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Criminal Procedure King Fall 2014 Dressler Casebook

4 T H AMENDMENT

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches & seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized

THRESHOLD
SEARCH

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o

SEARCH AFFECTS PRIVACY INTERESTS


Katz v US (1967): formally rejected property rights/trespass approach in holding that
recording of phone booth conversations was 4th Amdt. search.
4th Amdt does not protect what one knowingly exposes to the public (even if in
home/office)
Areas accessible to the public may be protected if the person seeks to preserve
privacy: by entering a phone booth & shutting the door, occupant seeks to exclude
uninvited ear. By bugging & recording his convo police violated the privacy upon
which he justifiably relied in using the phone booth.

Police conduct amounts to a SEARCH when it intrudes upon a reasonable expectation of


privacy:
1. Person must have an actual, subjective expectation of privacy; and
2. The expectation must be one that society is prepared to recognize as
reasonable
OBJECTIVE PRONG (#2): where most issues arise. Relevant factors in analysis
o Site/nature of the property inspected:
Open fields = no protection
Curtilage = some protection
Home = strictly protected
o Extent to which the person has taken measures to keep information, his property, or an
activity private
1- Per Katz, cannot possess reasonable expectation of privacy in what is
knowingly exposed to the public or is otherwise in open view
2- One who voluntarily conveys info/property to another assumes the risk that
the individual is a govt. agent or will transmit the info/property to a govt. agent
o Degree of intrusion experienced
INFO DIVULGED TO 3RD PARTIES: Assumption of risk
False Friends: Eavesdropping by criminal informants/undercover agents consistently upheld under
4th Amdt.
US v White (1971): through electronic radio transmitter, police monitored Ws conversations with
informant taking place in Ws home, restaurant, & in CIs car/home. Issue: whether his expectation of
privacy in the conversations was objectively reasonable. Court ruled that it wasnt & held that no
search occurred.

Criminal Procedure King Fall 2014 Dressler Casebook

General rule: no search occurs when CI listens to convo and later reports it to police.
Court reasoned that analysis shouldnt change merely because the info is recorded.
No meaningful difference between electronically equipped agent & unequipped agent.
+ Info is more accurate this way
Harlan Dissent: concerned with human relationships. This decision will undermine the
confidence among people in society. Applying 4th Amdt. here wouldnt end
eavesdropping, would only require a warrant first

Phone Numbers:
Smith v Maryland (1979): per police request, telephone company installed a pen register to disclose
the numbers dialed from suspects home; nothing about the contents of the communications were
discovered. Held: no reasonable expectation of privacy in the numbers he dialed.
Subjective expectation speculative. Everyone is aware that the phone co. can record
phone numbers dialed, if only for the purpose of identifying harassment.
Even if S had a subjective expectation of privacy, the expectation was unreasonable.
By knowingly transmitting info to a 3rd party, the telephone users assumes the risk that
it will be transmitted to law enforcement.
Dissent: Improper comparison to false friend cases one can exercise discretion in
deciding who to share confidential info with, but society has no choice but to use
telephones. Privacy is not a commodity possessed absolutely or not at all. Many
people wish to avoid disclosure of their personal contacts.
Electronic Tracking Devices:
US v Knotts (1983): K suspected of making drugs. Without a warrant, police installed a beeper on a
chemical drum they knew would be sold to K. They followed Ks car across state lines for about 100mi
and at one point, they lost visual surveillance, & they found the drum from the beeper signal outside
a cabin. From this, police got a warrant to search the cabin. Held: use of beeper did not constitute a
search, so no warrant was needed to monitor Ks movements.
1- Beeper did not provide police with any info that could not be obtained by visual
surveillance from public places along the route. K knowingly exposed his
movements to others by travelling on public roads. MODE of surveillance
irrelevant.
2- Beeper had limited use: did not reveal info as to Ks movements within any private
place (i.e. the cabin).
COMPARE: US v Karo (1984): In this case, beeper allowed police to monitor movement
of a container inside homes as well as public places. The info obtained was used to get
a warrant and go inside the home. Held to be an unreasonable search. CLASS NOTES:
o Intruding upon a constitutionally protected area. Revealing important info about the
inside of a home.
o Augmenting the senses not necessarily a good argument by forcing law enforcement
to do the legwork, we require them to make choices re who they follow & what types of
cases they prioritize. This is a good sorting mechanism, because we want law
enforcement to be selective in the cases they pursue.
OPEN FIELDS DOCTRINE: ENTRY OF AN OPEN FIELD DOES NOT IMPLICATE THE 4TH AMDT. (Brightline rule).
Open field = any unoccupied or undeveloped land outside the curtilageneed not be
open or a field

Criminal Procedure King Fall 2014 Dressler Casebook


Curtilage = area immediately surrounding & associated with the home (white picket
fence) protected. Extends intimate activity associated with sanctity of home &
mans private life.
Areas that are protected by traditional property laws (trespass) but NOT entitled to
4th Amdt. protection
Oliver v US (1984): police without warrants entered private property, ignored no
trespassing signs, walked around locked gate/wall, & observed plants not visible from
outside the property. Held: no legit expectation of privacy in activities occurring
in open fields, even if the activity occurring there could not be viewed except
by trespassing in violation of civil or criminal law.
o 4th Amdt. meant to protect enclaves like homes from govt. interference. Open fields
do NOT provide the setting for those intimate activities that 4th Amdt. is meant to
shelter from govt. interference.
o No trespassing sign does not effectively bar intruders, and anywaythe info could
lawfully be observed by air. Any expectation of privacy thus unreasonable.
Whether Land is Within or Outside the Curtilage:
1. Proximity of the land to the home;
2. Whether the area is included within enclosures surrounding the house;
3. Nature of the use to which the area is put;
4. Steps taken by the resident to protect the land from observation
US v Dunn (1987): Ds ranch enclosed by a fence, and another fence surrounded the
ranch house. Approx. 50yds beyond the second fence were 2 barns, each enclosed by a
fence. Fed climbed over the perimeter fence & an interior fence; smelled acid
commonly used to make drugs coming from one of the barns. Climbed over the fence,
and without entering the barn he peered in to find incriminating evidence. HELD: barns
outside the curtilage of the ranch house. Relevant that
o 60yds from house & 50yds outside the fence surrounding it.
o Officer had objective evidence the barns werent being used for intimate, home-related
activities
o D did not take sufficient steps to prevent observation into the barn from the open-field
vantage point
o

AERIAL SURVEILLANCE: NON-SENSE-ENHANCED AERIAL SURVEILLANCE BY THE GOVT. OF


ACTIVITIES OCCURRING WITHIN THE CURTILAGE OF A HOUSE DOES NOT CONSTITUTE A 4TH AMDT.
VIOLATION IF THE SURVEILLANCE:
1. Occurs from public navigable airspace;
2. Is conducted in a physically nonintrusive manner; and
3. Does not reveal intimate activities traditionally connected with the use of
a home/curtilage
California v Ciraolo (1986): Police got a tip that C was growing weed in his backyard,
but could not see in due to a 10ft fence. Cop obtained a private plan to fly over the
backyard at an altitude within public airspace per FAA regulations. The vantage point
allowed cop to see plants in Cs yard. HELD: not a search.
o Subjective prong C had clear intent to maintain privacy, but Ct. didnt find
expectation because 10ft isnt high enough to block someone riding atop a truck or
2story bus.
o Either way not objectively reasonable. Police need not shield their eyes from objects
exposed to them even in the curtilage. Fact that one has taken measures to restrict
some views does not preclude police from observing them from a public vantage point

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where they have a right to be. In an age where private & commercial flights in public
airways is routine, its unreasonable to expect privacy from the air.
Powell Dissent: Fact that surveillance was done in a public navigable space, & reliance
on the fact that the public could see the activity, were irrelevant. This activity was
directed toward viewing that home, and falls within the expectation of privacy
commercial passengers on a flight pay no more attn. than a passing glance.
Florida v Riley (1989): Court extended Ciraolo to cover helicopter inspections, which
allow for much lower-altitude surveillance. Police observed plants growing within the
curtilage (in a greenhouse that was missing 2 roof panels). 5-4 HELD: not a search.
Essentially justified on the same grounds as Ciraolo, i.e. that public helicopter flights
were common, and placed the burden on R to prove that such flights were unheard
of in the vicinity of his house. Limiting language: wouldve been different if
Cop was not flying in accordance with FAA regulationi.e. if it had been a plan and not
a helicopter. ( MODE of inspection mattered here).
There had been any interference with Rs normal use of the greenhouse or other parts
of the curtilage.
No intimate details observed; no dust, noise, or threat of injury.

SURVEILLANCE OUTSIDE THE CURTILLAGE, NEAR A HOUSE, BUT NOT IN AN OPEN FIELD:
California v Greenwood: Person has NO reasonable expectation of privacy in garbage enclosed in a
bag & left for collection outside the curtilage of a home. NO search occurs when an officer opens a
trash bag left at the curb & sifts through its contents.
Subjective prong G might have had a subjective expectation that the trash wouldnt
be opened by police or the public.
Objectively unreasonable. Common knowledge that garbage bags left on the curb are
readily accessible by animals, children, scavengers, snoops, & other members of the
public.
In other words: (1) 4th Amdt. doesnt protect info knowingly exposed to the public, per
aerial surveillance cases; and (2) one cannot have a reasonable expectation of privacy
in info voluntarily conveyed to others (Smith).
o Dissent note distinction here: G only voluntarily disclosed the container that enclosed
the info, NOT the info itself. Takes issue with the fact that, based on the mere
possibility of snoops, G has no constitutional expectation of privacy. (i.e., Would
possibility of burglars negate expectation of privacy in the home?).
SENSE-ENHANCED TECHNOLOGY:
Dow Chem. v US (1986): EPA agents photographed Dow industrial complex from
altitude as low as 1200ft with floor-mounted precision aerial mapping camera. Court
upheld:
o Area photographed was NOT an area immediately adjacent to a private home, where
privacy expectations are heightened
o EPA was NOT employing some unique sensory device that, for ex., could penetrate the
walls of bldgs. and record conversationsrather, a conventional but precise
commercial camera commonly used in mapmaking.
Kyllo v US (2001): Fed suspicious that K was using high-intensity lamps in his home to grow; used
thermal-imager to scan the triplex in which K lived, from a point across the street. Scanning showed
that the roof of the garage & a side wall of the home were substantially warmer than the rest of the
bldg. From this info, fed got a warrant to search the home. HELD: Use of a thermal-imaging device

Criminal Procedure King Fall 2014 Dressler Casebook


aimed at a private home from a public street to detect relative amounts of heat within the home
constitutes a 4th Amdt. search.
Using technology to obtain info re the interior of the home that could not
otherwise be obtained without physical intrusion into a constitutionally
protected area constitutes a search & is presumptively unreasonable without
a warrantat least where the technology is not in general public use.
o Homes are entitled to special protection; there must be some minimal level of privacy
that cannot be eliminated through the use of technology.
o Protection of the home is NOT defined with regard to the quality or quantity of the info
obtained. Entirety of the home is safe. If the 4th Amdt. protection were limited to
intimate activities, then the Court would have to undertake the impossible task of
defining what constitutes intimate activity.
4-J Dissent: The info obtained was exposed to the general public from outside the
home; no details re the interior were revealed heat waves are like odors, & any
expectation of privacy is unreasonable
o Passerby could notice heat emissions through the vents; so neighbors could invite
police over to do so
Scalia counter: if true, then using a microphone to eavesdrop from exterior
would be okay
o Officials need not overt their technology from detecting emissions in the public
domain. Expectation of privacy would be manifested through insulation.
US v Jones (2012): 9-0 Court held that tracking suspect through attachment of GPS was a search
violative of the 4th Amdt.
Majority Opinion: Katz test is not a substitute but a supplement for the common-law
trespass test. Because this involved a property issueunlike KnottsCourt didnt even
need to address the Katz test.
o LUNA: What about the open fields/barn trespass cases (Oliver); the case where police
took a scratch of paint off accuseds car to link him to a hit-&-run; etc.? How far is new
concern with property/trespass going to go? Was Knotts wrongly decided, or was the
issue just not before the Court because the facts were distinguishable?
Alito: Placement of the device itself should be a minor issue in this case. More attn.
shouldve been paid to the extensiveness of the monitoring
PHYSICAL MANIPULATION OF AN OBJECT:
Bond v US (200): border patrol agents walked through stopped Greyhound bus at a checkpoint &
routinely squeezed the passengers luggage. In Bs bag, felt a brick. B allowed them to open his
luggage & they found drugs. HELD: pre-consent squeezing of luggage constituted a search.
Physically invasive inspection is more intrusive than purely visual inspection.
Subjective prong satisfied: sought to preserve privacy by using an opaque bag &
placing it directly above seat.
Objectively reasonable: distinction between the common passenger & the govt.
official basically distinguished based on the mens rea of the person handling the
bag: whether theyre just trying to make space or whether theyre handling the bag for
purposes of determining its content.

SEIZURE

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SEIZURE AFFECTS PROPERTY INTERESTS: SEIZURE occurs when there is some


meaningful interference with a persons possessory interests in the property
US v Karo (1984): police installation of a beeper in a container of chemicals with
consent of the seller does NOT constitute a 4th Amdt. seizure on the buyer having no
knowledge.
Beepers mere occupancy of the space didnt interfere with Ks possessory interest in
any meaningful wayat most, technical trespass
3-J Dissent: Owner of property has an absolute right to exclude, which is infringed when
the govt. attaches the monitoring device & thus converts the property to its own use.
This interference is meaningful in that it substantially transforms the character of the
propertygovt. was asserting dominion & control.

OBJECTS SUBJECT TO SEIZURE WHERE PROBABLE CAUSE FOUND:


1. Contraband: evidence that may not lawfully be possessed by a private party
2. Fruits of a crime
3. Instrumentalities used in the commission of an offensee.g. weapon, getaway car
4. Mere evidence: item of value to the police solely because it will help in the
apprehension or conviction of a person for an offense
NOTE: Distinction between seizure after a person has relinquished control & seizure from the
immediate custody & control of the owner effectively seizes the person.
SEIZURE OF PERSONS SEE TERRY SEIZURE

PROBABLE CAUSE

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UNREASONABLE SEARCH/SEIZURE IS ONE THAT OCCURS IN THE ABSENCE OF


PROBABLE CAUSE
Court has held that what is required to be reasonable is a warrant (i.e. the 2 clauses
must be read in conjunction with one another). In practice, however, this amounts to a
preference for a warrant, with various exceptions. In other words
1. Preference that inferences be drawn by a neutral & detached magistrate,
rather than suspicious police engaged in often competitive enterprise of
ferreting out crime
2. Even where police are justified in acting without prior judicial authorization
(warrant), probable cause is usually required
PROBABLE CAUSE exists where facts & circumstances within the officers knowledge
& of which they have reasonably trustworthy info are sufficient in themselves to
warrant a man of reasonable caution in the belief that:
SEARCH: a specifically described item subject to seizure will be found in the place to
be searched
ARREST: an offense has been or is being committed by the person to be arrested
Defendant may bring two procedural challenges:
(1) Govt. violated 4th Amdt. by search/seizure without a warrant
(2) Regardless of warrant, police lacked probable cause

DETERMINING PROBABLE CAUSE:


Bald & illuminating assertions of suspicion entitled to NO weight i.e. magistrate
should not consider officers assertion that he has cause to suspect & does believe

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that seizable articles will be found in a place unless the officer provides the reasons for
his belief
Direct information may always be considered UNLESS a magistrate has reason to
believe that the affiant has committed perjury or recklessly misstated the truth
Affiants info considered reasonably trustworthy because he is under oath
Knowledge is firsthand, grounded in personal observations
Hearsay (Informant) information CREDIBILITY is the determinative factor, because: (1)
informants are untrustworthy by nature; & (2) sources of informants info varies

Whether info obtained from an informant is sufficiently trustworthy to justify magistrates


consideration:
Illinois v Gates (1983): Police received anon tip by mail that a couple was moving significant weight.
Informant provided info re the couples procedure for obtaining the drugs in FL & driving them back
for distribution in Chicago suburb, including specific dates of upcoming pickup. Police verified many of
the claims in the tip, & followed the accused down to FL. While G was driving back to Ill., police
obtained a warrant & searched the car upon Gs arrival, finding significant quantities of drugs, as well
as weapons. Court ABANDONS Aguilar-Spinelli 2pronged test in favor of totality of circumstances
approach. Informants veracity & basis of knowledge are considered along with all other
indicia of reliability (& unreliability)
Magistrates determination is a common-sense judgment involving incomplete info
taken together when evaluating overall reliability, a deficiency in one factor may be
compensated for by a strong showing in another.
o Here, informant provided very specific details indicating strong basis of knowledge, &
there was enough independent police corroboration probable cause shown despite
lack of veracity.

WARRANT CLAUSE

WARRANT CLAUSE INFORMS THE REASONABLENESS CLAUSE, but there are some
exceptions

ARREST WARRANTS

NOT required to arrest someone in a public place


REQUIRED to arrest someone in their own home
INSUFFICIENT when arresting someone in another persons home (need search
warrant per Steagald)

ARREST IN ARRESTEES HOME:


Payton v New York (1980): police had probable cause to arrest P for a felony. They went to his home
without a warrant to arrest him. They heard music inside & knocked but no one answered. Waited for
a minute then broke in with a crow bar. Nobody was inside but they seized evidence in plain view.
Held: Absent exigent circumstances, nonconsensual entry into a persons home in order to
make an arrest requires an arrest warrant & reason to believe the suspect is in there.
CRITICAL: basic principal of the 4th Amdt. is that intrusion into the home without a
warrant is unreasonable.
Persons are protected objects of the 4th Amdt. & when law enforcement enters a home
to conduct an arrest, they will see everything in plain view & may search incident to

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the arrest. Warrant is required to protect that privacy interest. Warrantless intrusion
in the home is presumptively unreasonable.
Exigencies Justifying Warrantless Entry:
Hot pursuit
Police have reasonable cause to believe that if they do not enter immediately:
o 1. Evidence will be destroyed;
o 2. Suspect will escape; OR
o 3. Harm will result to the police or others either inside or outside the dwelling
o Considerations: gravity of the crime & the likelihood that the suspect is armed
Minnesota v Olson (1990): 2 guys robbed a gas station & killed the attendant; gunman arrested
immediately with the murder weapon but O escaped. The next day police learned O was hiding with 2
women in a duplex; entered without a warrant & arrested the suspect. Held: NOT justified on
exigency grounds.
Police knew O wasnt the murdererthought he drove the getaway car.
Already retrieved the murder weapon. No indication that O was of danger to the 2
women in the duplex.
Police were surrounding the bldg. in daylightevident that suspect wasnt going
anywhere
ARREST IN A THIRD PERSONS HOME: THE STEAGALD PRINCIPLE
Steagald v US (1981): Police had warrant to arrest L, and had info that L could be reached for the
next 24hrs at Ss home. A few days later they went to Ss house & entered without consent. Could not
find L but saw drugs resulting in Ss arrest. Held: Arrest warrant for L was inadequate safeguard for
Ss independent 4th Amdt. right to privacy in his home.
A person whose home is searched for the presence of a guest is entitled to a
prior judicial determination of probable cause to search the premises for the
person to be arrested.
EXCEPTIONS: emergency or consent

SEARCH WARRANTS
ELEMENTS OF A VALID SEARCH WARRANT:
1. Probable cause
2. Supported by oath or affirmation
3. Neutral & detached magistrate: warrant is invalid if the issuing magistrate, by
behavior in a particular case, manifests a lack of neutrality
o Lo-Ji Sales v New York (1979): judge accompanied officers to a bookstore suspected of
selling obscene materials & while there, inspected the materials to determine which
ones were obscene. HELD: not sufficiently detached not acting as a judicial officer
but as an adjunct law enforcement officer.
4. Particularity: warrant MUST particularly describe the place to be searched, &
persons/things to be seized.
o Warrant that lacks particularity undercuts the probable cause requirement by
permitting too much police discretion in its execution.
o Enough that the description is such that the officer with the search warrant can
reasonably identify the place to be searched/thing to be seized
E.g. urban property: enough to provide the street address, not necessary to
describe the home

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Particularity with regard to the thing to be seized: CANNOT search where the
thing could not possibly be found. (E.g. if youre looking for a shotgun, cannot
search a jewelry box).
Should NOT be left to officers discretion: warrant should instruct them as
to where they may go or search.

EXECUTION OF A SEARCH WARRANT:


KNOCK & ANNOUNCE RULE: Absent special circumstances, officer is not permitted to
enter a home forcibly to execute a warrant, unless he: (1) indicated his presence, (2)
identified himself as an officer, (3) stated his purpose for entering, (4) requested
admittance, & (5) was refused admission
Wilson v Arkansas (1995): suggested that knock & announce rule may not apply in
circumstances where
o Threat of physical violence
o Hot pursuit e.g. prisoner escapes from custody & retreats to his dwelling
o Police have reason to believe that evidence would likely be destroyed if advanced
notice were given
Exceptions to knock & announce rule : case-by-case analysis is required.
o Richards v Wisconsin (1997): invalidated states per se exception for search warrants
involving felony drug investigation. Justifications for exception will not apply in every
drug casejustification must be particularized.
o Police need ONLY reasonable suspicion to justify exception to the rule
How long do police have to wait after knocking & announcing? US v Banks
(2003): police had warrant to search Bs 2br apt. for cocaine. Knocked loudly & called
out police search warrant. Waited about 15-20sec & broke in with a ram, entered, &
executed the warrant. B was in the shower. UPHELD: reasonable amt. of time to wait
before suspecting that cocaine would be gone if they waited any longer. So
o Less time is warranted when searching for drugs (which can be flushed) or an armed
robber
o If searching for something larger (e.g. stolen piano), you have to wait longer
Anticipation of a warrant: Illinois v MacArhtur (2001): police had probable cause to
believe M had drugs hidden in his trailer home. Went & asked permission to search but
M refused. One officer stayed while the other went to apply for a search warrant. M had
left his trailer & was standing on the porch. Officer would not let him reenter until a
warrant was obtained. Allowed M to go in to get cigarettes, etc. but officer stood guard
just inside the door. Two hrs. later police returned with warrant, searched, & found
contraband. UPHELD: warrantless temporary seizure of the premises here was
reasonable in the circumstances
o 1- Had probable cause to conduct the search for contraband
o 2- Had good reason to fear that, unless restrained, M would destroy the drugs
o 3- Made reasonable efforts to reconcile law enforcement needs with the demands of
personal privacy
o 4- Duration of the restraint was limited (2hrs reasonable to get the warrant)
SCOPE OF SEARCH PURSUANT TO WARRANT:
Police may only search containers large enough to hold the criminal evidence for which
they are searchingphysicality of item sought constrains the scope of where they can
search

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Officers may seize an item NOT described in the warrant, if they have probable
cause to believe that its a seizable itemcontraband, or a fruit, instrumentality, or
evidence of a crime
Plain view element: okay as long as police are lawfully searching the premises
Info that becomes available to officers immediately before or during the execution of
the warrant MAY require them to cease or narrow their searchnotwithstanding the
dictates of the warrant
Maryland v Garrison: IF officers learn or should have learned that the place to be
searched is actually a duplex, they are obliged to confine their search.
Other individuals on the premises: Ybarra v Illinois (1979): officers had a warrant
to enter a tavern & search it and a specifically named bartender for heroin. 8 cops
entered while the bar was open to the public & frisked each of the patrons for weapons.
While frisking Y, who was not acting suspiciously, cop felt something in his pocket that
felt like a cigarette pack with objects in it. He pulled it out to find heroin in the pack.
VIOLATION.
Ones propinquity to a suspect does NOT give rise to probable cause to search that
person
Warrantless search of others on the premises requires independent probable cause
AND a reason for dispensing with the warrant requirement (e.g. consent or exigency)
Seizure of persons during warranted searches: Michigan v Summers (1981):
Warrant to search a residence for contraband founded on probable cause implicitly
carries with it the limited authority to detain occupants of the premises while a proper
search is conducted.
Justifications: (1) to avoid flight of an occupant with the evidence sought; (2) to reduce
the risk of bodily harm to police & others; (3) to facilitate the search by inducing the
detained occupants to open locked containers or doors.

1. EXIGENT CIRCUMSTANCES

Cases where police act without a warrant because they reasonably believe
that criminal evidence will be destroyed or a suspect will avoid capture if
they take the time to seek a warrant
1. Exigency that justifies the warrantless action should restrict the scope of
the resulting search
2. Exception lasts no longer than the exigency: once the exigency ends, police
may no longer search without a warrant or MUST justify their continued warrantless
conduct on the basis of a different exception
Mincey v Arizona: police went to murder scene, found other victims & requested
emergency assistance but refrained from further investigation. Later when local police
arrived they searched the house for 4 days without a warrant. HELD: search not
justified by emergency all individuals in the apt. had been located before the
investigating officers arrived to search. Would have been easy to get a warrant.
3. Exigency does NOT dispense with probable cause requirement, only justifies
lack of warrant
DISTINCTION between criminal law enforcement function & community caretaking
function: caretaking is divorced from detection, investigation, or acquisition of
evidence relating to a crime. Probable cause & warrant are not required ONLY need
reasonable grounds to believe emergency assistance is needed. MAY seize any plain
view evidence in the process.

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Brigham City v Stuart: police responded to a noise complaint at a party; witnessed fight
inside the home. Announced presence, but no one responded, so they entered to break
up the fight. JUSTIFIED BY EXIGENCY: police may enter a home without a warrant
to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury. Police faced with ONGOING violence IN home.
Compare Welsh v Wisconsin: W suspected of driving drunk or very sick. Police went
to his home & entered without consent or arrest warrant. Found him in bed & arrested
him for DUIa noncriminal offense. HELD: unlawful. Exigency of needing to ascertain
his BAC is not a justification.

2. SEARCHES INCIDENT TO ARREST

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May search (1) person of the arrestee & (2) area within control of the
arrestee Grabbing area rule
Justifications:
Need to disarm suspect in order to take him into custody
Need to preserve evidence on his person for later use at trial
Chimel v California (1969): police arrived at Cs home with an arrest warrant. Wife let
them in to wait for him to get home. When he got home they arrested him & searched
the entire 3story house as incident to arrest. Held: search of the entire house here was
unconstitutional.
SCOPE of search includes grabbing area into which an arrestee might reach in order
to grab a weapon or other evidentiary items. Unreasonable to expand the scope to the
remainder of the premises.
Concern that law enforcement might use an arrest in a home as a pretext to engage in
a full search by arranging to arrest individuals at home rather than elsewhere
Dissent: reasonable to search home here. Wife could destroy evidence in the interim.
US v Robinson (1973): R pulled over for driving without a license. While searching him,
found heroin in a cig packet. Held reasonable: search of person incident to lawful
custodial arrest can be conducted by the fact of the arrest itself not just an
exception to the warrant requirement, but also reasonable.
Irrelevant for 4th Amdt. purposes that police didnt indicate any subjective fear of
arrestee or suspect that he was armed
NO such thing as a search incident to citation must actually be an arrest to justify
the warrantless search.
BUT all you need is the authority to conduct an arrest. Once you have the authority,
irrelevant that the crime does not carry with it the ultimate punishment of jail time.
(Atwater: actual punishment for the crime was $25 fine, but woman was taken to jail &
search upheld).

ARRESTS OF AUTOMOBILE OCCUPANTS:


NY v Belton (1981): cop arrested 4 occupants of a car that he stopped for speeding after he smelled
burnt weed in the car & saw an envelope on the floor with a term he associated with weed written on
it. Removed occupants from car and separated them. Went back to the car and searched a jacket in
the backset; opened a pocket and found cocaine. UPHELD.
In all cases, police may conduct a contemporaneous warrantless search of the
passenger compartment of a vehicle, including all containers therein, incident to a
lawful custodial arrest of the occupants.

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Generally articles inside the narrow compass of the passenger compartment of a car
are inevitably within the arrestees grabbing area. (Ct. says this as acceptable as a
natural exception to Chimel).
Arizona v Gant (2009): G arrested for DWLR; after he was handcuffed and locked in
the back of the patrol car, cops searched his car & found coke in a jacket on the
backseat. HELD: warrantless search unjustified.
1. Police are authorized to search a vehicle incident to a recent occupants
arrest ONLY when the arrestee is unsecured & within reaching distance from
the passenger compartment at the time. Belton should not be read so broadly.
NO MORE BRIGHT LINE
2. Circumstances unique to vehicle context justify a search incident to arrest
when it is reasonable to believe that evidence of the offense of the arrest
might be found in the car. i.e. when occupant is arrested for traffic violation, there
will usually be NO reasonable basis to believe the car contains relevant evidence.

PRETEXTUAL STOPS & ARRESTS:


Whren v US (1996): police were patrolling a high drug area in an unmarked car; saw 2 black youths,
driver looking into passengers lap; followed the car until it stopped, & officer got out to approach the
car to giver the driver a warning for traffic violations. When they pulled it over they saw crack &
arrested the guys. Ds argued that concern with low-level traffic violations + stop conducted by
undercover police (who had no authority to do so) pretext.
9-0 HELD: As long as police had an objective reason to conduct a traffic stop,
the fact that they had a subjective motive unrelated to the stop is irrelevant
for 4th Amdt. purposes.

3. CARS & CONTAINERS THEREIN


JUSTIFICATIONS FOR WARRANTLESS, NONCONSENSUAL SEARCH OF AUTOMOBILE:
1. Incident to lawful arrest
2. Community caretaking function of inventorying a car after it has been
lawfully seized & towed from a public road
3. International borders
4. Limited situations when driver is stopped for traffic violation
Driver has 3 interests at stake: (1) unimpeded locomotion; (2) possessory interest in
car; (3) privacy interest in the contents of the car
Mobility Rationale for Exception:
Chambers v Maroney (1970): police had probable cause to stop Cs car because it fit the
description of one involved in a nearby robbery. When officers approached the car and
saw that the occupants fit robbers descriptions, they arrested them. Did not search the
car at that time but drove it & its occupants to the station. While the arrestees were in
jail, police searched without a warrant & found weapons and evidence of the crime
hidden under the dashboard. UPHELD: police with probable cause to search a car
at the scene where it was stopped may do later at the station house without
first obtaining a warrant.
o Justified warrantless seizure AND warrantless search on grounds that car retains its
mobility at the police station. NO constitutional difference between officers options: (1)
search car immediately; or (2) deny its use to others until a warrant can be obtained.
[But here, no warrant was ever obtained].

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Coolidge v New Hampshire (1971): police investigated Cs possible involvement in a
murder. He cooperated fully in the investigation; when probable cause to arrest &
search his car was found, they arrested him at home & towed his car to the station.
They searched it 3 times without a warrant: 2days after it was towed, 1yr later, then
14mo later. Plurality HELD: Warrantless searches were unconstitutional. (Distinct from
Chambers?)
o Police knew for a while the probable role of the car in the crime; C had ample
opportunity already to destroy incriminating evidence; vehicle wasnt stopped on the
highway but parked at his home
Lesser-Expectation of Privacy Rationale: BECAUSE cars are subject to heavy regulation, EVEN
WHEN an automobile is not immediately mobile, the lesser expectation resulting from its use justifies
application of the vehicular exception.
California v Carney (1985): C suspected of exchanging sex for drugs out of his mobile
home & ultimately arrested. Searched the mobile home, parked in a public place,
without a warrant. UPHELD.
o When a car is readily capable of use on the highways & is found stationary in
a place not regularly used for residential purposes, the two justifications for
the automobile exception come into play (i.e. mobility & lesser-expectation).
o Dissent: mobile home was parked in a location removed from public highway & could
arguably compare to humble abode
Cardwell: Lesser expectation of privacy in a car because its function is transportation &
it seldom serves as a residence or repository of personal effects. Car has little capacity
for escaping public scrutiny, as it travels public thoroughfares where its occupants &
contents are in plain view.
CONTAINERS IN CARS:
Container = ANY OBJECT CAPABLE OF HOLDING ANOTHER OBJECT. Same rules apply
to suitcase & paper bag.
Outside of a car, police need a warrant to search containers (or exigency, consent, or
SILA)
Inside a car, ALL containers may be searched without a warrant during an
otherwise lawful automobile exception search. 2 circumstances:
o 1. Police come across a container as part of a valid warrantless car search MAY open
it without a warrant as long as the container is large enough to hold whatever evidence
they are looking for
o 2. Police have probable cause to believe that a particular container holding criminal
evidence will be found in a car MAY conduct warrantless search of the car for the
container & open the container
US v Chadwick (1977): Amtrak officials saw 2 guys lifting a heavy footlocker onto a
train; footlocker was leaking talcum powder, so they notified feds. Two days later the
agents put the suspects under surveillance at destination, with a drug dog. Dog alerted
to the presence of drugs, so police followed them to the car and before they closed the
trunk, arrested the 3 people, seized the footlocker, & searched it 90min later without a
warrant.
o Held: Seizure was justified, but search was unconstitutionalno exigency existed at the
time of search.

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Court distinguished from car based on heightened expectation of privacy in container
intended to be a repository of personal effects
US v Ross (1982): police had probable cause to search an entire car for contraband. In
it, they found a closed paper bag & opened it without a warrant. UPHELD. If probable
cause justifies the search of a lawfully stopped vehicle, it justifies the search of every
part of the vehicle & its contents that may conceal the object of the search.
CALIFORNIA v ACEVEDO (1991): Eliminated the distinction between Ross & Chadwick (that its
permissible to search containers coincidentally in cars). IN ALL CASES, police may search
containers in cars without a warrant if their search is supported by probable cause.
Here, police saw A leave a residence holding a closed bag that they had probable cause
to believe contained drugs. A placed the bag in the car & drove away; police stopped in
on the road, opened the trunk, & inspected the bag, which contained drugs.
Like Chambers, probable cause was focused on the container, not the car. By placing
it within the car, the automobile exception justified the search. BUT probable cause
did not extend beyond the closed paper bag (i.e. they could look in the trunk, but ONLY
to find the paper bag).
o

4. INVENTORY SEARCHES

o
o

POLICE MAY CONDUCT AN INVENTORY SEARCH OF AN AUTOMOBILE WITHOUT A


WARRANT AND WITHOUT PROBABLE CAUSE IF CONDUCTED IN ACCORDANCE WITH
ROUTINE OPERATING PROCEDURES IN THAT COMMUNITY FOR CONDUCTING AN
AUTOMOBILE INVENTORY (South Dakota v Opperman)
Ex: Police tow car for parking illegally. Procedure is to search cars in impoundment.
Permissible, because viewed as part of caretaking function of police. IF incriminating
evidence is found during the search, it may be properly admitted against the owner.
SD v Opperman: Because an inventory is not part of a criminal investigation, but is
just a routine process, then the warrant requirement of the 4 th Amdt. simply has no
applicability 4th Amdt. only applies to criminal investigations. Because the probable
cause requirement in the 4th Amdt. is linked textually with the warrant requirement,
then there is also no probable cause requirement. ONCE the warrant clause is
eliminated, the sole inquiry is whether the inventory search was reasonable or
unreasonable.
Three legitimate reasons why warrantless inventory searches are reasonable
balancing of interests:
1. To protect the car owner against theft of property
2. To protect police against false claims of theft while car is impounded
3. Police need to have a right to look in for any dangerous instrumentalities in
the car that might endanger the police or others while in possession of the car.
WEIGHED AGAINST THESE is the car owners interest in a reduced expectation of
privacy in his vehicle
IF the inventory requires police to open containers found in a car during an inventory
search, then they may do so BUT, there must be a written inventory procedure that
allows police to do this (cannot just do it because they feel like it).
THIS EXCEPTION ALSO APPLIES TO PEOPLE WHEN THEY GO TO JAIL. Persons contents
may be inventoried when they go into the jail & placed in a police locker. This may be
done without a warrant and without probable cause for the same reasons.
STRIP SEARCH CASE: Man arrested while a passenger in his car with wife. Had an
outstanding arrest warrant for not paying a civil fine. In reality, he paid the fine & the

Criminal Procedure King Fall 2014 Dressler Casebook


bench warrant had been eliminated. While in custody he was subjected to 2 strip
searches. 5-4 HELD: constitutional for authorities, as a matter of routine, to subject ALL
people coming into the jail to this sort of search.
Court is not to question the expertise of the police
DISSENT: questions whether the routine is absolutely necessary. Only a handful
of such searches result in actual finding of contraband. No proof that they could
not be found based on reasonable suspicion search.
How do you draw the line between major/minor offenses, & incorporate the
distinction into a process that HAS to be standardized?

5. PLAIN VIEW (AND TOUCH) DOCTRINE

o
o

JUSTIFICATION FOR WARRANTLESS SEIZURENOT AN EXCEPTION TO SEARCH


WARRANT REQUIREMENT
PLAIN VIEW = subject to warrantless seizure by police IF
1. Observed from a lawful vantage point;
2. Physical right of access to it; AND
i.e. police cannot enter a home without a warrant to seize weed viewed lawfully
from street
3. Its nature as an object subject to seizure (fruit, contraband, instrumentality,
evidence of crime) is immediately apparent when observed [i.e. probable cause to
seize it]
THIS is why seizure of cars in Coolidge was unjustified.

Horton v California: H was convicted of armed robbery. Police had obtained a search warrant that was
limited to a search for the stolen goodsspecifically excluded the weapons. While searching the
home, police couldnt find the goods but found the weapons in plain view & seized them. Officer
testified that while searching for the goods, he was also looking for other incriminating evidence
i.e. seized plain view evidence not discovered inadvertently.
Held: NO inadvertence requirement for application of plain view doctrine.
Officers subjective state of mind is improper basis for invalidating a seizure.
o Particularity requirement + requirement that warrantless search be circumscribed by
the exigencies that justify it are adequate safeguards
o Here, scope of search wasnt enlarged by omission of any reference to weapons in
warrant. If police had first found the stolen goods, then no search for weapons could
have taken place.
Arizona v Hicks (1987): police entered Hs apt. without a warrant because a bullet had been fired
through the floor into the apt. below. They found & seized 3 weapons and in the course of the search
found a stocking-cap mask. Officer noticed expensive stereo equip & suspected it was stolen because
it was out of place in the apt. He recorded the serial numbersrequired him to move some of the
equip. Radioed the #s in and found out the equip was stolen & seized it.
Mere recording of the #s didnt constitute a seizure, BUT it did constitute a search
moving the equip was completely unrelated to the objective of the authorized
intrusion.
Issue: IF plain view doctrine would validate a seizure of the equip, then the search was
valid.
Held: Probable cause is required to invoke the plain view doctrine. Doctrine is
justified by a desire to avoid risk of obtaining a warrant where object is viewed in the

Criminal Procedure King Fall 2014 Dressler Casebook

course of a lawful search does NOT suggest that a lesser standard of cause is
permitted than is required for warrant.
SAME standard must apply to searches & seizures alike.

PLAIN TOUCH Minnesota v Dickerson (1993): Officer saw D acting suspiciously near a crack house.
Frisked D for weapons as part of a Terry stop. During the lawful frisk, officer felt a small lump that
he knew wasnt a weapon but otherwise could not identify. Manipulated it with his fingers & thought it
was crack. Pulled it out to see that it was crack.
HELD: Unlawful seizure. Examining the lump after completion of the weapons search
fell outside the scope of the original lawful intrusion.
IF officer lawfully pats down a suspects clothing for weapons & feels an object whose
contour/mass makes its identity as contraband immediately apparent, there is NO
invasion of privacy beyond that already authorized by the search for weapons.
If object is contraband, warrantless seizure is justified by the same considerations that
justify exception in plain view context
PLAIN SMELL: Individual has no reasonable expectation of privacy regarding scents; cannot
legitimately expect that an officer will not use his sense of smell to detect incriminating evidence
from a lawful position.

6. CONSENT

GENERALLY, FOR CONSENT TO BE VALID, IT MUST BE:


1. Voluntary voluntariness in in consent-to-search context is not as strict as waiver
in trial context
o 2. Obtained from someone with real or apparent authority to give consent
o 3. Scope of the search conducted must not exceed the consent granted
If police discover evidence during a valid consent search, it may be seized without a
warrant pursuant to plain view doctrine.
Shneckloth v Bustamonte (1973): Police stopped a car with 6 people in it; driver didnt have a license
so they were asked to get out of the car. One claimed to be the brother of the cars owner, so police
asked him permission to search the car; he said yes & helped in the search. Police found some stolen
checks that were admitted to convict B. Issue: What must prosecution prove to demonstrate that a
consent was voluntarily given?
Held: Whether a search was in fact voluntary depends on the totality of the
circumstances defendants knowledge of the right to refuse consent is a
factor, but NOT determinative. Must consider all factors relevant to whether the
person knew they could refuse the search (e.g. age)
o Two competing policies
Legitimate need for consensual searches, where police have some evidence of
illicit activity but lack probable cause to arrest/search
Requirement of assuring the absence of duress/coercion
o Waiver approach to consent searches is impractical & inconsistent with precedent that
approves of 3rd party consents
Bumper v NC: Police knocked on ladys door & said I have a search warrant to search your house,
so she consented. Warrant was lost & cops tried to justify the search on consent grounds. Court

Criminal Procedure King Fall 2014 Dressler Casebook


rejected: Assertion of authority to conduct a search amounts to coercionin effect
announcing that occupant has no right to refuse consent.
COMMON AUTHORITY TO CONSENT: GENERALLY 4th Amdt. recognizes a valid warrantless entry &
search when police obtain the voluntary consent of an occupant who shares authority over the area
in common with a co-occupant who later objects to the use of the evidence obtained
Matlock: arrested & taken from the scene. Roommate then consented to a search.
Upheld.
Rule is based on reasonableness in light of social expectations: Shared tenancy
understood to include assumption of risk on which police are entitled to relywhere
a guest may be admitted in the absence of a co-tenant who might object
Common authority has limits e.g. landlord, hotel mgr., & kids.
o Also, conceivable that in a 2br apt. one may not be able to consent to search of his
roommates room and if the room were locked, the argument is much stronger
Georgia v Randolph (2006): Rs estranged wife called police to their home after a domestic dispute;
told the cops he abused cocaine. He was present, denied the allegations, & refused their request for
permission to search. Cops then requested permission from her, to which she consented & led them
upstairs to his room. They found a straw with residue & charged him with possession.
Held: Physically present co-occupants express refusal to permit entry
renders the warrantless search unreasonable & invalid as to him. Unless
occupants fall within some recognized hierarchy, NO common understanding that one
co-tenant generally has a right of authority to prevail over express wishes of another
Holding is NARROW: line is drawn between this case and instances like Matlock or
Rodriguez, where defendants were in squad car or asleep & thus werent technically
present to object.
Holding does NOT affect the right of police to enter in order to protect a victim
(exigency)
APPARENT AUTHORITY TO CONSENT:
Illinois v Rodriguez (1990): Police responded to a call from a woman who claimed R had beaten her.
She led them to his apt., which she claimed was theirs (she had the key & said she had things there).
They entered to find drugs & paraphernalia, seized the evidence, & arrested R. Later found that the
woman was not a resident; not on the lease, didnt pay rent, moved her things out, & had taken the
key without his knowledge.
Burden on state to show common authority, which was not sustained here. Issue:
Whether an officers reasonable belief in a 3rd partys authority to give consent is
enough to validate the entry.
Held: Determination of consent to enter must be judged by an objective
standardwhether the facts available to the officer at the moment would
warrant a man of reasonable caution in the belief that the consenting party
had authority over the premises. THRESHOLD OF 4TH AMDT. IS REASONABLENESS,
NOT CONSENT. Satisfied if the factual determinations made by govt. are reasonable
need NOT be correct.

REASONABLENESS CLAUSE

Two basic challenges presented by the 4th Amdt.: (1) Reasonableness Cl. general
proscription against searches & seizures must be reconciled with the Warrant Cl.

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mandate that no warrants shall issue but upon probable cause; (2) concept of
reasonableness must be defined to reflect amendments underlying values & purposes
Initially, 4th Amdt. analysis focused almost exclusively on the Warrant Clause
approach was predictable & gave strong protection to defendants. Then
Camara v Municipal Ct. (1967): Redefined probable cause in the context of govt.
housing inspections
Rather than probable cause defining a reasonable search, reasonablenessas
determined by balancing govt. & individual interestsdefined probable cause
Expanded the range of acceptable govt. behavior
Terry commenced the Courts move away from the idea that warrantless searches are
per se unreasonable

TERRY DOCTRINE

DIMINUTION IN THE ROLE OF THE WARRANT CLAUSE: TEST for police conduct is
whether the search was reasonable, NOT whether it was reasonable to get a warrant.
Recognition that searches & seizures can vary in their intrusiveness
Whether facts available to officer at the moment of search/seizure would warrant a
man of reasonable caution in the belief that the action taken was appropriate.
DUAL INQUIRY: (1) whether officers action was justified at its inception; (2) whether
it was reasonably related in scope to the circumstances which justified the interference
in the first place
TERRY v OHIO (1968): Plain-clothes officer was patrolling neighborhood for shoplifters & noticed 2
men on the corner. He watched them take turns casing a storefront numerous times before meeting
with a 3rd man. Officer was suspicious and approached them, identifying himself as police and asking
who they were. One mumbled a response so cop grabbed T, spun him around, and patted him down
to check for weapons. Found a gun on T & then patted everyone else down & arrested T and the
other armed man.
T was seized at least when cop grabbed him, although less intrusively than if he had
been arrested. Also, the pat down constituted a search, but something less than a full
one. Balance of interests
o GOVT. INTEREST: neutralization of danger to officer in the context of an investigation +
effective crime prevention & detection
o INDIVIDUAL INTEREST: locomotion & freedom from police intrusion
o Exclusionary rule doesnt really deter this sort of activity. Police may not ultimately
care whether they get the conviction, but are primarily concerned with getting the
guns or drugs off the street.
Held: 4th Amdt. permits a reasonable search for weapons for the protection of
police when they have reason to believe they are dealing with an armed &
dangerous individual, regardless of whether there is probable cause to
arrest. Warrant Clause does NOT apply to this type of police practice.
o When an officer has REASONABLE SUSPICION that the individual whose suspicious
behavior he is investigating at close range is armed & presently dangerous to the
officer or to others, officer has the constitutional authority to ascertain whether the
person is in fact armed and, if necessary, disarm the suspect.
MUST consider the specific reasonable inferences that the officer is
entitled to draw from the facts in light of his experiences. NO weight
given to unparticularized suspicion/hunches.

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MUST be circumscribed by exigencies justifying its initiation: purpose limited to
determining whether the suspect is armed NOT justified by any need to
prevent destruction of evidence.
o Here, suspicion was reasonable, and officer appropriately confined his searchonly
patted outer clothing & didnt go into clothes until he felt the guns, and then he only
reached in to remove the guns
Notes Post-Terry:
Doctrine applies when police seek to investigate a completed felony. Stops
allowed if police have a reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in or is wanted in connection with a
completed felony.
Minnesota v Dickerson: Object MUST be readily discernible as contraband. When
you start feeling around, youve exceeded the bounds of Terry. [Plain Touch Doctrine]

SEIZURES VS. NON-SEIZURE ENCOUNTERS

IF ENCOUNTER IS NOT SUFFICIENTLY INTRUSIVE TO AMOUNT TO A SEIZURE, 4 TH AMDT.


IS NOT IMPLICATED AND NOT EVEN REASONABLE SUSPICION IS REQUIRED

SEIZURE of a person occurs when his freedom of movement is restrained by means of


physical force or show of authority.
IF, in the circumstances, a reasonable person would have believed that he was not free
to leave.
o Ex: threatening presence of several officers, display of weapon by officer, physical
touching of the person, use of language/tone indicating that compliance might be
compelled
o Suspect need not attempt to leave
US v Mendenhall (1980): DEA watched a woman get off the plane, claimed she fit the
drug courier profile. Asked for her ticket & license, which bore different names. They
told her they were DEA & asked her to come with them to the office for further
questions. She gave them her purse to look through, and ultimately she consented
(twice) to a full body search, which turned up heroin in her underwear.
o Court found that NO seizure occurred: Agents werent in uniform & werent displaying
weapons; approached her & identified themselves; requested ticket & ID.
Irrelevant that she wasnt expressly told that she was free to decline to
cooperate.
Consent to go with the agents was voluntary: Govt. carried burden by showing
that she was not told she was not told she had to go to the office, only asked
she had been questioned briefly and her ticket & ID were returned to her
beforehand
o HELD: Because search wasnt preceded by an impermissible seizure, her
consent to the subsequent search was NOT tainted by unlawful detention
(Note: court didnt consider whether consent was otherwise invalid).
US v Drayton (2002): 2 officers boarded a bus that was stopped. One remained at the
front of the bus (not blocking the exit) while the other moved from the back to the
front, asking each passenger to identify their bags. He got to D and Brown, & they gave
consent for him to search their (shared) bag, which revealed no contraband. They were
wearing baggy clothes, so cop first asked B for permission to search his person, to
which he consented. Cop felt hard objects he identified as similar to drug packages;

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o
o

arrested B. The same thing then happened to D. They were convicted of cocaine
possession. HELD: officers conduct was permissible.
1. Werent seized when police boarded the bus & began questioning passengers
Reasonable passenger would feel free to decline to officers requests or otherwise
terminate the encounter.
No force, brandishing of weapons, blocking of exits, threat, command, or
authoritative tone
Fact that they were uniformed & had weapons in their holsters doesnt matter
police are commonly understood by the public to be armed
D was NOT seized after Bs arrest: Court rejected the argument that no
reasonable person would feel free to terminate the encounter after B was
arrested.
2. Not seized Consent to suspicionless search was voluntary Search not
unreasonable
California v Hodari D (1991): Police were patrolling a high crime area; saw a group of
kids around a red car who, when they noticed the officers car, panicked & fled. Cops
were suspicious & chased them. One cop saw H toss a rock, tackled him, handcuffed
him, & found $130 and a pager. Rock was crack.
IF H had been seized at the time H tossed the rock (in flight), then drugs were the fruit
of an improper seizure & should be excluded. IF NOT, drugs were abandoned by H &
lawfully recovered by police.
H was not touched by the cop, but argued that a seizure occurs when the officer, by
means of a show of authority, has restrained liberty in some way.
HELD: SEIZURE DOES NOT OCCUR WHEN SUBJECT DOES NOT YIELD TO A SHOW
OF AUTHORITY.
Requires either PHYSICAL FORCE or, where absent, SUBMISSION to the
assertion of authority
Assuming pursuit was a show of authority, H was not seized until the moment
he was tackled
Point: Cannot classify the pursuit alone as a seizure, in the event he would have
gotten away

TERRY SEIZURES VS. DE FACTO ARRESTS


IF SEIZURE IN QUESTION IS TANTAMOUNT TO AN ARREST, PROBABLE CAUSE IS REQUIRED FACTORS:
1. Length of detention (US v Sharpe)
2. Forcible movement of the suspect e.g. police move a suspect away from
where they were found to another site for further investigation, especially if the
criminal investigation could have occurred where the detention arose (Dunaway v NY,
Florida v Royer, Pennsylvania v Mimms, Maryland v Wilson)
3. Existence of less intrusive means (Florida v Royer). This factor has essentially
merged with the length of detention inquiry.
FORCIBLE MOVEMENT OF THE SUSPECT:
Dunaway v New York (1979): Officer investigating a murder was tipped off as to defendants
involvement but not to the extent necessary to supply probable cause. Cop ordered other detectives
to pick him up & bring him in. He was taken into custody, and although told he was not arrested, he
would have been restrained if he attempted to leave. He was Mirandized & interrogated; waived
counsel & incriminated himself. Conceded that he was seized when involuntarily taken in, and that
police lacked probable cause to arrest until his incriminating statements in interrogation.

Criminal Procedure King Fall 2014 Dressler Casebook

Govt. argued that because the seizure did not amt. to an arrest, it was permissible
because police had reasonable suspicion that he had knowledge of the unsolved
murder.
HELD: For all but the narrow set of intrusions defined in Terry, seizures are reasonable
ONLY if supported by probable causebalancing inappropriate.
o Terry defined a special category of 4th Amdt. seizures SO substantially less intrusive
than arrests that the general rule of probable cause could be replaced by a balancing
test.
o HERE, Ds detention was practically indistinguishable from a traditional arrest.
Application of probable cause requirement doesnt turn on whether the intrusion is
deemed an arrest under state law.
Florida v Royer (1983): airport traveller aroused suspicion in fitting drug courier profile. Police
identified themselves & asked him to go with them to a small room 40ft away, without returning his
ticket or ID. Got his luggage & brought it to the room; R consented to a search & they found
marijuana. EVIDENCE SUPPRESSED. At the time he gave them the key to his luggage, the detention
he was subjected to was a more serious intrusion than is allowed on mere suspicion.
Suspect reasonably believed he was being detained: they had his ticket, ID, & luggage;
questioned him in a police interrogation room; and never told him he was free to board
the plane. Conduct more intrusive than necessary for investigative detention
otherwise authorized in Terry.
COMPARE: US v Mendenhall distinction is that the agents there returned Ms ticket &
ID to her after questioning and BEFORE they asked her to go back to the office with
them.
Removal from an Automobile After a Lawful Stop:
Pennsylvania v Mimms: When a driver is legally pulled over, officer may order the
driver out of the car without further justification NO reasonable suspicion is required.
o Govt. interest in police safety is legitimate, & the incremental intrusion to the driver is
de minimisnot exposing much more than is already exposed, because a lawful stop is
a brief detention either way.
Maryland v Wilson: Officer making a valid traffic stop MAY, as a matter of course, order
passengers out of the car pending completion of the detention.
o Although passengers liberty interest is slightly stronger than the drivers, the
passengers are already stopped by virtue of the traffic stop.
LENGTH OF DETENTION:
Seizure on less than probable cause is justified in part on the brevity of the detention
but theres no bright line
ISSUE: Whether police acted diligently to pursue investigation or whether they
unnecessarily prolonged suspects detention. Considerations
o 1. Law enforcement purposes to be served by the stop
o 2. The time reasonably needed to effectuate those purposes while detaining the
defendant
o 3. Whether police acted unreasonably in failing to recognize or pursue a less intrusive
alternative
US v Sharpe: Agent patrolling highway for drug trafficking saw a suspicious camper
travelling in tandem with a Pontiac. He radioed for assistance & attempted to pull them

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o
o

over. The Pontiac pulled over but the camper did not stop immediately. Agent 2 had to
pursue it while A1 stayed with the Pontiac until assistance came. Court upheld 20min
detention of suspects: (1) Pursued investigation in a diligent & reasonable manner; (2)
Method of investigation likely to confirm or dispel suspicions quickly; (3) Detention
lasted no longer than necessary to effectuate the purpose of the stop
Significant was the fact that the length of detention was aggravated by evasive actions
taken by the suspects in what otherwise wouldve been a much briefer detention
STILL: Even where these conditions are met, a detention that continues
indefinitely at some point can no longer be justified a Terry stop

TEMPORARY SEIZURES OF PROPERTY US v Place (1983): agents had advance notice that P
would be getting of a plane with luggage full of drugs. When P arrived, they seized his luggage &
90min later subjected it to a non-search sniff by drug dog. Dog indicated presence of drugs, so they
got a warrant to search the suitcase.
Terry principles apply to seizures of property here, though, the 90min detention
was excessive & impermissible
o Govt. interest in seizing the property was substantial (detecting drug trafficking)
o Intrusion on possessory interest is variable DISTINCTION between seizure
(1) after a person has relinquished control to a 3rd party; and
(2) from the immediate custody & control of the owner, as here effectively
seizes the person

REASONABLE SUSPICION
REASONABLE SUSPICION = something MORE than an inchoate & unparticularized
suspicion (hunch), & something LESS than a fair probability that contraband or evidence
of a crime will be found (probable cause)
Can be established with info that is different in quantity or content than is required to
est. probable cause
Can arise from info that is less reliable than is required for probable cause
SO, reasonable suspicion can be sustained upon a lesser finding than whats enough to
satisfy probable cause test announced in Illinois v Gates.
Sufficiency of Hearsay Information:
Alabama v White (1990): Police received an anon tip that a woman would be leaving a certain bldg. at
a particular time, carrying an attach case containing cocaine, driving a certain car, and going to a
certain motel. They went to the bldg. and saw W get into the car, followed her on the most direct
route to that motel, stopped her just before the destination, & asked to search for cocaine. They
found the attach case and she gave them the combination; it contained weed and she had cocaine
in her purse. HELD: Tip carried enough indicia of reliability to justify a Terry-level seizure.
FOCUS was on the fact that the informant predicted future conductenough of
which was corroborated to render the tip sufficiently reliable/trustworthy. Close case
though.
COMPARE Florida v JL: anon tip reporting that a young black male would be at a
particular bus stop wearing a plaid shirt and carrying a gun. Police went to the stop and
saw 3 young black males hanging out. No firearms were visible, and JL, wearing a plaid
shirt, made NO threatening or unusual movements. Apart from the tip, there was NO

Criminal Procedure King Fall 2014 Dressler Casebook

reason to suspect any of the 3 of illegal conduct. Still, officers frisked them all and
found a gun on JL.
Court unanimously held that police lacked reasonable suspicion that JL was armed:
Accurate description of a subjects readily observable location & appearance is only
reliable for purposes of identification. Tip lacked predictive information that could be
corroborated to provide suspicion.

Unprovoked Flight:
= Evasive behavior suggestive of wrongdoing
When coupled with other factors, can constitute reasonable suspicion justifying a
seizure
Illinois v Wardlow (2000): Cops were patrolling a high crime area to investigate drug trafficking.
Noticed W standing around carrying an opaque bag; when he saw the officers, he fled. They chased &
cornered him; gave him a protective pat-down search for weapons; felt a hard object in the shape of
a gun; opened the bag to find a gun.
HELD: Officer was justified in suspecting that W was involved in criminal activity & thus
in investigating further
o Police not required to ignore relevant characteristics of a location in
determining whether circumstances are sufficiently suspicious to warrant
further investigation i.e. high-crime area
o Consistent with individuals right to refuse to answer police questioning is the idea that
flight may permit police to stop the fugitive & investigate.

PROTECTIVE SWEEPS

= Quick & limited search of premises made incident to an arrest & for the
safety of police & others.
NARROWLY confined to a cursory visual inspection of those places in which a
person may be hiding
Maryland v Buie (1990): police had a warrant to arrest B in connection with a robbery. Phoned his
house & spoke to him to make sure he was there. 6 cops went in and spread out. One shouted down
in the basement for anyone to come up, and B emerged. After arresting, searching, & cuffing him, the
cop went down & found a red tracksuit like the kind worn in the robbery. Issue: What level of
justification did 4th Amdt. require before police could legally enter the basement to see if someone
else was there?
Like in Terry, police in these cases have an interest in taking steps to assure that the
hose in which a suspect is being (or just has been) arrested is not harboring other
dangerous persons who could attack unexpectedly
o Risk of danger may be greater in the context of a home than on the street
investigatory encounter
o Police interest in safety outweighs suspects interest in avoiding intrusion
HELD: REASONABLE SUSPICION NECESSARY TO JUSTIFY FULL PROTECTIVE
SWEEP AFTER SUSPECT HAS BEEN ARRESTED.
o Before finding B, police entitled to look anywhere in the home where he might be
found.
o AS INCIDENT TO ARREST, MAY as a precaution and without probable cause OR
reasonable suspicion, look in closets/immediately adjoining spaces.

Criminal Procedure King Fall 2014 Dressler Casebook

BEYOND THAT, MUST be articulable facts & rational inferences to warrant reasonable
suspicion that the area to be swept harbors an individual posing danger to those on the
arrest scene.
IF JUSTIFIED, limited to cursory inspection where persons may be found.
May last no longer than necessary to dispel the reasonable suspicion of
danger & no longer than it takes to complete the arrest & depart.

SPECIAL NEEDS

DISTINCTION between searches & seizures conducted in furtherance of criminal


investigation & those in furtherance of community caretaking function. (SD v
Opperman Inventory Search)

SPECIAL NEEDS EXCEPTION TO WARRANT REQUIREMENT: Applies when a perceived need for
search or seizure, beyond the normal need for criminal law enforcement, makes warrant/probable
cause requirements impracticable or irrelevant Court evaluates activity under
reasonableness balancing standard.
Public Schools:
New Jersey v TLO: kids caught smoking on school grounds. TLO denied it, so Vice P
looked in her purse. Found cigarettes & rolling papers and TLO was implicated in
marijuana sales. HELD: Probable cause requirement inapplicable to public school
officials. 2 conditions must be met to subject students to warrantless search:
o 1. Reasonable grounds (NOT prob. cause) for suspecting the search will turn up
evidence that the student has or is violating law or school rules
o 2. Search not intrusive in light of the age & sex of student & the nature of the infraction
Stafford School Dist. v Redding: 13yr old subjected to a search of her bra & panties by
school officials acting on a reasonable suspicion that she brought prescription-strength
Ibuprofen to school. UNREASONABLE under TLO:
o Content of suspicion did not match degree of intrusion. Principal knew beforehand that
the drugs were equivalent to Advil limited threat. NO reason to suspect that large
quantities were being passed around. NO indication of danger to the students from the
power of the drugs + NO reason to suspect that she had them in her panties.
Border Searches:
International borders/equivalents (e.g. airport with arriving intl. flight): Person may be
stopped (seized) and her belongings searched without individualized suspicion of
wrongdoing. Right of sovereign to protect itself from entry of persons and things
dangerous to the nation.
Highways in the vicinity of the Mexican border
o Roving border patrols: Where agents stop a car without notice on a little-traveled road,
reasonable suspicion of criminal activity is required to briefly detain occupants.
o Fixed interior checkpoints: Occupants may be stopped without individualized suspicion.
Sobriety Checkpoints:
Michigan State Police v Sitz: Program whereby checkpoints would be set up at selected sites. All
vehicles passing through would be stopped & drivers examined for signs of intoxication. Where found,
driver would be directed out of traffic & officer would check license/reg. & possibly conduct field test.
If intoxicated, arrest would be made. All other drivers permitted to resume journey immediately. Avg.
stop lasted about 25sec. HELD: NOT A 4TH AMDT. VIOLATION.

Criminal Procedure King Fall 2014 Dressler Casebook

Balancing test: (1) States interest in preventing accidents caused by drunk drivers;
(2) Effectiveness of sobriety checkpoints in achieving that goal; (3) Level of intrusion
on individuals privacy caused by the checks.
With regard to the initial stop & preliminary questioning of each motorist, balance
weighs in favor of program. (Noted that detention of particular drivers for field testing
may require individualized suspicion).

Compare City of Indianapolis v Edmond: Checkpoint program with primary purpose of discovery &
interdiction of illegal narcotics: at each site, police stopped a predetermined # of cars; officer
approached, asked for L/R, looks for signs of impairment & conducts open-view exam of car from
outside; drug dog walks around each stopped car. Stops lasted 2-3min & police couldnt actually
search absent consent or individualized suspicion. HELD: 4TH AMDT. VIOLATION.
Primary purpose of program indistinguishable from general interest in crime
control. While 4th Amdt. reasonableness is primarily objective inquiry, special needs &
admin search cases demonstrate that purpose is often relevant when suspicionless
intrusions pursuant to a general scheme are at issue.
PRIMARY PURPOSE CONTROLS. Otherwise any checkpoint could be permitted as long as
there was a secondary purpose of license or sobriety check
Illinois v Lidster: Upheld checkpoint designed to elicit info from drivers about fatal hit & run that
occurred in the area the week before. Delay lasted a few min. & drivers were only questioned about
15sec.
PRIMARY PURPOSE was not to detect crime by occupants, but to ask them, as members
of the public, to help in providing info about a crime likely committed by others.
Info-seeking stops less intrusive: brief & less chance of self-incrimination.
Random Drug Testing:
Considerations: (1) Nature & immediacy of govt.s concerns re drug use; (2) Privacy
interests of subjects
Chandler v Miller: Invalidated Ga. requirement that candidates for state office pass a
drug test. No special need for the testing: no suspicion of drug use by state officials, &
the test date was announced ahead of time.
Ferguson v Charleston: Invalidated program carried out at MUSC to identify & test
pregnant moms suspected of drug use. No special need: Primary & immediate
objective was to generate evidence for law enforcement purposes. Although ultimate
goal may have been to get treatment for the women, the means cannot be ignored
law enforcement was involved at every step of the program.

STANDING

DEFENDANT MOVING TO SUPPRESS EVIDENCE MUST SHOW THAT HIS 4TH AMDT RIGHTS
WERE VIOLATED BY POLICE CONDUCT Person claiming the protection of the
Amdt. must have had a legitimate expectation of privacy in the invaded place

Rakas v Illinois (1978): Police stopped car on suspicion it was getaway car from a robbery.
Occupants ordered out & police found rifle shells in locked glove compartment & sawed-off shotgun
under passenger seat. 2 of the passengers were then arrested & moved to suppress the evidence
seized from the car on grounds that the search violated 4th Amdt. Issue: Whether R had standing to

Criminal Procedure King Fall 2014 Dressler Casebook


object to the lawfulness of the car search when neither the car, shells, nor rifle belonged to him. 4th
Amdt. rights are personal Did the disputed search/seizure infringe an interest that the Amdt. was
meant to protect?
HELD: R lacked standing because he could not show that, as a passenger, he had a
legitimate expectation of privacy in the glove compartment & passenger area of the
car like the trunk, these are areas in which a passenger qua passenger would not
normally have an expectation of privacy.
Dissent: Improper reversion to pre-Katz era where property rights determine 4th Amdt.
rights. Now no person in an automobile without a possessory interest in the car will be
able to claim a 4th Amdt. violation. What is sufficientwife, child, taxi? Result will
encourage bad-faith policing.
Minnesota v Olson (1998): Without a warrant or consent, police entered a home in which they
believed O was staying as an overnight guest. They searched the residence until they found him in a
closet. HELD: O had standing to contest.
Society recognizes that an overnight guest has a legitimate expectation of
privacy in his hosts home
Court considered
o Social custom that is seen as valuable to society. Overnight guest seeks shelter in
anothers home because it provides him with privacy, & knowing that he & his
possessions wont be disturbed by anyone but his host & those his host allows inside
o Vulnerability that comes with sleeping indicates that expecting privacy during
overnight stay is at least as reasonable as expecting it in a telephone booth
That the host controlled the premises is not inconsistent with the expectation of
privacyi.e. unlikely that the host would admit anyone seeking the guest over guests
objection
Minnesota v Carter (1998): Acting on a tip, police observed C, J, & T in Ts apt. bagging cocaine
(through a window blind). Pursuant to a warrant they searched the house. Was later found that C & J:
(1) lived in Chicago & had come to the apt. solely to bag the cocaine; (2) had never been there before
and were only there 2.5hrs; and (3) in return for use of the apt., gave T some cocaine. HELD: IF an
unreasonable search occurred, it did NOT violate 4th Amdt. rights of C & J.
One who is merely present on the premises with consent of householder has
no legit expectation of privacy in the residence. In distinguishing Olson/overnight
guest scenario, Court looked at:
o Purely commercial nature of the transaction;
o Relatively short period of time on the premises; &
o Lack of any previous relationship between C / J & the host.

EXCLUSIONARY RULE
DOES THE RULE DETER CONSTITUTIONAL VIOLATIONS?
o Critics say: Most 4th Amdt. violations are inadvertent type of errors which cannot be
meaningfully deterred. Knowing 4th Amdt. violations can be deterred, but the
exclusionary rule is too indirect a form of punishment to deter adequately. To be
effective, punishment would have to occur immediately after every incident of
misconduct. Plea bargains & drawn out litigation inhibit this result.
o Defenders say: Systemic (general) deterrence is the goal of the rule, NOT specific
deterrence. Evidence shows that this is achieved.

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COSTS OF THE RULE:
o 1. Protects the wrong people
Critics say: rule deflects the truth-finding process by excluding reliable
evidence, and as a result, the guilty often go free.
Defenders say: this argument is misdirected its the 4th Amdt. and NOT the
exclusionary rule that makes it harder to convict. Also, studies suggest that the
cost of guilty going free is often overstated. Inaccurate to say innocent people
dont benefit from the rule.
o 2. Promotes cynicism
o 3. Results in disproportionate punishment
Critics say: Mapp goes too far applies equally to inadvertent mistakes & bad
faith conduct. + Rule doesnt distinguish based on the gravity of the offense.
Defenders say: This argument mischaracterizes the purpose of the rule it is
intended to prevent future 4th Amdt. violations, NOT to compensate victims of
past violations.
Alternatives to the rule: tort actions; fed civil rights suits; criminal prosecutions of
officers who maliciously violate the 4th Amdt.; injunctive relief; police review boards
with authority to suspend or fire officers for constitutional wrongdoing. Do these
alternatives sufficiently deter violations?
US v Calandra (1974): Held that the exclusionary rule does NOT apply in grand jury proceedings
Exclusionary rule is a judicially created remedy meant to safeguard 4 th Amdt.
rights generally through its deterrent effect, NOT a personal constitutional
right for the aggrieved
o Application of the rule is restricted to areas where its purpose is best
served.
BALANCING: Potential injury to the role & functions of grand jury vs. potential benefits
of rule in this context
o Grand jury doesnt finally adjudicate guilt or innocence, so permitting witnesses to
invoke rule would unduly delay & hinder the process
o Unreasonable to assume that extending the rule to grand jury proceedings would
effectively deter police misconduct.
IMPEACHMENT PURPOSES: Prosecutor MAY impeach defendants testimony by introducing
evidence previously excluded on 4th Amdt. grounds.
James v Illinois: J didnt testify & govt. sought to impeach testimony of Js sole witness
by introducing unconstitutionally seized evidence. HELD: Impeachment exception
does NOT apply to defendants witnesses. Expansion of impeachment exception
to all witnesses in all criminal trials would unduly undermine the deterrent goal of the
exclusionary rule. Defendants usually choose not to testify; threat of impeachment
might deter them from calling witnesses with legit exculpatory evidence.
KNOCK AND ANNOUNCE VIOLATIONS: Exclusionary rule does NOT require suppression of all
evidence found in the search. (Hudson v Michigan 2006)
Rule protects personal privacy. It doesnt protect one against law enforcement
discovering something because they already have the warrant.
NO right to not have evidence seen only a right to not have the door knocked down
immediately.

Criminal Procedure King Fall 2014 Dressler Casebook

GOOD FAITH SEARCH WITH WARRANT

Exclusionary rule does NOT apply to bar evidence obtained pursuant to a


search warrant later declared to be invalid as long as a reasonably welltrained officer would have believed it was valid.
GOOD FAITH = objectively reasonable reliance

US v Leon (1984): Police acted pursuant to facially valid warrant that was later found to be
unsupported by probable cause. HELD: Absent a showing that the magistrate was not detached &
neutral, suppression ONLY appropriate if the officers were dishonest or reckless in preparing their
affidavit or could not have harbored an objectively reasonable belief in the existence of probable
cause.
Rule cannot be said to have a deterrent effect on magistrates as neutral
parties, they have no stake in the outcome of any case, so theres no reason to assume
it would be advantageous to them to violate the 4th Amdt.
Exclusion of evidence obtained by warrant is appropriate only in cases that would
further purpose of deterring police misconduct: cannot deter objectively
reasonable police activity
o Suppression appropriate where:
(1) police mislead magistrate with info known to be false or recklessly asserted;
(2) magistrate abandoned its role of neutrality [Lo-Ji Sales];
(3) belief in probable cause unreasonable [i.e. bare bones affidavit];
(4) facially deficient warrantcant reasonably be considered valid [i.e. lack of
particularity]
Massachusetts v Sheppard (1984): Technical error committed by magistrate: in homicide
investigation, M signed warrant form normally used to conduct drug searches, but forgot to cross out
the language in the form that authorized police to search for controlled substanceswarrant lacked
particularity, but officer paid no attn. EVIDENCE PERMITTED.
LAW ENFORCEMENT ERRORS Herring v US (2009): Police arrested H pursuant to an active
warrant listed in a neighboring countys sheriff-run database. In a warrantless search incident to
arrest, the officers discovered drugs & a gun. Turned out that the computer hadnt been updated &
that the warrant had been recalled months priori.e. the arrest was unlawful. HELD: Exclusionary
rule does NOT apply to evidence obtained pursuant to a good-faith belief in a warrant, despite an
error in that warrant by a law enforcement agency.

FRUIT OF THE POISONOUS TREE DOCTRINE

Generally, 4th Amdt. protection covers not only the physical possession but
also the advantages the govt. can gain over the suspect by doing the
unlawful search or seizure
Silverthorne Lumber v US (1920): 2 defendants were arrested in their homes. While in
custody, police conducted a warrantless sweep of their office. Govt. conceded that the
seizure was unlawful, but sought the right to take advantage of the info obtained
before returning the documents. HELD: Knowledge gained from govt. wrong may NOT
be used to its advantage.
FRUIT OF THE POISONOUS TREE DOCTRINE: Govt. cannot violate 4th Amdt. & use
the fruits of that conduct to secure a conviction. Nor can the govt. make indirect use of

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o
o
o

such evidence for its case, or support a conviction on evidence obtained through leads
from the unlawfully obtained evidence.
E.g. if police seize X in violation of the 4th Amdt., they may not use Y if it is a fruit of the
initial violation.
EXCEPTIONS: PERMISSIBLE USES OF FRUIT:
(1) Independent source doctrine
(2) Inevitable discovery rule
(3) Attenuated connection principle

INDEPENDENT SOURCE DOCTRINE Murray v US (1988): Acting on a tip, police were surveilling M
& co-conspirators. Saw them drive into a warehouse & later followed them as they left. Eventually
stopped & arrested the drivers & lawfully seized the cars, which contained weed. Police then went
into the warehouse & found more weed but left without disturbing it. They applied for a warrant
without reliance on observations made during the prior entry. When the warrant issued they returned
& seized the weed. M moved to suppress.
Independent source doctrine applies to evidence initially discovered by
unlawful search, but later obtained independently, from activities untainted
by the initial illegality
o i.e., permits evidence acquired by an untainted search that is identical to evidence
unlawfully acquired
Exclusion ONLY proper if info obtained during unlawful entry formed basis of agents
decision to seek the warrant, or was presented to the magistrate & affected his
decision to issue the warrant.
INEVITABLE DISCOVERY RULE Nix v Williams (1984): W arrested on suspicion of child abduction.
In custody, police gave Christian Burial Speech prompting him to lead them to the body. Police were
already searching & within 2.5mi of the body, but when W agreed to disclose the location the search
was called off. Independent source doctrine unavailable because they couldnt show that they found
the body independently of the 6th Amdt. violation.
If prosecution can est. that the info ultimately or inevitably would have been
discovered by lawful means, then the deterrence rationale has so little basis
that the evidence should be received
ATTENUATION (DISSIPATION OF TAINT) Wong Sun v US (1963): EVEN IF certain evidence is
causally tied to an earlier illegality, at some point the fruit from the tree is sufficiently untainted so as
to be admissible at trial.
Generally: 1. Identify constitutional violation; 2. Identify the evidence govt. seeks to
introduce; 3. Determine whether (2) comes from (1) causal link; 4. If there is a causal
link, identify any facts that may justify the conclusion that the link is too attenuated to
be harmful
o E.g., if the name Sandra was obtained unlawfully, but months later, Sandra decides
she wants to help with investigation, her fruit is too attenuated to be suppressed.
4 factors used to determine when the connection is sufficiently attenuated:
o 1- Length of time between initial illegality & seizure of fruit in question
o 2- Flagrancy of initial misconduct dissipation of bad-faith violations takes longer
o 3- Existence or absence of intervening causes of the seizure of the fruit
o 4- Presence or absence of an act of free will by the defendant resulting in the
seizure of the fruit

Criminal Procedure King Fall 2014 Dressler Casebook

INTERROGATION LAW

DUE PROCESS: VOLUNTARINESS REQUIREMENT

Due Process Clause (5th & 14th) prohibits the admissibility of involuntary
statements
Rationales for constitutional protection during interrogation:
o Prevent unreliable evidence
Factual accuracy of statements made in conditions of extreme duress is
problematic want to use only statements that demonstrate some minimal
level of freedom/voluntariness on the part of the accused
Reduce risk of false confessions & of convicting innocent persons
o Deter police misconduct / torture
Involuntariness requires some sort of STATE ACTION (official overreaching)
o Colorado v Connelly: C had chronic schizophrenia & took directions from voice of
God, which told him to fly from Boston to Denver, and in Denver, told him to confess
to unsolved murder or commit suicide. Undisputed that he confessed because his
choice was to do so or kill himself. Held: Voluntary for DP purposes.
Regardless of state misconduct, there MUST be a link between the coercive
activity & the confession as a result of that coercion.
Dissent: state action or not, the involuntary confessions are unreliable
Counterargument: this is not a matter of constitutional law this is a
matter for the rules of evidence to address

Torture & Confessions:


Rationale for suppression based on morality
Hector (A slave) v State (Mo. 1829): H repeatedly flogged and whipped all night until
he confessed to a burglary. Counsel moved to exclude testimony of one to whom hed
confessed who had gone to his aid, on grounds that Hs confession wasnt
free/voluntary but extorted by pain. Court refused + also permitted evidence of the
other confessions, with instruction that jury could only consider confessions it thought
voluntary. Held: Jury instruction was error.
o Whether a confession is sufficiently free & voluntary is a matter of law not
up to the jury.
Brown v Mississippi (1936): 3 black guys accused of homicide & were tortured until
they confessed to the crime. Everyone involved actually acknowledged these events,
only to deny them later. Pre-incorporation, Court reached its decision under the DP
Clause:
o Methods taken to procure confession here completely offensive to our sense of justice
use of the confessions obtained as the basis for conviction was fundamentally
unfair
o Conviction & sentence void for want of due process exclusionary rule is part of
the right enforced by the DP clause.
Use of torture in emergency situations (particularly post-9/11):
o If deterrence is the rationale for exclusion of involuntary statements, it is not likely to
be served in ticking time bomb interrogation situations
o If accuracy or morality are the reasons for exclusion, then torture is objectionable
regardless of the reason for its implementation

Criminal Procedure King Fall 2014 Dressler Casebook

INTERROGATION WITHOUT TORTURE:


Involuntariness factors
o Characteristics of the suspect: background, age, etc.
o Morality of police conduct (to the extent voluntariness is a normative inquiry)
Lisbena v California (1941): J suspected of killing his wife. Was held in custody for 2 days prior to
being arraigned, without counsel. He was slapped but no threats were made and he didnt incriminate
himself. 11 days after initial interrogation, another man, Hope, was arrested for the murder & made
statements incriminating J. At this time, J was removed from jail & again questioned for over 12hrs
without his atty. present. He confessed & named H as the mastermind. J claimed that officer
threatened to beat him, but state argued that J confessed after officer agreed to take him out to eat.
Held: not fundamentally unfair for trial court to have admitted the confession.
Not the type of coercion that amounts to fundamental unfairness: he admitted that he
wouldnt have confessed if H didnt implicated; he wasnt threatened or beaten during
the questioning; & he had full opportunity to seek (and did seek) advice of counsel.
Confession excluded if involuntarily made because inherently untrustworthy. Purpose
of the exclusionary rule is to exclude false confessions
Spano v New York (1959): S was badly beaten & robbed; went to get a gun & shoot the guy in a store,
with 1 eyewitness. He told his friend B, who was training to be an officer, & told him he was going to
get an atty. & turn himself in. Atty. told S not to answer any Qs when left in custody with police.
Questioning lasted for 5hrs, with S refusing to answer any Qs & requesting his atty. He was
transferred to another station & questioning resumed. Police called in B & told him to elicit sympathy
by telling S that B would be in a lot of trouble & that he was worried about his family. After 4 separate
attempts, S finally agreed to make a statement, to which 3 DAs testified at trial. Held: conviction
overturned; method of procuring confession violated 14th Amdt.
Factors: S was foreign-born, 25, little education, & emotionally unstable. He was
questioned for 8hrs straight, overnight, by multiple men. Use of his childhood friend to
falsely elicit sympathy was a big factor. In the end didnt make a narrative statement
but answered leading Qs of prosecutors.
Damage to society of involuntary confession is based on the notion that police must
obey the lawand law enforcement is aware of the burdens they must meet
Arizona v Fulminante: informant targeted fellow inmate suspected of murdering stepdaughter,
seeking to get him to confess. F repeatedly refused. When informant told him youve been getting
threats, I can protect you but you have to tell me what happened, F finally confessed. Court
overturned conviction: found his confession was coerced based on credible threat of violence & offer
to protect (close case though).
Dissent: At no time did def. indicate that he was in fear of other inmates, nor did he
seek informants protection. Since F was unaware that S was a govt. informant, there
was no police coercion because fellow inmate had no obligation to protect him anyway.
F was experienced & fully able to fend for himself.

5 T H AMDT. PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

NO PERSONSHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST


HIMSELF

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o
o

5th Amdt. violation only occurs when the compelled testimony is used in a
criminal case against the person
Primary purpose of the rule is to prevent cruel trilemma of either incriminating
yourself, being placed in contempt, or perjuring yourself
Concern is criminal trial but it does have some relevance outside of that (e.g. grand
jury)
Witnesses may be compelled to testify before grand juries if given use &
derivative use immunity (Kastigar v US)
Privilege is a bar against communications/testimony real or physical evidence
does NOT violate 5th Amdt.
Schmerber v California: S argued that by being forced to give blood he was compelled
to be a witness. Court rejected the claim.

Chavez v Martinez (2003): M was a suspect who was shot by police & the wound resulted in
permanent paralysis & loss of vision. He was repeatedly questioned at the hospital & kept refusing &
begging for medical treatment. Finally admitted to grabbing cops gun, but the answers were never
used against him, as he was never charged with a crime. He sued under 1983, arguing violation of 5 th
& 14th Amdt. right to be free from coercive interrogation.
Held: NO remedy covered by the 5th Amdt. His statements were never admitted against
him in a criminal trial, so he was never compelled to testify as a witness against
himself. Court refuses to extend criminal case to cover the entire criminal
investigatory process (i.e. interrogations)

MIRANDA

1966. Four cases, all involved a confession without physical coercion. Defendants were
held incommunicado, interrogated in a police-dominated atmosphere. Police controlling
their environment & they had no access to the outside world.
CUSTODIAL INTERROGATION = questioning initiated by law enforcement after an
individual has been taken into custody or deprived of their freedom in any significant
way.
Law enforcement NOT required to warn you during every interaction:
Consensual interactions not barred
Interactions outside of custody are not barred
Real action is not at the mansion (courthouse) but at the gatehouse (police
interrogation). 5th Amdt. Privilege is meaningless if it cannot be invoked when it is most
needed (i.e. irrelevant at trial if youve already incriminated yourself outside the
courtroom)
Warning requirement is a reasonable burden to impose & meant to completely
eliminate inquiry into individuals subjective knowledge. Due process issue is less
problematic when the inquiry is limited to: warning or waiver?
Until Cong./states establish alternative procedures to protect these constitutional
rights, Miranda will be the law (i.e. may be supplemented as long as the new law is
effective at safeguarding)
Illinois v Perkins (1990): Encounters between suspects & undercover officers are NOT
subject to Miranda. Warnings arent required when the suspect is unaware that he is
speaking to law enforcement & gives a voluntary statement such conversations do

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not implicate concerns underlying Miranda (police-dominated atmosphere &
compulsion). Coercion is determined from the perspective of the suspect.
CHECKLIST FOR MIRANDA:
1. Triggering mechanism: custody & interrogation treated as 2 independent
requirements
NOT implicated by consensual interactions or interactions outside of custody
2. If triggered, warnings requiredbut may be waived
CAN get valid waiver after invocation of right to silence
CANNOT get valid waiver after invocation of right to counsel Edwards rule
3. If warnings: (a) are not given when required; or (b) are given but a valid waiver is not
secured: suspects statements to police are generally inadmissible. Exceptions:
Circumstances where police dont have to give the warnings before custodial
interrogation?
o Public safety exception: questions reasonably prompted by concern for public safety
does NOT depend on individual officers motive. (Quarles)
Circumstances where remedy for violation does NOT require total exclusion
of the Miranda-less statement?
o Impeachment
o Fruits of Miranda violation: any subsequent, informed (post-Miranda) statement
generally admissible
BUT: Where circumstances dont support that warnings couldve effectively
served their purpose, post-warning statements inadmissible. (Seibert)
Status of Miranda:
Confession taken in violation of Miranda CAN be used to impeach defendants
testimony if he testifies at trial. (Harris v NY, 1971)
o Recall: evidence taken in violation of 4th Amdt. may be used to impeach defendants
testimony
o BUT: Defendants compelled statements (as opposed to those taken in violation of
Miranda) may NOT be put to ANY testimonial use against him in a criminal trial
Violation of Miranda does NOT constitute a violation of the underlying 5 th
Amdt. right itself
o Michigan v Tucker (1974): T was interrogated before Miranda decision, but trial took
place afterwardat which evidence offered was not statements by T but by a witness T
named in interrogation to substantiate his alibi. Court denied that a constitutional
violation had occurred.
Miranda merely supplies prophylactic standards to safeguard the 5th Amdt.
privilege.
Court balanced:
1- additional deterrence that would result from forbidding witnesses to
testify, given that Ts statements were suppressed; vs.
2- value of having all relevant & trustworthy evidence presented to jury
PUBLIC SAFETY EXCEPTION: Miranda warnings not strictly required where police ask questions
reasonably prompted by a concern for public safety does NOT depend on individual officers
motive
In such situations, do NOT want to deter suspects from responding answer not
sought purely to build a case, but instead to insure against further danger to the public

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Cost to society would be too large to require individual police officers to conduct
private balancing test in the heat of the moment
Narrow exception in each case circumscribed by the exigency justifying it
NY v Quarles (1984): woman approached police on patrol, told them shed just been raped. Described
the guy in detail & said he had a gun and had just entered a grocery. Officer went in; when Q saw him
he ran to the back. Officer caught up to him, frisked him, & discovered an empty holster. Asked Q
where the gun was & Q nodded and said the gun is over there. O went to get it, arrested him, &
read him his Miranda warnings. Q agreed to speak without an atty. & told O that he owned it and
where he got it. Trial judge excluded the gun, the gun is over there, and the remaining statements
as fruits of violation. Held: exigencies justified exception to Miranda requirement. All statements
should have been admitted, because no violation occurred.
Failure to provide warnings in & of itself doesnt make a confession involuntary.
Compulsion is a distinct concept.
FRUITS OF MIRANDA VIOLATION: GENERALLY Admissibility of any subsequent, informed (postMiranda) statement should turn SOLELY on whether it is knowingly & voluntarily made.
Miranda exclusionary rule is broader than 5th Amdt. presumption of compulsion allows
it to be triggered even absent 5th Amdt. violation. Inappropriate to extend Miranda to
undermine suspects later voluntary & informed waiver.
Oregon v Elstad (1985): 18yr old implicated in home burglary. Police went to his house with an arrest
warrant, told him why they were there, and he said I was there. Later at the station they read him
Miranda warnings & he said that he understood his rights & wanted to speak to the officers. He gave
a full statement, which he reviewed and signed. State conceded he was in custody when he made the
statement at home, so it violated Miranda and was properly excluded.
Held: Absent deliberate coercion/improper tactics in getting the initial
statement, subsequent post-Miranda statements are NOT tainted by
presumption of compulsion
Missouri v Seibert (2004): Crazy family who burned mentally ill child in motor home. Police protocol
whereby police would conduct interrogation until a confession was procured, THEN would issue
Miranda warnings & seek to get confession again. Issue regarding admissibility of the 2 nd confession.
Held: Where circumstances do not support that warnings could have
effectively served their purpose, post-warning statements inadmissible.
Distinguished Elstad: Reasonable person in Elstads shoes could have seen the station
house questioning as a new & distinct experience, such that warnings offered a
genuine choice whether to follow up on the prior admission. FACTORS:
o Completeness & detail of the Q&A in the first round of interrogation
o Overlapping content of the 2 statements
o Timing & setting of the first and second
o Continuity of police personnel
o Degree to which interrogators questions treated the second round as continuous of the
first
Note: Miranda-violation does NOT require suppression of the physical fruits of a
confession

CUSTODY

CUSTODY = freedom of action restricted in a significant way

Oregon v Mathiason (1977): M suspected of burglary while on parole. Police left a card at his house
asking that he call, and when he did, they asked him to come in to talk. He went to the station & was

Criminal Procedure King Fall 2014 Dressler Casebook


told he wasnt under arrest; they told him he was a suspect & that they would take honesty into
consideration; they LIED and told him they found his prints, & he confessed. Then was read his
warnings & officer procured a taped confession. Afterward they let him go. HELD: NOT in custody for
purposes of Miranda.
ANY interview of a suspect could be deemed coercive because police may ultimately
charge him with a crimebut Miranda is not a requirement every time police question
someone
Here: came voluntarily; told he wasnt under arrest; & left without hindrance 30min
later. Irrelevant that they lied about evidence.
Dissent: he was a parolee cannot say he didnt feel coerced.
NOTE: Interview that begins as a voluntary appearance + assurances of no arrest can become
custody over time.
Berkemer v McCarty (1984): M pulled over after swerving. Asked out of the car, at which point officer
decided hed be charged with a traffic offense. Failed field sobriety & in response to Q, told officer he
had some beers and joints. At the station, no alcohol showed in his system. Was asked if the weed
was laced with anything & he wrote and signed no angel dust or PCP. Was never Mirandized.
Roadside questioning of a motorist detained pursuant to a traffic stop NOT a
custodial interrogation for purposes of Miranda. Although freedom briefly
restricted (considered a Terry seizure), NOT the type of situation Miranda was
concerned with.
o 1. Traffic stop detention presumptively temporary & brief (usually only a few min. of Q
then citation)
o 2. Circumstances not such that motorist feels completely at mercy of police (public
situation)
Miranda applies once motorist is thereafter subjected to treatment that renders him in
custody to a point associated with formal arrest

INTERROGATION
Miranda required whenever a person in custody is subjected to express questioning or
its functional equivalent.
FUNCTIONAL EQUIVALENT = any words or actions on the part of police (other
than those normally attendant to arrest & custody) that the police should
know are reasonably likely to elicit an incriminating response from the
suspect.
Objective test: Should officer have realized that his actions or words were reasonably
likely to result in a statement from the suspect?
o Where police have special knowledge about the effect on a particular arrestee of a line
of statements, that could be sufficient
Rhode Island v Innis (1980): Innis arrested in connection with a murder, but the gun had not yet been
found. He was Mirandized & invoked his right to counsel before being taken into the station. In patrol
car, the 2 cops spoke to each other about how theres a handicapped school in the neighborhood, and
how it would be a shame if a little girl came upon the gun & accidentally killed herself. Innis
interrupted them & told them to turn around so he could show them where the gun was. HELD: Innis
not interrogated functional equivalence test not met.
Nothing suggested the officers should have known he was:

Criminal Procedure King Fall 2014 Dressler Casebook

o
o

Particularly susceptible to appeal to conscience regarding safety of handicapped kids;


or
Unusually disoriented or upset at time of arrest
Subtle compulsion to respond is not functionally equivalent to
interrogation

WAIVER & INVOCATION OF RIGHTS

PRESUMPTION (from post-Miranda silence) that defendant did not waive his
rights. High burden for prosecution to meet, but in some cases waiver may
be clearly be inferred from the actions + words of the person being
interrogated
Question is whether defendant knowingly & voluntarily waived his rights.
NO per se rule requiring express waiver Finding of waiver must be based on the
circumstancesincluding background, experience, & conduct of the accused

Edwards v Arizona (1981): E arrested & warned. Said he understood & was wiling to answer
questions. Was told someone else implicated him. He wanted to make a deal but said he would need
an atty. first. They stopped questioning but the next morning came to talk to him again. Mirandized
him again & allowed him to hear accomplices statement. He said hed make a statement as long as
it wasnt tape recorded. Later moved to suppress confession on grounds that Miranda rights were
violated when questioned after he invoked right to counsel.
When accused has invoked right to have counsel present, a valid waiver of
that right CANNOT be established by showing only that he responded to
further police-initiated custodial interrogation, even if again advised of his rights.
Accused who has invoked right to counsel is not subject to further
interrogation until counsel is made available UNLESS he himself initiates
further communication, exchanges, or convo with police.
Minnick v Mississippi (1990): M told agents come back Monday when I have a lawyer. M consulted
with atty. a few times. Police came, Mirandized him, & he declined to sign waiver but answered Qs.
Held: statements inadmissible.
Once a suspect invokes his right to counsel, police may not reinitiate interrogation in
the absence of counsel.
Request for counsel MUST be unambiguous before Edwards applies. Davis v US: hr. into
the interview, he said maybe I should talk to a lawyer. Had him clarify whether he was asking for a
lawyer, or just contemplating. He said no, I dont want a lawyer. They spoke for another hr. then he
stopped again & said I want a lawyer.
HELD: First statement not an invocation of the right. Merely a recognition of his rights.
Berghuis v Thompkins (2010): T suspected in shooting. Police went to interrogate him. Had him
read the printed Miranda form, and had him read the 5th line out loud to test his literacy. Then read
him the rights. He didnt sign the form. Questioned him for awhile, he was pretty quiet, sporadically
giving one-word answers. Stayed silent for awhile, then the following line of Qs ensued:
Q: do you believe in God? A: yes
Q: do you pray to God? A: yes
Q: do you pray to God to forgive you for shooting that boy? A: yes

Criminal Procedure King Fall 2014 Dressler Casebook

Court implied waiver: he could read; no indication that he didnt understand his rights;
he was read his rights he gave these monosyllabic responses; last line of questioning
IF HE WANTED TO STAY SILENT OR TO EXPLICITLY INVOKE HIS RIGHT, HE COULD
HAVE DONE EITHER. Response to the question about shooting the boy was enough for
the court to find that he waived his right.
CAN PROVE WAIVER (+ UNDERSTANDING OF RIGHTS) IMPLICITLY: Its
acknowledged that silence alone wont dobut silence plus may suffice.

NOTE: You CAN get a valid Miranda waiver after an individual invokes their right to silence .
Invocation of the right to silence is NOT the same as invoking the right to counsel.
Invocation of the right to counsel is far stronger CANNOT waive it
subsequent to invocation
o Invocation indicates that the accused doesnt feel confident talking to police without an
atty.
o Invocation of right to silence indicates that the accused doesnt feel confident speaking

6 T H AMDT. RIGHT TO COUNSEL


ELICITING STATEMENTS IN THE ABSENCE OF COUNSEL:
Massiah v US (1964): M indicted under fed narcotics laws. Got a lawyer, plead not guilty & released
on bail. Few days later, co-def. C decided to cooperate with police in continuing investigation. C
allowed agent to install radio transmitter under front seat of Cs car. Prearranged with agent to listen
to a convo with M. Incriminating statements were admitted against M through agents testimony, & M
was convicted.
Held: M was denied basic protections of 6th Amdt. guarantee when there was used
against him at his trial his own incriminating statements, which fed agents deliberately
elicited from him after he had been indicted & in the absence of counsel. Here, he was
more seriously imposed upon because he didnt even know that he was under
interrogation by govt.
DELIBERATE ELICITATION:
US v Henry: H indicted for bank robbery & held in jail. Agents contacted inmate N, who
had been working as a CI. N testified at trial that H told him about the robbery.
o Instructions given to N by agents: be alert to statements that H made re his charges;
dont question H about the charges; dont initiate convo with H re the robbery; BUT, if
H initiated the convo, pay attn. to the info furnished.
o Held: DELIBERATE ELICITATION. (Broad reading). Reason for treating this the same as
Massiah:
Accused speaking to known govt. agent generally aware that statements may
incriminate him
Not the case with fellow inmate acting by prearrangement as a govt. agent
Kuhlmann v Wilson: similar facts as Henry, only here claim is that police didnt set up
informant to interrogate/ elicit anything. 6th Amdt. does not block all incriminating
statements. Informant here was merely acting as a listening post.
o NO deliberate elicitation if NO questioning that looks like police have substituted
someone else in to interrogate. (BUT, Henry still good law).
MASSIAH WAIVER:

Criminal Procedure King Fall 2014 Dressler Casebook


Brewer v Williams (1977): W murdered a girl at YMCA. Wrapped up the body & drove away. Disposed
of body somewhere & wound up 160mi away. Turned himself in there. Meanwhile, atty. visited local
police & informed them of his surrender. This atty. tells police not to interrogate him on the ride back
to Des Moines. While in Davenport, his atty. there also instructs police not to question him. Police
wouldnt let atty. ride in the car with them. W was mentally ill and very religious. On the way, gave
him Christian burial speech. Eventually on the trip he led them to the body.
6th Amdt. right to counsel attaches at the start of the criminal processonce
some formal document/ charge/etc. has been levied, the accused has a right to have
counsel present.
Held: W did NOT waive his 6th Amdt. right. Majority emphasized his constant &
repeated consultation with counsel, both in Davenport & Des Moines.
Patterson v Illinois: Indicted for gang murder; transferred to county jail. Asked officer who else was
indicted, officer told him, & he said why wasnt X indicted, he did everything. Officer stopped him &
Mirandized him, then P continued to give full incriminating statements.
Individuals CAN waive 6th Amdt. right to counsel. NO distinction here between
post-Miranda interrogation & post-indictment interrogation.
6th Amdt. is NOT superior to or more difficult to waive than 5th Amdt. counterpart.
Montejo v Louisiana: OVERRULED Jackson, which had imported Edwards rule to 6th Amdt. context.
Costs outweigh benefits when it creates a prophylactic rule to protect Const. right,
must balance.
6th Amdt. creates NO broader right to counsel during interrogation than
Miranda provides. NOT barred from approaching someone & obtaining info until the
person has explicitly requested counsel.
o If accused is in custody at the time, & therefore properly informed of Miranda
rights, he may
1. Assert Miranda right to counsel Edwards applies; OR
2. Voluntarily & knowingly waive Miranda rights valid waiver of 6th Amdt. right
to counsel
DIVERGENCE MASSIAH & MIRANDA:
McNeil v Wisconsin (1991): arrested in Omaha. Police came to pick him up & take him back to
Milwaukee. He refused to speak on the way. Was represented by a public defender. Was visited in jail
by a detective & questioned about another set of crimes.
6TH AMDT. IS OFFENSE-SPECIFIC. FACT THAT YOU HAVE INVOKED THE RIGHT WITH
REGARD TO CRIME X HAS NOTHING TO DO WITH YOUR RIGHTS RESPECTING CRIME Y.
Texas v Cobb: Court adopts BlockburgerDouble-Jeopardy test for determining what
constitutes the same offense: As long as at least ONE element in one of the 2
crimes is not an element of the other, the offenses are not the same for
purposes of the 6th Amdt.
o Ex: Indicted for burglary, questioned about a murder & confessed. No one has to die to
be charged with burglary NOT protected by 6th Amdt. as to murder offense.
Kansas v Ventris (2009): After heavy drug use for 2 days, V confronts a guy who owed him a lot of
money and ends up killing him. Friend who helped transport him to the guys house ends up telling
police; police strike a deal with Vs co-defendant to testify against him. Henry-type violation occurred

Criminal Procedure King Fall 2014 Dressler Casebook


& Court accepts that as a violation. Then V takes the stand & says that co-defendant was lying.
Prosecution seeks to put informant on the stand to impeach him.
Issue: Whether you can use info that court accepts as a 6th Amdt. violation to impeach
defendants testimony.
o May do so with both 4th Amdt. and Miranda (5th Amdt.) violations
HELD: Defendant may be impeached with info obtained from 6th Amdt.
violation. Real core of 6th Amdt. is about the denial of counsel at trial. Admitted that it
applies outside the courtroombut there are limits. Will not allow someone to
undermine the truth-seeking process by taking the stand & lying. This action is NOT
protected by Massiah.