Criminal Procedure Outline

4th A – Protected Areas & Interests.………………………………………………………………………………………………………………………………….2

Probable Cause…………………………………………………………………………………………………………………………………………………………………3

Search Warrants……………………………………………………………………………………………………………………………………………………………….4

Warrantless Arrests & Searches of the Person….………………………………………………………………………………………………………………6

Warrantless Entries & Searches of the Premises…………………………………………………………………………………………….…………………7

Warrantless Seizures & Searches of Vehicles/Containers………………………………………………………………………………………………….8

Stop & Frisk………………………………………………………………………………………………………………………………………………………………………9

Consent Searches (Waiving 4th A Protections)…………………………………………………………………………………………………………………10

Undercover Investigations……………………………………………………………………………………….....………………………………………………….11

Network Surveillance………………………………………………………………………………………………………………………………………………………12

Exclusionary Rule…………………………………………………………………………………………………………………………………………………………...12

Police Custody & Miranda…………………………………………………………………………………………………………………………………….…………13

Privilege Against Self-Incrimination…………………………………………………………………………………………………………………..….…………14

Police Interrogation & 6th A Right to Counsel………………………………………………………………………………………………………………….15

Attenuation…………………………………………………………………………………………………………………………………………………………………….17

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Fourth Amendment – Protected Areas & Interests

1. Exclusionary rule: 4th A violations should result in exclusion of evidence at trial (Mapp v OH)
2. Protected interests
a. Reasonable expectation of privacy
i. Katz: 4th A protects conversations that have a reasonable expectation of privacy. Physical
intrusion is unnecessary. 4th A protects people not places.
ii. Bond: 4th A protects against warrantless “exploratory” feeling of a bag handled on a bus but not
incidental handling.
iii. Jones: 4th A there is at least some REP for vehicle’s movement on public thoroughfares and
trespass onto personal property.
iv. Two elements
1. Subjective: a certain individual’s opinion that certain location or situation is private;
varies greatly from person to person
2. Objective: an expectation of privacy generally recognized by society.
v. What is a search? two-part inquiry to decide if an invasion by the government qualifies as an
unreasonable search under the Fourth Amendment:
1. has the defendant manifested a subjective expectation of privacy in the object of the
challenged search?
2. is society willing to recognize that expectation as reasonable?
b. Enhancing the senses:
i. it is generally not a search for an officer to detect something by one of his natural senses if
lawfully present.
ii. Same is true if officer is using common means to enhance senses e.g. flashlight or binoculars.
3. Protected areas
a. Property
i. Jones: warrantless installation of a GPS tracking device constituted unlawful search under 4th A.
ii. Trespass doctrine: Trespass to property (including a car as in Jones) is seen as a baseline – need
warrant
b. Home
i. Kyllo: 4th A’s protection of home has never been tied to measurement of the quality or quantity
of the information obtained about the inside of the home.
ii. Cutilage: immediate area around home afforded 4th A protections but less so for commercial
structures or multi-unit dwellings.
iii. Jardines: the front porch of a home is part of the home itself for 4th A purposes so bringing a
drug sniffing dog to front door without a warrant was unlawful search in violation of 4th A.
c. Garbage
i. CA v Greenwood: warrantless police seizure of garbage placed on curb not a 4th A violation since
garbage was sufficiently exposed to public was intended to be conveyed to a 3rd party.
ii. No expectation of privacy in garbage even if contents were attempted to be destroyed.
d. Surveillance from outside curtilage
i. FL v Riley: surveillance of partially covered greenhouse in a residential backyard by a helicopter
poses no 4th A issue since any member of public could have been flying over and seen it.
ii. Kyllo v US: use of technology not in use by general public to enhance senses (thermal imaging) in
order to obtain info regarding the interior of the home that could not have otherwise been
obtained without physical intrusion constitutes a search.
4. Standing – ARE THERE PASSENGERS IN THE CAR OR GUESTS IN THE HOUSE FOR HYPOS
a. Automatic
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 i. Ownership, possession of place searched,
ii. place search was D’s home, regardless of ownership of possession
iii. d is overnight guest
b. Sometimes
i. D owns property seized
ii. D was legitimately present when item was searched
c. Never
i. Lacking reasonable expectation

Probable Cause

1. To search, police must have PC to believe there is—now, at the time of the search—evidence of a crime or illegal
goods at the place being searched
a. It is NOT necessary to believe the person who owns or possesses the place has committed a crime
2. To arrest (a seizure), however, the officer must have PC to believe the person arrested has committed a crime
a. It is NOT necessary for the officer to believe the person is presently committing a crime or that he
possesses evidence or illegal goods
3. “Substantial basis”
a. Anonymous tips
i. IL v Gates: Where an anonymous tip is corroborated with actual police findings, a “totality of the
circumstances” approach is an appropriate way of determining probable cause
ii. The informant’s “credibility/reliability” and “basis of knowledge” are to be used as guides when
considering totality of the circumstances. They are not exclusive requirements to be applied in
every case (Gates).
iii. Police can’t give a conclusory statement to a magistrate and expect it to be enough. Magistrate
needs “substantial basis” for concluding a search would uncover evidence of wrongdoing.
iv. McCray v IL: law enforcement need not invariably be required to disclose an informant’s identity
if the trial judge is convinced by evidence that the officers did rely in good faith upon credible
information supplied by a reliable informant.
b. Affidavits
i. Upton v MA: police officers’ affidavits were sufficient for magistrate to conclude there was a
“substantial basis” for a warrant
c. Drug sniffing dog
i. FL v Harris: evidence of a dog’s satisfactory performance in a certification or training program
can itself provide sufficient reason to trust dog’s alert
4. Warrantless arrests and searches
a. Still require probable cause
b. PC for search and PC for arrest require different conclusions
i. For arrest: there must be a substantial probability that a crime has been committed and that the
person to be arrested committed it.
ii. For searches:
1. there must be a substantial probability that certain items are the fruits,
instrumentalities or evidence of crime and that these items are present to be found at a
certain place
2. Has to do with present location of certain objects which puts facts given at risk of
becoming stale.

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 c. MD v Pringle: warrantless arrest of a passenger in a car driver by car’s owner in which cocaine was found
in glove compartment and behind back seat armrest not a 4th A violation since a reasonable officer could
conclude that there was probable cause to believe D committed the crime of possession.
d. Brown v US: SITA upheld despite numerous discrepancies between the lookout description and the
individual arrested. Discrepancies can be the result of victim’s excitement/poor visibility/suspect
changing clothes etc. so probable cause was not destroyed since the ascertainment was made on the
basis of the accurate portion of the ID by the victim.

Search Warrants

1. Generally
a. Issued by neutral and detached magistrate
b. Description of place – enough if description is such that officer with warrant can with reasonably effort
ascertain and identify the place intended
i. Urban: Street address
ii. Rural: less particularity okay
c. Description of things to be seized
i. Prevent general searches
ii. Prevent issuance of warrants on loose, vague or doubtful bases of fact
d. Pervasive fraud doctrine: uphold an all records search warrant where the affidavit supporting it
demonstrates a pattern of illegal conduct that is likely to extend beyond the conduct already in evidence
and infect the rest of the company’s business
e. Groh v Ramirez: a warrant needs to incorporate the supporting documents – the fact that an application
for a warrant adequately described the things to be seized does not save the warrant if it is facially
invalid.
f. Preference for warrants
i. Police must whenever practicable obtain advance judicial approval of searches and seizures
ii. Warrantless searches of vehicles generally more likely to be okay due to diminished expectation
of privacy
2. Sneak and peek warrants
a. Police must notify occupants of residence in reasonable time of search having happened
b. Warrant must detail specific method of search to be used and police must demonstrate that this
method is necessary for some particular reason
3. Execution of warrant
a. Time: statutes and court rules commonly provide that a search warrant may be executed within a
certain amount of time
b. Gaining entry
i. Knock and announce rule
1. Wilson v AR: law enforcement can break open doors but usually need to announce
presence & authority
2. Gives occupant a chance to answer and protect door from destruction as well preserve
dignity
3. No categorical exemptions ot the rule – must be on case by case basis
4. When can police enter if no one answers door? When exigency develops to prevent
“undesirable event”
ii. No knock entry: police must have reasonable suspicion that knocking and announcing presence
would be dangerous or futile or inhibit effective investigation of the crime

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 iii. US v Banks: occupant needs a reasonable amount of time to answer the door but if police claim
exigent need to enter then the crucial fact is not the time to reach the door but the particular
exigency claimed.
4. Search of persons on the premises (Ybarra v IL)
a. A person’s mere propinquity to other independently suspected of criminal activity does not without
more give rise to probable cause to search that person
b. Even less expectation that when someone is in a business that they should be subjected to a search.
What’s going on with the business not necessarily imputed on unknowing customers.
c. More expectation of imputation to others in a private home.
5. Detention of persons on or near the premises
a. MI v Summers: search of D’s person upheld while police executed search warrant of D’s home. Intrusion
onto D’s person was limited and justified by substantial law enforcement interests.
b. Bailey v U.S.: search of D’s person unconstitutional since D was a mile away from home which was
subject to a search warrant when detention occurred. No plausible threat to officer safety. Must be a
connection between detention and flight risk.
c. Muehler v Mena: no 4th A violation where occupants handcuffed on premises for 2-3 hours while search
taking place.
6. Exceptions to warrant requirement
i. Plain view exception
1. Test
a. Officers must be legally present
b. Incriminating nature of evidence must be readily apparent
ii. Regulatory administrative
1. Booking Search at jailhouse
iii. Automobile Exception
1. Allows police to car without a warrant if they have probable cause to believe that car contains
evidence of criminal activity. Can search trunk.
2. Can search entire vehicle and open any container that reasonabely is believed to contain the item
3. Applies to mobile home
iv. Inventory Search
1. When booked into jail and vehicle being impounded
2. Must comply with reasonable regulations
3. Search conducted in good faith
4. Search motivated by ensuring that items do not get lost, theft, vandalism
v. Stop and Frisk
1. See second tier
2. Ordinary traffic stop
3. If cop believes suspect is a danger or feels like he is in danger , can search area within immediate
control of suspect
vi. Exigent circs
1. Preservation of evidence
a. Schmerber – blood test DUI
b. Rochin – cant induce vomiting
c. McNeely – there needs to be a warrant to get blood test
i. Reaffirms Schmerber. – could be circs that warrant is needed
ii. Must be a warrant
iii. If there isn’t a warrant it is a case by case inquiry
iv. Dissipating BAC is not enough to grant a warrant
2. officer safety
3. emergency aid to prevent injury
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 vii. Consent
1. Consent must be voluntary and intelligent
a. State has burden to show it wasn’t coerced
2. Must have authority to consent
3. Apparent authority is still valid
4. Objecting co-resident may block consent if present
5. Coparties can consent to search the common area
viii. Arrest (Search Incident to Arrest)
1. Lawful arrest
2. Person cannot be removed in time or place (AZ v Gant)
3. Person/immediate control
a. Including areas traversed)
4. CARS – can search interior of car
a. Containers
b. Cannot do this once in custody
c. Reasonable belief that vehicles contain evidence of arrest offense
5. Justifications
a. Officer safety
b. Destruction of evidence
ix. Sweep
1. Protective sweep
2. Police can sweep residence to find accomplices or people who threaten safety.
3. Same as terry/search incident to arrest
x. Hot pursuit
1. Gotta be real hot
2. 15 minutes minutes behind the felon is okay

Warrantless Arrests & Searches of the Person

1. Arrests
a. Custodial arrest – 4th A permits warrantless custodial arrests upon finding of probable cause for
i. Felonies (Watson)
ii. Misdemeanors
iii. Minor traffic/trivial offenses (Gustafson)
iv. When state law mandates summons in lieu of arrest (yet officers choose to arrest)
b. Misdemeanor arrests – power of police to make warrantless arrests has two limitations
i. That the offense have occurred in officer’s presence
ii. That the offense constitute a breach of the peace
iii. Atwater v City of Lago Vista: 4th A does not forbid warrantless arrest for a minor criminal offense
such as a misdemeanor seatbelt violation punishable only by a fine if the officer has probable
cause
c. US v Watson: A govt official may make a warrantless arrest of a person if there is probable cause to
believe the person is guilty of a felony
2. Searches
a. AZ v Grant: strong preference for searches with warrant except for a few well delineated exceptions
b. Exigent searches can serve as exception to warrant requirement
c. Search Incident to Arrest warrant exception
i. US v Robinson: officer’s SITA for driving w/o a permit which revealed drug possession was not a
4th A violation since it was done for officer safety (looking for weapons)

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 ii. VA v Moore: existence of probable cause gives arresting officer the right to perform a
reasonable search of the accused to ensure the officer’s safety and to safeguard evidence
iii. Chimel:
1. exception to warrant requirement when a search is incident to a valid arrest
2. the scope of a warrantless search must be commensurate with the rationale that
expects the search from the warrant requirement
3. a warrantless SITA must be limited to the area into which an arrestee might reach.
iv. Buie: cursory inspection of adjoining areas is fine so long as officer has reason to suspect that
there might be another person on premises that could present a danger
v. Knowles v IA:
1. full stopped car searches can only be conducted when the safety of the officers is at risk
2. Full search can happen only if officer arrests subject in response to possible or actual
threat
d. Riley v CA: can’t search cell phone’s contents as incident to arrest – need a warrant.
e. At police station:
i. Full searches okay at this point
ii. Considered a delayed Robinson SITA
f. Blood/DNA testing
i. Schmerber:
1. warrantless blood sampling to determine BAC in a suspected DUI case may not 4th A
violation since body metabolizing the alcohol creates an exigent circumstance.
2. We now assess DUI exigency on case by case basis. BAC dissipates at a predictable rate
so we can figure out what BAC was earlier without a ton of trouble.
ii. McNeely v MO: there is no categorical rule on warrantless BAC testing. Can only do it if there are
specific exigent circumstances.
iii. MD v King: conducting a DNA swab as part of the arrest procedure does not violate 4th A
because the rest serves a legitimate state interest and does not require a warrant – DNA tests
part of SITA exception
g. Strip search - Florence v Board of Chosen Freeholders:
i. strip searches for inmates entering gen pop of a prison not a 4th A violation (even for minor
offenses)
ii. Important though that the prison has a general strip search policy
h. Pre-text vehicle stops (Whren v US)
i. Warrantless public arrest does not require exigency -just probable cause
ii. As long as officers have reasonable cause to believe that a traffic violation occurred, they may
stop any vehicle
iii. The ensuing search and seizure of the offending vehicle does not violate 4th A as long as the
search and seizure’s benefits exceed the harm it might cause to the individual.

Warrantless Entries & Searches of the Premises

1. SITA exception
a. Chimel
i. Warrantless search of the subject’s home undertaken after execution of arrest warrant against
subject was 4th A violation since SITAs are limited to the area within the immediate control of
the suspect.
ii. Police can reasonably search and seize evidence on or around Chimel’s person but can’t
rummage through the whole house.

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 iii. Search of person/area around person must be contemporaneous with arrest
b. Vale v LA
i. Warrantless search of home of subject for whom officers were executing arrest warrant was
violation of 4thA because arrest took place outside the home.
2. Protective sweep exception
a. Buie: warrantless protective sweep by officers of arrest site in which arrest warrant is executed against
subject does not violate 4th A depending on a balancing between risk to officers weighed against
invasion of privacy
3. Plain view exception
a. WA v Chrisman: officers can do warrantless seizure of clearly incriminating evidence discovered in a
place where the officer has a right to be
b. AZ v Hicks: warrantless seizures using plain view doctrine must be does with probable cause. Reasonable
suspicion is not enough.
4. Police created exigency
a. Doctrine: police cannot themselves create an emergency and then rely on that emergency to justify a
warrantless search of the premises.
b. KY v King: 4th A protects against warrantless searches in police created exigency but when subject
creates the exigency, for example by attempting to destroy evidence, have only themselves to blame for
the warrantless exigent circumstances search that may ensue.
5. Warrantless entry
a. Payton v NY: Absent a specific exception/exigency can’t make warrantless entry of suspect’s home to
execute a warrantless felony arrest.

Warrantless Seizures and Searches of Vehicles and Containers

1. CA v Carney:
a. warrantless search of motor home not a 4th A violation due to the nature of a motor vehicle to move
easily and quickly before a warrant can be obtained
b. less expectation of privacy with vehicles so less 4th A protection
2. Automobile exception
a. CA v Acevedo: Police may conduct a warrantless search of a container within an automobile if they have
probable cause to believe that the container holds evidence
b. Fixed three conflicting rules:
i. Chadwick – container in car could be seized with warrant
ii. Sanders – police have PC to search a container and it’s in a car the vehicle exception allowed
them to search car without a warrant to find container and seize it. But did need a warrant to
search container.
iii. Ross – police had PC to search car. Searched for and seized container. Car exception extended to
containers within car if there is PC.
c. WY v Houghton: so long as there is probable cause to search a stopped vehicle, all subsequent searches
of its contents are legal as well.
3. SITA exception in traffic context (AZ v Gant)
a. police may search vehicle of its recent occupant after his arrest only if it is reasonable to believe that the
arrestee might access the vehicle at the time of the search OR that the vehicle contains evidence of the
offense of the arrest
b. when suspect is unsecured and search is contemporaneous with arrest then police can search but trunk
or glove compartment
4. Containers

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 a. IL v Andreas: warrantless reopening of a container that was known to once contain drugs was not 4th A
violation because there was no remaining protected privacy interest in the contraband in the container
once govt officers had lawfully opened it and identified it as illegal (previously opened by customs
official)
5. Routine inventory search
a. CO v Bertine
i. There is no warrant requirement ton search a vehicle under a routine inventory search when
vehicle is being impounded following DUI arrest
ii. Important that the routine inventory search be in good faith and that standard procedures are
created and followed
b. FL v Wells
i. There must be a policy in place that determine whether inventory searches include opening
closed containers or not
ii. Absent such a policy the search is not regulated sufficiently to be permissible

Stop & Frisk

1. Terry stops
a. Minor stop (temporary restraint on freedom to walk away, not a full arrest/indefinite detention) and
searches are appropriate if officer has a reasonable articulable suspicion. This is less than probable
cause standard.
b. Reasonableness of stop must be judged by an objective standard in terms of what the officer knew at
the time. More reasonable to stop if
i. Person has reputation for violent behavior or carrying weapons
ii. Person has been known to engage in particular criminal activity
c. Hensley v US: police may stop a person suspected of a past crime (not just a suspected on-going one) to
ask questions or check ID in the absence of probable cause due to strong govt interest in solving crimes
2. Levels of Intrusion
a. Person contacted by police but free to leave or not respond
i. Police can ask questions but you can walk away
ii. Police can do this whenever without justification
b. Person confronted but not free to leave
i. RAS standard
ii. More than a hunch, need some facts
c. Person stopped and frisked – limited pat down search
i. RAS standard PLUS officer must reasonably believe that the person is armed and/or dangerous
d. Person arrested
i. Probable cause standard
3. Consent stops - Drayton v US: 4th A does not require police officers to advise bus passengers of their right not to
cooperate and to refuse consent searches and D in this case gave voluntary consent to search of his person.
4. Traffic stops
a. Brendlin v CA:
i. when a vehicle is stopped in a traffic stop, the passenger as well as the driver is seized within
meaning of 4th A. This rule discourages police from stopping cars with passengers regardless of
probable cause or reasonable suspicion.
ii. Test: whether a reasonable person in D’s position when the car stopped would have believed
himself to free to terminate the encounter between the police and himself

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 b. Heien v NC: a search or seizure is reasonable under 4th A even though an officer has made a reasonable
factual or legal mistake.
5. Cortez v US:
a. the whole picture of circumstances has to be taken into account when considering whether temporary
seizure of a person was constitutional
b. Must be a particularized and objective basis for suspecting the particular person stopped of criminal
activity
c. Whole assessment includes
i. Objective observations, info from police reports, consideration of the modes or patterns of
operation of certain kinds of law breakers, evidence must be seen and weighed by those versed
in the field of law enforcement
ii. Together the above must raise a suspicion that the particular individual being stopped is
engaged in wrongdoing
6. Fleeing
a. Hodari v CA: a 4th A seizure requires some sort of physical force with lawful authority or submission to
an assertion of authority. No 4th A seizure here where suspect discarded drugs while he was attempting
to flee police.
b. Wardlow v US:
i. a person’s sudden and unprovoked flight from identifiable police officers patrolling a high crime
area is sufficiently suspicious to justify the officers stop of that person
ii. nervous, evasive behavior is a pertinent factor in determining reasonable suspicion
7. Anonymous tip –
a. J.L v FL:
i. performing a warrantless search of a person on the basis of solely an anonymous tip violates 4th
A
ii. Standard: tip must possess a moderate level of reliability, including “predictive information”
that offers police a “means to test the informant’s knowledge or credibility”
iii. Accurate description of person w/o a reliable assertion of illegality or description of crime in
question does not meet this standard
b. Navarette v CA: 4th
i. A does not require an officer who received information regarding drunken/reckless driving to
independently corroborate the behavior before stopping the vehicle
ii. Reasonable suspicion standard – officer here had reason to believe the information contained in
the tip was reliable.

Consent Searches (waiving 4th A protections

1. What does waiver require? - Schneckloth v Bustamonte

a. Whether consent is voluntary can be determined from totality of circumstances. Voluntariness cannot
be function of coercion.
b. Unnecessary to prove that the person who gave consent knew he had right to refused – 4th A protection
against unreasonable searches and seizures does not require knowing and intelligent waiver.
2. 3 party waiving D’s 4th A protections
rd

a. Rodriguez v IL:
i. a warrantless search of premises does not violate the 4th A if the police reasonably believed that
the person who consented to the search had the authority to do so

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 ii. Whether the assessment regarding authority to authorize search is reasonable on the part of
the officers depends on if the facts in retrospect – even if conditions for a warrant exception did
not exist, so long as the officer reasonably believed that they did then the search is valid
iii. Common authority: person with this can waive rights of others and have officers search
property
1. Test: mutual use of property – joint access or control
2. If reasonable belief by officer that person giving consent has common authority then
fine to search if that person actually doesn’t
iv. Apparent authority: also sufficient to waive rights of others – determined by notion of “mutual
use” which is determined by joint access and control for most purposes but legal authority alone
is insufficient to consent to a search as a third party
b. Stoner v CA: hotel clerk attempting to waive 4th A search in hotel room was 4th A violation since clerk not
engaged in mutual use of room

Undercover Investigations

1. Government informants/agents invited on premises

a. Hoffa v US
i. Hotel room can be the object of 4th A protection but here D did not rely on security of room
when he made incriminating statement to informant
ii. Test: did informant enter room by force or by stealth? Surreptitious eavesdropper? If by
invitation then no 4th A protection.
b. White v US: affirmed Hoffa after Katz – undercover use of recording equipment does not make the
agent’s conduct 4th A violation
c. Gouled v US: if government agent is invited in and observes criminal activity, no 4th A problem but
cannot exceed scope of that invitation such as warrantless seizure of incriminating docs as happened in
this case.
2. Entrapment defense
a. Generally
i. Limits how and when undercover agents can encourage a target to engage in criminal activity
ii. It is a criminal law defense, not a constitutional claim
iii. Two approaches (depending on the jurisdiction)
1. Subjective:
a. entrapment focuses on whether the government’s conduct actually caused that
particular defendant to commit the crime
b. Predisposition:
i. if D can meet initial burden that the government induced D to commit
the crime, then the burden shifts to the government to show that either
there was no inducement OR that the D was predisposed to commit the
offense
ii. Jacobson v US: conduct that was legal at the time cannot be used to
prove D predisposed to commit certain crime. D was not independently
predisposed to commit the underlying crime.
2. Objective: courts focus solely on the government’s conduct and whether it goes too far
to be acceptable
iv. Ordinarily D must show that government’s conduct induced D to commit the crime

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 b. Sorrells v US: conviction overturned where “criminal design” originated with undercover agent who had
implanted in mind of innocent person the disposition to commit the alleged offense and induced its
commission
c. Sherman v US: Entrapment occurs only when the criminal conduct was the product of the creative
activity of law enforcement officials. Where officials simply “afford” opportunities to conduct crime, it is
not entrapment.

Network Surveillance

1. Two basic types of network surveillance

a. Content surveillance: actual contents of messages
b. Non-content surveillance: metadata about the messages
2. Warshak v US:
a. 4th A requires a warrant (and therefore probable cause) when government wants to compel an ISP to
produce the content of Ds emails
b. Two-part inquiry:
i. Did D manifest a subjective expectation of privacy in content of emails?
ii. Is society willing to accept D’s expectation of privacy reasonable?
3. Private search doctrine: if a third party hacks into D’s files/network or otherwise is able to access it, it is not a 4th
A search because 4th A regulates government actors, not private.

Exclusionary Rule

1. Older view - Wolf v CO: illegally obtained evidence did not have to be excluded in all cases. Can deter bad police
behavior through other less harsh means.
2. Newer view - Mapp v OH:
a. all evidence obtained by searches and seizures in violation of 4th A is inadmissible in a state court.
b. For evidence to be suppressed under Mapp, two circumstances must be present
i. 4th A violation must have occurred
ii. Necessary that there not be present one of the recognized exceptions to the exclusionary rule.
3. Exclusionary rule exceptions
a. Good faith
i. Faulty search warrant - Leon v US:
1. There is a “good faith” exception that evidence seized on the basis of a mistakenly
issued search warrant can be introduced at trial. Here, costs of exclusionary rule would
outweigh its deterrence benefits.
2. Officers must be relying on a search warrant issued by a detached and neutral
magistrate. If so, it’s ok if warrant is later found to be unsupported by probable cause.
ii. Police negligence - Herring v US
1. no 4th A violation when police mistakes (here, negligently failing to recall an old arrest
warrant) that are merely the result of isolated negligence and not systematic error or
reckless disregard lead to unlawful searches, evidence obtained not subject to
exclusionary rule
2. To trigger exclusionary rule, violation of 4th A needs to be “sufficiently deliberate.”
Ordinary negligence is not enough – police conduct must be “sufficiently culpable.”
3. Deterrence-culpability formula
a. Culpability: the underlying police conduct must be blameworthy or sufficiently
deliberate to warrant application of exclusionary rule

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 b. Deterrence: suppression must result in deterrence and the benefits of
deterrence must outweigh the costs
4. Attenuation: If police error is attenuated from the arrest,
a. the person making the arrest is not culpable or blameworthy +
b. suppression is unlikely to have a significant deterrent effect
b. Knock and announce exception – Hudson – MI
i. Evidence need not be excluded when police violate the knock and announce rule
ii. Knock and announce protects interests in preventing violence, property damage and impositions
on privacy. Interests violated by abrupt entry have nothing to do with seizure of evidence
iii. Police can enter early for:
1. Safety of themselves if reasonable
2. Protection of evidence

Police Interrogation, Custody

1. Pre-Miranda
a. Malloy: extended self-incrimination rights to the states via 14th A
b. Messiah v US: government may not elicit statements from person under indictment without counsel
c. Escobedo v IL: if D has asked for an attorney after custodial interrogation has begun but attorney has
not arrived yet, then any incriminating statements elicited during that time must be excluded on 6th A
grounds.
2. Miranda & Miranda line of cases
a. Miranda
i. 5th A’s protection against self-incrimination is available in all settings. Every suspect has a right
not to be compelled by police to make self-incriminating statements in the context of a police
investigation.
ii. Prosecution must be able to demonstrate that suspect was aware of certain rights and made
voluntary waiver of those rights in order to use incriminating statements from a custodial
interrogation against D.
iii. Police must inform
1. Right to remain silent
2. Statements made to police can be used in court
3. Right to counsel for custodial interrogation
4. If indigent, state will provide attorney
iv. Miranda warning only necessary when suspect is subject to custodial interrogation
v. Two parameters that govern definition of interrogation
1. Direct questions = interrogation. Blurted out statements not in response to police
questions are not considered custodial interrogation.
2. Functional equivalent of express questioning: words or actions on part of police that
police should reasonably know are likely to elicit incriminating statements from the
subject.
vi. Applies to testimonial evidence
1. Communication that is explicitly or implicitly relating to a factual assertion or disclose
information
2. Doesn’t apply to non-testimonial evidence like booking questions or real/physical
evidence (blood sample, composition, voice exemplar, fingerprinting, being
photographed, being subject to lineup)
b. JDB v NC:

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 i. courts should take special consideration of the age of a juvenile suspect in deciding whether he
or she is in custody for Miranda purposes
ii. Here, child was only 13 and special education student so interrogation by school officials was
custody for Miranda purposes. Children will often feel bound to submit to police questioning
when an adult in the same circumstances would feel free to leave.
iii. Standard: reasonable juvenile in same circumstances would or would not believe he or she was
free to leave
c. What is custody?
i. When a person is taken into custody or otherwise deprive of freedom of action in any significant
way
ii. Baylor v CA: a person is in custody for Miranda purposes if there is a formal arrest (freedom of
movement curtailed for indefinite period of time) or restraint on freedom of movement
associated to formal arrest
iii. Test based on objected, totality of the circumstances assessment: Reasonable person in
suspect’s position understands this encounter in terms of that suspect’s ability to extricate
themselves from the exchange.
iv. Terry stops are excluded – insignificant deprivation of freedom
d. Waiving Miranda
i. Burden of proof to show waiver: clear and convincing
3. Assertion of right to counsel after a valid waiver
a. Edwards:
i. A suspect is subject to custodial interrogation and then invokes right to counsel, then
interrogation must stop until counsel provided UNLESS suspect initiates further communication,
exchanges, or conversations with police.
ii. Purpose of rule is to prevent police from wearing down suspects and try to coerce them into
waiving Miranda rights
b. Bradshaw v OR:
i. when a suspect initiates/reopens communication with police after the assertion of right to
counsel relating directly or indirectly to investigation, then Edwards rules does not apply.
ii. i.e. an accused does not waive his right to counsel during interrogation merely because, after
invoking that right, he approaches the police with questions of his own. D waived right to
counsel when he reinitiated convo and was re-Mirandized and decided to make incriminating
statements anyways
c. Davis v US:
i. Under Edwards, after having waived right to counsel for interrogation, the request for counsel
must be unambiguous.
ii. Standard: Reasonable police officer would understand the statement by D as a request for
counsel.
d. Shatzer v MD:
i. Break in police custody of at least 14 days is sufficient to break any coercive effect.
ii. After two weeks, suspect has opportunity to re-acclimate to society, talk to counsel etc so if
back in custody again after that period of time, D must make another unambiguous request for
counsel.

Privilege Against Self-Incrimination

1. Right to remain silent - Berghuis v Thompson

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 a. D must make invoke Miranda right to remain silent and right to counsel unambiguously. Here D make
knowing and willing statement to police thus waiving right to remain silent.
b. Davis requirement is extended to assertion of any Miranda right.
c. Rule: there is no such thing as an implied waiver. Have to make an unambiguous assertion. Silence alone
is not enough to assert right to remain silent
2. Must explicitly claim privilege & exceptions - Salinas v TX
a. The 5th A self-incrimination clause does not protect a D’s refusal to answer questions asked by law
enforcement before he has been arrested or read Miranda rights
b. Privilege does not extend to D like here who simply decided to remain mute during questioning –
witness who desires protection against self-incrimination must explicitly claim that protection EXCEPT
i. Criminal D does not need to take the stand at trial in order to explicitly claim this
ii. Failure to claim this privilege must be excused when that failure was due to government
coercion

Police Interrogation & 6th A Right to Counsel

1. 5th A v 6th A:
a. The Sixth Amendment ensures competent legal representation in courts of law, whereas the Fifth
Amendment ensures adequate counsel when confronting police (much earlier in the process)
b. Miranda rights are triggered by custodial interrogation – 6th A prohibits deliberate elicitation of
incriminating statements which may or may not happen in custody.
c. Differences in standards
i. 5th A: objective standard
ii. 6th A: subjective standard based on intent of officers
d. 5th A protecting against statements given against will (compulsory self-incrimination)– if D doesn’t know
he’s talking to police (undercover) then impossible to say we’re concerned about coercion.
e. invoking the Sixth Amendment by retaining a public defender does not invoke the Fifth Amendment
when speaking with the police about an unrelated criminal charge (McNeil v WI – invoking 6th A interest
does not invoke 5th A Edwards interest. D must express an unambiguous desire for assistance of
attorney for purposes of interrogation)
f. Moran v Burbine
i. The only requirements for police to satisfy D’s 5th A rights is to Mirandize and ensure D
voluntarily and knowingly waived those rights.
ii. Didn’t matter that police were deceptive about suspect’s counsel being present. He still gave a
voluntary waiver.
2. Old view – Jackson v MI
a. When D asserts right to counsel, then the government cannot elicit info from the suspect until suspect is
given opportunity to speak with counsel
b. evidence obtained through interrogation after the defendant has invoked his right to counsel was
inadmissible
3. New view – Montejo v LA
a. Jackson doesn’t work in jurisdictions where counsel is appointed regardless of D’s request so in order to
trigger Jackson presumption, D required to make an “initial invocation” of the right to counsel.
b. The right to counsel, and the right to counsel after interrogation are separate matters
c. Court rejects Jackson bright line rule that a suspect can’t be questioned if he’s been assigned counsel.
Suspect might still want to talk to the police.

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4. Dickerson v US: Congress can’t legislate away Miranda. Miranda governs the admissibility of statements made
during custodial interrogations in both state and federal courts. Miranda announced a constitutional rule that
Congress may not supersede legislatively.
5. 6th A after proceedings have begun
a. Massiah v US: incriminating statements deliberately elicited by federal agents in the absence of counsel
after criminal proceedings have begun (arraignment) violates 6th A
b. Brewer v Williams:
i. evidence should be suppressed where it was elicited in an interrogation environment without
presence/assistance of counsel after that right had been invoked by D and proceedings had
already begun
ii. Factors leading to suppression
1. D had asserted 6th A right after beginning of proceedings
2. Police deliberately elicited incriminating statements
c. Standard: reasonable person in d’s circumstances would understand whether a custodial interrogation
was taking place
d. Deliberately elicited statements –
i. Henry v US:
1. D’s statements to a government information should not have been admitted because by
intentionally creating a situation likely to induce D to make incriminating statements
without assistance of counsel, the govt violated 6th A.
2. Here govt paid an informant on a contingency fee basis to go undercover as D’s cellmate
and get incriminating statements.
ii. Kuhlmann v Wilson: when police plant an informer with jailed suspect and informer does not ask
questions, then suspect’s statements to the informer ARE admissible unless informer took
coercive steps other than listening to elicit incriminating information.
iii. “deliberate elicitation” is the standard. How do we determine whether this is taking place?
1. Govt acts through an agent for purpose of getting information
2. Govt sets up encounter in which incriminating info is likely to be produced
e. Offense specific – Cobb v TX:
i. 6th A right to counsel is “offense specific” so it does not necessarily extend to offenses that are
“factually related” to those that have actually been charged.
ii. i.e. just because D has counsel and 6th A has attached under one charge, doesn’t mean police
can’t interrogate without counsel present (given voluntary waiver) if another potential offense
remains uncharged.
6. Eyewitness identification
a. Right to counsel for post-indictment personal lineup
b. No right to counsel in photo lineups, analyzing physical evidence samples, eyewitness confrontation for
purpose of securing ID of suspect
c. Post-indictment –
i. Wade v US: the accused has the right to have counsel present for post-indictment eyewitness
identification procedures. There is a per se exclusion of such evidence absent knowing and
intelligent waiver of right to counsel.
ii. Ash v US: an accused does not have the right to counsel at a post indictment photo lineup. The
right to counsel is the right to have someone assist you in the adversarial process – there’s no
conflict present in a photo array presented to a third party during an interview for identification.
d. Pre-indictment – Kirby v IL:

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 i. 6th A right to counsel attaches only at the initiation of formal adversarial proceedings so it does
not apply to pre-indictment eyewitness identification procedures.
ii. DPC of 5th and 14th A adequately protects against unduly suggestive identification procedures so
no need for a per se exclusionary rule
e. DPC protections –
i. ID will be excluded if police intentionally used procedure that was both unnecessarily suggestive
and created substantial likelihood of mistaken ID – regardless of pre or post indictment or
whether it’s a lineup or photo array or whether counsel is present
ii. Stovall v Denno:
1. Test: look at totality of the circumstances when under the DPC. Although the ID
procedures here were highly suggestive, it wasn’t unnecessarily so because of possibility
that the witness in this case might die.
2. Two factors
a. Were ID procedures highly suggestive?
b. Were ID procedures unnecessarily suggestive or were there circumstances
necessitating suggestive procedures?
iii. Mason v Brathwaite:
1. Reliability is the linchpin in determining the admissibility of identification testimony
2. Multi-factor test to be considered includes
a. the opportunity of the witness to view the criminal at the time of the crime,
b. the degree of attention paid by the witness,
c. accuracy of the prior description,
d. level of certainty,
e. and the time between the crime and the confrontation.
f. These factors should be weighed against the effect of the suggestive
identification itself.
3. Here although procedure was unnecessarily suggestive it did not violate DPC because
the identification possessed a sufficient degree of reliability.

Attenuation / Fruit of the Poisonous Tree

1. Where the secondary evidence was discovered by exploitation of the initial illegality, it must be suppressed.
a. Wong Sun – connection to the initial illegality was ATTENUATED – wong sun was released and had
voluntarily returned days later to make the statement. The taint of Toy’s unlawful arrest dissipated.
2. Attenuation Factors
a. Time period between the illegality and the acquisition of the evidence (Ceccolini – 4 months)
b. Occurrence of intervening events (Wong Sun – decision to make a statement)
c. Flagrancy of the initial illegality

Example answers/attack sheet

I. The Stop of the Car and Bill

1. Standing

All three occupants have standing to contest a seizure of his person, which was caused by the stop of the car. Therefore,
if the stop of the car was unlawful, each of them may be able to suppress the items seized as a fruit of that unlawful
stop. Also, Bill has standing to contest the separate seizure of his person at the door of the store.

2. Level of Seizure

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A threshold question for Fourth Amendment purposes is whether there was a “search” or “seizure.” If the car stop in
this case did not amount to a seizure, then Officer Starr needs no justification for a consensual encounter. If the car stop
was a seizure, then Officer Starr needs either reasonable articulable suspicion or probable cause, depending upon
whether the seizure was a Terry stop or an arrest.

The defense will argue that the stop of the car was a seizure, such that a “reasonable person would not feel free to
leave.” Mendenhall. The officer activated his emergency lights and pulled in directly behind the vehicle so that,
presumably, the car could not get out. He left the flashing amber lights on further indicating a show of police authority.
A reasonable person in the occupants’ position would not feel free to leave. In addition, traffic stops by the police are
normally considered Terry stops. Berkemer v. McCarty.

The prosecution will respond that this was not a seizure, or the usual traffic stop, but a consensual encounter, one from
which the three occupants were free to walk away. Bill had already driven into the parking spot and parked the car
before Officer Starr pulled in behind him. Officer Starr’s actions did not cause the car to stop.

Bill has a separate argument that even if he was not seized at the time of the car stop, he certainly was by the time
Officer Starr stepped in front of the convenience store doors. Now, Bill was free neither to walk away into the store nor
to drive away, since his car was blocked.

Assuming that this is a seizure, then the question is what level of seizure – a Terry stop or an arrest. An arrest occurs
with a strong showing of police authority, indicated by a display of weapons, number of police officers, tone of voice, or
other signs of authority. The defense will argue that the pulling of the officer’s car behind Bill’s so that he could not
leave went beyond the scope of a brief detention allowed under Terry, while the prosecution will respond that this was
only one officer, with no display of weapons and no threatening tone of voice. If the defense persuaded the court that
this was an arrest, then Officer Starr would have needed probable cause to believe a crime had occurred, which he did
not have at this point.

3. Reasonable Articulable Suspicion

If this stop of the car (or, for Bill only, the stop of Bill at the store doors) is a Terry stop, then Officer Starr needed
reasonable articulable suspicion to make the stop. It has to be more than a mere inarticulable hunch. What information
did Officer Starr have? First there was an anonymous caller. When analyzing anonymous tips, even in the context of
reasonable suspicion (as opposed to probable cause), it is helpful to consider Illinois v. Gates, the Gates test is a totality
of the circumstances test, The first prong is basis of knowledge: here, we do not know whether the caller’s knowledge is
first-hand, although it could be argued that only someone who was watching could describe the car, its location, and its
activity. The second prong is veracity: whether the caller is telling the truth. Since we know nothing about the veracity of
the caller, we look to the level of detail in the tip – make and color of car, location, and manner of driving. All in all, not
an overly detailed tip, but likely enough for reasonable suspicion if corroborated by the police. As to corroboration,
however, while Officer Starr is able to confirm make and color of the car at approximately the right location, he is unable
to corroborate any erratic driving. The only thing Officer Starr was able to note was that the three occupants were
looking in his direction. That last fact alone could never support reasonable suspicion – it would not even seem to
amount to a furtive gesture as innocent people look at the police. The question becomes whether the looking around
combined with the tipster’s information that this car may have been driving erratically in the past amounts to
reasonable suspicion to stop the car and its occupants. Suffice it to say reasonable people will disagree.

If Officer Starr did not have reasonable suspicion to stop the car, and Bill, then all evidence which is a fruit of the
unlawful stop will be suppressed.

II. Bill’s Statement He Had Been Smoking Marijuana

1. Custody

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Officer Starr next asks Bill whether he had been smoking marijuana. If a suspect is in custody and is being interrogated,
then he must have knowingly and intelligently waived his Miranda rights in order for the statement to meet the
commands of the Fifth Amendment. There is clearly interrogation since the officer asked a direct question. The issue
here is whether Bill was in custody. While he may have been “seized” when asked the question, custody, for Fifth
Amendment purposes, is equivalent to a Fourth Amendment arrest. It is unlikely there is enough of a show of police
authority here to rise to the level of custody. An arrest occurs with a strong showing of police authority, indicated by a
display of weapons, number of police officers, tone of voice, or other signs of authority. The defense will argue that the
pulling of the officer’s car behind Bill’s so that he could not leave, and the stepping in front of Bill so he could not go in
the store amounted to custody, while the prosecution will respond that this was only one officer, with no display of
weapons and no threatening tone of voice. If it did amount to custody, then the statement would have to be
suppressed as a violation of Miranda.

III. Search of the Car

1. Standing

A threshold question is whether the three occupants have standing to contest the seizure of the marijuana from the
backpack in the front seat and from the backpack in the trunk. For Bill, the question of standing is whether Bill had a
reasonable expectation of privacy in the item searched. As driver of the car, he typically will have standing to contest
a search of the car. Rakas v. Illinois. The issue here is that the marijuana was found not just in the car, but in a backpack
in the car. While the backpack in the trunk appeared to have items in it belonging to him, the prosecution will argue he
had no reasonable expectation of privacy in the backpack in the car which only had papers indicating Hillary’s
ownership. Rawlings v. Kentucky. If Bill does not have standing to contest either item, then he does not have standing to
contest any Fourth Amendment violations by Officer Starr in seizing that item.

As the passenger of the car, Monica typically does not have standing to contest the search of the car. Rakas v. Illinois.
However, a passenger will retain a reasonable expectation of privacy in the areas under his or her control. Hence, the
defense will argue that Monica has standing to contest the search of the backpack that was under the front passenger
seat where she was sitting as well as the backpack in the trunk, which contained papers with her name on it, evidencing
her reasonable expectation of privacy in the contents. The prosecution will respond that, as to the backpack under the
front seat, that was accessible only to the back seat passenger and in fact had papers in it indicating it was Hillary’s bag.
As to the backpack in the trunk, the prosecution will argue that the bag was not under her physical control and mere
ownership (indicated by presence of papers in the bag) does not determine standing, but the defense likely has the
better argument here.

As the passenger of the car, Hillary typically does not have standing to contest the search of the car. Rakas v. Illinois.
However, a passenger will retain a reasonable expectation of privacy in the areas under his or her control. Hence, the
defense will argue that Hillary has standing to contest the search of the backpack located under the front seat of the car
because it was within her control and contained evidence that it was actually her backpack – she had a reasonable
expectation of privacy in its contents. It is unlikely she has standing to contest the seizure of the backpack in the trunk.

2. Automobile Exception

Officer Starr searched the passenger compartment of the car and opened a backpack from under the front seat, finding
marijuana. He also went into the trunk and opened a backpack, containing more marijuana. Officer Starr can search the
car and its contents if he has probable cause to believe it contains evidence of a crime. Before he searched the car,
Officer Starr saw a green leafy substance on Bill’s shirt, noticed an odor of marijuana, and Bill told him he had been
smoking marijuana. This likely gives Officer Starr probable cause to believe the car contains marijuana. While the
defense can argue that he only has probable cause that marijuana was smoked, and not that there is more in the car,
that is not likely to be persuasive. When an officer develops probable cause to believe the car contains contraband, he

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may search anywhere that the contraband could be, including containers and the trunk. California v. Acevedo. Since
drugs may be almost anywhere in a car or a container, the search of the backpacks in the car and its trunk were justified.

IV. Line Up

1. Sixth Amendment Right to Counsel

At the time of the line-up, Hillary had not yet been formally charged with the drug offenses, and hence her Sixth
Amendment right to counsel was not violated by the fact that she had no lawyer present.

2. Fifth Amendment Due Process

The line-up must comply with the requirements of the Fifth Amendment under Manson v. Braithwaite. The question
under is whether the identification procedure was sufficiently reliable to outweigh any unnecessary suggestivity. There
is no indication in the question that there was any undue suggestivity in the line-up, unless perhaps Linda and Betty
viewed the line-up at the same time. If there was no undue suggestivity, then the question of reliability is not reached. If
it is reached, the factors to consider under Manson are the opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the witness’s prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the length of time between the crime and
confrontation. Here, the defense will argue that despite the confidence in their identifications and the length of time
they viewed the perpetrator, they had a poor opportunity to view the perpetrator as the bar was dimly lit, they were
inebriated and the robber wore a cap pulled down low.

V. Mug Shot

1. Sixth Amendment Right to Counsel

Hillary has now been formally charged with the crime, so her Sixth Amendment right to counsel has attached. However,
the Court has held that the showing of photographs to a witness is not a critical stage such that counsel must be
present. United States v. Ash.

2. Fifth Amendment Due Process

The question is whether the identification procedure was unnecessarily suggestive so as to violate the Fifth Amendment.
Hillary will argue that the showing of only one photograph, and a mug shot at that, is unnecessarily suggestive. It gives
the witness only one choice. See Stovall v. Denno. The suggestivity was also not necessary at this point since Hillary was
in custody and they had the ability to conduct a line-up and the time to create a full photo array.

I. Snoop’s First Statement

1. Fourth Amendment

Snoop will argue that he was unlawfully seized when he made the statement and the statement is a fruit of the unlawful
seizure. The situation is that six officers are in Snoop Dog’s home when he is questioned. One is in the kitchen with Polly,
two question Snoop, and the other three all take various positions near the doors. Snoop will argue that he was
“seized” for Fourth Amendment purposes because a reasonable person in his situation would not feel free to leave or
to terminate the encounter. U.S. v. Mendenhall, Florida v. Bostick. The prosecution will respond that this was a
consensual encounter: the police did not display weapons or act in a threatening manner, the setting was Snoop’s home,
all was cordial, and water and biscuits were being served. The prosecution will compare this to I.N.S. v. Delgado, where
the mere positioning of officers at the exit doors at a place of business did not amount to a Fourth Amendment seizure.

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If a court determined that this was a seizure, then the officers would have needed reasonable articulable suspicion that
criminal activity was afoot. Terry. The fact pattern in the question all but admits that police have no more than an
unarticulated hunch that Snoop Dog was involved in Lucy’s death based merely on his relationship with Charlie.

2. Fifth Amendment – Miranda

The other ground for suppressing this statement would be under the Fifth Amendment. If Snoop Dog is in custody and
is being interrogated, then the statements he made cannot be used against him unless he knowingly, intelligently and
voluntarily waived his Miranda rights. He is being asked direct questions, so he is being interrogated. The issue here is
whether he was in custody. The facts which would comprise custody are as just discussed � the prosecution will argue
that this is a far cry from the typical custodial scenario at a police station. Even questioning in the coercive environment
of the police station is not always custodial if the suspect has volunteered to come answer questions. See California v.
Beheler. Questioning in the home, without some show of authority beyond the mere presence and stationing of officers,
is unlikely to rise to the level of custody. See Beckwith v. U.S..

II. Second Set of Statements at the Home

1. Sixth Amendment Right to Counsel

Snoop is at his home being questioned, but he has retained a lawyer and that lawyer has told the prosecutor that no one
should question his client. Despite his having retained a lawyer, Snoop’s Sixth Amendment right to counsel has not
attached since he has not been formally charged and so there is no violation of the Sixth here by questioning him
outside the presence of counsel. It makes little difference that Chaz attempts to control the questioning; the police are
not obligated to stop questioning merely upon the request of counsel. See Moran v. Burbine.

2. Fifth Amendment – Miranda

Therefore, Snoop only has Fifth Amendment claims. If Snoop Dog is in custody and is being interrogated, then the
statements he made cannot be used against him unless he knowingly, intelligently and voluntarily waived his Miranda
rights. He is being asked direct questions, so he is being interrogated. The issue here is whether he was in custody. The
facts which would comprise custody are as just discussed – the prosecution will argue that this is a far cry from the
typical custodial scenario at a police station. Even questioning in the coercive environment of the police station is not
always custodial if the suspect has volunteered to come answer questions. See California v. Beheler. Questioning in the
home, without some show of authority beyond the mere presence and stationing of officers, is unlikely to rise to the
level of custody. See Beckwith v. U.S..

III. Statement in the Patrol Car

1. Fourth Amendment

Snoop is in the back of a patrol car when he makes more statements. He first could argue that the statements are the
fruit of an unlawful seizure. At this point, the police have little information linking Snoop Dog to the murder of Lucy but
they have Snoop’s admissions of running a drug operation, which is likely enough for reasonable suspicion to seize him,
if not probable cause to arrest him. The prosecution will say that, in any case, this is a consensual encounter since they
merely requested that Snoop go to the station and he was free to decline the request.

2. Fifth Amendment – Miranda

Snoop would also argue he was in custody and being interrogated without having waived his Miranda rights. He will say
that riding in the back of a police car on the way to the police station after having admitted involvement in drug
operations amounts to custody. The issue is whether the comment “That depends” by the officer amounts to the
functional equivalent of interrogation. Rhode Island v. Innis. Was it a comment that the officer should have known was
reasonably likely to elicit a response? The prosecution will say that he was only answering Snoop’s question and there
21
was nothing in the response that would prompt an incriminating statement. The defense will argue that a statement like
“it depends” begs more commentary and the reasonable officer would have known that.

IV. Snoop’s First Statement at the Stationhouse

1. Fourth Amendment

Snoop could argue that the statement was the fruit of an arrest without probable cause. The officers would not appear
to have enough evidence that Snoop Dog murdered Lucy at that point, which is all that they were investigating him for.
However, because they do have probable cause to arrest him for drug charges, the prosecution will argue this was a
lawful arrest.

2. Fifth Amendment – Miranda

When Snoop makes the statement, “You can’t . . .”, he is clearly in custody. He is in a back room of the police station and
is told he is under arrest. However, it is doubtful that the reading of the Miranda rights can be deemed the functional
equivalent of interrogation. That would defeat the purpose of Miranda. Rather, Snoop merely blurted out the
incriminating statement. Hence, he was not being interrogated and Miranda is inapplicable.

V. Snoop’s Second Statement at the Stationhouse

1. Fifth Amendment – Miranda

When Snoop makes the statement “You gonna believe . . .”, he has been read his Miranda rights, and invoked his right
to a lawyer. Once he invokes his right to counsel under Miranda, the police cannot question him unless he initiates the
questioning and is re-read and waived his Miranda rights. Edwards v. Arizona. Here, Snoop will argue that the police
officer’s statement, “Charlie’s already told us everything” was the functional equivalent of interrogation, one which the
officer should have known was reasonably likely to elicit an incriminating response. The prosecution will argue they
were simply making some closing comments before they left the room, none of which were reasonably likely to elicit a
response from him.

VI. Snoop’s Statements to Officer During Transport

1. Sixth Amendment Right to Counsel

At this point, Snoop has been formally charged with the murder of Lucy and so his Sixth Amendment right to counsel has
attached. Hence, he cannot be questioned about the murder unless his counsel is present. Massiah v. U.S.. Therefore,
when the officer asks Snoop a question, Snoop’s response will not be admissible in the murder trial. However, the Sixth
Amendment is offense-specific and so it does not apply to the drug charges, with which Snoop has not been formally
charged.

2. Fifth Amendment – Miranda

It would appear that the Fifth Amendment was violated because the officer was asking him questions and he was in
custody without a reading and waiver of his Miranda rights.

When the officer then Mirandizes him and asks Snoop to repeat the statement he has just made, the defense will argue
that the repetition of the statement should not be admissible in court because it is a fruit of the prior unlawful
statement. Coming directly on the heels of the first, the mere reading of Miranda in between is unlikely to purge the
taint

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