evidence from the warrantless home search would need to be excluded but not the subsequent statement to the police, made at a different place and time from the search, was admissible. 4. Good Faith Exception to the Exclusionary Rule GENERAL RULES The exclusionary rule does not apply if police reasonably rely on an invalid warrant to conduct a search or seizure. (United States v. Leon) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it and sufficiently culpable that such deterrence is worth the price paid by the justice system. An error in record keeping does not rise to this if the officer acted in good faith in reasonably relied on the incorrect information. (Herring v. United States) The good faith exception to the exclusionary rule also applies to a clerical error by a court clerk; the point is not to deter court clerks or magistrates rather the point is to deter police. (Arizona v. Evans, U.S. 1995) [mentioned by Professor] Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule - even when the court later overrules the precedent. (Davis v. United States) a) United States v. Leon (U.S. 1984) (1) Facts: Officer Rombach obtained a seemingly valid search warrant after receiving information from an informant and after other investigation. Rombach in good faith acted on the warrant and uncovered much evidence. The warrant turned out to not have had the probable cause needed for issuance. (2) Issue: Should evidence be suppressed when a search was conducted without probable cause, even though the officer objectively acted in good faith? (3) Held White: No. The purpose of the exclusionary rule is not to right the wrong to an individual of an illegal search, but to deter officers from making illegal searches. The exclusionary rule offers no deterrence to an officer acting in good faith, and excluding evidence would not effectively deter the neutral magistrate issuing the warrant. Evidence obtained by police relying upon a search warrant that subsequently was found to be deficient may be used in a criminal trial if that warrant was obtained in good faith and the information presented for the warrant was sufficient enough that a reasonable police officer would have looked at it. c)

(4) Analysis: The exclusionary rule was designed to deter unlawful police action, not punish the errors of magistrates. There is no evidence that the exclusion of evidence in this manner will deter magistrates from issuing unsound warrants. However, suppression of evidence should continue in cases where the magistrate was misled by info supplied in "bad faith" in an affidavit. (5) Dissent Brennan, Marshall: The majority assumes that the wrong of an illegal search is fully accomplished in the search itself. In reality, allowing the evidence in court is a continuing part of the injustice performed by the original illegal search. The exclusionary rule is meant to further the Fourth Amendment throughout the judicial system, not just to punish overreaching officers. In addition, it's likely that a good faith exception will encourage officers to submit inadequate evidence to a magistrate, knowing that as long as the magistrate approves the evidence will be allowed, and encourage magistrates to issue warrants without probable cause, knowing that their decision will be insulated from review. (6) Dissent Stevens: The whole purpose of the Fourth Amendment is to prevent unlawful searches, and it was created because of general warrants being issued. If there was no probable cause in the first place, then it's a paradox to think that an officer could reasonably rely on a warrant that did not have probable cause. The majority's decision promotes warrant applications when probable cause is in doubt, in hopes that a magistrate will "take the bait." The decision removes all remedy for certain Fourth Amendment violations. DETERMINING AN OFFICERS GOOD FAITH A police officer with a deficient warrant will not be considered to have acted in good faith if: No reasonable officer would have thought there was sufficient probable cause; A neutral, detached magistrate wholly abandons its role; The police officer lied or mislead the court; The warrant was so lacking in particularity that no reasonable officer would have thought that it was sufficient. b) Herring v. United States (U.S. 2009) [TWEN case] (1) Facts: Herring drove to the police department to check on an impounded truck. An investigator with the police department asked the warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring county's police department was contacted and said that there was an outstanding warrant. Within 15 mins. that county clerk called back to warn the other count's police department that there had been a clerical mistake: the warrant had been recalled five months prior. But it was too late; the officer had already arrested Herring and searched his vehicle, discovering firearms and methamphetamines. (2) Held Roberts: Evidence obtained after illegal searches or arrests based on simple police mistakes that are not the result of repeated patterns or flagrant misconduct cannot have the exclusionary rule used to suppress evidence. However, not all recordkeeping errors by police are immune from the exclusionary rule; if police have been shown to be reckless in maintaining a warrant system or knowingly made false entries, exclusion would be justified. (3) Dissent Ginsburg, Stevens, Souter, Breyer: "The exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search. The rule thus strongly encourages police compliance with the Fourth Amendment in the future." Narrowing the scope of the exclusionary rule would most typically hurt innocent persons who are wrongfully arrested. c) Davis v. United States (U.S. 2011) [TWEN case] (1) Facts: The and the driver were arrested after pulled over during a routine traffic stop; both were placed in the back of police cars. Then police searched the car and found a gun in the s jacket. The was charged with possession of a firearm by a convicted felon. The arrest and search took place two years before SCOTUS decided Gant, while Beltons holding was still the rule. While s appeal was pending, SCOTUS decided Gant. The 11th Cir. applied Gants new rule (see below) and held that the cars search incident to s arrest violated his Fourth Amendment Rights. As for whether this violation warranted a suppression, the 11th Cir. felt that penalizing the arresting officer for following binding appellate precedent of the time would do nothing to deter Fourth Amendment violations and, thus, declined to apply the exclusionary rule and affirmed s conviction. To make it simple: the search was good/lawful under Belton, but bad under Gant.

(2) Case history review: New York v. Belton (U.S. 1981) said that police could search the passenger compartment of an automobile incident to arrest of a recent occupant(s), regardless of whether the arrestee was within reaching distance of the vehicle at the time of the arrest. Arizona v. Gant (U.S. 2009) overruled Belton and adopted a new rule that permitted the police to search an automobile after the arrest of an occupant ONLY IF the arrestee was within reaching distance of the vehicle during the search. Police also were permitted to search the vehicle if the police had reason to believe that the vehicle contained evidence of the crime of the arrest. (3) Issue: Should the evidence be excluded in light of Gant? (4) Held Alito: The purpose of the exclusionary rule is to deter police misconduct. In this case, the police acted in accordance with the then-existing law. Therefore, exclusion would not serve any deterrent purpose and would "suppress the truth and set the criminal loose in the community without punishment." (5) Note: Are we going to apply the Leon Good Faith exception to all those kinds of searches incident to arrest? Gant got his conviction thrown out; so every other to whom the Gant rule applies is saying that the exclusionary rule doesnt apply b/c officers acted in good faith that at the time, thats what the law was. 5. Exception for Violation of the Requirement for Knocking & Announcing GENERAL RULE The exclusionary rule does not apply to violations of the knock and announce rule; s will have to pursue a civil remedy. They will not get any type of suppression of evidence. (Hudson v. Michigan) a) Hudson v. Michigan (revisited with a specific look at knock-and-announce; case at beginning of section) (1) Pertinent Majority Point: Impose the remedy for a knock-and-announce violation would generate a constant flood of alleged failures to observe the rule, and claims that any asserted Richards justification for a no-knock entry, had inadequate support. This would amount in many cases as a get-out-of-jail free card. In addition, officers would refrain from timely entry after knocking and announcing producing preventable violence against officers in some cases and the destruction of evidence in many others. And deterrence of knock-and-announce violations is not worth a lot. (2) Pertinent Dissent Points: By holding that evidence seized from a home following a violation of the knock-and-announce requirement need not be suppressed, the court destroys the strongest legal incentive to comply with the knock-and-announce requirement and weakens the practical value of the requirement. POSSIBLE POLICY ISSUE This chapter appears to go full circle. It starts with Hudson v. Michigan and the question of whether the exclusionary rule is a desirable remedy for unconstitutional police behavior and ends with the same underlying question: should there be an exclusionary rule and if so, for which exceptions should be created? F. Suppression Hearings 1. General a) The primary mechanism for raising the exclusionary rule is via a suppression hearing. Generally, these occur before trial and it is the occasion for the trial courts hearing the s motion that evidence was illegally obtained and should be excluded. b) Many jurisdictions require that such motions be made before trial and bar a defendant from doing so later unless there is good cause for failure to do so. 2. Rules a) A seeking to challenge the truthfulness of statements made in warrant applications must make a showing that the officers who prepared the warrant engaged in deliberate falsification or reckless disregard for the truth. (Franks v. Delaware, U.S. 1978) b) Suppression motions occur outside the presence of a jury. Ordinary rules of evidence dont apply at suppression hearings. Judges can rely on hearsay evidence at suppression hearings. (U.S. v. Matlock, U.S. 1974)

3. Concerns a) Many have raised concerns that police officers sometimes do not tell the truth at suppression hearings, instead saying what is necessary to make their conduct seem lawful and to gain use of the illegally obtained evidence. b) Often the only witnesses to the police violation are the defendant and the officers, and the concern is that the officers sometimes lie to avoid the exclusionary rule. c) When it is the officers word against a criminal defendant caught with contraband, the courts tend to believe the officer. So the officers violate the Fourth Amendment and then lie in court to ensure that the fruit of their illegal search is admitted.


A. General 1. Fifth Amendment a) No person . . . shall be compelled in any criminal case to be a witness against himself. 2. Areas of Analysis Pertaining to Police Interrogations a) The voluntariness requirement b) Miranda and protections during in-custodial interrogations c) Sixth Amendment Right to Counsel and its protections d) Privilege against self-incrimination in other contexts B. Due Process and the Requirement for Voluntariness 1. Requirement for Voluntariness GENERAL RULES A confession should not go to the jury unless it appears to the court to have been voluntary because otherwise its unreliable. (Hopt v. People of Territory of Utah, U.S. 1884) Involuntary confessions violate the privilege against self-incrimination under the Fifth Amendment because no person should be compelled to incriminate themselves and involuntary confessions are compelling one to incriminate themselves. (Bram v. United States, 1897) A confession obtained by inflicting physical pain during interrogation is not admissible against the accused. (Brown v. Mississippi) a) Brown v. Mississippi (U.S. 1936) (1) Facts: Petitioners were indicted for murder. The sheriff came to the home of 1 and took him to the home of the deceased where he was met by a mob, repeatedly hung with rope from a tree and whipped. He still refused to confess and was allowed to go home. A day or two later, a deputy returned to 1s home and arrested him. In route to the jail, they stopped and severely whipped 1 again until he agreed to confess to a statement that the deputy would dictate. The other two s were also arrested and taken to the same jail. They were made to strip and were laid over chairs and their backs cut to pieces. They also confessed. (2) Analysis: The court is grounding this case in due process. The right of self-incrimination has not yet been incorporated so the court cant say that this is violating a right against selfincrimination. This is a violation of due process of law because there was no real trial. Allowing a confession in this manner violates justice and due process. The due process clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. (3) Held Hughes: The method employed by the interrogating officers to obtain the confessions was a denial of due process. The rack and torture chamber may not be substituted for the witness stand. b) Classnotes: (1) The third degree: the inflicting of pain, physical or mental, to extract confessions or statements. The Wickersham Commission found that use of the third degree was widespread in the U.S. It was technically made illegal after the Wickersham report. (2) In cases throughout the next 30 years, courts would talk about due process instead of selfincrimination. (3) The voluntariness requirement: Is there a limit on the polices ability to question a who is not yet in police custody? Unlike the Miranda requirement, the voluntariness requirement attaches whether or not you are in custody. Can the waive the voluntariness requirement? The courts say that it is a non-waivable abuse by law enforcement officers. Its so important to due process of law that a cannot waive it. The WHERE VOLUNTARINESS CAN STILL BE AN ISSUE voluntariness requirement can still be an issue: Where a suspect is not in custody because Miranda does not apply; When police give a proper Miranda warning; Traditional voluntariness concepts are used to test whether a Miranda waiver is valid; (i) 1 Statements taken in violation of Miranda can be used to impeach the and you can never use an involuntary confession to impeach a .

2. Determining Whether a Confession is Voluntary GENERAL RULES General: There is a presumption of the admissibility of confessions if police follow Miranda dictates, but even after Miranda, due process requires that any confession be voluntary in order to be admissible as evidence. (Casebook) Prosecution has the burden of proving that a confession is voluntary in order to admit it into evidence (Jackson v. Denno, U.S. 1964). Even if the judge deems the confession to be voluntary and it is admitted, a still can argue to the jury that the confession was obtained under circumstances and conditions that make it unreliable (Crane v. Kentucky, U.S. 1986). Length of Interrogation/Deprivation of Bodily Functions: A confession was deemed involuntary when a suspect was not permitted to sleep for 36 hours during which the interrogation occurred. (Ashcraft v. Tennessee, U.S. 1944) The fact that the suspect was given no food for 24 hours was important to the courts conclusion that the confession was involuntary; there was also a threat because the police told him to confess for protection from the mob gathering outside. (Payne v. Arkansas, U.S. 1958) Use and Threats of Force: In determining voluntariness of confession, finding of coercion need not depend upon actual violence by government agent; credible threat is sufficient. (Arizona v. Fulminante) Psychological Pressure Tactics: A state violates the Due Process Clause if it secures a confession by means of pressure and fatigue that overbear a suspects will. (Spano v. New York) Deception: A suspect was told that if she cooperated and answered the questions from the police officers, she would not be prosecuted for participating in the marijuana sale and so she confessed. The Court held that it was clear that a confession made under such circumstances must NOT be deemed voluntary. (Lynumn v. Illinois, U.S. 1963) Court found that a confession was VOLUNTARY even though the police lied to the suspect and told a suspect that his accomplice had already confessed. (Lyra v. Dennis, U.S. 1954) Court found that an officer acting as a friend to a suspect and expressing sympathy for his or her plight is NOT DECEPTION requiring suppression of a confession. (Frazier v. Cupp, U.S. 1969) The Age, Level of Education, and Mental Condition of a Suspect In finding a confession involuntary, the court stressed that the suspect only had a fifth-grade education. (Payne v. Arkansas, U.S. 1958) In finding a confession involuntary, the Court emphasized the suspects illiteracy and low intelligence. (Columbe v. Connecticut, U.S. 1961) In CONTRAST, in finding a confession to be voluntary, the court noted that the suspect had completed a year of law school. (Crooker v. California, U.S. 1958) HOWEVER, SCOTUS imposed a major limit on consideration of a s mental condition in determining whether a confession is voluntary and said that a confession is to be deemed involuntary, regardless of the s mental condition, ONLY if it is the product of police misconduct. To violate the Constitution, you must have state action; the govt must be doing something to you. (Colorado v. Connelly) DETERMINING VOLUNTARINESS Voluntariness is to be determined by the totality of the circumstances. (Casebook) Some factors to look at are: The length of the interrogation and whether the defendant was deprived of basic bodily functions; Use of force and/or the threat of force; Psychological pressure tactics; The use of deception; The age, level of education and mental condition of a suspect. Other factors that are included in the totality of the circumstances: if has been shot; if is high on drugs or drunk; where the accused is led to believe that he is need of medical attention and will be taken to the hospital if he confesses. (Professor)


Arizona v. Fulminante (U.S. 1991) [Use and threats of force] (1) Facts: s stepdaughter was murdered in Arizona and he was the primary suspect. He was convicted of an unrelated crime and incarcerated in a federal prison where he befriended a fellow inmate who was a paid informant for the FBI. The informant offered protection from other inmates in exchange for the truth and admitted to killing his stepdaughter. After he was released from prison, he admitted the same to the informants wife. He was subsequently indicted in Arizona for first-degree murder. (2) Analysis: SCOTUS believed that the state supreme court properly concluded that s confession was coerced and appropriately applied the totality of the circumstances test. Successful prosecution depended upon jury believing confession, as physical evidence from murder scene and other circumstantial evidence would have been insufficient to support conviction. Jurys assessment of 2nd confession could easily have depended in large part on presence of prior confession. It was impossible to say that sentencing judge who relied on evidence that could only be found in the two confessions would have passed the same sentence without the confession. (3) Held White: A credible threat of physical violence can be so overbearing to ones will as to render a confession the product of coercion. A finding of coercion need not depend upon actual violence; a threat is sufficient. This Court has also found that coercion can be mental as well as physical and blood of the accused is not the only hallmark of an unconstitutional inquisition. (Blackburn v. Alabama, US. 1960) Murderer s confession to jailhouse informant was coerced out of fear of physical violence when the informant asked to confess in order to receive protection against fellow inmates. (4) Dissent Rehnquist: stipulated that he was at no time in fear of other inmates nor did he seek the protection of the informant. Furthermore, he was unaware that the informant was an informant, therefore there could be no danger of coercion resulting from an official interrogation. No threats or demands were made. b) Spano v. New York (U.S. 1959) [Psychological pressure tactics] (1) Facts: and decedent were in a bar when decedent took money from and a fight ensured when tried to get the money back. The decedent knocked down and kicked him 3 or 4 times. After the fight, walked to his apartment, got a gun, walked 8 blocks or so to a store where the decedent was known to hang out and fired 5 shots, two of which struck the decedent. Before he gave his confession during a police interrogation, he had no prior experience with police interrogation, he had only completed a junior-high education, he was proven to be emotionally unstable, many different men interrogated him and he was questioned for effectively eight straight house under overnight conditions designed to leave him fatigued. Police contrived to use a childhood friend against him. (2) Analysis: In passing on admissibility of a confession, court is forced to resolve a conflict between interests of society in prompt and efficient law enforcement and interest of society in preventing rights of its individual members from being abridged by unconstitutional methods of law enforcement. The court took into consideration the totality of the circumstances that there was a series of leading questions, many people questioning him, that he was a foreign-born young man of 25, and had 1.5 years of high school education, and had no past history of law violation, the use of his friend in the interrogation, his requests for an attorney were ignored, etc. The effect of such massive official interrogation must have been felt. (3) Held Warren: A state violates due process if it secures a confession by means that overbear a suspects will. The petitioners will was overborn by official pressure, fatigue and sympathy falsely aroused and use of confession against was inconsistent with Fourteenth Amendment under traditional principles. This is not a reliability case; this is a case about putting limits on what a police officer can do. (4) Note: This case is saying that you have a right against being compelled to be a witness against yourself under the Fifth Amendment. The court is starting to bring compulsion and voluntariness back to reliability. c) Colorado v. Connelly (U.S. 1986) [Age, level of education and mental condition of suspect] (1) Facts: Respondent approached a Denver police officer and said he had murdered someone. The officer advised him of his Miranda rights and respondent said he understood. A detective arrived and also advised him of his Miranda rights. He was taken to police headquarters and detailed his story. He was held overnight and became disoriented. He was found to have mental problems; he confessed b/c the voice of God told him to either confess or kill himself.

(2) Analysis: Taking of respondents statements and their admission into evidence constituted no violation of that clause. While s mental condition may be a significant factor in the voluntariness calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional voluntariness. Notions of free will have no place in this area of constitutional law. (3) Held Rehnquist: Absent police conduct causally related to confession, there is no basis for concluding that any state actor has deprived criminal of due process of law; coercive police activity is necessary predicate to finding that confession is not voluntary within meaning of due process clause. (4) Dissent Brennan: This is incredibly powerful evidence. To have somebody convicted without any assessment of the reliability of the confession, were coming close to violating due process. 3. Is the Voluntariness Test Desirable? a) Voluntariness test focuses on the totality of the circumstances but there is often a concern for the reliability of the confession. But the Court is explicit in that reliability is not the only concern. b) Voluntariness test provides relatively little in the way of clear guidance to police officers as to what they can and cannot do in questioning a suspect. c) Judges have great discretion under a totality of the circumstances test. d) Critics argue that police need more instructions than a voluntariness test can provide. In fact, some police organizations have come to support the requirements imposed under Miranda because they provide clear and simple requirements for police to follow with the knowledge that if they do so there is a presumption that any confession obtained will be deemed voluntary. 4. Coercive Questioning, Torture and the War on Terrorism a) The government has argued that while torture is prohibited, coercive questioning is allowed and necessary in fighting terrorism. b) As a constitutional matter, there is a question of whether the due process applies to non-citizens held and questioned outside the U.S. As a practical matter, there is the issue of whether statements made after coercive questioning ever can be sufficiently reliable to justify the practice. As an ethical matter, there is the question of whether coercive questioning is ever acceptable. C. Fifth Amendment Limits on In-custodial Interrogation 1. Miranda v. Arizona and Its Affirmation by the Supreme Court GENERAL RULES When a person is taken into custody or otherwise deprived of freedom in any significant way and subjected to questioning, he must be advised: (1) he has the right to remain silent; (2) anything he says can be used against him in a court; (3) he has the right to an attorney; and (4) if he cannot afford an attorney, one will be appointed. Unless the prosecution demonstrates the person made a knowing and intelligent waiver of these rights, evidence obtained therefrom is admissible. (Miranda v. Arizona) When a decision of the Court involves interpretation and application of the Constitution, Congress may not legislatively supersede such a decision. (Dickerson v. United States) a) Miranda v. Arizona (U.S. 1966) (1) Facts: The police arrested the and took him to a special interrogation room where they secured a confession. (2) Issue: The court is looking at whether the voluntariness test is enough and circumstances in which we have custodial interrogations and whether more than a voluntariness test is essential to protect criminal suspects. Compulsion is a critical concern as well. (3) Held Warren: Any inculpatory or exculpatory statements made by a suspect while having his/her freedoms restricted in any way by the police may not be used unless safeguards are used to ensure the privilege of self-incrimination is upheld. Specifically, the accused must be informed that he/she has the right to remain silent, that anything said can and will be used against him/her in court, and that has the right to have an attorney present and if he/she cannot afford one an attorney will be appointed. If the accused at any time indicates they wish questioning to stop or wish to have an attorney present, questioning must end until an attorney is present. Answering some questions does not deprive the accused from later invoking these rights. An individual may waive these rights, but there is a "heavy burden" upon the government to show that the accused knowingly and intelligently waived these rights.

(4) Dissent Clark: I would continue to follow the Due Process Clause rules and consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and that one might be appointed. The burden would be on the state to prove a knowing and intelligent waiver in the totality of the circumstances. The Due Process Clause of the Fifth and Fourteenth Amendments would apply to interrogations. There is not enough evidence to demonstrate a need to apply a new rule as the majority finds. (5) Note: The court is saying that being in custody is inherently such a limitation on your ability to not be cooperative and so fundamentally set up to where you can give an involuntary confession that there need to be certain protections/safeguards. This is a Fifth Amendment case and looks at compelled confessions not voluntary confessions/self-incrimination. THE MIRANDA WARNING The person in custody must be informed in clear and unequivocal terms that he has the right to remain silent, that anything said and will be used against the individual in court, that he has the right to counsel with a lawyer and to have a lawyer with him during interrogation and that he is indigent, a lawyer will be appointed to represent him. So this means that: If the wishes to remain silent, the interrogation ends. If the asks for an attorney, the interrogation ends. If the continue and Miranda is violated, the confession and related evidence is excluded. You can arrest someone without a Miranda warning but you cant QUESTION them; an arrest can be valid even without a Miranda warning. You can waive your Miranda rights and that waiver can be analyzed as to whether it was voluntary or involuntary. b) Dickerson v. United States (U.S. 2000) (1) Facts: Dickenson was indicted for bank robbery, and confessed voluntarily but Miranda rights had not been read. He moved to suppress a statement he made to the FBI on the ground that he had not received his Miranda warnings before being interrogated. The Fourth Circuit Court of Appeals ruled that under 18 U.S.C. 3501, which said the admissability of a confession turned only on whether it is voluntary, Miranda rights need not be read. (2) Analysis: This court has supervisory authority over the federal courts to prescribe binding rules of evidence and procedure. The law is clear as to whether Congress has constitutional authority to do so and it is apparent that Congress tried to overrule Miranda through its enactment of 3501. While Congress has authority to modify or set aside any such rules that are not constitutionally required, it may not supersede this Courts decisions interpreting and applying the Constitution. (3) Held Rehnquist: Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda. All recent cases concerning voluntariness were really talking about due process, and we've said that the Fourteenth Amendment incorporates the Fifth Amendment's self-incrimination privilege through due process. The Court would not have applied Miranda to state court proceedings if the ruling had been merely supervisory. Just because we make exceptions to Miranda means only that a constitutional rule is not immutable. Other methods are not as adequate as the Miranda rights. Miranda has become embedded in police practice and national culture. (4) Dissent Scalia, Thomas: The majority never comes out and says that 18 U.S.C. 3501 is unconstitutional, because it can't. 18 U.S.C. 3501 prevents exactly what the constitution prevents: involuntary confessions. Miranda represents not just a protection against involuntary confessions, but a hostility towards confessions. SCOTUS cases after Miranda were based upon the idea that failure to provide a Miranda warning is not in itself a violation of the constitution. Arguing that Miranda announces a constitutional rule b/c it;s been applied to the states doesn't help, either those states will have to be reconsidered if it isn't, and if Miranda is a constitutional rule the cases that say it isn't constitutionally necessary will have to be reconsidered.

Chavez v. Martinez (U.S. 2003): [note case] (1) Facts: A man was shot by the police and was questioned without Miranda warnings while being rushed to the hospital and in the emergency room. (2) Issue: Is Miranda simply a rule of evidence that has no application until and unless a prosecutor seeks to admit a confession into evidence or is it a rule concerning police behavior under the Fifth Amendment? (3) Held: There cannot be civil suits for violation of Mirandas requirements. (4) Plurality Thomas, Rehnquist, OConnor, Scalia: Felt that Miranda was simply a rule of evidence that has no application until and unless a prosecutor seeks to admit a confession into evidence. cannot bring a civil suit claim because one cannot be a witness against himself in a criminal proceeding. There was no criminal proceeding here. (5) Souter and Breyer: Disagred with plurality but said that money damages are not necessary to enforce Miranda; the exclusionary rule is a sufficient enforcement mechanism. (6) Dissent Stevens, Kennedy, Ginsburg: Also believed that the Fifth Amendment privilege against self-discrimination applies even if no statement is used as evidence against a and they believed that a damage remedy should be allowed for violations of the Fifth Amendments requirements by the police. 2. Is Miranda Desirable? a) Underlying issue: how to balance the need for effective law enforcement tools with the desire to prevent police abuse, protect the dignity of the individual and lessen the likelihood that innocent people will be convicted. b) Critiques: (1) First, some argue that Miranda is ineffective; it does not succeed in curing the inherently coercive nature of in-custodial interrogation. (2) Second some say it prevents police from gaining confessions and it allows guilty people to go free. (3) Third, some criticize that Miranda is based on constitutional interpretation and the role of the role of the judiciary. They argue that neither the text nor the history of the Fifth Amendment support the Courts requiring warnings be administered or a right to counsel during interrogation. c) Defenses: (1) Mirandas empirically detectable net damage to law enforcement is zero. (2) Miranda is consistent with the original purpose of the Self-Incrimination Clause of the Fifth Amendment. (3) Miranda provides clear guidance to police. (4) Miranda has had a significant effect in increasing professional behavior by police officers and enhancing the publics awareness of constitutional rights. 3. The Three Key Questions for When Miranda Applies a) When is a person in custody? GENERAL RULES A person who has been arrested is in custody and Miranda warnings must be given, even if the questioning occurs in a persons home. (Orozco v. Texas, U.S.1969) But a person who is free to leave is not in custody and no Miranda warnings are required, even if that questioning takes place at a police precinct. (Oregon v. Mathiason) A special agent of the IRS investigating potential criminal income tax violations in an interview with a taxpayer not in custody is not required to give Miranda warnings. (Beckwith v. U.S., U.S. 1976) Statements made in a meeting with a persons probation officer were not uttered in a custodial context and no Miranda warnings were required. (Minnesota v. Murphy, U.S. 1984) The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. (Stansbury v. California, 1995 and Yarborough v. Alvarado, 2004) Questions asked during traffic stops, though they somewhat limit a persons freedom through his/her detention, does not rise to the level of constituting a custodial interrogation. (Berkemer v. McCarty, U.S. 1984) (1) Orozco v. Texas (U.S. 1969) [note case]






(1) Facts: At 4 a.m., police were admitted into s boardinghouse by a woman and police began to question . was asleep and all four officers entered the room and began to question him. From the moment he gave his name, the was not free to go where he pleased but was under arrest (according to one of the officers testimonies.) He was asked if he owned a pistol and said yes. He was asked about its location and revealed it. He was never informed of his Miranda rights. (2) Held Black: A person who has been arrested is in custody and Miranda warnings must be given, even if the questioning occurs in a persons home. Oregon v. Mathiason (U.S. 1977) (1) Facts: was convicted of first-degree burglary. The victim named him as a possible suspect and after an officer attempted to contact him several times, that officer left him a card with a note to call him. called him and they met the next day. came voluntarily to police station, was immediately informed he was not under arrest, and gave a half hour interview during which he confessed to burglary after which he left the police station without hindrance. (2) Held Per Curiam: was not in custody or otherwise deprived of his freedom of action in any significant way, and it was not necessary that he be given the Miranda warnings prior to confession. Custodial interrogation within meaning of Miranda rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Police officers are not required to administer Miranda warnings to everyone whom they question nor is requirement of warnings to be imposed simply b/c questioning takes places in station house or b/c questioned person is one whom police suspect. (3) Dissent Marshall: In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda-type warnings. Yarborough v. Alvarado (U.S. 2004) (1) Facts: helped someone steal a truck. That person ended up shooting and killing the trucks owner. was called in for an interview with an LA detective. He was 17 at the time. His parents brought him to the station and waited in the lobby during the interview. was interviewed in a small room; the interview lasted 2 hours; he was not given a Miranda warning. Though at first denying his presence, he eventually admitted that he was present at the crime. (2) Analysis: Custody for Miranda purposes is determined by (1) inquiring into circumstances surrounding interrogation, and, given those circumstances, (2) determining whether reasonable person would have felt he was not at liberty to terminate interrogation and leave. (3) Held Kennedy: State appellate court did not unreasonably apply clearly established federal law by finding non-custodial status, given debatability of status; state court did not unreasonably apply federal law by failing to consider 17-year-old suspects age when determining custodial status; and suspects history with law enforcement is not a factor in objective determination of whether suspect is in custody for Miranda purposes. | State court considered the proper factors and reached a reasonable conclusion that was not in custody for Miranda purposes during his interview. (4) Concur OConnor: There may be cases in which a suspects age will be relevant to the custody inquiry under Miranda but not always. It may be difficult for police to ascertain what bearing age has on the likelihood that the suspect would feel free to leave. (5) Dissent Breyer: Not disagreeing with the majority that we need an objective approach but feels that age should be included in that objective approach as a totality of the circumstances. J.D.B. v. North Carolina (U.S. 2011) [TWEN] (1) Facts: (2) Held: Berkemer v. McCarty (U.S. 1984)

(1) Facts: was convicted of a misdemeanor of operating a vehicle under the influence. He was stopped by an officer for swerving and after he failed a balancing test, made admissions at the scene that he smoked marijuana and had a couple beers. He was then arrested and taken to the jail where questioning resumed. He said that he was barely under the influence of alcohol. At this point, no one informed him of anything resembling his Miranda rights. moved to exclude the incriminating statements he made but was found guilty. In the appeal, the state asked the court to carve out an exception that when a person is arrested for a misdemeanor should not have to be warned of his constitutional rights. (2) Analysis: Drawing such a line between a misdemeanor and a felony would make the Miranda rule unnecessarily complex because police often are unaware when they arrested a person whether he may have committed a misdemeanor or a felony; often seemingly minor offenses escalate into investigations of a more serious crime so at what point in that evolution would the line be crossed requiring police to give Miranda warnings? (3) Held Marshall: Whether or not the offense is a misdemeanor or a felony, a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda. a statements made at the station house were inadmissible b/c he was in custody at least as of the moment he was formally arrested and instructed to get in the police car and he was not informed of his constitutional rights at that time. The roadside questioning of the who was detained pursuant to a routine traffic stop does not constitute custodial interrogation for the purposes of Miranda; more like a Terry stop. FACTORS FOR DETERMINING CUSTODY: State v. Anderson (mention in class by Professor) provides factors to assess in determining whether or not a is in custody, including: Time and location of the interrogation The duration and character of the questioning The officers tone of voice and general demeanor The number of officers present Any limitation on movement or other form of restraint imposed on the suspect during the interrogation Any interactions between the officer and the suspect, including any words spoken by the officer to the suspect The suspects verbal and nonverbal responses to questions Extent to which the suspect is confronted with the officers suspicions of guilt or evidence of guilt. The extent to which the suspect is made aware that he or she is able to end the interview at will. b) What is an interrogation? GENERAL RULES Any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect constitute interrogation under Miranda and bring the Miranda safeguards into play. (Rhode Island v. Innis) Express questioning or its functional equivalent constitutes interrogation. (Professor) When an individual in police custody did not want to answer questions from police until a lawyer present but was allowed to speak to his wife in the presence of the police officer, this was not an interrogation and his Fifth and Fourteenth Amendment rights were not violated. (Arizona v. Mauro, U.S. 1987) Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives voluntary consent. (Illinois v. Perkins)

(1) Rhode Island v. Innis (1980) (1) Facts: A cab driver was found dead and another one later robbed by a man wielding a sawed-off shotgun. The robbery victim came to a police station where he saw a picture of the man who robbed him. He was shown a photo array and identified the again. At 4:30 a.m. the same day, was spotted by a patrolman and was arrested and advised of his rights. As more officers showed up, they also advised him of his rights. He asked for an attorney and once was loaded into the paddywagon, officers were told by their captain not to interrogate . The officers engaged in a casual convo amongst themselves about not being able to find the weapon and being worried about handicapped children in the area finding the weapon and hurting themselves. , though aware of his rights, told the police that hed lead them to the gun if they turned around. (2) Procedural posture: TC denied respondent's motion to suppress the shotgun and the statements he had made to the police regarding its discovery, ruling that respondent had waived his Miranda rights, and respondent was subsequently convicted. The Rhode Island Supreme Court set aside the conviction and held that respondent was entitled to a new trial, concluding that respondent had invoked his Miranda right to counsel and that, contrary to Miranda's mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had interrogated respondent without a valid waiver of his right to counsel. (3) Analysis: Confessions remain a proper element in law enforcement and any statement given freely and voluntarily without any compelling influences is admissible in evidence. The fundamental import of the privilege against self-incrimination while an individual is in custody is not whether he is allowed to talk with the police without the benefit of warnings and counsel but whether he can be interrogated; volunteered statements of any kind are not barred by the Fifth Amendment. The special procedural safeguards outlined in Miranda are required not when a suspect is simply taken into custody but, rather, when a suspect in custody is subjected to interrogation. Miranda safeguards come into play whenever a person in custody is subjected either to express questioning or to its functional equivalent. (4) Held Stewart: Any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect constitute interrogation under Miranda. In this case, the officers engaged in an entire conversation that consisted of no more than a few offhand remarks. Respondent was not interrogated in violation of his right under Miranda to remain silent until he had consulted with a lawyer. (5) Dissent Marshall: I view the Miranda safeguards as applying whenever police conduct is intended or likely to produce a response from a suspect in custody. One can scarcely imagine a stronger appeal to the conscience of a suspect than the assertion that if the weapon is not found, an innocent, handicapped child will be hurt or killed. (6) Dissent Stevens: Any statement that would normally be understood by the average listener as calling for a response is the functional equivalent of a direct question, whether or not it is punctuated by a question mark. The court takes a narrower view in defining interrogation in this case. (7) Classnotes: Where should the line be drawn in what is an interrogation and what isnt? When the statements are directed at the suspect in custody. These statements were directed at the other police officers. (2) Illinois v. Perkins (U.S. 1990) (1) Facts: Police learned of a possible suspect in an unsolved murder from an inmate who said he befriended the suspect in jail and suspect shared details of a murder in committed in the area. After finding the inmate/informant credible, police sent an undercover officer along with the informant into a jail where the suspect was held. The suspect talked openly, almost bragging, about the murder. The suspect was not given his Miranda warnings before these conversations and was charged with the murder. He moved to suppress the statements. (2) Analysis: Coercion for Miranda purposes is determined from the perspective of the suspect. Miranda forbids coercion, not mere strategic deception by taking advantage of suspects misplaced trust in one he believes to be a fellow prisoner; ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within concerns of Miranda.


(3) Held Kennedy: An undercover law enforcement officer posing as an inmate need not give Miranda warnings. The Miranda doctrine must be enforced strictly but only in situations where the concerns underlying that decision are present. Here, the essential ingredients of a police-dominated atmosphere and compulsion are lacking. A coercive atmosphere is not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. (4) Dissent Marshall: The custodial interrogation elements were present in this case. The court/majority is essentially trying to fashion an exception to the rule by allowing police officers to take advantage of suspects unaware of their constitutional rights. The court downplays the nature of the questioning by referring to it as a conversation. The was subjected to express questioning likely to evoke an incriminating response. What is required of the police? GENERAL RULES Miranda warnings do not have to be a virtual, precise incantation of the precise language contained in the Miranda opinion. (California v. Prysock) Informing a suspect that an attorney would be appointed for him if and when you go to court does not render Miranda warnings inadequate. (Duckworth v. Eagan) (1) California v. Prysock (U.S. 1981) (1) Facts: On suspicion of murder, respondent, a minor, was arrested along with a codefendant. The juvenile was given Miranda warnings with an extra warning concerning right to have parents present during questioning. His parents were present. A tapped Miranda warning then described the right to have a lawyer appointed at no cost. made incriminating statements and later argued that he was given inadequate warnings because he was not explicitly informed of the right to have a lawyer at no cost before and during interrogation. (2) Analysis: Content of Miranda warnings need not be a virtual incantation of the precise language contained in the Miranda opinion; such a rigid rule is not mandated by Miranda or any other decision of SCOTUS, and is not required to serve the purposes of Miranda. Although SCOTUS and others have stressed as one virtue of Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into the actual voluntariness of the accuseds admissions, nothing in these observations suggests any desirable rigidity in the form of the required warnings; quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. (3) Held Per Curiam: Where the accused was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at not cost if he could not afford one, and where those warnings conveyed to him his right to have a lawyer appointed if he could not afford one prior to and during interrogation, such Miranda warnings were not inadequate simply b/c the order in which they were given. (4) Dissent Stevens: (2) Duckworth v. Eagan (U.S. 1989) (1) Facts: , when first questioned by Indiana police in connection with a stabbing, made an exculpatory statement after being read and signing a waiver form that provided that if he could not afford a lawyer, one would be appointed for him if and when you go to court. However, 29 hours later, he was interviewed again, signed a different waiver form, confessed to the stabbing, and led officers to a site where they recovered relevant physical evidence. Over respondent's objection, his two statements were admitted into evidence at trial. (2) Analysis: Waiver form read to suspect prior to police interrogation, which advised suspect of right to attorney and that attorney would be appointed if and when he went to court, was not constitutionally defective, as falsely suggesting that indigents have no right to attorney unless they go to court. (3) Held Rehnquist: Miranda advisement need not be given in exact form described in Miranda decision; it is enough that advisement reasonably conveys to suspect his rights as required by Miranda. (4) Dissent Marshall:

4. What are the consequences of a violation of Miranda? a) Oregon v. Elstad (U.S. 1985) (1) Facts: was ultimately convicted of first-degree burglary of his neighbors house. Police went to the young suspects house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspects mom while the other joined the suspect in a brief stop in the living room, where the officer said he felt the young man was involved in the burglary. The suspect acknowledged he had been at the scene and shown several acquaintances how to gain entry into the house. (2) Analysis: Where a Fourth Amendment violations taints the confession, a finding of voluntariness for purposes of Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence and, beyond that, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the 4th Amendment violation. Failure to administer Miranda warnings creates a presumption of compulsion and, consequently, unwarned statements that are otherwise voluntary within meaning of the Fifth Amendment must be excluded from evidence under Miranda, but the presumption, though irrebuttable for purposes of the prosecution's case-in-chief, does not require that the statements and their fruits be discarded as inherently tainted. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether such coercion has carried over into the second confession. (3) Holding: The subsequent confession was not excluded. There is no warrant for presuming coercive effect where a suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary, and the officers failure to warn was an oversight. Relevant inquiry is whether the second statement was also voluntarily made, and where initial inculpatory statement made while was in police custody in his home was voluntary, failure to give Miranda admonitions did not bar admissibility of station house confession made shortly thereafter and preceded by careful admonition and waiver of Miranda rights, notwithstanding failure to advise that prior statement could not be used against him. (4) Takeaway: Elstad court rejected the cat out of the bag theory that any short, earlier admission, obtained in arguably innocent negligent of Miranda, determined the character of the later, warned confession. The court thought any causal connection between the first and the second responses to the police was speculative and attenuated. b) Missouri v. Seibert (U.S. 2004) (1) Facts: was convicted of second-degree murder in the death of a mentally ill teenager living with her family during a plan to conceal the facts surrounding the death of s son with cerebral palsy by setting their mobile home on fire. Several days after the fire, she was interrogated by an officer, who initially withheld her Miranda warnings, hoping to get her to first confess. Once confessed, the officer took a break, read the Miranda rights and resumed questioning after made a waiver. He prompted to restate the confession made earlier, and was convicted based on that second question. appealed based on the fact that the use of an un-Mirandized confession to get a later confession made that later confession inadmissible. The Supreme Court of Missouri agreed and overturned the conviction, and the State brought appeal to the United States Supreme Court. (2) Held Souter: The second confession, which came after the Miranda warning, was not admissible when the prior confession was given UNLESS the Miranda warning and accompanying break are sufficient to give the the reasonable belief that she can decide not to speak with police. (3) Concur Kennedy: Is this part of a deliberate tactic where the officers are trying to undermine the effectiveness of Miranda? If this is accidental or inadvertent, then the subsequent confession shouldnt be excluded. (4) Factors to consider in these cases: completeness and detail of the questions and answers in the first round of interrogations, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of the police personnel, the degree to which the interrogators questions treated the second round as continuous with the first. (5) Takeaway: Slight shift/modification in Elstad. The controlling test in most circuits is Kennedys concurrence. c) United States v. Patane (U.S. 2004)

(1) Facts: was arrested for harassing his ex-girlfriend. A restraining order was issued, in which violated when he called his ex-girlfriend and was arrested at his house. During the arrest, police officers began reading Patane his rights, which he interrupted, saying that he knew his rights. The officers then stopped, at which point Patane admitted to possession of a firearm. During the trial Patane argued that his arrest violated the Fourth and Fifth Amendments because there was no probable cause to arrest and because the gun had been found as the result of an unMirandized confession. The district court and the 10th Circuit both found that the gun evidence could not be used against the defendant, and government brought appeal to the Supreme Court. (2) Held Thomas: The self-incrimination clause is not violated by the admission into evidence of the physical fruit of a voluntary statement. The police do not necessarily violate Miranda rights by negligent or even deliberate failures to provide a suspect with the full panoply of Miranda warnings. Here, the introduction of the non-testimonial fruit of a voluntary statement (the gun) does not implicate the self-incrimination clause. The admission of such fruit presents no risk that a s coerced statements will be used against him or her at a criminal trial. (3) Concur Kennedy: So long as no un-Mirandized statements are admitted against the at trial, evidence obtained by his voluntary statements should not be inadmissible. (4) Dissent Souter: The fruit of the poisonous tree doctrine should control this case and b/c the statements leading to the physical evidence were not admissible, neither should be the evidence. (5) Takeaway: This case straddles the line of what is considered fruit in the doctrine of the poisonous tree. As other cases make clear, any statements obtained as un-Mirandized may not be used, but this case holds that physical evidence, when volunteered, may be. 5. What are the Exceptions to Miranda? a) If the statements are used for impeachment purposes: Statements gained from a criminal defendant before issuing of Miranda are admissible for impeachment purposes if the defendant chooses to testify at trial. (Harris v. New York) (1) Harris v. New York (1971) (1) Facts: Harris was arrested for possession and sale of heroin. At trial, took the stand and upon cross-examination, he made slightly contradicting statements about when he sold an undercover agent drugs. The statements he made immediately following arrest were used to show this contradiction. (2) Issue: Whether prior statements improperly attained b/c they were before the giving of Miranda warnings are admissible for the purpose of impeaching the defendant. (3) Held Burger: Yes, they can be used. To prohibit the prosecution from impeaching the defendant with otherwise inadmissible statements is to take away a prime method of ensuring his truthfulness on the stand. The part in Miranda implying a bar to use of an uncounseled statement was dicta. The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense. (4) Dissent Brennan: It is unfair for the prosecution to be able to use uncounseled statements against the in cross-examination that they have illegally obtained and therefore cannot use in their case in chief. Further, the disobedience of police is being rewarded. b) If the statements were obtained in an emergency situation: Statements obtained by police from suspects during emergency situations could be used against a criminal even if Miranda warnings were not properly administered. (New York v. Quarles) (1) New York v. Quarles (1984) (1) Facts: While on patrol, police were approached by a woman saying she was raped by a man with a gun. She gave them a description of the suspect and indicated his whereabouts. Police went into the store and spotted the suspect. A pursuit ensued. Upon apprehended the suspect and frisking him, it was discovered that his shoulder gun holster was empty. After handcuffing him, police asked where the gun was. responded and told them where it was and that it was his. The officer then read his Miranda rights. was convicted of criminal possession of a weapon and New York courts suppressed the the gun is over there statement, the gun and s statement of ownership. The state appealed. (2) Issue: Can considerations of public safety justify the violation of a s Miranda rights and whether, in this case, Officer Kraft was justified in his failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination.

(3) Held Rehnquist: The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendments privilege against self-incrimination. There is a public safety exception to the rule requiring Miranda rights that can justify their absence. Police had reason to believe had just discarded and that someone could happen upon the gun hurting themselves. Further, Miranda might deter suspects from answering questions if officers were required to read them prior to asking questions about the location of the weapon. Reversed in favor of the state. (4) Concur OConnor: The public safety exception blurs the edges of the clear line established by Miranda. When the police ask custodial questions without administering the required warnings, Miranda requires that the answers be presumed compelled and they should be excluded from the evidence. (5) Dissent Marshall: This statement violated the constitutional protection against coerced selfincrimination b/c there was no need to violate s Miranda rights in this case. The police could have found the gun safely without violating s Miranda rights. (6) Personal note: I agree with OConnor but in some situations, there is going to be a blurring of the line (even though the court often says it tries to avoid this.) What if its a kidnapping situation where the suspect is apprehended and a kidnapped person has been buried alive? Thats an emergency where Im sure the court would be okay blurring the line. c) If the statements were made during booking in response to routine inquiries: Police can ask a person certain questions when taking a person into custody that are need in the booking process, and the answers to these questions are admissible, even without administration of Miranda warnings. (Pennsylvania v. Muniz) (1) Pennsylvania v. Muniz (U.S. 1990) [note case] (1) Facts: A drunk-driving suspect made several incriminating utterances while performing a series of sobriety tests. He was taking into booking without having been read his Miranda rights. He responded to the booking questions, slurring and stumbling over his address and age. (2) Held Brennan: The court held that the slurred speech that was evident on the videotape did not violate the privilege against self-incrimination because it was not testimonial. (3) Note: The privilege against self-incrimination applies only if a person is compelled to make statements; physical evidence or observation of physical characteristics are not testimonial. d) If the suspect waived his or her Miranda rights: the government has the heavy burden of demonstrating that the knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. A valid waiver will not be presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. (1) North Carolina v. Butler (U.S. 1979) (1) Facts: Respondent was convicted of kidnapping, armed robbery and assault from the robbery of a gas station. He shot a gas station attendant who later testified against him. The prosecution during trial produced evidence of an incriminating nature against him. An FBI agent testified that he fully advised respondent of his rights and determined that the respondent had an 11th grade education and was literate. He said he understood his rights but refused to sign the form. He said hed talk but wouldnt sign the form. MORE. (2) Analysis: "In sum, 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. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police." (3) Held Stewart: The court held that where a Miranda warning had been given and was understood by the accused, an accused's uncoerced statement established an implied waiver of the right to remain silent. Thompkins answer to the police question, having understood but not chosen to invoke his rights, was sufficient to show a course of conduct indicating waiver. Further corroboration was that he had sporadically made other comments as well. (4) Takeaway: A waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver". (2) Fare v. Michael C. (U.S. 1979) [note case]

(3) (4)




(1) Takeaway: The Court said that the totality of the circumstances approach is adequate to determine whether there has been a waiver even when the interrogations of juveniles is involved. (2) Factors to consider: Juveniles age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given to him, the nature of his Fifth Amendment rights and the consequences of waiving those rights. However, these factors are only relevant as they related to determining whether there was impermissible police behavior in obtaining incriminating statements. Moran v. Burbine (U.S. 1986) [note case] (1) Takeaway: There can be a knowing and voluntary waiver even if police withhold from a suspect the information that an attorney has sought to consult with him. Spring v. Colorado (U.S. 1987) [note case] (1) Takeaway: The police had no duty to inform a suspect of the nature of the crime for which he or she is under suspicion. Michigan v. Mosley (U.S. 1975) (1) Facts: was arrested in connection with robberies, and his Miranda rights were read to him. After about fifteen minutes of questioning, said that he did not want to answer any more questions, although he did not invoke his right to counsel. Two hours later, was brought out for questioning again about a homicide. This time after Miranda rights were read by a different police officer, signed a waiver and made an incriminating statement about the homicide, after he was told that another person named him as the shooter. (2) Issue: Under Miranda, is there a per se proscription/rejection of indefinite duration on any further questioning by any police officer on any subject once the person in custody has indicated a desire to remain silent? (3) Held Stewart: Court held that under the Miranda Rule, the admissibility of statements obtained after the person in custody has exercised his right to remain silent depends on whether his right to cut off questioning was scrupulously honored. Further the court also ruled that Miranda does not require that once a person has indicated a desire to remain silent any subsequent questioning may be undertaken only in presence of counsel. Where , who had been arrested on robbery charge, was given required Miranda warnings, when stated that he did not want to discuss the robberies the detective immediately ceased interrogation and it was only after more than two-hour hiatus and following readmonition of Miranda rights that another detective questioned defendant solely about an unrelated murder, admission of inculpatory statement made during the second interrogation did not violate the Miranda principles. Judgment of Michigan Court of Appeals vacated and case remanded. Edwards v. Arizona (U.S. 1981) (1) Facts: was arrested for robbery, burglary and first-degree murder, and received Miranda warnings. He invoked his right to counsel by saying that he wanted to talk to an attorney before making a deal. The next day, was required to meet with the police again; the police gave new warnings, obtained a waiver, interrogated , and obtained incriminating statements about the crime for which he had been arrested. (2) Issue: Once a invokes the right to counsel, and police cut off questioning, may police approach to seek a waiver so that interrogation may occur? (3) Analysis: The court raises the bar for what police/states are going to have to show in order to admit evidence. (4) Held White: State courts applied an erroneous standard for determining waiver of right to counsel by focusing on voluntariness of confession rather than on whether defendant understood his right to counsel and intelligently and knowingly relinquished it, and where had invoked his right to have counsel present during custodial interrogation, valid waiver of that right could not be established by showing only that he responded to policeinitiated interrogation after being again advised of his rights; thus, use of defendant's confession against him at his trial violated his rights under Fifth and Fourteenth Amendments to have counsel present during custodial interrogation. (5) Concur Powell: Maryland v. Shatzer (U.S. 2010) [TWEN case] (1) Facts: (2) Issue: (3) Analysis:

(8) Minnick v. Mississippi (U.S. 1990) (1) Facts: The petitioner and another inmate escaped from county jail in Mississippi. During their escape, they killed two people as they searched for weapons. The two fled to Mexico, but there was some sort of altercation between them and just the petitioner returned to San Diego where he was caught. He decided not to sign a waiver of his rights and asked for counsel. After the petitioner met with counsel, the authorities subjected him to more interrogation. He continued to refuse to sign a waiver, but he disclosed incriminating evidence in the follow-up interrogations. (2) Issue: Whether interrogations can continue after counsel is requested, regardless of whether counsel was consulted or not? (3) Held Kennedy: Interrogations cannot continue after the suspect requests counsel, whether or not he actually consulted with counsel. The Supreme Court followed the irrebuttable presumption reasoning in Edwards v. Arizona, which prohibited the badgering of a detainee until he waives his rights. The court noted that the petitioner did not seem to understand his rights as he refused to sign waivers and requested counsel, but still acquiesced to the interrogations. (4) Dissent Scalia: The dissenting opinion believed that the Edwards should not be extended to the point after the suspect has met with counsel. The dissent believed this put the suspect into a position where he could never waive his rights after his initial meeting with counsel. (9) Davis v. United States (U.S. 1994) (1) Facts: Petitioner murdered a fellow sailor stemming from a lost bet during a pool game. He initially waived his rights to remain silent and to counsel when he was interviewed by Naval Investigative Service agents in connection with the murder. About an hour and a half into the interview, he said, Maybe I should talk to a lawyer. However, when the agents inquired if he was asking for a lawyer, he replied that he was not. They took a short break, he was reminded of his rights, and the interview continued for another hour, until he asked to have a lawyer present before saying anything more. A military judge denied his motion to suppress statements made at the interview, holding that his mention of a lawyer during the interrogation was not a request for counsel. He was convicted of murder, and, ultimately, the Court of Military Appeals affirmed. (2) Issue: How officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning. (3) Analysis: After a knowing and voluntary waiver of rights under Miranda law enforcement officers may continue questioning until and unless a suspect clearly requests an attorney. A suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. According to Edwards, if the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present. The Edwards rule serves the prophylactic purpose of preventing officers from badgering a suspect into waiving his previously asserted Miranda rights, and its applicability requires courts to determine whether the accused actually invoked his right to counsel. This is an objective inquiry, requiring some statement that can reasonably be construed to be an expression of a desire for an attorney's assistance. However, if a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect. (4) Held OConnor: If suspect makes ambiguous or equivocal reference to attorney, cessation of questioning is not required but, rather, suspect must unambiguously request counsel, and accuseds remark, Maybe I should talk to a lawyer, was not request for counsel and Naval Investigative Service (NIS) agents therefore were not required to stop questioning him. (5) Concur Souter: I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions aimed solely at clarifying whether a suspects ambiguous reference to counsel was meant to assert his Fifth Amendment right. (10) Berghuis v. Thompkins (2010)

(1) Facts: Thompkins was considered a suspect in a fatal shooting from which he fled. He was found in Ohio and arrested. Thompkins was advised of his Miranda rights. The record indicates conflicting evidence about whether he verbally confirmed that he understood the rights listed on the form. Police officers then interrogated him. Thompkins did not state at any time that he wanted to rely on his right to remain silent, nor that he did not want to talk to the police, nor that he wanted an attorney. The court record suggested that he had been almost completely silent during the 3-hour interrogation and the few sporadic comments he made had no bearing on the case (police described it as "nearly a monologue") but near the end, detectives changed their approach and "tried a spiritual tactic and an "appeal to his conscience and religious beliefs. They asked him if he prayed to God to forgive him for shooting the victim, he said yes. He moved to suppress these statements claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied his motion and Thompkins was found guilty. (2) Issue: Whether the suspect who understood his/her right to remain silent under Miranda and is aware he or she has the right to remain silent but does not explicitly invoke or waive the right. (3) Analysis: There was no good reason why the standard for invoking the Miranda right to remain silent and the Miranda right to counsel should differ. Both protect... against compulsory self-incrimination... by requiring an interrogation to cease when either right is invoked". Making either of these statements would have ended the questions but the accused made neither of them. The court further considered whether invocation of Miranda rights could be implied from the behavior or ambiguous words of the accused. (4) Holding: A suspects silence during interrogation does not invoke his right to remain silent. The invocation of that right must be unambiguous. Unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver. (5) Dissent Sotomayor: Argued that Miranda and other previous cases had required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible "compelling influence" during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement. D. Sixth Amendment Right to Counsel and Police Interrogations 1. General a) Sixth Amendment: in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense. b) Both Miranda and Sixth Amendment protections apply to custodial interrogations after adversarial proceeding. c) However, while Miranda applies only to in-custodial interrogations, the Sixth Amendment right to counsel applies to all efforts by police to deliberately elicit statements from a person after formal criminal proceedings have been initiated. 2. The Sixth Amendment Right to Counsel During Interrogations a) Massiah v. United States (U.S. 1964) (1) Facts: Petitioner Massiah, a merchant seaman, along with a conspirator Colson, were indicted for narcotics offenses. Both pled not guilty and were released on bail. Colson, without petitioners knowledge, decided to cooperate with the government. He permitted agents to place a radio transmitter under the seat of his car, by which agents could hear conversations in the car. Colson and the petitioner met in the car, and were overheard by an agent. The petitioner made several incrimination statements during the conversation. (2) Issue: Whether the petitioners . . . Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited from him after he had been indicted and in the absence of his retained counsel.

(3) Held Stewart: Law enforcement officials may not attempt to interrogate and deliberately elicit a confession from a defendant after indictment without the presence of counsel. This would violate defendant's 6th Amendment right to counsel. | The defendants own incriminating statements, obtained by federal agents under [these] circumstances . . ., could not constitutionally be used by the prosecution as evidence against him at his trial. (4) Dissent White: The dissent doesnt want to expand the exclusionary rule to this situation and that the Court didnt really articulate its extension in this case.The majority's holding goes far beyond the intent of the constitutional protections against self-incrimination and the right to counsel. The intent historically has been to prevent coerced confessions. The majority's holding now will prevent admission into evidence of any voluntary pretrial statement or confession made without counsel's presence or consent. (5) See notes on back of Montejo case. b) Brewer v. Williams (U.S. 1977) (1) Facts: The had recently escaped from a mental hospital and was staying at a Des Moines YMCA where the girl was last seen. The was seen leaving the YMCA with a large bundle with two small legs protruding from it. A warrant for his arrest was issued, and his attorney in Des Moines advised the to turn himself in to the nearby Davenport authorities. The had counsel in Davenport as well. Both attorneys advised the defendant not to speak to the officers without their presence, and he indicated on several occasions to officers that he wished to talk only with the assistance of counsel. During the ride back to Des Moines, with only an officer and the defendant in the car, the officer decided to leverage his knowledge of the defendants religious nature by mentioning that he hoped they found the body before snowfall so they could give her a decent Christian burial. The then gave the officer the location of the body. (2) Issue: Whether the officers conversation with the defendant constitutes an interrogation that violates the s right to counsel, and therefore requires the suppression of the evidence? (3) Held Stewart: The evidence should be suppressed because the defendant was denied counsel during an interrogation environment. Once judicial proceedings begin, such as the arraignment, assistance of counsel is required. In this case, the not only did not waive his right to counsel, he affirmatively maintained it through several exchanges between the officers. (4) Dissent Burger: Argued that the defendant was reminded of his rights multiple times and chose to waive them when he disclosed the body. Under the majoritys reasoning, a suspect can never waive his rights to counsel. (5) Dissent White: Argued that the facts of the case indicate that the defendant knew of his rights and knowingly and voluntarily waived them. The officers statements do not amount to coercion. (6) Takeaway: The definition of interrogation here is very broad compared to a case decided a few years later, Rhode Island v. Innis. The important factors in this case were the timing of the interrogation (after a judicial proceeding), the definition of interrogation, and whether the right to counsel was knowingly and voluntarily waived. 3. The Sixth Amendment Right to Counsel is Offense Specific a) The Sixth Amendment right to counsel does not extend to crimes that are factually related to those that have actually been charged. (1) Texas v. Cobb (U.S. 2001) [LECTURE] (1) Facts: Cobb gave a written statement confessing to the burglary of his neighbors house and was indicted. He later confessed to the killing of his neighbors wife and daughter, which he had previously denied. (2) Analysis: (3) Held Rehnquist: (4) Dissent Breyer: b) A may validly waive his right to counsel for police interrogation after the s 6th Amendment right to counsel had attached at an arraignment or similar proceeding. (1) Montejo v. Louisiana (U.S. 2009) [TWEN]

(1) Facts: At a preliminary hearing, Montejo was charged with first-degree murder. Montejo was also appointed court-ordered counsel, which he neither expressly requested nor denied. Later that day, while in prison, police read Montejo his Miranda, and he agreed to go along on a trip to locate the murder weapon. While in the police car, Montejo wrote an inculpatory letter of apology to the victim's widow. Only upon return did Montejo first finally meet his court-appointed attorney. At trial, the letter of apology was admitted over Montejo's objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death. argued that they gave him Miranda rights; stopped until his attorney came. Interrogation did not continue after he left since he signed waiver to attorney. (2) Analysis: The Fifth Amendment's right to counsel attaches upon invocation (i.e. when an attorney is requested). The Sixth Amendment's right to counsel attaches when adversarial proceedings begin (i.e. at the arraignment). The presumption in Jackson attempted to analogize the Fifth Amendment's right against self-incrimination through Edwards v. Arizona to the Sixth Amendment's right to counsel. Essentially not allowing police interrogation after the right attached. Under Montejo, in the case where the Defendant has not asserted his Fifth Amendment's right to counsel but rather relies on his Sixth Amendment's right to counsel, police may reinitiate interrogation after his Miranda rights have been read. However, if a Defendant has asserted his Fifth Amendment's right to counsel and adversarial proceedings have begun, police may not reinitiate questioning without counsel present and waiver under Edwards, or unless the Defendant initiates the conversation and police get waiver. (3) Held Scalia: If Montejos made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, no interrogation should have taken place unless Montejo intiated it. Even if he agreed to subsequently waive his rights, waiver would not have been invalid hat it followed an unequivocal election of the right. (4) Dissent Stevens: 4. What is Impermissible Police Eliciting of Statements? a) The govt violates the Sixth Amendment by intentionally inducing an indicted person who is in custody to make incriminating statements without the assistance of counsel. (U.S. v. Henry) (1) United States v. Henry (U.S.1980) (1) Facts: While in custody after being indicted for armed robbery and while awaiting trial, made incriminating statements to a fellow inmate who was a paid informant for the Government. The govt agent told the informant not to question the but just to be alert to any statements would make. The incriminating statements were used against during trial. was convicted. Two years later, moved to vacate his sentence arguing that his Sixth Amendment right to counsel was violated. | The trial court denied the motion but the intermediate appellate court reversed. (2) Analysis: The govt may be found to have deliberately elicited s statements: (1) Informant was acting as a paid informant; (2) he passed himself off as a fellow inmate of the ; (3) was in formal custody when the conversations with the informant occurred. By deliberately creating the situation in order to elicit incriminating statements, without providing the assistance of counsel, the govt violated s Sixth Amendment rights. (3) Held Burger: The govt violated the Sixth Amendment by intentionally inducing an indicted person who was in custody into making incriminating statements without the assistance of counsel. (4) Dissent Blackman: The court appears to be extending Massiah to cases in which the Govt accidentally or negligently elicits incriminating statements. b) Police may use statements made by a suspect which are voluntarily given without questioning. (Kuhlmann v. Wilson). narrows Henry. (1) Kuhlmann v. Wilson (U.S. 1986) (1) Facts: was arrested for murder of a taxicab dispatcher and placed in a cell with Lee, a prisoner asked by the police to listen for statements regarding s accomplices. The police informant was instructed not to question but to just listen, which is all he did. , after originally denying the murder, confessed to Lee that he did it. This information was reported to an officer. Both that officer and the informant testified at s hearing and he he was convicted. 8 years later, after this Courts decision in Henry, sought to suppress the statements contending that they violated his right to counsel.


(2) Procedural posture: The district court found no interrogation occurred and denied habeas corpus relief. The court of appeals reversed. (3) Analysis: The Sixth Amendment is not violated whenever incriminating statements are obtained from the accused after the right to counsel has been attached. The must show that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. (4) Held Powell: Police may use statements made to police operatives where the statements were voluntarily made and were not the product of interrogation. | The state court properly determined that the informant was instructed by the officer to only listen to the and that s incriminating remarks were not deliberately elicited. (5) Concur Burger: This case is different from Henry in that there is a vast difference in placing an ear in the suspects cell compared to placing a voice in the cell to encourage conversation for the ear to record. (6) Dissent Brennan: was vulnerable to the ploys of undercover Govt agents. This informant essentially encouraged to talk. | The deliberate-elicitation standard requires consideration of the entire course of govt behavior. | The state intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel. c) Fifth Amendment v. Sixth Amendment and the Use of Prison Informants (1) The use of prison informants is an area where the Fifth Amendment privilege against selfincrimination is different from the Sixth Amendment right to counsel. (1) The former does not apply b/c there is not an interrogation. (2) On the other hand, once former adjudicatory proceedings have been initiated, the Sixth Amendment is violated by govt-initiated communications to elicit statements from an individual represented by counsel. The Privilege Against Self-Incrimination in Other Contexts 1. General a) To qualify for Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. For the privilege against self-incrimination to apply, it must be an individual, not an entity, that is asserting it; what is sought from the individual must be testimonial; there must be compulsion; and there must be the possibility of incrimination. (Hiibel v. Sixth Judicial Dist. Court of Nevada, U.S. 2004). 2. What Are the Requirements for the Privilege Against Self-Incrimination to Apply? a) Only Individuals May Invoke the Privilege (1) Entities such as corporations or unions are not entitled to invoke this privilege. (Hale v. Henkel, U.S. 1906) This is b/c the privilege exists to protect that private enclave where a person may lead a private life. (Bellis v. United States, U.S. 1974). b) The Privilege Applies Only to That Which is Testimonial (1) Only evidence of a testimonial or communicative nature is subject to the self-incrimination clause of the Fifth Amendment; a person is not prevented from giving physical evidence that would be incriminating (Schmerber v. California). (1) Schmerber v. California (1966) (i) Facts: was arrested at a hospital where he was being treated for injuries arising out of an automobile accident. The police ordered the hospital to take a blood sample and, based on the results, was convicted of driving under the influence of alcohol. He appealed, contending the use of the sample violated his Fifth Amendment right against self-incrimination. (ii) Analysis: Privilege is a bar against compelling communications or testimony. Compulsion which makes a suspect or accused the source of real or physical evidence does not violate it. Though there is the line, a clear distinction is not readily drawn; some tests seemingly direct to obtain physical evidence but may actually be directed to elicit responses which are essentially testimonial. | In the present case, no such problem of application is presented. (iii) Held Brennan: The Fifth Amendment privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide evidence of a testimonial or communicative nature. The withdrawal of blood is non-communicative in nature and thus is not subject to the privilege. As a result, the conviction must stand.

(iv) Dissent Black: The forcible taking of blood over the objection of the accused clearly violates his right against self-incrimination. | Black cannot agree with the reasoning the Court uses to justify its action. | The taking of the blood for analysis had both a testimonial and communicative nature. | The court has a very restrictive reading of the Fifth Amendment. (2) SCOTUS has reaffirmed that the privilege against self-incrimination applies only to preventing a person from having to give testimony against him- or herself. (1) United States v. Wade, U.S. 1967: SCOTUS held that requiring a suspect to participate in a police lineup does not violate the privilege against self-incrimination b/c it is not testimonial. (2) Doe v. United States, U.S. 1988: SCOTUS held that compelling a persons signature on a bank form was not testimonial. It stipulated that the person, by signing, was not admitting the existence of any account. The signing did not convey information or assert facts. c) There Must Be Compulsion (1) What constitutes unconstitutional compulsion involves a question of judgment: courts must determine whether the consequences of an inmates choice to remain silent are closer to the physical torture against which the Constitution protects or the de minimus harms which it does not. (McKune v. Lile, U.S. 2002). (1) Adult Parole Authority v. Woodward, U.S. 1998: There was not a violation of the privilege against self-incrimination when a person applying for clemency had to answer questions that could include incriminating information. | A voluntary interview, where respondent had the choice between providing info to the Authority at the risk of damaging his case for clemency or relief and remaining silent, dos not make the interview compelled. (2) McKune v. Lile, U.S. 2002: It did not violate the privilege against self-incrimination to require a prisoner seeking admission to a sex offender rehabilitation to admit having committed the crime for which he is being treated and other past offenses. d) There Must Be the Possibility of Incrimination (1) For the privilege of self-incrimination to apply, there must be the opportunity that the statements could lead to a persons criminal liability (no specific case). (1) Ullman v. United States, U.S. 1956: SCOTUS held that the fact that a statement could lead to civil liability and even social stigma was not enough to trigger the privilege unless there also was possibility of criminal liability. (2) Hiibel v. Sixth Judicial Dist. Crt. of Nev., U.S. 2004: (i) Majority: Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. Petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. The Fifth Amendment was not violated when was detained for refusing to identify himself. (ii) Dissent: Under the Court's Terry jurisprudence, a suspect has always had the right to refuse to answer questions put to him by police officers during a Terry stop. And the Fifth Amendment privilege had always attached during custodial interrogations because info extorted by the police during such interrogations is unavoidably testimonial. Why else would the police ask for a persons name, if not to determine whether that person was either wanted for committing a crime or directly suspected of committing a crime? The officer in this case told [Hiibel] that he was conducting an investigation and needed to see some ID. As the target of that investigation, [Hiibel] acted well within his rights when he opted to stand mute. (3) Kastigar v. United States, U.S. 1972: Fifth Amendment privilege against compulsory selfincrimination protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. 3. When May the Government Require the Production of Documents and Other Things? [LECTURE] a) A person can be forced to produce documents, even documents containing highly incriminating information, unless the very act of production would be incriminating. Required production of a preexisting document does not violate the privilege against self-incrimination b/c it is not demanding testimony from a person. (Fisher v. U.S.) (1) Fisher v. United States (U.S. 1976) (1) Facts: (2) Analysis:

(3) Held White: (4) Concur Brennan: 4. May the Government Require Testimony If It Provides Immunity? a) General: (1) If a person is granted immunity and is promised that the statements will not be used for criminal prosecutions, there is no danger of self-incrimination. (2) Two types of immunity: (1) Transactional immunity: the person will not be prosecuted for offenses related to the compelled testimony. (2) Use and derivative use immunity: the government will not use the statements gained under immunity or anything derived from those statements in a criminal prosecution. | This type is more common than transactional immunity and is specifically provided for by federal statutes (18 U.S.C. 601). (3) If a person makes statements after a promise of immunity, they can be used against the person only in a perjury prosecution. b) Testimony may be compelled if immunity from prosecution is granted; no Fifth Amendment violation occurs. (Kastigar v. United States) (1) Kastigar v. United States (US. 1972) (1) Facts: s were subpoenaed to testify before a grand jury. The U.S. atty obtained prosecutorial immunity for s in anticipation that s would invoke the Fifth Amendment. They argued that the scope of immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination and therefore was not sufficient to supplant the privilege and compel their testimony. The district court rejected this contention and ordered them to appear and answer questions. They refused asserting their privilege against compulsory self-incrimination but were cited for contempt and imprisoned. (2) Analysis: The majority in this case foresees enforcement of the grants of immunity through taint hearings in which the prosecution has an affirmative duty to show an independent source. Since this case and Zicarelli v. New Jersey State Comm. Of Investigation, 406 U.S. 472 (1972) were decided, many states have moved to use/derivative use immunity from transactional immunity. (3) Held Powell: The immunity provided leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. (4) Dissent Douglas: dissented because he believed that if transactional immunity was absent, the grant of immunity was not sufficient under the constitution to compel witness testimony. An immunity grant is only adequate if it operates as a complete pardon for the offense. (5) Dissent Marshall: The court today essentially says that they may compel a witness to give incriminating testimony and subsequently prosecute him for crimes to which that testimony relates. I cannot believe the Fifth Amendment permits that result. c) The Fifth Amendment prevents the government from compelling a suspect to produce incriminating documents under a gran of immunity and then prosecuting that suspect using info gained from those incriminating documents. (1) United States v. Hubbell (2000) (1) Facts: (2) Analysis: This act of exhibiting physical characteristics is not the same as a sworn communication by a witness that relates either express or implied assertions of fact or belief. Thus, although a person may be compelled to provide documents, even though they may contain incriminating evidence, the Fifth Amendment protects a witness from prosecution using this incriminating information, whether it was derived directly or indirectly from the compelled production of documents. (3) Held Stevens: There is a difference between the use of compulsion to extort communications from a and compelling a person to engage in conduct that may be incriminating. Thus, criminal suspects may be compelled to provide blood or handwriting samples. (4) Concur Thomas: Text

A. Right to Counsel 1. General a) Line-up: b) Show-up: c) Photospread: 2. The Right to Counsel in Lineups a) A post-indictment lineup is a critical stage in a criminal prosecution, and the accused is entitled to the assistance of counsel at this time. (United States v. Wade) (1) U.S. v. Wade (1967) (1) Facts: was arrested for robbing a bank. 15 days after the robbery, was brought in by an FBI agent without notice to his lawyer and arranged to have the two employees who were in the bank at the time of the robbery observe a lineup in which was in with 5 or 6 other prisoners. (2) Analysis: Because of the inherently unreliable nature of eyewitness testimony, lineups present an unusually ripe time for manipulation of witness perception. The conduct of the lineup must be closely monitored and the present of the suspects counsel is essential for this purpose. (3) Held Stevens: A post-indictment lineup is a critical stage in a criminal prosecution and, therefore, the accused is entitled to the assistance of counsel at this point. (4) Dissent White: The Court improperly announces a per se rule of constitutional law. Whether or not a pretrial lineup requires invocation of the right for counsel is a factual question and must be determined on a case-by-case basis. (5) Note: At this point, there is a right of counsel at the line-up. We dont yet know if its only for post-indictment lineups. | Compare with Munez and what seems to be testimonial in this matter. | When and where does the right to counsel apply? At a critical stage in the proceedings. How do we know if something is critical or not? GET INFO. (6) Takeaway: The court is going to treat pre-trial identifications as per se excluded if not attorney is present. If its an identification at trial, then use the Wong Sun v. U.S. test: Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. (7) Factors: the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre line-up description and the s actual description, any identification prior to the lineup of another person, the identification by picture of the prior to the lineup, failure to identify the on a prior occasion and the lapse of time between the alleged act and the lineup identification. b) The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. (1) Gilbert v. California (1967) [note case] (1) Facts: Some 100 witnesses to several alleged robberies charged to Gilbert were brought it together and made wholesale identifications of Gilbert in front of each other. The prosecutor used the lineup identification as evidence at trial. (2) Analysis: The record does not permit an informed judgment whether the in-court identifications at the two stages of trial had an independent source. (3) Holding: Gilbert will be entitled to remand to a new trial or to whatever relief California law affords where the penalty stage must be set aside. 3. Limits on the Right to Counsel in Identification Procedures a) There is no right to counsel at police lineups held before the accused is arrested or charged with a crime (before adversarial proceedings start). (Illinois v. Kirby). (1) Illinois v. Kirby (U.S. 1972) (1) Facts: s were stopped on the street by two officers who asked for ID. The s produced travelers checks and a Social Security card with someone elses name on them. Upon bringing the s to the police station, they learned that a man had reported that two men had robbed him of these items the previous day. So they brought that man in to ID the two s. Upon arriving at the police station, the robbery victim positively ID the s. No lawyers were in the room and neither asked for legal assistance. (2) Analysis:

(3) Held Stewart: (4) Note: There are four new justices on this court than on the Wade court. | Impact on Wade: line-ups are going to be held before indictment so that the right to counsel has not attached. So now there is a rush and urgency to hold earlier line-ups. b) Critical stages of the prosecution at which the defendant has the right to counsel are only those stages involving the physical presence of the defendant, at a trial-like confrontation with the government, at which the accused requires the assistance of counsel. (1) United States v. Ash (U.S. 1973) (1) Facts: robbed a bank and a government informant told authorities that he had discussed the robbery with the . Acting on this info, an agent showed five black and white pictures of males similar in age, height and weight as the and including the to four witnesses. All four made uncertain identifications. At this time, was not in custody and had not been charged. (2) Analysis: At a photographic display, the defendant is not present and asserts no right to be present. Hence, there is no possibility that the might be misled by lack of legal knowledge or overpowered by the professional adversary. Nor is the situation a trial-like confrontation. Further, the defense counsel has equal access to the use of photographic displays. They could conduct their own photographic investigation. (3) Holding: The Court of Appeals decision is reversed and remanded. (4) Concur Stewart: (5) Dissent Brennan: The dangers in misidentification in a photographic display are as great, if not greater than a lineup. Impermissible suggestions can occur. B. Due Process Protection for Identification Procedures 1. Unnecessarily Suggestive Identification Procedures Violate Due Process a) Should Wade and Gilbert be applied retroactively to individuals who were convicted prior to these decisions? SCOTUS held that Wade and Gilbert do not apply retroactively, that unnecessarily suggestive identification procedures violate due process but that the identification procedure in this case was necessary under the circumstances. (1) Stovall v. Denno (U.S. 1967) [note case] (1) Facts: Doctor was stabbed to death and his wife was severely injured. She was hospitalized for major surgery to save her life. was brought to the hospital room of the wife where she somewhat identified him. The Court affirmed the conviction and the sentence. (2) Issue: Is the entitled to relief on his claim that the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law? (3) Analysis: How is this different from Wade and Gilbert? She was at the hospital; she might have died. They needed a quick identification. A claimed violation of the due process of law in the conduct of confrontation depends on the totality of the circumstances surrounding it. Under the circumstances of this case, the usual police station line-up, which the argued he should have had, was out of the question. (4) Held Brennan: Wade and Gilbert are therefore in applicable in the present case. On the facts of this case, petitioner was not deprived of due process of law in violation of the Fourteenth Amendment. | The Court carves an exception here b/c they balance the harms of excluding this kind of identification with including it and saying that in this balance of principle of fairness, theyre going to allow this in even if it is highly suggestive. b) A suggestive lineup identification, which makes it inevitable that the identification will be positive, violates due process. (1) Foster v. California (U.S. 1969) (1) Facts: (2) Analysis: (3) Holding: 2. Limits on the Ability of Courts to Find That Identification Procedures Violate Due Process a) A photographic-identification procedure does not violate due process if the procedure is necessary and the risk of misidentification is low. (1) Simmons v. United States (U.S. 1968) [LECTURE] (1) Facts:

(2) Analysis: The dangers of misidentification are minimized by the process of crossexamination and photographic identification therefore should not be prohibited under either this Courts supervisory authority over federal trial courts or by constitutionalizing the prohibition. Each case must be examined on its own facts when a photographic identification is challenge. (3) Holding: A photographic-identification procedure does not violate due process if the procedure is necessary and the risk of misidentification is low. (4) Takeaway: Convictions based on eyewitness identification at trial following a pretrial identification by photograph will set aside on that ground ONLY IF the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (2) Neil v. Biggers (U.S. 1972) [LECTURE] (1) Facts: (2) Analysis: Factors (3) Holding: (4) Takeaway: A pre-Stovall identification obtained as a result of an unnecessarily suggestive show-up may still be introduced in evidence if, under the totality of the circumstances, the identification retains strong indicia of reliability. (3) Manson v. Brathwaite (U.S. 1977) [LECTURE] (1) Facts: (2) Analysis: Reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. Factors to be weighed against the corrupting effect of a suggestive identification procedure in assessing reliability are those set out in Neil v. Biggers, and include the opportunity of the witness to view the criminal 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 confrontation. (3) Holding: While the identification procedure was suggestive since only one photograph was used, and while it was unnecessary since there was no emergency or exigent circumstance, there did not, under the totality of the circumstances, exist a substantial likelihood of irreparable misidentification, where the identification was made by a trained police officer who had a sufficient opportunity to view the suspect, accurately described him, positively identified his photograph, and made the photograph identification only two days after the crime. (4) Dissent Marshall: Feels that the Court disregards distinctions in analysis developed in previous decisions and fashions a rule which is not supported by precedent. The use of a single picture on the presentation of a single suspect is inherently suggestive. (5) Takeaway: The criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification.


A. Introduction 1. General a) Questions were looking at in this chapter: (1) Timing: When does the right to counsel attach? (2) To what proceedings does the right to counsel apply? (3) Under what circumstances does the right to counsel apply? B. When the Right to Counsel Applies 1. First Applies When a) The First formal proceeding even if the prosecutor has not been assigned to the case. (Rockberry; Roxbury) 2. Critical Stages a) The right to counsel attaches at all critical stages of a criminal prosecution after the filing of formal charges. (Kirby v. Illinois, US 1972- plurality). Right attaches at: (1) All post-indictment pretrial lineups (US v. Wade, US 1967) (2) Preliminary hearings (Coleman v. Alabama, US 1970) (3) Post-indictment interrogations (Massiah v U.S., US 1964) (4) Arraignments (Hamilton v. Alabama, US 1961) (5) Any felony case or in a misdemeanor case if a sentence of incarceration is actually imposed (Argersinger v. Hamlin, US 1972) b) The right does not attach: (1) At parole hearings or probation revocation hearings (Gagnon v. Scarpelli, US 1973); theres not a 6th Amendment right issue here. This is a due process right to counsel?? If you didnt have a lawyer for the underlying offense, then theres an issue. (2) In civil matters such as habeas corpus proceedings (Pennsylvania v. Finley, US 1987) c) The Right to Counsel applies in only criminal prosecutions. 3. Petty Offenses/Misdemeanors a) Before Argersinger, most courts said the Gideon is limited to its facts, when you have a felon; not a misdemeanor or petty offense. b) A person has a right to be appointed counsel in any case in which he may be sentenced to jail. (1) Argersinger v. Hamlin (U.S. 1972) (1) Facts: was charged with a misdemeanor offense (carrying a concealed weapon) carrying with it a punishment of up to 6 months in prison. In Florida, no right existed for the appointment of counsel for petty offenses. was sentenced to 90 days in jail. He petitioned for writ of habeas corpus arguing that he had been denied his right to counsel. (2) Analysis: This case extends the right to appointed counsel. The inhibition on a persons liberty caused by imprisonment is so great that any time such is threatened, counsel must be appointed. Before could have been placed in a position where could have lost his liberty, he was entitled to appointment by counsel. (i) Textual reason: Sixth Amendment didnt distinguish between misdemeanors and felonies. (ii) Historical/originalist reason: Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest. (iii) Precedential reason: Prior SCOTUS decisions? Theres not much precedence to support this idea. (iv) Policy reasons: Lawyers are helpful in lowering the volume of misdemeanor cases and in ensuring a fair trial. (3) Holding: Reversed Florida SC. A person has a right to counsel in any case if the faces jail time, including if its a misdemeanor proceeding. (4) Practical significance: This is requiring the state earlier in the process to know if it wants or will require jail time. The court has to make a decision if the person is legitimately going to serve jail time if convicted. 4. Civil Contempt Cases a) Turner v. Rogers (U.S. 2011) (1) Facts: (2) Analysis: Turner neither received counsel nor the benefit of alternative procedures.

(3) Holding: Because this is a civil contempt finding not a criminal one, there is no right to counsel. C. Appointment of Counsel 1. General a) The right to counsel is automatic; the need not request counsel for the right to be triggered. (Brewer v. Williams, US 1977). [Gideon was before this.] 2. Indigent Criminal Defendants a) An indigent criminal is entitled to the right of court-appointed counsel. (1) Gideon v. Wainwright (U.S. 1963) (1) Facts: was charged with breaking and entering but couldnt afford an attorney. His request for court-appointed counsel was denied and he was convicted. He petitioned SCOTUS hoping to have his conviction for burglary overturned. Under Florida law, only capital offenses triggered the right to appointed counsel. SCOTUS ultimately overturned the conviction and held had been denied his right to counsel. (2) Analysis: 14th Amendment guarantees that fundamental right found in the U.S. Constitution will be applied to the states. There is no escaping the conclusion that right to counsel found in the 6th Amendment is such a fundamental right. The State spends considerable money to hire prosecuting attorneys, and under our adversarial system, fairness demands that the indigent be given at least the assistance of counsel. The legal system of this society is predicated on the assurance of fair trials, and a without an attorney is unlikely to get a fair trial. A lacks both the skill and knowledge to adequately prepare his defense. He needs the guiding hand of counsel at every step in the proceedings. (3) Holding: Reversed and remanded. An indigent criminal is entitled to court-appointed counsel. D. Standard for Effective Assistance of Counsel 1. How Competent Counsel Must Be a) A criminal may not obtain relief unless he can show that counsel's performance fell below an objective standard of reasonableness, and that counsel's performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceedingthe trial, the sentencing hearing, the appealwould have been different. | Decisions can be looked at in isolation (single error) or as a whole; depends on what youre arguing and from what side. (Professor) (1) Strickland v. Washington (U.S. 1984) (1) Facts: engaged in several horrible crimes. He confessed to and was indicated for kidnapping and murder. He was appointed an experienced criminal lawyer to represent him. , the lawyer, actively pursued the defense of . Counsel made several decisions to avoid using certain psychiatric evidence and character witnesses so went against counsel (s) advice and also confessed to the first two murders. He was charged with all three murders and again went against counsels advice and pled guilty. He kept rejecting his counsels advice. was ultimately sentenced to death. These convictions were affirmed on appeal. , among other grounds, sought relief based on ineffective assistance of counsel. The state courts denied relief. then filed a writ of habeas corpus in federal district court, which also denied relief. Court of appeals reversed. Then appealed. (2) Analysis: Effective assistance of counsel is critical to our adversarial system of justice in order to ensure just results. In determining the reasonableness of the assistance, the assistance rendered must be considered in light of all circumstances. Even if counsels assistance is professionally unreasonable, the death sentence need not be set aside if the ineffective counsel had no effect on the judgment. The must affirmatively prove prejudice, a showing that the proceeding probably would have been different. IF there is a reasonable probability sufficient to undermine confidence in the outcome, judgment reversal is warranted.

(3) Holding: District Court properly declined the writ of habeas corpus. has not received ineffective assistance of counsel in violation of the 6th Amendment requiring reversal of a death sentence unless counsels representation falls below an objective standard of reasonableness and the has been sufficiently prejudiced such that there is reasonable doubt in the reliability of the sentence. There is nothing in the record to indicate that the hopelessness felt by in any way affected his representation of . His strategy choice in light of all the circumstances was well within the range of professionally reasonable judgments. | Overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed. (4) Dissent (Marshall): The circumstances more than make out sufficient case of ineffective counsel in violation of the 6th Amendment. | Seems to be highly concerned with the lack of guidance the Courts opinion gives as to what is the objectively reasonable standard of competence. Concerned with what the standard might be local or national? | The objective standard of reasonableness is too ambiguous to provide the Court guidance in this area. The prejudice standard ignores the 6th Amendment function to ensure that convictions are obtained only through fundamentally fair procedures. This opinion imposes an impermissibly heavy burden on persuasion in effective assistance cases. Capital sentencing proceedings should be distinguished from ordinary trials. (5) Classnotes: (i) Was counsels conduct so undermining of the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result? (a) must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed defendant by the Sixth Amendment and, (b) Second must show that the deficient performance prejudiced the defense by showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. (i) Why isnt deficiency enough? B/c sometimes the would have been found guilty anyway. (ii) Proper standard for attorney performance is that of reasonably effective assistance. Counsels basic duties to the client: (a) Duty of loyalty (b) Duty to avoid conflicts of interest (c) Duty to act as an assistant to the and advocate the s cause (d) Duty to consult with the on important decisions and to keep informed of important developments in the course of prosecution; AND (e) Duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. (iii) Court must indulge strong presumption that counsels conduct falls within a wide range of reasonable professional assistance; that is, must overcome the presumption that, under those circumstances, the challenged action might be considered sound trial strategy. (iv) Standard of prejudice: Is there a reasonably probability, which is a probability sufficient to undermine confidence in the outcome, that but for counsels unprofessional errors, the result of the proceeding would have been different? (v) A conclusion that counsel was ineffective with respect to only the penalty phase of a capital trial imposes on the State the far less burden of reconsideration of the sentence alone. At a capital sentencing could not be greater. (vi) Class question: (a) Why does the have the right to effective counsel at all? If the lawyer isnt effective, then we havent insured that we have a fair trial at all. (vii) Strickland is very important in post-conviction. In every state, its now about effective assistance of counsel based on Strickland. (2) Florida v. Nixon (U.S. 2004) [LECTURE]


(1) Facts: confesses and is prosecuted. There is abnormal amount of evidence against . Lawyer says that there is no way of arguing at the guilt stage. We need to concede guilt and go to the sentencing stage. isnt cooperative. So attorney decides to just implement this plan. (2) Holding: Defense counsel's failure to obtain 's express consent to a strategy of conceding guilt at the guilt phase of a capital trial did not automatically render counsel's performance deficient; despite counsel's concession of guilt, retained the rights accorded a in a criminal trial, the State was obliged to present evidence establishing the essential elements of the crimes with which was charged and that aggressive evidence was separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors, and the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor to exclude prejudicial evidence. (3) Classnotes: Three categories of cases in which we presume prejudice has occurred: (i) If there has been a complete denial of right to counsel (ii) If counsel entirely fails to subject the prosecutions case to meaningful, adversarial testing (iii) When theres an actual conflict of interest for counsel. (3) Cullen v. Pinholster [TWEN] (1) Facts: (2) Analysis: Review under habeas provision providing relief on a claim of a state prisoner that has been adjudicated on the merits in State court proceedings, if the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, is limited to the record that was before the state court that adjudicated the claim on the merits. In reviewing a claim under habeas provision providing relief on a claim of a state prisoner that has been adjudicated on the merits in State court proceedings, if the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, the habeas court must determine what arguments or theories could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court of the United States. (3) Holding: Under these circumstances, there was sufficient representation. Right of Self-Representation 1. Does Assistance of Counsel Encompass the Right of Self-Representation? a) Sixth Amendment does not provide merely that defense shall be made for accused but grants to accused personally the right to make a defense; right to self-representation to make one's own defense personally is necessarily implied by structure of the amendment but it is not an absolute right. (1) Faretta v. California (U.S. 1975) (1) Facts: was charged with grand theft, wanted to represent himself at trial (he had done so before in high school) but was compelled by the court to have an attorney represent him. He was convicted and appealed. The state courts rejected his appeals. (2) Analysis: The protections afforded a in the 6th Amendment are personal to him. The right to counsel is just that a right. Rights may be waived. To thrust counsel upon an unwilling would violate the language of the Amendment. So long as waiver of counsel is intelligently made, the state cannot force one upon a . (3) Holding: Reversed. A criminal has a 6th Amendment right to conduct a pro se defense. (4) Dissent (Burger): The majority assumes that once a waives his right to counsel, he will not appeal this decision later. But the courts are full of this kind of appeal. If there were widespread exercise of the right to waive counsel, justice would suffer and the court system would be congested with appeals. (5) Dissent (Blackmun): Theres nothing in the Constitution about this right. The historical precedent quoted by the Court is suspect. The rule announced here creates a great capacity for procedural confusion. (6) Note: is the one that will suffer. A need not himself have skills and experience of lawyer in order competently and intelligently to choose self-representation, but he should be made aware of the dangers and disadvantages of self-representation, so that record will establish that he knows what he is doing and that his choice is made with his eyes open.

(7) Problem: You cant exercise a right to counsel and a right to self-representation; theyre mutually exclusive. SCOTUS has allowed that an attorney be appointed to assist or be a side-counsel but there is not constitutional right for this. (i) The Court leans strongly on the side of a right to counsel; a right to counsel is assumed over self-representation. Why? B/c its so imperative to a fair trial; its critical to preserving the right to a fair trial proceeding. (8) Right of self-representation is not absolute and does not have to be honored if: (i) If the request is disingenuous, the right wont be granted. (ii) The right cannot be denied based on the seriousness of the charges even in capital offenses. (iii) The actual ability of the to effectively represent him or herself is irrelevant. (iv) Instead, we look at is whether the is competent to waive the right itself; can he make a meaningful determination that they understand the right to counsel and that theyre waiving it and understand the consequences of waiving it. THEN THERE WAS AN EXCEPTION (Indiana v. Edwards) b) EXCEPTION to Farretta (1) Indiana v. Edwards (U.S. 2008) [TWEN] (1) Facts: No facts but the issue is whether a criminal who has the sufficient mental competence to stand trial with the assistance of counsel but who has deemed to not have the sufficient mental competence to stand trial without counsel is permitted to represent himself during trial. (2) Analysis: 1-This situation calls for a different standard than the mental competency to consult with counsel (Dusky) standard. 2-Whatever the standard, mental illness is not a unitary concept; so the standard probably needs to be flexible. 3-The right of selfrepresentation in this manner could result in an improper conviction or sentence; 4-It would look really bad to let an insane man defend himself. It would look unfair. More than the Dusky standard is needed. (3) Holding: The Constitution permits a state to limit a s self-representation right by insisting upon representation by counsel at trial on the ground that the lacks the mental capacity to conduct his trial defense unless represented. Indiana wont be prevented from doing this. (4) Dissent (Scalia): The right to knowingly and voluntarily waive the right to counsel is guaranteed by the Constitution. The State should not substitute its own perception of fairness for the to make his own case before a jury. The problem is that this person has a right and its his right in the balance and he should be able to make this decision himself, not the state make it for him. (5) Note: in the language itself, the court is trying to limit this to the severely mentally ill but based on the language, the limitation doesnt appear clear. Where is the line drawn after Indiana? Thats the question.