Crim Pro Outline Harris 2017

I. Introduction ……………………………………………………………………………………………………………………….…………....
3
II. The Right to Counsel …………………………………………………………………………………..…………..………………………5
a. Counsel at Trial ……………………………………………………………………………………………………..………………….5
III. Search, Seizure, and Arrest ……………………………………………………………………………………………………………8
a. Probable Cause ……………………………………………………………………………………………………..………………….8
b. Search Warrants ……………………………………………………………………………………………………..………………11
c. Exclusionary Rule …………………………………………………………………………………………………………………….14
d. Protected Areas and Interests …………………………………………………….……………………………..……………20
e. Undercover Investigations ……………………………………………………………………………….………..……………24
f. Network Surveillance ………………………………………………………………………………………………………………25
g. Rights in Non-Content Information …………………………………………………………………………………………26
h. Arrest – “Warrantless Arrests and Searches of the Person” …………………………………………………….27
i. Searches Incident to Arrest – “Warrantless Entries and Searches or Premises” ………………………30
j. Pretextual Arrests ……………………………………………………………………………………………………………………35
k. Searches of Vehicles – Warrantless Seizures and Searches of Vehicles and Containers ..…………37
l. Stop and Frisk ………………………………………………………………………………………………………………………….41
m. Consent Searches ……………………………………………………………………………………………………………………48
n. Administrative Searches – Balancing the Need Against the Invasion of Privacy ……………………….51
o. “Standing” to Challenge Searches ……………………………………………………………………………………………54
IV. Grand Jury Investigations ……………………………………………………………………………………………………….……57
a. Introduction ……………………………………………………………………………………………………………………………57
b. Fourth Amendment Issues – Compelling Testimony (And Identification Exemplars) ……..……..…59
c. Self-Incrimination and Immunity ….…………………………………………………………………………………………59
V. Police Interrogation ….…………………………………………………………………………………………………………………..60
a. Background …………………………………………………………………………………………………………………………….60
b. Miranda v. Arizona ………………………………………………………………………………………………………………….62
c. The Meaning of Miranda …………………………………………………………………………………………………………63
d. Waiver of Miranda Rights ……………………………………………………………………………………………………….67
e. Evaluating Miranda – Modern Miranda ………………………………………………………………………………....71
f. Voluntariness ………………………………………………………………………………………………………………………….72
g. The Massiah Doctrine: Sixth Amendment Right to Counsel …………………………………………………….75
h. The Revivification of Massiah ……………………………………………………………………………………………......75
i. “Passive” vs. “Active” Secret Agents ….……………………………………………………………………………………77
j. 6th A. Right to Counsel Attachment Other Offenses Closely Related to Offense Charged …………77
k. Miranda-Edwards Rule and 6th Amendment Rights to Counsel: Compared/Contrasted ……….…78
VI. Pre-Trial Identification ….………………………………………………………………………………………………………………78
a. Right to Counsel ………………………………………………………………………………………………………………………78
b. Due Process Limitations ………………………………………………………………………………………………………….81
VII. Administration of the Exclusionary Rules ….……………………………………………………………………………..83
a. Fruit of the Poisonous Tree ….………………………………………………………………………………………………….83
b. Impeachment with Illegally Obtained Evidence ….……………………………………………………………………87
c. Burdens of Proof ….………………………………………………………………………………………………………….………89
d. Harmless Constitutional Error ….……………………………………………………………………………………………..89
e. State Constitutional Interpretations ….…………………………………………………………………………………….90
Criminal Procedure 2017 – Harris 2
I. Introduction
a. Primarily regulate police through the 4th, 5th, 6th, and 14th amendments
b. This class is less about facts and more about constitutional provisions and interpretation
c. The Steps in the Process
i. Step 1: Pre-arrest investigation
1. Investigation by police or prosecutor
2. On-going process (continues after Step 2)
3. Reactive investigation: solving a past crime
a. Objectives
i. Determining a crime actually was committed
ii. Determining who committed the crime
iii. Collecting evidence sufficient to support the arrest of the offender
iv. Locating the offender so he can be arrested
b. Investigative Activities
i. Interviewing of victims
ii. Interviewing of other witnesses present when the officer arrives at the
crime scene
iii. Canvassing the neighborhood for other persons with relevant
information
iv. Interviewing of suspects
v. Examining the crime scene and collecting physical evidence found there
vi. Submitting forensic evidence for a possible identification match through
the use of one of the national databases
vii. Checking department records and computer files
viii. Seeking information from informants
ix. Searching for. Physical evidence of the crime (stolen property, weapons)
in places accessible to the suspect and seizing evidence found there
x. Surveillance of a suspect aimed at obtaining leads to evidence or
accomplices
xi. Using undercover operatives to gain information from the suspect
4. Proactive investigation: placing police in a position to respond to unknown but
anticipated ongoing or future crime
a. Placing police in a position where they can observe ongoing criminal activity
b. Placing police where they can intercept crime when it is attempted
5. Prosecutorial Investigations
a. Subpoena
i. Available for general investigation of crime only though the grand jury
b. Reasons
i. Witnesses will not cooperate with the police
ii. Critical evidence of the crime is likely to be a "paper trail"
iii. Area of investigation is sensitive, need to keep the investigation from
the eyes of the public
ii. Step 2: Arrest
1. Act of taking a person into custody to charge them with a crime
2. Arrest warrants can be used when there's no immediate need to arrest
iii. Step 3: Booking
1. Takes place at holding facility
2. Afterwards, get the 1 phone call
iv. Step 4: Post-arrest Investigation
1. Having the suspect allows for DNA matching and eyewitnesses to identify in a lineup
v. Step 5: the decision to charge

vi. Step 6: filing the complaint
1. Filed with magistrate court
2. Complaint: basic function is to set forth concisely the allegation of a particular criminal
statute
3. Upon filing, arrestee becomes "defendant"
vii. Step 7: Magistrate review of the arrest
1. Gerstein review: if accused is arrested without a warrant and remains in custody the
magistrate must determine that there exists probable cause for the offense charged in
the complaint
viii. Step 8: the first appearance
1. An arrestee who is held in custody must be presented before the magistrate court
within time period specified as either 24 or 48 hours
ix. Step 9: Preliminary hearing
1. Use of this hearing varies by jurisdiction
2. If magistrate concludes that the evidence presented is sufficient for the prosecution to
move forward she will move the case forward to the next stage of proceedings
x. Step 10: Grand jury review
1. Mandatory only in jurisdictions requiring felony prosecutions to be instituted by an
indictment
2. Grand jury sits for a term that can range for months
xi. Step 11: the filing of the indictment or information
1. If filed, will be filed with the general trial court and replaces the complaint as accusatory
instrument of the case
xii. Step 12: Arraignment on the information or indictment
1. Arraigned: brought before the trial court and informed of the charges against him
xiii. Step 13: Pretrial motions
1. Most jurisdictions, range of objections must be raised by pretrial motions
xiv. Step 14: Guilty plea negotiation and acceptance
xv. Step 15: The trial
1. Unique to criminal trials
2. Presumption of defendant's innocence
3. Requirement of proof beyond a reasonable doubt
4. Right of the defendant not to take the stand
5. Exclusion of evidence obtained by the state in an illegal manner
6. More frequent use of incriminating statements previously made by the defendant
7. Felony cases defendant is entitled to a trial by jury
xvi. Step 16: Sentencing
1. Most jurisdictions, sentence determination is a function of the court
2. Legislatures will place limits on the length of incarceration and the amount of the fine
3. Ways to choose
4. Allowing the sentencing judge almost open-ended discretion in choosing between
options
5. Channeling discretion through the use of sentencing guidelines, directing the judge to
weigh specified offender and offense characteristics
6. Creating a presumptive sentence, with the judge having discretion to depart from the
presumption upon concluding special circumstances dictate
xvii. Step 17: Appeals
1. Initial appeal is to the intermediate appellate court
2. If state has none, to state court of last resort
xviii. Step 18: Collateral remedies
d. Diversity in Legal Regulation
i. 52 lawmaking jurisdictions
1. Each state gov’t retains the authority to enact its own criminal code
ii. Unifying role of federal constitutional regulation
e. Criminal Justice, Local Democracy, and Constitutional Rights – Stephen Schulhofer [43-48]
f. Convicting the Innocent – Brandon Garrett [51-53]
i. DNA testing has exonerated hundreds of people so far
ii. This is the tip of the iceberg because we cannot test most cases for DNA
iii. We do not know how many innocent people are in prison
g. “Black and Blue Encounters” Some Preliminary Thoughts About Fourth A. Seizures: Should
Race Matter? – Tracey Maclin [54-56]
i. Encounters by individuals and police are measured by what’s reasonable and in the
context of the “reasonable person”
ii. There should be a different standard for police and black men because the “reasonable
person” does not apply
h. th
4 Amendment
i. People secure in person, papers, and effects against unreasonable searches and seizures
ii. Warrants only issued on probable cause particularly describing what is to be searched
and what is to be seized
i. th
5 Amendment
i. Due process
ii. Self-incrimination clause
j. th
6 Amendment
i. Assistance of counsel in one’s defense
k. th
14 Amendment
i. Bill of rights bound only federal gov’t
ii. 14th amendment binds the states
iii. This amendment incorporates many of the Bill of Rights to the states
iv. Equal protection and due process clauses incorporated to the states
l. 42 U.S.C. § 1983 (Civil Rights Act of 1871)
i. Allows individuals to sue the state for a violation of civil and constitutional rights by a
state actor
II. The Right to Counsel
a. Counsel at Trial
i. The Right to Counsel
1. Idea: rights not self-executing
2. Powell v. Alabama (Scottsboro Boys Case)
a. Boys accused of rape were not given the chance to speak with counsel
before trial
b. Sup Ct: should have had competent lawyer with someone with time to
prepare
c. Later interpreted to right in limited circumstances like murder trials
ii. The Right to Appointed Counsel and Related Problems
1. The Right to Appointed Counsel in Criminal Proceedings
a. Betts v. Brady
i. No constitutional requirement of right to counsel for the states
ii. Right to counsel is not enough of a fundamental right to
incorporate it to the states

b. Gideon v. Wainwright
i. [Fed. system, 14th A. guarantees 6th A. right to counsel]
ii. D asked court to provide a lawyer; they denied. Represented
himself up to Sup. Ct. Granted certiorari and appointed him a
lawyer.
iii. Sup Ct: can’t have a fair trial without lawyer
iv. Rule: Felony cases have the right to a lawyer under 14th A. if one
can’t be afforded
v. Fair trial requires counsel resources
1. Criminal procedures are complicated
2. Lack of lawyer undermines adversary system
a. Prosecution v. defense; judge is neutral
3. “… lawyers in criminal courts are necessities, not luxuries.”
c. State delivery systems after Gideon
i. States have obligation but it’s carried out on the county level
ii. PA is the only state that county’s fund themselves
iii. Problem: smaller counties are going to have a harder time
d. Indigency standards
i. Must be shown to provide a public defender:
1. Must be indigent
2. Standards drastically vary
e. When must indigent defendants reimburse the government?
i. States can pass laws and have regulations for reimbursement of
PD services
ii. Fuller v. Oregon
1. Recoupment statute directed at those convicted Ds who
are indigent at the time of the criminal proceedings
against them and later gain ability to pay expenses of legal
representation
f. Extending Gideon to Misdemeanor Cases
i. Argersinger v. Hamlin
1. Indigent Ds need to be appointed counsel for all cases
where actual prison is sentenced
2. Don’t need a lawyer just for potential prison sentence
3. Court cannot sentence a person to prison if they did not
have a lawyer
4. Problem: Makes court determine what their likely
sentence will be before deciding the case when deciding to
appoint counsel
5. Possibilities
a. Appoint DAs any time imprisonment is an option
b. Never do it (just fine, save DAs for felonies)
c. Look at charges and criminal history
ii. Can an uncounseled misdemeanor conviction still be used to
enhance a prison sentence when, after being given counsel, a
defendant is convicted of a second crime?

1. Nichols v. United States
a. FACTS: D has a previous misdemeanor conviction
where he did not have counsel. In a 2nd case the D
does have counsel and was convicted. Judge
wanted to use the earlier uncounseled conviction
to enhance the sentence.
b. A previous uncounseled misdemeanor conviction
can be used to enhance later conviction sentences.
iii. If an indigent defendant is not provided counsel, can he be given
a suspended sentence or placed on probation?
1. Alabama v. Shelton
a. FACTS: D did not have counsel and was given a
suspended sentence, he violated his probation and
the court sends him to jail
b. When no counsel was provided to an indigent D
and he was convicted, the 6th A. does not allow the
imposition of a prison sentence later for the same
offense
i. Can’t impose a suspended prison sentence
if there was no counsel
2. The “Beginnings” of the Right to Counsel: “Criminal Prosecutions”
and “Critical Stages”
a. Attachment: when the right to counsel applies to the D
b. Right to counsel attaches at the initial appearance
c. Rothgery v. Gillespie County
i. FACTS: Man arrested and had an initial appearance but didn’t
have a lawyer and requested one. Eventually, lawyer got him out
of jail
ii. Lawyer must be provided when a D is before a court in an
adversarial nature with the gov’t
1. Liberty is subject to restriction
2. Subject to some kind of formal charging
iii. Right to counsel attaches when there is a commitment to
prosecute and the D must be appointed counsel within a
reasonable time
iv. Rule: D must have counsel for critical stages
v. Alito – May attach but doesn’t mean you have to attach the
lawyer on the spot.
d. Triggering the right to counsel vs. requiring the presence of counsel
i. D is not entitled to assistance of counsel under 6th A. unless 2
conditions exist:
1. Criminal prosecution as defined by Rothgery
a. EX. formal charge, preliminary hearing, indictment,
information, arraignment
2. After criminal prosecution, 6th A. right to counsel attaches
a. Not entitled at exact moment

b. Counsel must be appointed “within a reasonable
time after attachment”
ii. Reasonable Time  D must have counsel at critical stages
e. What makes a stage critical?
i. Obviously, D’s trial
ii. Sup Ct also held: pretrial corporeal, police questioning, certain
kinds of arraignments and preliminary hearings
f. Bail hearings as critical stages
i. 10 states guarantee counsel
ii. 10 states deny counsel
iii. 30 states it varies by county
iii. “Criminal Injustice” podcast, Episode 18: Jon Rapping
III. Search, Seizure, and Arrest
a. Probable Cause
i. 4th A.: no warrant shall issue but upon probable cause
ii. Pre-Gates History
1. Spinelli v. United States
a. FACTS: Informant gave information that this guy was involved in illegal
gambling. Affidavit does not detail how the informant knows what he
knows and how reliable he was.
b. HOLDING: Affidavit did not have enough detail to show how
reliable/credible the informant was and how he knows what he knows
2. Aguillar/Spinelli 2 prong test for probable cause:
a. Veracity
i. Reliability
ii. Credibility
b. Basis of knowledge: how he knows what he knows
iii. Illinois v. Gates
1. FACTS: Police get anonymous letter detailing the drug dealing of a couple in
town. Police corroborate the letter and get a search warrant and execute it on
their home and car when they return.
2. 2 prong test overthrown (Aguillar/Spinelli)
a. 1) how does the informant know
b. 2) a. truthfulness OR b. reliability in the past
3. Corroboration can compensate
4. New Rule: Totality of Circumstances Test
a. Factors:
i. Basis of knowledge
ii. Veracity
iii. Reliability
b. A deficiency of one may be overcome by a strong showing of the other
c. Take a practical, common sense approach
5. Probable Cause
a. Probable cause is a practical, nontechnical, common sense conception
i. Look at evidence with common sense as a jury might
ii. Affidavits are written by police officers and read and decided
upon by magistrates, neither of whom are lawyers

b. “The process does not deal with hard certainties, but with probabilities.”
[268]
i. Standard: a fair probability, substantial basis
ii. Not useful to have a set %
c. Judge looks at the facts through the eyes of the police (Not eyes of
“scholars”) – eyes of experience
d. Magistrate: Review circumstance, make practical, commonsense decision
if there’s a fair probability that contraband or evidence of a crime will be
found in a particular place
e. Reviewing Ct: Ensure that the magistrate ha a substantial basis for
concluding that probable cause existed
f. Preference for warrants
i. Having a warrant means making a record beforehand on what you
knew for probable cause
ii. Required a neutral third party
6. Probable Cause Standard of Review
a. Ct is supposed to defer to the initial judgement (deference, not de novo)
i. As long as magistrate had a substantial basis for concluding that
probable cause existed
b. Magistrate’s determination of probable cause should be paid great
deference by reviewing courts
c. Cts should not invalidate warrants by interpreting affidavits in a
hypertechnical, rather than common-sense manner
7. Limits
a. There must be facts to support the warrant
b. There cannot be simple conclusory assertions
c. Rationale: the most basic function of gov’t is to secure people and
property and complicated tests do not promote this function
8. Dissenters –
a. Lowering the standard
b. Can only count what was in the warrant application and what was in the
warrant itself; cannot include what occurred after the warrant
c. Stevens –
i. Must locate the point in time at which the judgment of probable
cause was made
1. Ask at the time, what was probable cause?
2. What did the police communicate to the magistrate at that
time?
3. Everything after that does not figure into the probable
cause analysis
4. Just look at the warrant, when there is a warrant
d. Harris: With this standard, everything counts but nothing is
determinative. There’s no point where you can say you have enough
facts/evidence; no determinative kind of announcement.
9. Criminal Procedure Tension
a. Due process rights always observed to protect individual rights v. crime
control

b. A national reaction to civil rights unrest led to Nixon appointing law and
order judges
c. In Gates, the ct moves in a crime control direction
iv. The Upton case
1. Massachusetts v. Upton
a. No single piece of evidence in it is conclusive
b. If pieces fit neatly together and support the magistrate’s determination
that there was a fair probability that contraband or evidence of crime
would be found
c. Informant: provided a motive for her attempt at anonymity and for
furnishing the information
v. Canine-supplied probable cause
1. Florida v. Harris
a. Drug sniffing dog used; dog alerted to drugs
b. Rule: drug dog’s alert is enough for probable cause
i. There needs to be evidence of the dog’s reliability
1. Don’t need a track record of the dog
2. Just need certification that the dog has passed recognized
training course
c. D can still question the dog’s reliability at trial and challenge probable
cause later
2. Rule: use of dog is not considered a search under the 4 th A.
vi. “Stale” information
1. For search, there must be a substantial probability that certain items are the
fruits, instrumentalities or evidence of crime and that these items are presently
to be found at a certain place
2. Probable cause that relies on present location may be found to be lacking
because the time of the facts relied upon is unknown or highly uncertain
vii. “Anticipatory” warrants
1. Same as ordinary warrants, have to show
a. That it is now probable that…
b. Contraband, evidence of a crime, or a fugitive will be on the described
premises…
c. When the warrant is executed.
2. Warrant in Gates case was anticipatory
viii. Curing a defective affidavit
1. Who makes the probable cause judgment:
a. With a warrant – magistrate
b. Without a warrant – officer, on the spot
2. Either way should be the same standard
ix. Challenging the affidavit
1. Intentional use of false statements or intentional disregard for valid information
in the affidavit
2. Process
a. D makes preliminary showing that false statements
intentionally/knowingly/recklessly were included in the affidavit and
necessary for probable cause

b. D can then establish perjury/reckless disregard for truth by
preponderance of the evidence to potentially void the warrant
x. Informer’s Privilege – Privilege recognized
1. McCray v. Illinois
a. When the issue is not guilt or innocence but the question of probable
cause, police officers are not required to disclose an informant’s identity
xi. Maryland v. Pringle
1. FACTS: Traffic stop with 3 guys in the car. Car search and drugs and cash found,
no one admits to whose it is. All 3 arrested, later 1 confesses but contests the
arrest as lacking probable cause.
a. Ct. says there was probable cause to arrest all 3
2. Probable cause determination was made at the moment of arrest
a. Ct. examines if the police had probable cause when they arrested men
b. 33% chance that any guy possessed the drugs
i. But it’s still not a numerical determination
ii. This is a fair probability
3. This car was owned by 1 of the men, so it’s likely that 1 of them possessed the
drugs
a. Different for public transportation
4. Possession is dominion and control of the object
a. In a position where you could do something with the object
5. Enterprise notion: There were enough drugs and money in the car that it was
likely that all 3 would be sharing
6. Distinguished Ybarra
a. Where police had a search warrant for a tavern and searched all of the
patrons.
b. Ct held searches of patrons invalid.
c. Mere proximity in public place not enough to show probable cause
d. But Pringle is a private car
xii. Other Sources of Probable Cause
1. Sources: citizens, witnesses, victims, police, official channels
2. Considering sufficiency of probable cause based on information supplied by an
informant distinguish the police tipster from citizen informer
3. Citizen and witness reports – considered very reliable
a. Without motive to exaggerate, falsify, or distort the facts to serve his or
her own ends
b. Question is about enough detail, not reliability of the source
4. Police sources – treated a little more skeptically because they have a stake in the
matter
5. Official channels – warrants for arrests and databases provide probable cause
b. Search Warrants
i. Mechanics – Issuance of the Warrant
1. The “neutral and detached magistrate” requirement
a. Search warrant requirements
i. Search warrant must be issued by a neutral and detached
magistrate.

ii. Cannot be someone involved in the criminal investigation or part
of law enforcement. (Coolidge v. New Hampshire)
b. A magistrate paid to issue a warrant is not neutral
c. A judge must read the warrant
d. No magistrate shopping
2. Particular description of the place to be searched
a. Describing places to be searched and things to be seized
b. Problems now occur when there is some description but not enough
c. Is there enough information available to the officer that she can make a
reasonable choice?
d. Street address is generally enough but can get complicated with
apartment buildings
3. Particular description of the things to be seized
a. So, an officer can identify the thing in the place
b. OLD RULE – “Plain view exception”
i. If not explicitly in affidavit
ii. Must be discovered inadvertently/accidently
c. CURRENT RULE – Legal vantage point
i. Officer can pick it up if he sees it
4. Particular description, reliance on affidavit
a. Particular description must be on the warrant, not just on the affidavit
supporting the warrant
i. Warrant may cross reference the affidavit for the particular
details
b. Process
i. Officer will type warrant leaving blank date and signature for
judge. Fills out:
1. Basis for probable cause
2. Place to be searched
3. Place to be seized
ii. Judge will read everything and decide to sign warrant
iii. Blank spaces for return and inventory
1. Return is signed by officer when they search
2. Inventory is a “receipt” of what was taken and where it
was taken from
iv. Copy is supposed to be left with owner of building
c. Groh v. Ramirez
i. FACTS: Description of particularity was not in warrant
ii. HOLDING: Police cannot rely on affidavit if warrant itself does not
describe things to be seized with particularity
iii. But, can reference exhibits/affidavit
iv. Main point is don’t forget the 2 documents (affidavit and warrant)
are not the same thing
ii. Execution of the Warrant
1. Time of execution – usually search warrants must be executed within 10 days
a. A warrant can go stale if not executed in time
b. Warrants are generally only executable during the daytime
i. Nighttime warrants can be granted specially
c. Sneak and Peek Warrant
i. Became popular due to the Patriot Act
ii. Don’t want the target to know that officers were in the house
photographing, copying, or anything
2. Gaining entry
a. (With notice) police must give notice of their presence and purpose
b. Knock and announce
i. Police must knock and announce their presence to gain entry
ii. How long to wait is determined by the reasonableness of the
search
1. Not waiting is determined by the reasonableness of the
exigent circumstance
c. Judge can give permission to enter without knocking and announcing
d. Police can ignore knock and announce if circumstances allow it:
i. People fleeing
ii. Destruction of evidence
iii. Threat to police
iv. Case by case measuring of facts
e. No-knock entry requirements:
i. Police must have reasonable articulable suspicious that knocking
and announcing their presence under the circumstances would
1. Be dangerous
2. Futile
3. Would inhibit effective investigation
a. Destruction of evidence
b. Suspects fleeing
f. Richards v. Wisconsin
i. Sup. Ct. won’t make categorical exception to knock and announce
(Ex. Drug cases)
1. Concern for growing of more and more exceptions
ii. Look at it case-by-case
g. United States v. Banks
i. How long officers have to wait after knocking depends on the case
ii. Must give people enough time to respond
iii. Can be exigent circumstances if there’s an emergency
iv. This case, the emergency was possible loss of evidence
3. Search of persons on the premises
a. Ybarra v. Illinois
i. FACTS: Police have a warrant for a bar and bartender who sells
heroin. Police search everyone in the bar when they execute and
a patron has drugs.
ii. There was no probable cause to search the patrons.
iii. Only had probable cause to search the bar and its owner
1. Can’t search everyone located in a public place where a
search warrant is executed

b. Los Angeles County v. Rettele
i. FACTS: Police have a warrant for an address for 4 black suspects.
They found 2 white naked people in bed, made them stand there
for a few minutes until they realized they made a mistake.
ii. Police are not liable for mistakes in a warrant that had probable
cause.
4. Detention of persons on or near the premises
a. Michigan v. Summers
i. FACTS: The police detained a resident of the premises being
searched while the search warrant was executed.
ii. HOLDING: Okay to detain a resident of the premises. Already had
probable cause to search home.
iii. There is a connection between the person and the place.
iv. Detention is less intrusive than the actual search of the home
which was already okayed
b. Bailey v. United States
i. FACTS: Police are going to search a house and find the owner a
mile away. They detained him and brought him back to the scene.
ii. The police can only detain the occupant of a searched premises
who is in the immediate vicinity of the premises under the
authority of the search warrant.
1. He is of no threat and cannot destroy evidence
iii. Limits Summer holding
c. Muehler v. Mena
i. FACTS: Execution of search warrant for weapons There was
evidence of gang activity.
ii. It is reasonable for police to handcuff an occupant when the case
merits it.
5. Intensity and duration of the search
a. Police can only look in places where the sought items can actually be
found
b. It is all guided by probable cause for the items
6. Seizure of items not named in the search warrant
a. Plain View Exception: When police see evidence of crime in plain view,
they may seize it
i. Police must have a right to be where they are
ii. They observe the item from a legitimate/legal vantage point
iii. It is immediately apparent that the item could be contraband
1. Disagreement if the police must be right
iv.  No longer required to be inadvertently discovered
b. Horton v. California
i. FACTS: Probable cause to search Ds home for proceeds of a
robbery. Guns were found instead through plain view.
ii. Eliminates the “inadvertent” requirement for the plain view
exception
7. Presence of third parties
a. Presence of 3rd parties during search warrants is allowed if its related to
what law enforcement is doing
b. Media members cannot accompany police
iii. Special Problems: Computer Searches
1. It is difficult to determine particularity of search beforehand
2. Cts often order hard drives to be frozen and copied in their entirety
iv. Fed. R. Crim. P. 41
c. Exclusionary Rule
i. Exclusionary Rule: when the police violate the constitution in the gathering of evidence,
it may be excluded from trial
1. Remedy for the constitutional violation
a. If no exclusionary rule, there’s no point to the 4th A.
2. Not a well-liked rule
a. In practice, the suppression remedy only comes in cases where the
person is likely guilty because the evidence was found
ii. Wolf v. Colorado
1. Is the 4th A. guarantee against unreasonable searches and seizures part of the
fundamental fairness of Due Process? – Yes
2. Does the exclusionary rule apply to the states via Due Process clause of the 14 th
A.? – No
3. The 4th A.’s guarantee against unreasonable search and seizure is part of the
fundamental fairness of Due Process.
4. The exclusionary rule does not apply to the states
a. It is a judicially created remedy and not the constitutional rule itself
b. The federal exclusionary rule is simply our chosen remedy for the federal
cts.
c. Many states and other common law countries do not have an
exclusionary rule
d. Ct cited alternative methods to handle constitutional violations
i. Internal police discipline
ii. Tort cases
iii. Let the states work it out
iii. Mapp. v. Ohio
1. FACTS: Police tried to search home and women wouldn’t let them in without a
warrant; they came back acting like they had one and searched anyway and
found evidence
2. Ct said this was an impermissible search and the exclusionary rule applied to the
states and suppressed the evidence
3. Purpose of the exclusionary rule
a. Deterrence of 4th A. violations (empirical point)
i. Without this rule, police will feel free to violate the rule
1. With the rule, they may be deterred
b. Judicial integrity (normative point)
i. Follow the Constitution
ii. If the judge accepts illegally seized evidence it looks bad; the
whole process is tainted
iii. Gov’t must follow its own law
4. Start of the Warren ct’s expansion of D’s rights
5. Wolf is reversed

iv. Aftermath of Mapp
1. Exclusionary rule leads to increased police training and reference to the law
2. Law enforcement disliked this a lot
3. Increased police perjury
v. Suppression under Mapp
1. Requirements:
a. Violation of the 4th A. must have occurred
b. Not be one of the recognized exceptions to exclusionary rule
vi. Suppression under state constitution
1. State prosecution must be asked whether suppression is available under a state
constitutional provision with language similar to the 4th A.
2. Depends on whether
a. State constitutional provision in question is enforced by an exclusionary
rule
b. Applicable provision provides greater protection than the 4th A.
vii. Suppression pursuant statute or court rule
1. Cts often utilize an exclusionary rule for violations of statutes and rules closely
related to 4th A. issues
2. Source of authority:
a. Legislative authority derived from the implies content of the statutory
provision violated
b. The cts’ supervisory power over the administration of justice
viii. United States v. Leon [GOOD FAITH EXCEPTION CASE]
1. FACTS: Police reasonably relied on a search warrant issued by a neutral and
detached magistrate to gather evidence, which was later found to be defective
2. HOLDING: There was no deterrence furthered by suppression, thus the
exclusionary rule did not apply
3. Change in thinking on the exclusionary rule
a. Crime control philosophy has prevailed in the ct
b. Exclusionary rule is not mandated by the text of the 4th A. (not a right)
c. Exclusionary rule is a judicially created remedy
d. Exclusionary rule does not remedy the injury done to the D
i. The illegal search and seizure is the injury
ii. The use of the evidence in the ct is not the injury
e. Ct separates the constitutional violation and the use of evidence
i. No new 4th A. wrong by using the evidence
ii. Separates the conduct and the benefits of the conduct
4. 2 questions
a. What was the violation of the right
b. What is the cost/benefit of the use of the evidence?
5. Cost/benefit analysis for exclusionary rule – weigh the costs and benefits of the
exclusionary rule when determining if it should apply
a. Costs – some people get off when they are guilty (substantial cost)
i. Typical costs: guilty sometimes go free and hampers the truth
finding function of the police and cts.
b. Benefits – deterrence of police misconduct
i. Judicial integrity is not one of the benefits of the exclusionary rule

1. This rule makes people think the system has technicalities,
is ineffective, etc.
2. You’re excluding inherently trustworthy evidence
3. Leon – idea of judicial integrity seems to disappear after
this case
ii. The rule only deters police misconduct
iii. In Leon – Ct fails to see deterrence at play because magistrate
made the mistake
6. Burden of proof – on the proponent of the exclusion
a. No one has ever shown a benefit to imposing the exclusionary rule
b. If you want it imposed you must show the benefits outweigh the costs,
BUT the costs are so substantial we’ve never seen any benefits.
7. “Good faith” exception to the exclusionary rule: prevents the suppression of
evidence obtained from an objectively, reasonably reliable upon search warrant
that was ultimately found to lack probable cause
a. Very narrow ruling
8. Suppression still appropriate:
a. Magistrate was misled by information in the affidavit
b. The affiant was false or recklessly disregarded the truth
c. Issuing magistrate has abandoned his judicial rule
d. When an officer relies on a warrant that relies on an affidavit so facially
deficient the executing officer cannot presume its valid
9. Dissent –
a. This ruling makes the 4th A. worthless
b. Removing the purpose of judicial integrity rigs the game
i. When unconstitutionally gathered evidence is used, the whole
gov’t is using illegally obtained evidence
ix. Exclusionary Rule Analysis:
1. Evidence it does not deter constitutional violations
2. It has increased police perjury on 4th A. issues
3. There are alternatives but they have problems
4. Evidence is suppressed; Ds are not, cases are not, people are not
x. Good faith extension:
1. Police reliance on a then valid statute that is found unconstitutional does not
warrant the exclusionary rule
2. Police reliance on a then valid precedent that is later overturned does not
warrant the exclusionary rule
xi. Which of the Supreme Court’s assumptions in Mapp and Leon regarding the behavior
of police and judges are correct?
1. Studies show police do care when evidence is suppressed; they want to know
why and what not to do again
2. Deterrent effect does seem to be real
xii. “Clerical error”
1. Groh v. Ramirez
a. Anyone could have seen the blank space on the warrant and known it
should not have been there
b. Although mistake was made by the magistrate, it was such a bad mistake
the police could not rely on it
xiii. Reliance on since-invalidated statute
1. Illinois v. Krull
a. FACTS: unconstitutional search made pursuant to a statute authorizing
warrantless inspection of the records of licensed motor vehicle and
vehicular parts sellers
b. New category of cases so cost-benefit analysis tool
i. Always a huge cost to exclusionary rule
c. Deterrence is not present in this case.
i. Police were using a statute that was on the books
ii. Mistake was made by legislature
xiv. Compliance/reliance regarding since-overruled precedent
1. Davis v. United States
a. FACT: Officer’s conduct was in line with precedent. During an appeal,
new law was passed that made officer’s search unconstitutional.
b. Finding against officer won’t deter police conduct
c. Huge cost – guilty go free
xv. “Dimensions” of the Exclusionary Rule: Evidence obtained by gov’t agents…
1. Grand jury
a. No exclusionary rule for grand jury proceedings
b. No guilt is being determined
2. Post-Conviction
a. No exclusionary rule for post-conviction proceedings like parole
b. No deterrence of police conduct
3. Quasi-criminal
a. No exclusionary rule for quasi-criminal cases like forfeiture
4. Civil Deportation
a. No exclusionary rule for deportation hearings
5. Private parties
a. No exclusionary rule for searches by private parties
6. Gov’t Mistakes
a. No exclusionary rule for searches based on mistakes by nonpolice state
actors
7. Database Errors
a. Arizona v. Evans
i. FACTS: Warrant database maintained by county clerk says officer
has a warrant. Provides probable cause for arrest. Database was
wrong.
ii. No deterrence: actors (county clerk) are not police officers
8. Foreign officers
a. No exclusionary rule for illegal searches by foreign officers
b. No deterrence of our police
xvi. Hudson v. Michigan
1. Issue: Do knock and announce violations get the exclusionary rule? No.
2. Suppression has always been a last resort, not a first impulse
3. The exclusionary rule has high societal costs and have thus been hesitant to
expand it
4. Exclusionary rule only applied where deterrence benefits outweigh its costs
a. Only purpose of the rule is deterrence
5. Burden to apply exclusionary rule is on party who wants it
6. Can no longer assume exclusionary rule applies
a. Policing has changed since the exclusionary rule was adopted
i. More professional and internal discipline
b. No evidence that exclusionary rule is as effective a deterrent as other
remedies
c. Now you can sue under Section 1983, sue local gov’ts, sue fed. gov’t,
attorney’s fees provisions now encourage lawyers to take these cases
7. Generally, but not always, the exclusionary rule does not apply to knock and
announce violations
8. Ct attempted to argue the world has changed and exclusionary rule is not
needed anymore
9. Concurrence – Kennedy
a. “The continued operation of the exclusionary rule, as settled and defined
by our precedents, is not in doubt
b. Only reason exclusionary rule is still law
xvii. Herring v. United States [EXTENDS GOOD FAITH EXEPTION]
1. FACTS: Error in warrant database in nearby county, leads to man’s arrest
2. This cause should have just been an extension of Evans
a. Instead court adopts an open-ended good faith exception to the
exclusionary rule
b. Standard is hard to understand
3. Ct focuses on the degree of culpability of the officer
a. Exclusionary rule is only extended (triggered) when it will deter the
officers’ conduct
b. Exclusionary rule only given to deliberate, culpable, grossly negligent, or
reckless conduct
i. Only when deterrence is worth the price paid by the justice
system
ii. Not extended for nonrecurring and attenuated negligence
c. Narrows what qualifies for exclusions
4. Triggering exclusionary room requires:
a. Police conduct that is sufficiently deliberate that exclusion can
meaningful deter it
b. Sufficiently culpable acts that such deterrence is worth the price paid by
the justice system
5. This decision has caused chaos in lower cts.
xviii. **Notes from Harris
1. Understand the cases on probable cause
2. Understand Mapp and Leon – How Leon changes Mapp
a. Getting rid of judicial integrity as a required justification
b. Them how the Leon cost/benefit analysis method works, for new subsets
of cases that come along
3. Know the cases that apply to the Leon analysis that we have gone over in class
a. Krull, Calandra, Janis, Verdugo-Urquidez, Scott, Hudson Evans
b. Know when the exclusionary rule does not apply and when it does
4. Know the Katz case, especially the REP test and how it works
a. Bond (luggage), Place (dog sniffs), Jones (GPS placement on vehicle)
5. Individual expectations to the warrant requirement, then exceptions to the
probable cause requirement
d. Protected Areas and Interests
i. Question: What kind of police activity constitutes a search for 4 th A. purpose?
ii. Katz v. United States
1. FACTS: Guy is in a phone booth transmitting gambling information, cops
recorded it outside of booth.
2. HOLDING: Guy had an expectation of privacy in his speech and officers needed a
warrant
3. Founding case of what is a 4th A. search
a. Before this case, 4th A. jurisprudence relied on property cases
4. The 4th A. does not protect some “constitutionally protected area”
a. Rejects property rights, trespass concepts
5. The 4th A. is not translated into a general “right to privacy”
6. The 4th A. protects people, not places
a. What one exposes to the public is not subject to 4th A. protection
b. What a person seeks to keep private, even in a public area, may be
constitutionally protected
7. STANDARD: Whether the person has a “reasonable expectation of privacy”
a. If yes, constitutes a “search” for 4th A. purposes
8. Concurring – Harlan
a. Contains the rule we use today
b. Place is a necessary context to understand
c. Harlan’s 2-Step Test
i. Whether a person exhibited an actual (subjective) expectation of
privacy
ii. Whether society is prepared to recognize that expectation as
reasonable (objective)
iii.  Technically need both, but 2nd part of the test usually
determines the outcome
9. Application of the Katz Test:
a. Ultimate Question is: Is the police conduct a search or seizure for 4 th A.
purposes?
b. If there is a reasonable expectation to privacy, it is a search and the cops
need a warrant, probable cause, etc.
i. If not, it is not a search, and no warrant requirement
c. The subjective expectation to privacy prong of the test doesn’t matter
very much
iii. Fourth Amendment interests
1. 4th A. protects the interests in possession of property and liberty of person
2. Although, only limits gov’t actors
iv. Vehicles
1. Vehicles have a lesser expectation of privacy

v. Effects
1. Private area inside the effects DO have an expectation of privacy and are 4 th A.
searches
2. Bond v. United States
a. FACTS: Suitcases in overhead bins. Police felt bags “exploratory.”
b. HOLDING: This is a 4th A. search
c. Seeking behavior is okay but it is a search
d. There is a reasonable expectation of privacy in the contents of a closed
bag
e. A bag is an effect protected under the 4th A.
vi. Enhancing the senses
1. Police use devices to enhance their senses
a. Ct has always allowed basic sense enhancements, like binoculars
b. These basic sense enhancements are not searches
2. Not a search for an officer to detect something by one of the natural senses
3. Question is: is using tactic X a 4th A. search?
vii. Contraband-only detection
1. United States v. Place
a. FACTS: Police use a dog to sniff luggage – not person.
b. ISSUE: Is it 4th A. search?
c. Justifications for it not being a search
i. Uniquely un-intrusive
1. Dog sniffs sui generis
2. Less intrusive than a typical search
3. (don’t have to open the suitcase)
ii. Dog is a binary detection device (if properly trained)
1. Yes / no answer
2. If smells contraband, dog gives signal
iii. Limited disclosure of information
1. Only presence of absence of contraband
2. No other information gathered
d. RULE: Use of a drug detection dog is not a search for 4th A. purpose
i. Can use a drug detection dog without a warrant
ii. Can use a drug detection dog without probable cause
e. RULE: Alert is probable cause for a full search
2. United States v. Jacobsen
a. FACTS: Private party opens a package during its shipment to find coke
b. HOLDING: On the spot chemical test is not a search. No compromise in
privacy.
c. Anything that private non-law enforcement people can look at; the police
have a right to look at
d. Chemical test is like dog-sniff test
i. Binary (yes/no, presence/absence of contraband)
ii. No privacy interest in contraband
e. Dissent –
i. Unbounded analysis
ii. Device on the street

3. Illinois v. Caballes
a. PH: Reversed lower court decision that 4th A. search began when dog
used.
b. HOLDING: Place affirmed dog sniff is not a search. BUT officers cannot
prolong detention to wait for a drug detection dog to arrive
c. RULE: Police cannot prolong detention for dog-sniff beyond reasonable
traffic stop
d. No privacy interest in contraband. (Jacobsen)
e. Dissent – Souter
i. Sniffs are not certain
viii. United States v. Jones
1. FACTS: Cops attach a GPS device on a car and track for 28 days without a warrant
2. HOLDING: Gov’t installation of GPS to monitor vehicle movements is a search for
4th A. purposes
a. Scalia returns to property concepts
b. “The gov’t physically occupied private property for the purpose of
obtaining information.”
c. Privacy always tied to common law trespass.
d. Katz did not replace trespass law, it added a reasonable expectation of
privacy to it
3. Prior cases
a. Knotts and Karo
i. Knotts – just tracked the car on the highway and that’s okay
ii. Karo – trackers were inside a guy’s house and that is not okay
iii. Both cases relied on reasonable expectation of privacy
b. Scalia says these cases simply did not discuss property
4. Concurrence – Sotomayor
a. Adopts mosaic theory
i. An accumulation of a ton of information into a final picture of
someone’s activity
ii. Each bit of data is a piece of a mosaic
iii. This is too revealing to do without a warrant
iv. Invades a reasonable expectation of privacy
5. Dissent – Alito
a. Property concepts are not helpful in today’s society
b. A physical invasion is no longer needed to acquire information
ix. After Jones –
1. This case may be a game changer, but it’s unclear where it will go
2. Katz is still the law
3. Scalia adds a little more to the property approach in Jardines
x. ALPR cameras
1. Automatic License Plate Readers: passive surveillance, paints a mosaic of where
you or your car has been
2. Great if looking for particular car but they keep track of everyone
a. Able to get a query about where a vehicle was
xi. Data aggregation and mining
1. Datamining to predict where crimes will occur

xii. Florida v. Jardines
1. FACTS: Police received an unverified tip that Jardines was growing pot in his
house, so had a cop take a dog up to his door to sniff w/out a warrant
2. Scalia turns to property concepts again to say 4th A. protects the curtilage of a
house – Reasoning:
a. Kyllo plus Jones
b. Katz stated that property rights are not the sole measure of the 4th A.
i. It added to property concepts
th
c. 4 A. protects curtilage; invasion of it is invasion of the home
i. Area immediately surrounding and associated with the home
(curtilage) is part of the home itself for 4th A. purposes
d. 4th A. draws a firm line around the home
i. Home is the “first among equals”
e. Back to the text of 4th A. – a person’s house and personal affects
f. Dogs are not a search, but a house is high in 4th A. hierarchal value
3. Concurrence – Kagan
a. Ct decided this under a property rubric
b. But it could easily have been done under privacy interests
4. Dissent – Alito
a. Anyone can walk up to one’s door, nothing wrong with that
b. Counterargument to Alito’s point –
i. Just because everyone is able to go and knock, it comes with
license
ii. Expectation of what people are going up to the door for is
different
iii. Using a dog may not be a search under Katz but using a dog on
curtilage is looking for what’s inside the house
xiii. “Curtilage”
1. Curtilage: area right around the house that is associated with the activities within
the house and do have an expectation to privacy
2. Ex. porch, pool house, etc.
xiv. Garbage
1. RULE: Not a search as long as it is done in a way that anyone could have; if
anyone could search there’s no reasonable expectation of privacy
2. California v. Greenwood
a. FACTS: Garbage search of suspected drug dealers. Search through
house’s garbage and find drug evidence without a warrant
b. A garbage search is not a search for 4th A. purposes because the garbage
is exposed to 3rd parties and the public, thus no reasonable (objective)
expectation to privacy
c. “Could’ve” reasoning: Anyone could have gone through the trash
d. 3rd party doctrine: if one passes information freely to a 3rd party, that
person loses any expectation of privacy in it
3. United States v. Scott
a. FACTS: Law enforcement reassembled shredded documents
b. Ct allowed this because there was no expectation of privacy
c. Could’ve reasoning

xv. Surveillance from outside the curtilage – overflight
1. Open field doctrine: If something is in an open field there’s no expectation of
privacy
2. Not a search as long as it is done in a way that anyone could have
3. Because, if anyone could there’s no reasonable expectation of privacy
4. Florida v. Riley
a. Anyone can fly a plane over property and see it
b. Thus, it is not a search for 4th A. purposes and there is no reasonable
expectation of privacy
xvi. Surveillance from outside the curtilage – thermal imaging
1. Kyllo v. United States
a. FACTS: Police used a thermal image device on a house w/out a warrant
b. HOLDING: Using a thermal image device is a 4th A. search because it
allows the police to know what is happening in the house without going
in it. Violating a reasonable expectation of privacy
c. Home is at the center of the protection of the 4th A.
d. Technology shrinks and changes reasonable expectation of privacy
e. Harlan was right – you have to think about the areas to understand the
privacy people enjoy
xvii. Other areas
1. Businesses
a. Can enjoy expectations of privacy, but depends on the circumstances
i. What access does the public have?
b. Ex. Storefront = no, changing rooms/restrooms = yes
2. Prison cells
a. No expectation to privacy in a prison cell at all
b. Not reasonable to society for security concerns
3. Vehicle exteriors
a. Less reasonable expectation of privacy (than interior)
4. Tracking a person
a. Grady v. North Carolina
i. FACTS: Recidivist sex offender ordered to wear tracking device at
all times
ii. Jones – State conducts a search when it attaches a device w/out
consent to trace
e. Undercover Investigations (Other protected interests – informants)
i. Lopez v. United States
1. Facts: Informant records a bribe offer
2. ISSUE: Is this considered a seizure of D’s words?
a. No
b. Recording of what the person could have reported
3. Not violation of the 4th A., not seizure of one’s words
4. Dissent – Brennan
a. Talks about the idea that someone may inform upon you wherever you
are in the world
b. These electronic means are different, there are expectations to privacy,
pre-Katz

ii. On Lee
1. FACTS: Informer wears a transmitter while talking to a target
2. At trial, agent, not informant testifies
iii. Secret Agents and the 4th Amendment
1. Hoffa v. United States
a. FACTS: Hoffa was on trial and the police had a friend of his report
incriminating conversations about Hoffa fixing the jury
b. HOLDING: This did not violate an expectation of privacy because risk of
someone telling your secrets is inherent in all human relationships
c. Expectation of privacy in hotel room is not what’s violated; confidence in
his friend is violated
i. Betrayal of trust has nothing to do with 4th A.
ii. Anyone could have relayed information
iii. No 4th A. violation in using the D’s misplaced confidence in his
friend
d. Ct adopts Brennan’s “assumption of the risk” language from Lopez
e. The informant had the consent from the D and his deception does not
vitiate the consent
f. 4th A. protects the security a man relies on in constitutionally protected
area
i. This is pre-Katz
2. United States v. White and the “reasonable expectation of privacy” test
a. United States v. White
i. FACTS: Electronic broadcasts by informants to law enforcement
outside of room done w/out warrant
ii. Post-Katz
iii. HOLDING: Law permits the use of informants and it makes no
difference how they distribute the conversations to the courts
1. Risk we assume when we trust people
iv. Assumption of the risk theory still applies to informants (Hoffa)
v. This is really no different than On Lee
vi. Dissent – Harlan
1. Disavowed his Katz test
2. We have to transcend subjective expectations and the
risks we assume
3. The task of the law, is not just to mirror and reflect, but to
inform and project the proper expectations of privacy
a. We need to ask should we have a different
expectation of privacy than society actually has
now?
b. What expectation of privacy do we want? Not,
what do we have?
4. Harlan seems to be questioning his reasonable expectation
of privacy test in Katz
3. United States v. Longoria
a. No expectation of privacy based off of listener’s ability to understand a
language

4. Undercover agents and the scope of consent
a. Gouled v. United States
i. Scope of the consent can set limits on what the informant is
allowed to do
f. Network Surveillance
i. History of telephone privacy
1. Olmstead v. United States
a. FACTS: Wiretapping case
b. Property concepts
i. Not going into anyone’s house or property; there is no trespass
ii. This theory is what Katz got rid of
c. Using a telephone is putting communication onto wires which go to the
outside world
d. Dissent –
i. Not just mirror and reflect, reform and project
ii. We should think with the long view
ii. Cell phone and cordless phone privacy
1. Originally, w/ cordless phones there was not a reasonable expectation of privacy
2. Radio waves weren’t protected
iii. Materials posted on the World Wide Web
1. United States v. Post
a. Precedential application to accessing metadata embedded in a digital
photo posted on website
b. Putting photos on internet with geotagging is not private
c. You must take some steps for privacy
i. Like encryption
g. Rights in Non-Content Information
i. Smith v. Maryland
1. FACTS: Woman was getting calls from her attacker so the police put a pen
register – installed at the phone company (not his house) – used it to get a
warrant to search his house. No warrant used to install the pen register.
2. HOLDING: No expectation to privacy because he relayed the numbers he dialed
to a 3rd-party, the phone company
3. We must rely on Katz
a. Application of the 4th A. depends on whether the person invoking its
protection has a justifiable or a reasonable legitimate expectation to it
b. Ct assumes everyone knows phones companies track numbers
4. Ct compares this to looking at an address on the outside of an envelope
5. 3rd-party doctrine: If voluntarily conveyed information to a 3rd-party has no
expectation to privacy
6. Restates United States v. Miller
a. There is no expectation of privacy in banking records because they are
conveyed to a 3rd-party, i.e. the bank
7. If there is a non-content search or if the information is transmitted through or to
a 3rd-party there is no reasonable expectation of privacy
8. Ct seems to confuse privacy with secrecy

a. Can still have reasonable expectation of privacy in something that is not
an absolute secret
ii. Other things not considered “searches”
1. Mail covers
2. NSA’s metadata collection
3. Cell site location data
iii. Pending Supreme Court case may reevaluate the 3rd-party doctrine [Supp. 47-48]
1. Carpenter v. United States
a. FACTS: Cell-site locations used
b. Obtaining cell-site records was not a search
c. 4th A. protected contents of communications but did not protect non-
content metadata
iv. “Criminal Injustice” podcast, Episode 48: Adam Bates
h. Arrest – “Warrantless Arrests and Searches of the Person”
i. Same standard of probable cause for searches is used for arrest
ii. United States v. Watson – Arrests in Public
1. FACTS: A reliable informant told the postal inspector that Watson had given him
a stolen credit card and told him he could give him more in a few days; the
officer witnessed this exchange and arrested him.
2. HOLDING: It was a valid arrest in public.
3. Statute – Congress has decided that it is not unreasonable for the postal
inspector to arrest w/out a warrant provided they have probable cause to do so.
a. There is a strong presumption that a search authorized by Congress and
based on reasonableness is valid.
i. This was passed by a founding era Congress.
b. This Statute reflects the common law understanding.
4. Arrests in Public:
a. Crime in presence – An officer may arrest when a misdemeanor or felony
is committed in his presence without a warrant
b. Felonies not in presence – An officer may arrest in public for a felony not
committed in his presence when they have probable cause
i. *First exception
ii. Cannot arrest for a misdemeanor w/out a warrant
5. Concurrence – Powell
a. There are exceptions to the 4th A. warrant requirement that are jealously
and carefully drawn
6. Dissent –
a. *Second exception – Exigent circumstances
b. Ex. Suspect was about to flee, danger of death, suspect escaping,
destruction of evidence
iii. Post hoc justifications
1. Preference for warrants forces us to avoid justifying things afterwards
2. Warrants force us to take the facts we have before the search
iv. Misdemeanor arrests
1. Atwater v. City of Lago Vista
a. FACTS: Woman driving with kids un-belted in front seat. Officer tells her
she is going to jail and she didn’t have her papers. She was taken to jail.

But there is no jail time for seatbelts. So that case goes away and she
sues police.
b. Warrantless arrests for misdemeanors in an officer’s presence do not
need to be “breach of the peace” type offense
i. Based on old common law
ii. Can arrest someone under 4th A., take them into custody for a
crime that is not punishable by jail time
v. Use of force
1. Tennessee v. Garner
a. FACTS: Man was burglarizing a house and as he fled the scene, cop shot
him in the back and killed him. At the time, TN law allowed the use of
deadly force to stop a fleeing felon.
b. HOLDING: Use of deadly force for every fleeing felon is not a reasonable
seizure.
i. Could be situations in which it is reasonable
ii. Ex. armed suspect
2. Graham v. Connor
a. HOLDING: Police have the privilege to use force if it is reasonable
b. 4th A. reasonableness standard for excessive force:
i. Applies to all claims that law enforcement officers have used
excessive force (deadly or not) during an arrest, investigatory
stop, or other seizure of a free citizen
ii. Requires careful attention to the facts and circumstances of each
particular case
1. Severity of the crime at issue
2. Whether suspect posed an immediate threat to safety of
the officers or others
3. Whether he was actively resisting arrest or attempting to
evade by flight
iii. Must embody allowance for the fact that police officers are often
forced to make split-second judgments about the amount of force
that is necessary in a particular situation
1. Circumstances that are tense, uncertain, and rapidly
evolving
iv. Asks whether the officer’s actions are objectively reasonable in
light of the facts and circumstances confronting him, without
regard to their underlying intent or motivations
v.  What is an objectively reasonable response to this situation?
3. Scott v. Harris
a. Not excessive force because all the other drivers were in danger so it was
reasonable for the officers to act the way they did
b. Objective reasonableness – new factor:
i. Person on whom force was used had role in creating the situation
ii. Their own safety was
vi. Judicial review
1. Preference for warrants – If there’s a warrant, a judge made a decision on
probable cause

2. Gerstein v. Pugh
a. Shifting interests post-arrest: if the arrest is warrantless due to an
exception, the gov’t must have a judicial determination of probable cause
as fast as possible
i. Probable cause hearing does not have to be a perfect hearing
ii. Does not need a lawyer
vii. “Prompt” review
1. County of Riverside v. McLaughlin
a. HOLDING: Hearings have to be within a reasonable time
b. Reasonably prompt hearing timing – probable cause hearing must take
place within 48 hours
i. D can still show unreasonable delay within 48 hours
ii. Hearings within 48 hours are presumed reasonable
c. Burden shifting – hearings after 48 hours are presumed unreasonable
and the gov’t must show emergency, extraordinary
viii. Payton v. New York
1. FACTS: 1) Police went into a home to arrest a guy, wasn’t there but there was a
shell casing in plain view and used it to arrest him, did not have a warrant. 2)
Police went into a house with a warrant and searched drawers; used the
evidence they found.
2. Can’t enter home to arrest without a warrant
a. Search and seizure inside a home without a warrant is presumptively
unreasonable, even with felony probable cause
b. Drawing the line at the home
3. Arrest warrant is a limited authority to enter a D’s home if there is reason to
believe he is there
4. “Absent exigent circumstances…”
a. Exigent Circumstances Exception: an emergency such that a warrant
could not be obtained in time
i. Hot pursuit
ii. Destruction of evidence
iii. Officer / public safety
ix. “Hot pursuit”
1. Allowed into a house
2. There is no hot pursuit for a minor crime; there is no continuing danger
3. An arrest warrant for a D is not enough to search someone else’s house
4. Warden v. Hayden
a. Hot pursuit doctrine
b. HOLDING: Officers acted reasonably when they entered a home to search
for a robber
c. 4th A. does not require officers to delay an investigation if it would
endanger lives
d. RULE: If police are in hot pursuit with probable cause to believe person is
a fleeing felon, can follow them into a home to arrest them.
5. United States v. Santana
a. Permitted warrantless arrest when woman was standing in the doorway
b. If she were to have fled inside the house = exigent circumstance

x. Exigency factors
1. Ct found that exceptional circumstances were present by assessing these
considerations:
a. Grave offense is involved, particularly one that is a violent crime
b. Suspect is reasonably believed to be armed
c. There exists not merely the minimum of probable cause, that is requisite
even when a warrant has been issued, but beyond that a clear showing of
probable cause, including ‘reasonably trustworthy information,’ to
believe that the suspect committed the crime involved
d. Strong reason to believe that the suspect is in the premises being entered
e. Likelihood that the suspect will escape if not swiftly apprehended
f. Circumstance that the entry, though not consented, is made peaceably
g. Time of entry – Night entries raise a particular concern over
reasonableness
xi. Gravity of underlying offense
1. Welsh v. Wisconsin
a. FACTS: Drunk driver crashed and walked home. Police entered home
without a warrant to make arrest.
b. HOLDING: Not an exigent circumstance, no hot pursuit.
i. Minor crime – Noncriminal traffic offense
ii. No continuing danger – Any danger was over; no threat to public
safety (he was home passed out)
iii. No immediate pursuit
xii. Entry of third party’s premises
1. Steagald v. United States
a. An arrest warrant for a suspect will get you into suspect’s house when
officers have reason to believe suspect is at the house
b. RULE: Warrant won’t get you into a 3rd party’s house
c. 3rd parties still have 4th A. rights
i. Searches Incident to Arrest – “Warrantless Entries and Searches or Premises”
i. A search incident to a valid arrest is another exception to the warrant requirement
ii. Warrant exceptions:
1. Plain view
2. Search incident to a valid arrest
3. Exigent circumstances
4. Hot pursuit
iii. Chimel v. California
1. FACTS: Chimel was suspected of a burglary of a coin shop and after being let into
his house they arrested him and proceeded to search the entire house and
seized any coins or other things connected to the crime; all found without a
warrant
2. HOLDING/RULE: Police can only search 1) an arrestee’s person and the 2) area
within their immediate control during a search incident to a valid arrest
3. Limit to 2 purposes:
a. Officer safety (weapons)
b. Preservation of evidence (evidence)

4. Because of historical placement of the 4th A. cannot freely search a house during
an arrest
iv. The “immediate control” test
1. Scope of a lawful search incident to arrest is the area within the D’s immediate
control at the moment of arrest
a. Area within which the D might gain possession of a weapon
b. Area within which the D might destroy evidence
2. Not at the time of the search – once the D might be restrained
v. Protective sweep
1. Maryland v. Buie
a. FACT: Guy arrested and put in handcuffs. Cops looked around, but not in
drawers or anything
2. Protective sweep: police are allowed to conduct a cursory search of immediate
area from which an attack could be launched without a warrant
a. Need reasonable articulable suspicion
3. Other areas – cursory sweep of other areas if there is Terry reasonable suspicion
of danger
vi. Post-arrest entry
1. Washington v. Chrisman
a. FACT: Arrested student, then followed student back to his dorm
b. Warrantless entry of premises will be permissible incident to and
following an arrest elsewhere
vii. “Plain view”
1. Coolidge v. New Hampshire
a. Plain view:
i. Police are legitimately (lawfully) on the premises
ii. Police are viewing it from a lawful viewpoint
iii. The items are immediately apparent as contraband
2. Arizona v. Hicks
a. FACTS: Officers called because shots were fired, no warrant. Exigent
circumstances. Officer sees high-end equipment in “dump” apt; officer
goes through equipment and looks for serial numbers – lifting up
equipment to see if it’s stolen.
b. HOLDING: Not a valid search incident to a valid arrest
c. “A search is a search, no matter how small”
d. Lifting up the equipment is not a lawful viewpoint, thus not a plain view
search
viii. Kentucky v. King
1. FACTS: Cops witness a buy and the guy goes into his apt which is one of two;
they smell pot in one and thus knock and announce. They hear people
“destroying evidence” and burst in. It’s the wrong apt.
2. RULE: Not an incident if a police officer created exigency
3. Lower cts have created an exception to the exigent circumstances rule called the
“police-created exigency” doctrine:
a. Police may not rely on the need to prevent destruction of evidence when
that exigency was “created” or “manufactured” by the conduct of the
police

4. Police-created exigency does not apply when the police gain entry through a real
or even threatened 4th A. violation
a. If the police gain entry without 4th A. violations, the police-created
exigency doctrine does not apply
5. We do not want to base our evaluation of a search based on subjective police
intentions
a. Want an objective standard if an officer could have done the search
6. We do not require police to get a warrant if they had time to do so
a. Many reasons they may not want to do so
ix. Risk from third parties
1. Vale v. Louisiana
a. FACTS: Guy arrested on his porch based on probable cause. Police go into
home and search incident to arrest.
b. HOLDING: The police cannot search a person’s house when he is arrested
on the porch.
c. RULE: A search incident to a valid arrest must be substantially
contemporaneous and only includes the immediate vicinity of the
arrested area
d. RULE: Exigency stops once you’ve made the arrest
x. Securing the premises
1. Segura v. United
a. FACTS: Police observe drug deal and then detain people in a house while
they are getting a warrant to search the house. They are detained for 19
hours.
b. RULE: Police may detain and “freeze” a premise to acquire a search
warrant. The people need to be connected to the premises.
2. Illinois v. McArthur
a. FACTS: Ex-wife tells cop pot is in the house. They hold him outside his
home for 2 hours while they get a warrant. They detained him until
warrant was obtained. He was only allowed inside with police.
b. HOLDING: This was reasonable.
c. Police may detain or freeze a place or person and maintain the status quo
to secure a search warrant when there is probable cause.
i. Minimal interference
ii. Froze the situation (froze the exigency)
d. Probable cause from the tip from the ex-wife
xi. Homicide investigation
1. Mincey v. Arizona
a. RULE: No broad murder scene exception. Still need a warrant
b. Exigency would have been taken care of.
xii. Emergency aid
1. Bringham City v. Stuart
a. FACTS: Police in the area and watch an altercation happening in the
house.
b. RULE: Police are not required to have a warrant to enter a home to
protect a person from injury or assist the injured
i. Whether a reasonable objective office would do this or not
c. Exigent circumstance = emergency aid
xiii. United States v. Robinson
1. FACTS: Officer arrested Robinson on the belief that he was driving with a
revoked license. Incident to the arrest, he made a full field type search of the
arrestee. Officer found a crumpled-up cigarette package in his shirt pocket,
looked inside, and found heroin capsules
2. A custodial arrest based on probable cause is a reasonable intrusion under the
4th A., that intrusion being lawful, a search incident to arrest needs no additional
justification
a. Ct does not care about the Chimel justifications:
i. Officer’s safety or preservation of evidence
ii. No evidence there were weapons or possible destruction of
evidence
3. Bright-line rule: the arrest itself is full and complete justification for a search
incident to a valid arrest
a. Ct removes the search incident to a valid arrest from its justifications
4. Valid arrest is happening
a. Arrest itself is justification for the search
b. This makes it reasonable by itself
5. Dissent –
a. Claims the ct is just trying to avoid case-by-case judgment
b. Problem: officers using traffic arrest as pretext to conduct a search
xiv. Cellphone search
1. Riley v. California
a. FACTS: Police seized a smart phone on arrest, looked through the phone
and found evidence of gang activity without a warrant that was
introduced at trial
b. No warrants – the Ct’s justification is Robinson
c. Ct says police generally need a warrant to search a cell phone
d. Robinson makes sense for physical objects, but not digital ones
e. Comparing a cigarette package to a cell phone is like saying “a ride on
horseback is like a flight to the moon”
i. Cell phones have vastly different privacy interests because of their
incredible capacity and abilities
f. Ct balances gov’t interest and privacy interest:
i. Gov’t interest (a return to Chimel)
1. Officer safety
2. Evidence preservation
ii. Invasion of privacy
1. Cell phones’ digital data are not analogous to the physical
world
2. Cell phones have a vast capacity
3. Can reconstruct an owner’s life
a. A search may be more invasive than a house search
4. Cell phones are pervasive in modern life
5. Echoes the mosaic theory that the ct declined to accept in
Jones
6. Some data is sui generis:
a. Internet searches
b. Location data
c. Cloud storage, not even on the phone
d. Don’t know if info is stored in the cloud or not
i. Makes cloud storage unreachable
ii. Seems to go against the 3rd party doctrine
iii. Maybe a conflict because getting it directly
from the 3rd party is not a search
iv. Same information but not allowed from a
phone, but it’s from Apple
g. Privacy has a cost, may slow law enforcement
h. RULE: Cell phones cannot be searched incident to arrest without a
warrant
xv. Search at the station – Inventory Searches
1. Police have a regular, neutral procedure for every instance where they inventory
everything seized from a person in jail
2. This is a valid search on its own, but can be seen as an extension of a search
incident to arrest
3. Safe guards your property and limits claims against police stealing stuff
xvi. Post-arrest examination of effects
1. United States v. Edwards
a. FACTS: Police took samples from D’s clothing while he was in detention
center after arrest
b. RULE: Effects of D in custody may be searched later without warrant
c. Even though time had passed it was still a search incident to arrest
d. Covers the arrival at jail and so many following hours
xvii. Blood testing
1. Schmerber v. California
a. HOLDING: Much more of an intrusion than searching the person, but it is
allowed in this case
b. Drunk driver exigency with these set of facts
c. Requires police to have a compelling need to draw blood without a
warrant
d. RULE: Bodily intrusions require compelling need
2. Missouri v. McNeely
a. The decline in blood alcohol content alone is not enough to draw blood
without a warrant
b. RULE: Case-by-case basis evaluation of drawing blood cases
c. Ct refused to create an exception for “driving while impaired” category
3. Birchfield v. North Dakota
a. States have implied consent laws
b. Breathalyzer (blowing into a straw) is a binary test
i. Yes / no whether alcohol was consumed
c. Blood can tell you more than BAC and is extracting something from the
body
xviii. Surgery
1. Winston v. Lee
a. Can’t perform surgery without a warrant to get evidence
b. Major intrusion
xix. Strip search
1. Florence v. Board of Chosen Freeholders
a. FACTS: Database messed up.
b. HOLDING: Prison security trumps everything. Ct would not put
themselves in a position to decide which offenses are so un-serious that
land you in jail, but you don’t deserve a strip search.
xx. Search incident to stop and citation
1. Knowles v. Iowa
a. FACTS: Statute says officer can either arrest in traffic offense or cite, so
officers want to search incident to an offense they could have arrested;
Because officer had the option to arrest, he argued he could do a search
b. HOLDING: Too far, option to arrest doesn’t just allow for a search.
c. Police cannot search during a traffic stop without an arrest
d. RULE: In order to conduct a search incident to a valid arrest, there must
actually be a custodial arrest in the first place.
xxi. Maryland v. King
1. FACTS: Anytime a person is arrested for a serious felony the state can take a DNA
swab and process it. There are restrictions on its use – supposed to be for
identification only. Many states already had laws allowing DNA samples after
convictions.
2. HOLDING: Ct says this is allowed for identification purposes
3. A DNA swab at an arrest is a reasonable search
a. It is not too intrusive
b. It is necessary to identify the arrestee
i. Know their criminal history
ii. Know if they have the right guy
4. Part of routine booking procedures; Already allow photographing and
fingerprinting
5. Dissent – Scalia
a. Identification is not a valid rationale
i. It takes a long time to get DNA evidence back
ii. The real rationale is to identify perpetrators unsolved crimes
b. Didn’t use it for identification in this case
c. It took 4 months to get results
d. This will prevent some crimes but sacrifices privacy
j. Pretextual Arrests
i. Pretextual policing: Police do a seizure with probable cause for one purpose (crime) and
that is a pretext for seizure for crimes for which probable cause does not exist
1. Pretextual arrests are allowed
2. Not an actual exception to the warrant requirement, but is everywhere
3. Part of a trend of increased police discretion
4. All about the limits on discretion
5. Typically using traffic enforcement to do drug enforcement
ii. Marshall’s Robinson Dissent
1. Discretion can be an end round around 4th A.
2. Police can use pretext for other purposes

iii. Unnecessary arrests
1. Gustafson v. Florida
2. Atwater v. City of Lago Vista
a. FACTS: Police arrested a woman for a traffic offense with no possible jail
time as punishment; she was put in jail
b. In any case with probable cause, a custodial arrest is reasonable under
the 4th A.
c. Ct wants to avoid case-by-case balancing
d. A breach of peace offense is not required to arrest a person
e. Dissent – O’Connor
i. High cost to custodial arrests
ii. Bright line rules are simple, but simplicity does not trump the 4 th
A.
iii. This case may lead to abuses of unlimited discretion
iv. Limitations under state law
1. Virginia v. Moore
a. FACTS: State law prohibited arrest for driving with a suspended license,
required citation
b. ISSUE: Is a search not incident to a valid arrest allowable?
c. HOLDING: A search incident to a valid arrest for 4th A. purposes means
there was probable cause, the state law is irrelevant.
d. RULE: State law irrelevant to 4th A. analysis, arrest need only be
reasonable under 4th A.
v. Pretext arrests
1. Whren v. United States
a. FACTS: Unmarked cops on patrol. See a new car in a high drug-crime area
driven by 2 black males. Cops started to follow them. They eventually see
a traffic offense and pull them over. The passenger is holding coke in
plain view when they approach the car. D.C. regulation prohibits
unmarked cars from doing traffic stops. D’s arg: 1) they can’t allow
pretext stops based on traffic offenses b/c it would give police the
authority to search anyone, 2) allowing this facilitates racial profiling.
b. HOLDING: Yes, you can have pretextual traffic stops.
c. A traffic offense is always probable cause and the officer had probable
cause for a traffic stop.
i. The real motivation is irrelevant
1. If the stop is objectively reasonable, the inquiry ends
2. Subjective intentions play no role in ordinary probable
cause determination
ii. Pretext based enforcement is not a 4th A. violation
d. Enforcement of the traffic code a racially biased basis is discriminatory
and unconstitutional under the equal protection clause, not the 4th A.
e. The authority to stop alone does not give legal authority for a right to
search; there needs to be something more.
2. Cases After Whren:
a. Basically, allows officers to search based on a hunch
b. Can order both driver and passenger out of a car for no reason during a
stop
c. Don’t have to tell drivers they are free to go when asking for consent to
search
3. Trend of discretion in cars:
a. Stop any car, any time
b. Can arrest with probable cause, even if state law forbids it
c. Can arrest for traffic offenses; searches can follow
d. No Miranda readings to talk to driver
e. Plain view of interior
f. Consent searches
g. Can use dogs
h. Inventory searches after arrest
4. Different waves of profiling:
a. Drugs
b. Terrorism
c. Immigration
5. Outline of Cases:
a. Robinette – Voluntary consent; Don’t need probable cause to ask for
consent. Don’t have to tell you you’re free to go or that you have the
right to refuse.
b. Wilson – Can order driver and passenger out of the car.
c. Mimms (prior case) – Any time an officer stops a car they can order the
driver out. No probable cause or suspicion. Safety concern justification.
d. Moore – Not a 4th A. violation if officer violates state law.
e. Robinson – If there’s a reason to arrest, you can search. Warrant allows
for arrest.
f. Atwater – Can arrest even if traffic violation which carries no jail time and
valid arrest. Valid arrest allows for valid search.
g. Berkemer – No Miranda warning on traffic stops.
h. Place / Caballes – Dogs are not a search. As long as it is not prolonged.
i. Gant – If arrested, can take your car and do an inventory search.
j. Whren – Stop any car, any time
vi. “Black and Blue Encounters” – Some Preliminary Thoughts About 4th A. Seizures: Should
Race Matter? – Tracey Maclin
vii. Utah v. Streiff
1. FACTS: Suspect stopped without probable cause or RAS. Suspect was held while
the officer ran a check and found there was a warrant out.
2. Warrant provides probable cause.  Probable cause leads to arrest.  Arrest
leads to search incident to valid arrest.  Evidence found.
3. Accept evidence knowing the detention is illegal.
4. Unlimited police discretion
5. Problem: databases are not always accurate
6. RULE: discovery of an arrest warrant allows use of evidence that would not have
been obtained but for illegal stop
7. Dissent – Sotomayor
a. Millions of outstanding arrest warrants, many for minor offenses
b. In some communities, police can illegally stop anyone and have a good
chance of finding an arrest warrant

k. Searches of Vehicles – Warrantless Seizures and Searches of Vehicles and
Containers
i. Importance:
1. Exception to the warrant requirements
a. Still need probable cause
2. The court moves over time, creating more or less discretion
3. This is important because of the ubiquity or driving
ii. California v. Carney
1. FACTS: Police saw Carney and a youth go into a motor home. Youth came out an
hour later and said he traded sexual favors for pot. He knocked on the door at
police request and they entered and found pot and arrested him. His conviction
was overturned on appeal for lack of a warrant.
2. HOLDING: Vehicle exception still applies because the mobile home is readably
mobile.
3. RULE: There is an automobile exception the 4th A. warranty requirement
a. Two reasons for automobile exceptions:
i. Ready mobility
1. While getting a warrant the car could leave
2. Vehicle can easily be driven out of jurisdiction
3. Evidence lost
ii. Expectation of privacy in a car is significantly less than one’s home
or office
1. Car substantially regulated and is in public
b. Any readily mobile vehicle is subject to the exception
i. Vehicle not readily mobile: on blocks, attached to utilities
4. Dissent –
a. No exigency
b. Blocks from the courthouse, why wasn’t it possible to get a warrant?
iii. California v. Acevedo – Containers in Vehicles
1. FACTS: Officers were watching controlled drug delivery. D went into house and
came out with package size of brick of drugs. Puts package in trunk. Officers pull
him over and search his trunk without a warrant.
2. ISSUE: Does the 4th A. require a warrant to open a container in a vehicle just
because no probable cause to search the whole vehicle?
3. Court is trying to reconcile two lines of cases:
a. Ross: “search of a car with a coincidental container”
i. Searching a car and come across a container
ii. Okay to search and open that container without a warrant as long
as probable cause existed for the container as well
b. Chadwick / Sanders: “search of a container coincidentally in a car”
i. Container has probable cause, coincidently ends up in the car
ii. Must have a warrant to search/open containers, even if it ends up
in a car
iii. Ct throws this line out
4. Police can search a vehicle without a warrant if the search is supported by
probable cause in any area in which they have probable cause to believe that
contraband/evidence might be found

5. Dissent –
a. Whatever happened to the warrant preference?
iv. Passenger’s effect
1. Wyoming v. Houghton
a. FACTS: Car stopped and asked male driver to get out of the car. He has a
syringe for drugs. Female passengers then removed from the vehicle.
One’s purse is searched in the car. Evidence found.
b. ISSUE: Did the officer need probable cause regarding the female
passenger whose affects were searched? Or was the general probable
cause that arose with the vehicle and the driver enough to cover the
female passenger’s purse being searched as well?
c. HOLDING: Passengers effects can be searched when there is probable
cause to search the car.
d. Police can search the effects of anyone in a car when the police have
probable cause to search the car.
i. Car passengers have a reduced expectation of privacy just like a
driver
ii. Because this is a private car, there is an inference of common
purpose
v. Search of containers incident to arrest
1. Remember, Robinson – arrest justifies a full search of the purpose
2. If you have a container closely associated with a person you can search those too
a. Part of search incident to a valid arrest
b. Exs. purse, book bag, etc.
3. If the bad is somewhere else (inside while arrest is outside) search would not be
valid
vi. Inventory of containers
1. An inventory search is one that is based on a neutral policy that is set in advance
a. Inventory search can’t be discriminatory
b. Inventory search can’t be based on a person
2. Illinois v. Lafayette
a. FACTS: Person is carrying a bag while arrested, booked into jail,
inventories container (bag). Took everything out. Objection is that this
isn’t necessary.
b. HOLDING: If officer thinks this is the way to be secure, as long as there is
a policy it is legitimate and you can do it.
vii. Containers revealing contents
1. Revealing contents means you know what is inside by looking at the box (Ex.
firearm case)
2. Illinois v. Andres
a. FACTS: Officers watching controlled delivery. They knew the furniture
package contained a certain type of drug. D came out with the exact size
of package officers knew were the drugs.
b. HOLDING: No warrant needed.
viii. Background on Arizona v. Gant

1. Belton
a. FACTS: Driver/passengers outside of the car were already arrested and
the police searched the car incident to arrest. Find coke inside a zippered
jacket pocket in the car.
b. HOLDING: “Generally, if not always” passenger compartments are within
Chimel (passenger) reach
i. So, when officers make a lawful arrest of an occupant he may
search the passenger compartment and every container in it
c. OLD LAW – A D arrested outside of a car can, in theory, reach inside the
car
d. Relied on Chimel and Robinson
i. Chimel – Whenever officer made a lawful arrest of any occupant,
allowed for contemporaneous search without a warrant for
person arrested; limited to circumstances which rendered the
search permissible
1. If passenger compartment within reach, any container is.
Therefore, follows that they can search any container in
the car.
2. If arrest is reasonable, so is any infringement on the area
ii. Robinson – Cut off exception for searching a person from its
rationale; arrest itself justifies the search
ix. Arizona v. Gant
1. FACTS: Gant was arrested for driving without a license. He was handcuffed and
placed in the back of a police car. (Close parallel to Robinson.)
2. HOLDING: Police cannot search a car after a person has been arrested because
the search incident to arrest fails to meet the Chimel justifications.
3. Belton interpretation by lower cts is not correct (took the ruling too far)
4. We cannot untether vehicle searches incident to arrest from Chimel
a. Chimel authorizes searches of vehicle incident to occupant’s arrest “only
when arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search”
i. We expect that most times arrestees will be secured
ii. If the arrestee is secured and cannot reach into the compartment,
police cannot search the compartment
iii. This case: no search
b. “Although it does not follow from Chimel… A search incident to a vehicle
arrest of a car is allowed when it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle”
i. Not in this case, was in Belton
ii. No evidence of driving without a license in a car
x. Inventory search
1. Inventory searches of all effects and possession when being entered into jail are
allowed.
2. Inventory search requirements:
a. Regularized
b. Rule-based
c. Non-discretionary procedure
3. Inventory searches of cars are also allowed when the police tow the car
a. Also, must be regularized, rule-based, and non-discretionary
4. There is a degree of discretion of whether or not the car will enter police
inventory
5. There has to be a policy about these inventory searches, if not they are
unreasonable
xi. Excerpt, “Car Wars: The Fourth Amendment’s Death on the Highways,” 66 Geo. Wash. L.
Rev. (1998) (TWEN)
l. Stop and Frisk
i. Common low visibility practice
ii. Lower standard for limited action (limited search with less than probable cause)
iii. Terry v. Ohio
1. FACTS: Cop notices guys casing a jewelry store and approaches them, frisks
them, and finds a gun. Tried to suppress evidence of the search.
2. Police have limited authority to search based on specific and articulable evidence
of crime and weapons.
3. States position: This is not a search, it’s just a petty indignity. (temporary
detention)
4. Defense position: This is a search and seizure and the police need probable
cause.
5. Exclusionary rule has limits as a tool of judicial control.
a. If the police don’t plan to use evidence, this rule has no effect.
6. First time police look at a supposedly neutral police tactic and identify racial
implications
a. Harassment of blacks by police will not be stopped by use of the
exclusionary rule
7. Stop and frisk is a police tactic that does not require a warrant.
a. It is a search for weapons
b. It is not an exploratory search for further evidence
8. It is NOT always unreasonable for a police officer to seize a person and subject
them to a limited search
a. RULE: A stop and frisk is a 4th A. search (not a petty indignity)
9. To determine if a stop and frisk is reasonable without probable cause, must
determine:
a. Justified at inception (Is stop okay?)
b. Reasonably related in scope (Is frisk okay?)
10. Stop and frisk without probable cause is determined by reasonableness, must
balance:
a. Gov’t need, and
i. Crime detection
ii. Officer safety
b. Intrusion on the individual
i. Not petty, not small
ii. But momentary
11. Standard: Reasonable Articulable Suspicion
a. Specific, articulable facts, with reasonable inferences reasonably warrant
the intrusion.
b. Factual assessment

c. The facts available to the officer at the moment of intrusion warrant a
person a reasonable caution in belief that the action was appropriate
d. Does not require certainty, but must be more than a hunch
e. Objective standard
12. A stop and frisk does not require probable cause:
a. It is a limited intrusion
b. Only for searching for weapons
13. Must be a reason to believe the person is dangerous
14. “There is narrowly drawn authority to permit a reasonable search for weapons
for the protection of the officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest that person or not.”
15. Police have narrow authority to temporarily detain a person and ask questions
when the officer has reasonable articulable suspicion that there is crime afoot
and the person is involved
a. When there are reasonable articulable facts that lead to suspicion that
the person is armed and dangerous, the police have authority to conduct
a pat-down search
16. Not every stop results in a frisk
a. There must be some additional reasonable suspicion that he is armed to
frisk
b. A frisk is not allowed just for officer safety
17. Concurrence – Harlan
a. 2-part test for a valid stop and frisk:
i. In order to stop the person, police must have reasonable
articulable suspicion to believe that criminal activity is afoot and
that the person is involved
ii. In order to frisk the person, police must have reasonable
articulable suspicion that the person is armed and dangerous
b. If reasonable articulable suspicion for violent crime or a weapon comes at
the same time the officer can frisk immediately
i. Both steps can come at the same time
iv. Reasonable articulable suspicion – levels of proof:
1. Beyond a reasonable doubt
2. Preponderance of the evidence
3. Probable cause
4. Reasonable articulable suspicion
5.  Don’t need a lot of evidence to do a stop and frisk, but need some
v. The Significance of the Stop-and-Frisk Cases
1. Police Action Short of a Seizure (“Consensual Encounters”)
a. On-bus encounters
i. United States v. Drayton
1. FACTS: Police stop an interstate bus and ask each person
about looking in their luggage. Two guys consent to a
search, then officers pat them down. Passengers were not
advised of their right to refuse.
2. This was not a Terry seizure.
a. The men were free to refuse and leave
b. No force or intimidation was used
3. RULE: Reasonable articulable suspicion is not required for
a consent search
4. RULE: The refusal to consent to a stop, seizure, or frisk
does not create reasonable articulable suspicion
b. “Street pursuits”
i. California v. Hodari D
1. FACTS: Man sees police and takes off running. The police
pursue him. During the chase, he threw coke he’d been
carrying.
2. D would have wanted to argue the seizure occurred when
the chase started because there would have been no
reasonable suspicion.
3. Pursuing a fleeing person is not a stop or seizure
4. RULE: There is only a seizure when:
a. Police take physical control.
b. D surrenders to assertion of authority
c. Seizure of passenger?
i. Brendlin v. California
1. ISSUE: When is the passenger seized?
2. A passenger is seized during a traffic stop as well
a. No one reasonably believes they are free to leave
b. What is a seizure
i. When there is a seizure standard: would a
reasonable person feel free to walk away?
3. At least, temporary seizure of passenger like Terry
d. Does race or age matter? – Minorities are stopped more often and
“stuff” is found less often than with white counterparts
2. Grounds for Temporary Seizure for Investigation
a. The “whole picture”
i. United States v. Cortez
1. Grounds for temporary seizure, to determine if reasonable
articulable suspicion exists:
a. Totality of the circumstances test: examine the
whole picture and show particularized suspicion
based on all circumstances
i. Training and experience – Assemble all of
the circumstances and view it through the
eyes of a police officer
ii. Direct observations – This must yield a
particular individualized suspicion for this
particular individual
b. Character of offense
i. Sibron v. New York
1. FACTS: Officer follows a known drug addict and watches
him meet with other addicts all day. Officer suspects he
has drugs. Officer then searches him

2. Simply seeing a known addict consorting with other
addicts is not reasonable articulable suspicion.
a. Was never close enough to really see or hear
anything
3. Reasonable articulable suspicion is not a hunch.
ii. United States v. Hensley

1. ISSUE: Terry stops for past crimes?
2. RULE: Can use Terry stops to help solve past crimes of
felonies.
c. “Unprovoked flight”
i. Illinois v. Wardlow
1. FACTS: Police saw a man in a high drug-crime area. Man
saw officer and took off. Police caught him and man had a
gun.
2. A high crime location plus evasion is enough for
reasonable articulable suspicion
a. A high crime area alone is not enough for
b. Evasion is not necessarily indicative of wrong
doing, but it suggests it
3. RULE: LOCATION + EVASION = R.A.S.
d. Anonymous tips
i. Florida v. J.L.
1. FACTS: Anonymous tip that black guy in plaid at bus stop
had a gun.
2. ISSUE: Can anonymous tips supply probable cause?
3. An anonymous tip by itself isn’t enough for R.A.S.
4. RULE: An anonymous tip can provide reasonable
articulable suspicion if it is corroborated with details and is
reliable
a. All a part of the totality of the circumstances
b. No way to know of veracity
5. This tip was too general and was not enough for
6. Will not create or accept categorical rules for types of
cases like firearms or drugs
ii. Alabama v. White – Anonymous tip with police corroboration
means stop is good.
e. Anonymous 911 caller
i. Navarette v. California
1. FACTS: Police stopped truck because it matched
description of anonymous 911 call. Smelled weed so
searched truck.
2. Corroboration – time and distance from tip was right
3. 911 tip was recorded and traceable

f. Mistake of law
i. Heien v. North Carolina
1. FACTS: Traffic stop based off of broken taillight.
Consensual search leads to contraband.
2. NC law only requires one working taillight, so how is this
R.A.S. since the officer was incorrect?
a. Reasonable does not mean officers have to be
correct
3. Permissible Extent and Scope of Temporary Seizure
a. Movement
i. Florida v. Royer
1. FACTS: Suspect confronted in airport, taken to small
private room with his luggage for 15 minutes. Before they
asked for and obtained consent to search luggage.
2. HOLDING: There are time limits on Terry detentions.
3. Limits on scope of Terry detentions
a. A detention for 15 minutes can turn a Terry stop to
an arrest
b. By the time consent is given, Terry stop has already
turned into an arrest
i. There was no probable cause to take him to
the room (moved to nonpublic area)
b. Time limits
i. United States v. Sharpe
1. FACTS: Police stop a weighted down truck and car. Car
pulls over but truck keeps going and eventually an officer
gets truck on reasonable suspicion. Car was held 30
minutes after the stop.
2. 20 minutes was not enough to turn Terry stop into an
arrest
3. The scope of a Terry stop is a flexible standard (not rigid
rule)
a. Stop lasts only as long to confirm or dispel the
suspicion
b. Part of the delay was because of the Ds
4. Ask whether or not police diligently pursued the means of
investigation (not question time)
c. Request for identity
i. Hiibel v. Sixth Judicial District Court
1. FACTS: State statute said a person stopped by police had
to provide identification. Man refused.
2. A suspect cannot be forced to identify themselves and
refusing to do so cannot create suspicion
a. But ct now says upon Terry stop, if there is R.A.S. a
suspect can be made to identify themselves
3. Allowed the police to ask a name for Terry purposes

a. Seemed to overrule the Terry concept that police
need reasonable suspicion to force person to
answer questions
b. Normal rule: if police lack reasonable suspicion a
person has a right to walk away from a police
encounter
d. Traffic stops: investigative techniques
i. Illinois v. Caballes
1. FACTS: Traffic stop. Drug dogs brought.
2. Police want the right to prolong the detention longer than
necessary for a traffic stop.
3. The prolonged detention beyond the scope of a traffic
stop is illegal and anything beyond it is illegal
a. But bringing the dog to investigate drugs is okay, so
long as it’s not prolonged
e. Traffic stops: prolongation
i. Arizona v. Johnson
1. Ct takes the Caballes rules and applies them to other
police encounters
2. Officer’s inquiries about other things do not change the
nature of a Terry stop
f. Traffic stops: termination point
i. Ohio v. Robinette
1. FACTS: Traffic stop was complete. Officer asks to search
before he goes. Ohio ct said once traffic stop ends and
officer wants to ask any other questions, officer has to
indicate that the stop is over.
2. Sup Ct works hard to make this a federal issue
a. Used only a few Sup Ct citations
3. RULE: Officers DO NOT have to indicate that a traffic stop
is over before asking more questions
a. 4th A. does not require that
4. Temporary Seizure of Effects
a. Luggage
i. United States v. Place
1. FACTS: Luggage was taken for a weekend to get a dog
sniff.
2. A detention of effects is the detention of a person.
a. Terry limits on seizing apply to effects as well
b. 4th A. mentions “effects”
3. This detention is way too long.
5. Protective Search
a. Limits on the Scope of the Frisk:
i. A frisk is not automatic upon a stop
1. Must have reasonable suspicion to stop
2. And reasonable suspicion that the person is armed and
dangerous
ii. Harlan’s Terry 2-step process adopted
b. Vehicle occupants
i. Arizona v. Johnson
1. FACTS: Vehicle is stopped for a traffic offense and the
passenger was acting suspicious. Officer frisked the
passenger and found a weapon.
2. In a lawful traffic stop a passenger cannot leave. (Brendlin)
3. RULE: A traffic offense is enough for a Terry stop; no other
R.A.S. is needed
a. That is enough R.A.S. to stop passenger
4. RULE: Must have additional reasonable suspicion that the
passenger is specifically armed and dangerous to frisk the
passenger.
c. “Armed and dangerous”
i. Sibron v. New York
1. FACTS: Officer followed a drug addict all day
2. Police cannot just search for evidence.
a. A frisk is only for weapons.
3. Police cannot do any kind of search; they must do a pat
down.
ii. Adams v. Williams
1. FACTS: Informant says a suspect s in a car and armed.
Officer found the guy, has reasonable suspicion to stop.
When he comes up to him he just grabs the gun out.
2. Officer had R.A.S. to search for the weapon, unlike Sibron.
iii. State v. Serna
1. FACTS: “Gang neighborhood.” Non-seizure encounter,
officer asked if he had a gun; he said yes. Convicted felon.
2. Can’t assume that a person with a weapon is armed and
dangerous.
d. Automatic frisk?
i. Lower cts keep expanding categorically what is considered
dangerous
ii. Sup ct has never objected to this
e. Frisk procedure
i. Officers cannot put hands inside person’s pockets
ii. Can only pat down outer clothing
1. Terry doesn’t justify any more
f. Extent of frisk
i. Minnesota v. Dickerson (Plain Feel Case)
1. FACTS: Officer does a stop and frisk with R.A.S. Does not
feel a weapon but feels something else. Felt more with his
fingers and knew it to be crack cocaine.
2. “Plain feel” Exception
a. It has to be immediately apparent that it is
contraband for officer to grab evidence during a
Terry frisk
b. Officer cannot do more searching

g. Protective search of vehicle
i. Michigan v. Long
1. FACTS: Officer asks for papers on traffic stop. Guy moves
and officer sees a knife. Officer does a limited search and
finds pot.
2. RULE: Frisk of a car is okay if there is reasonable suspicion.
(Reasonable to believe guy was armed and dangerous.)
vi. Floyd v. New York City, et al., 08 Civ. 1034 (U.S. D. Ct., S.D.N.Y.), Aug. 12, 2013 (TWEN)
1. FACTS: NY stop and frisk case. Secret recording.
2. 4th A. violated because police were stopping and frisking people without R.A.S.
3. Equal protection violation for who was being stopped.
4. Ct tells NYPD this must be reformed.
m. Consent Searches
i. Searches without standards
1. No need for a warrant, probable cause, reasonable suspicion, or even evidence
2. Consent searches and administrative searches
ii. Consent searches
1. Make up a high percentage of searches
2. Consent searches are 4th A. searches
a. Considered reasonable because it is voluntary
3. Consent must be voluntary
a. Voluntariness is a central concept of consent searches
b. Makes search reasonable under 4th A. without probable cause, a warrant,
or R.A.S.
c. There must be no pressure of coercion
iii. The Nature of “Consent”
1. Schneckloth v. Bustamonte
a. FACTS: Officer stopped a car with six men because one headlight was out
and the license plate light was out. Consented to the search. Officer
found bad checks.
b. HOLDING: Voluntary consent.
c. For normal searches the D has the burden of proof to invalidate it
i. For consent searches the state has the burden of proof
d. The burden of the state for consent searches is to show it was voluntary
i. To prove it was voluntary: totality of the circumstances
1. Balance:
a. Legitimate gov’t need vs.
i. Allow the police to search when they don’t
have enough evidence, probable cause, or
reasonable suspicion
ii. Helps police not arrest the wrong person
iii. Allows the police to skip the warrant step
when there is probable cause
iv. Allows an innocent citizen to move through
the system faster
b. Absence of coercion
i. No coercion, expressed or implied

ii. No implication of threat or force
iii. Not a person’s individual privacy
iv. Only interest an individual has is not to be
coerced
v. The police do not have to dell the D that
they are free to refuse
vi.  such a warning would impede police
e. Assumptions (hidden in the case):
i. Impractical/unrealistic for police to tell citizens they can refuse
ii. If they did and citizens know, citizens might refuse
iii. If they did, it would impede law enforcement because police
would stop
iv. If they did, it would hurt police officer’s ability to fight crime
f. This is not a waiver
i. Waivers – involve rights necessary to a fair trial
ii. Consent – has nothing to do with trial rights, only about the
absence of coercion
g. Ds do have the right to refuse a consent search
i. If they do, does not create probable cause or suspicion
h. Ohio v. Robinette – Relied upon Schneckloth language; police do not have
to say the traffic stop is over before asking to search. Repetition of
Schneckloth rationale.
i. Study of Robinette
i. This isn’t about voluntariness, but obedience to authority
ii. Warning seems to have no effect; people will still consent
iii. Police will search for probable cause another way if told no.
iv. Sup Ct’s assumptions in Schneckloth are questionable
2. Relevant Factors in Determining the Validity of a Consent
a. Claim or show of authority
i. Bumper v. North Carolina
1. Consent to a search when law enforcement
claim/assert/lie authority that they have the right to do a
search is not a voluntary consent
2. Different than a threat to obtain a warrant
b. Prior illegal police action
i. “Fruit of the poisonous tree”
ii. If the thing that directly preceded the consent is bad, the consent
is bad too
iii. Consent based on an illegal arrest is not voluntary
iv. EX. If stop was no good  consent was no good
c. Denial of guilt
i. 4th A. applies to both innocent and guilty persons
ii. Standard of voluntariness: measured against a reasonable
innocent person
d. “Consent” by deception
i. Getting consent through deception is okay
ii. But not always allowed

e. Scope of consent
i. Scope of the search is defined by scope of the consent
ii. Scope of consent is generally limited by objective reasonableness
1. What a reasonable person would think the consent
applied to
2. Defined by the express object
a. Police can look for the objects they seek
iii. Consent can be given in a limited fashion
1. You can only search “X”
f. The proper place of consent searches in law enforcement
i. Some believe in getting rid of consent searches altogether
1. Best way to actually control racial profiling
ii. Harris: wouldn’t stop consent searches outright, but he would
suggest we look for something like R.A.S. to ask for a consent
search
iv. Third Party Consent
1. Illinois v. Rodriguez
a. FACTS: Fischer told police her boyfriend beat her and consented to go to
the apartment and unlock the door for police to go inside. She didn’t live
in the apartment anymore.
b. HOLDING: Ct said she had an apparent common authority.
c. RULE: There can be third party consent.
d. Those with common authority can give consent to a dwelling
i. Common authority: mutual use of the property by persons
generally having joint access or control for most purposes
ii. Apparent common authority: would a reasonable police officer
have believed the third party had common authority
1. Look at the totality of the circumstances
e. United States v. Matlock
i. Can have common authority over a certain area
ii. Common authority rests on mutual use of the property by persons
generally having joint access or control for most purposes
iii. State has the burden of showing the common authority
2. Who May Consent
a. Ask yourself: What are the living arrangements in the house?
b. Husband-wife
i. Assumed spouse has the authority to consent to all areas of the
homestead
c. Parent-child
i. Children cannot consent for parents, unless the child is allowed to
admit people without parental permission
d. Landlord-tenant; co-tenants
i. Landlord (and innkeepers) cannot consent for a tenant
ii. Co-tenants can consent to common areas
e. Employer-employee
i. If it is a private office, it is assumed the person has a reasonable
expectation of privacy of that place

3. Limits of Third-Party Consent
a. Antagonism
i. Spite doesn’t change anything, but there are contrasting cases on
this situation.
ii. State v. Bartram
1. Consent was given out of spite
2. Doesn’t really make consent any different
b. Defendant’s refusal or failure to consent
i. Georgia v. Randolph
1. FACTS: Ex-wife consents to search of home. Husband right
beside her denied consent.
2. HOLDING: It was not reasonable to rely on her consent
c. Randolph revisited
i. Fernandez v. California
1. FACTS: One tenant objects, one does not. Police arrest
objecting tenant and then search.
2. HOLDING: Police cannot arrest just to get rid of the
objector, but if the arrest was itself good, then the police
can rely on the other’s consent.
n. Administrative Searches – Balancing the Need Against the Invasion of Privacy
i. No probable cause, not reasonable articulable suspicion, no consent, no individualized
suspicion required.
ii. Administrative arrests are not criminal
iii. Special needs searches: searches for purposes other than ordinary law enforcement
purposes
1. Modern term for administrative searches
iv. Safety inspections
1. Camara v. Municipal Court
a. FACTS: Fire, health and housing code inspection for homes.
b. Administrative searches standard: balancing the gov’t interest v. the
privacy invaded
i. Neutral plan
ii. No alternative
iii. Special needs
2. Marshall v. Barlows, Inc.
a. Ct extends the administrative searches to businesses
3. New York v. Burger
a. FACTS: Closely regulated rules on junk yards. Police come in and look at
books and find evidence of stolen cars by looking at the logs without a
warrant, without anything.
b. First case where administrative civil matters searches spill over into
criminal stuff
c. This is a search for “special need beyond the needs of ordinary law
enforcement”
i. Does not matter if police were the one’s enforcing it
ii. After this case, ct began accepting a lot under this special needs
idea

4. City of Los Angeles v. Patel
a. FACTS: Similar to Burger. Motel must keep record of guest activity.
Records are supposed to be given to officer at any time with minimum
interference on investigation.
b. Special need: prostitution, drug delivery
v. Border searches
1. Administrative because it is non-criminal
2. No practical 4th A. rights at the border
a. No probable cause needed
b. No individual suspicion needed
3. It is reasonable to do inspections without evidence at the border
4. Strip Searches – need real suspicion
5. Cavity Searches – need clear indication
6. Internal Smuggling – reasonable suspicion lets you detain someone at the border
until suspicion proves out (X-ray, laxative, waiting)
7. Boarder Vehicle Checkpoints
a. Differ if they are fixed or roving
i. Roving Checkpoint – just checkpoints for vehicle violations that
are not permanent
1. Near border need probable cause
2. Stop a car to briefly question just need reasonable
suspicion
ii. Permanent Checkpoint
1. Away from the boarder requires probable cause to search
2. Stop and briefly question, just requires the checkpoint be
permanent
vi. Vehicle checkpoints
1. Delaware v. Prouse
a. FACTS: Police used roving patrol checkpoints.
b. Need reasonable suspicion to stop individual person to check driver’s
license or registration of automobile.
2. Michigan Dep’t of State Police v. Sitz
a. FACTS: Police had a sobriety checkpoint and stopped every car. IF there
were signs of alcohol that car would be more carefully tested.
b. This is typically a criminal matter, but…
c. Balancing: Ct balances gov’t interest in serious societal problem v. very
slight individual suspicion-less intrusion
i. Gov’t interest outweighs privacy intrusion
ii. Administrative searches
1. Neutral plan
2. Limited discretion if at all
d. This is a special need beyond ordinary law enforcement
i. This is a problem that goes beyond ordinary law enforcement
3. Criticism –
a. States began to sweep more into the special needs category
b. Critics said anything can be a special needs
4. Response to criticism –
a. Ct begins to pull back special needs
i. Checkpoints for drugged driving was ordinary law enforcement
ii. Testing new mothers for drugs and prosecutor gets information is
within ordinary law enforcement
vii. Terrorist checkpoints
1. Cts have given lots of room to law enforcement to protect and search public
transportation areas
a. These are administrative searches
b. Person can just walk away
2. MacWade v. Kelly
a. FACTS: Set up checkpoints in the subway system.
b. ISSUE: Whether they were randomly selecting or using ethnic profiling
c. If it is a question of combatting this type of external threats the cts are
going to allow it.
viii. Search of students
1. New Jersey v. T.L.O.
a. Less protection for students
i. Students have rights but they are reduced in a school
ii. Have a lesser reasonable expectation of privacy
b. Balance – lesser student rights v. school’s needs to maintain discipline
and order
c. School searches:
i. No warrant
ii. Based on reasonable grounds (something like reasonable
suspicion) to suspect criminal or school rule violations
iii. RULE: Scope of search must be related to objective and not
excessive
2. Safford Unified School District #1 v. Redding
a. FACTS: Student claimed student had given pain relief pills to a classmate
in violation of school rule. Effectively do a strip search of the 13-year-old
girl.
b. HOLDING: Search went too far.
c. Search like this requires some kind of reasonable suspicion of something
dangerous.
ix. Drug testing
1. Drug testing is a 4th A. search
a. Only applies to gov’t employers
2. Is a special need beyond normal law enforcement
a. Compelling gov’t needs v. diminished privacy
b. Also, limited discretion
3. National Treasury Employees Union v. Von Raab
a. FACTS: Policy of drug testing customs employees seeking promotion to
supervisor or those who would carry weapons.
b. HOLDING: Yes, this is a reasonable search.
c. Dissent –
i. There is no record of an issue
ii. If it is a gov’tal need there should be a record
4. Skinner v. Railway Labor Executives’ Ass’n
a. FACTS: Railroad employees are always tested after accidents.
b. Evidence that this was a vast problem.
c. Special need – it was a neutral plan
5. Chandler v. Miller
a. FACTS: Candidates for public office have to submit to drug testing.
b. Cannot do drug testing just to make a symbolic statement.
c. There must actually be a special need (no showing in this case).
6. Acton – Old School Drug Testing Cases
a. FACTS: Evidence that drugs were out of control at a school. Made
athletes sign paper so they could be randomly drug tested; if they were
caught school would notify student’s doctor.
b. This is a reasonable, special needs search
i. Students have less reasonable expectation of privacy
ii. Privacy even more diminished with athletes
iii. Safety risks with athletes and drugs
iv. Invasiveness minimized
v. Effective for this immediate crisis
7. Board of Education v. Earls
a. FACTS: Policy of drug testing to do any extracurricular activities.
b. It is a special need and not a criminal matter to drug test school students
who want to do extracurricular.
i. Negligible intrusions and limits on the use.
ii. This is a big problem (evidence)
iii. Used reasonably effective means
x. Supervision of probationers and parolees: “special needs” vs. balancing of interests
1. Probationers/parolees have a lesser expectation of privacy.
2. Liberty is restricted by conditions of probation/parole.
3. Probation officer can search probationer’s home based on reasonable articulable
suspicion.
4. Samson v. California
a. FACTS: Contract upon parole that allows the searches of parolee with no
suspicion of crime or parole violation by an officer at any time. A police
officer saw Samson walking and just decided to search him because he
was on parole. There was no suspicion of anything.
b. Parole status is a form of custody
i. Parolees have a much-reduced reasonable expectation of privacy
c. This is a special needs exception
i. Balance: gov’t interest to reduce recidivism v. reasonable
expectation of privacy for parolees
ii. Recidivism is a big problem
iii. The parolee is aware they can be searched at any time
d. It is a reasonable 4th A. special needs search for parolee to be searched
with no suspicion of crime or parole violation
o. "Standing" to Challenge Searches
i. The 4th A.
1. Standing: Who gets to make the argument; who can argue for suppression?
a. There is no free-standing standing doctrine
b. Bottom line – 4th A. rights are personal

i. You can only move to suppress if your rights were violated, not a
third party’s rights
ii. Evidence seized from a third party can be used against you
2. Old Cases
a. Alderman – Only those aggrieved by search, not the use, of the evidence
can move to suppress
3. Old Standard – Ct created automatic standing for drug possession cases, then did
away with it
4. Current Standing Rule
a. There is no separate standing doctrine
b. The question is, who has a reasonable expectation of privacy (Katz)?
i. Must have Katz right of expectation of privacy to challenge search
ii. If you don’t, you don’t get to make the suppression argument
iii. Those who do have standing and can make 4th A. arguments
5. Rakas v. Illinois
a. FACTS: Police searched a car and used evidence of weapons to prosecute
the passengers and passengers don’t claim ownership of the items but
want to suppress the evidence.
b. Standing is irrelevant
c. ISSUE: Whether the challenged search and seizure violated the rights of
the D seeking suppression
i. Did the search and seizure infringe an interest of the D that 4 th A
protects?
d. It’s all about the reasonable expectation of privacy
i. Just being legitimately on the premises does not create a
reasonable expectation of privacy.
e. The passengers had no right to contest the evidence because they had no
reasonable expectation of privacy in the vehicle.
6. The tension between the standing requirement and the exclusionary rule
a. Two ways to look at the 4th A. law
i. Regulatory – better system for all, deter police from misconduct
through the 4th A.
ii. Atomistic perspective – perspective that wins in the not-standing;
personal rights being infringed
7. Is there government conduct that is so egregious that “standing” principles
should not apply?
a. Payner
i. FACTS: IRS stole an employee’s briefcase and took pictures of
contents against Payner. Lower ct used its supervisory power to
get around the standing rules
ii. Payner’s personal rights were not violated because it wasn’t his
briefcase.
iii. Can’t get around using “supervisory power”
8. Asserting ownership
a. Rawlings v. Kentucky
i. FACTS: As police come, guy dumps a stash of drugs in a lady’s
purse. When officers search it, she makes him take what’s his. He
then contests the search.
ii. Not a standing issue
iii. D had no reasonable expectation of privacy in the purse
1. Man had known her for a few days
2. Never had access to her purse before
3. D had no right to exclude others
4. Others had access to the purse
9. “Automatic” standing as an alternative to Rakas and Rawlings
a. Jones v. United States
i. Creates automatic rule of standing for all possession cases
ii. “Legitimately on the premises” has standing was adopted (later
rejected in Rakas)
b. Simmons v. United States
i. D’s testimony to establish standing can’t be used against him in
the case in chief
ii. With that rule in place, the ct follows up with Salvucci
c. United States v. Salvucci
i. Don’t need automatic standing rule because their testimony can’t
be used against them
10. Can a passenger in a car other than her own challenge the legality of a police
force stop of that car?
a. Brendlin v. California
i. FACTS: Car pulled over with a passenger. Passenger challenged
seizure, not search. Passenger is seized and would not feel free to
leave.
ii. Objective test: Not about whether police meant to seize
passenger
iii. Passenger was seized and no reasonable person would feel free to
leave and thus the passenger has (standing) to contest the seizure
11. Business premises
a. Mancusi
i. There can be reasonable expectations of privacy in business
premises
12. Residential Premises
a. Houses have a high level of protection
b. Those with possessory interest can assert 4th A., even if not present and
evidence used isn’t his.
c. Anyone legitimately on the premises (later limited)
i. Minnesota v. Olson – Overnight guests have reasonable
expectations of privacy in host’s home
ii. Mancusi
iii. Rakas
iv. Rawlings
13. Minnesota v. Carter
a. FACTS: Informant sees two people bagging up coke in a first-floor
apartment. These guys were only there for two hours and then left.
Police arrested them and found coke in the apartment and the baggers
challenged the search.
b. ISSUE: Do these Ds have a reasonable expectation of privacy?
i. 4th A. rights are individual
ii. Legitimately on the premises is not enough
iii. There is less protection for commercial property than home, but
do have some expectation of privacy
iv. A guest does have a reasonable expectation of privacy in the hosts
home
c. Here these guys were only there briefly, it was commercial and they had
no reasonable expectation of privacy.
IV. Grand Jury Investigation
a. Introduction
i. The Role of the Investigative Grand Jury
1. The Investigative Authority of the Grand Jury
a. Dual Function – sword and shield
b. Historical development
i. Grand juries are run by and for prosecutions
ii. Common law days
1. Both a sword and a shield
2. But mostly a shield
a. Designed to stand between the crown and citizens
b. Idea: a group of citizens decide whether the crown
had enough evidence to go forward with a case
th
iii. 20 Century
1. The sword function of a grand jury has taken over
2. They typically do what the prosecutors tell them to do
iv. States
1. Most states have grand juries
2. Grand jury rights have never been incorporated to the
states
v. Purpose
1. Does the prosecution have probable cause for trial?
2. When there is probable cause, the grand jury files a true
bill known as an indictment
3. Some crimes still require a grand jury, some can have an
informant
vi. Reality
1. Prosecutor’s tool
a. Controls the evidence the grand jury sees
b. Only lawyer that for sure always appears
i. Generally, no defense attorney or witness
attorneys
c. No obligation to be even
d. Draft the proposed indictment
e. No judge
2. Now mostly sword as an investigative tool
c. Status
i. Common use
1. Federal, white collar crimes

ii. Abuse
1. Political use and abuse
2. Used against radicals and agitators
ii. Investigative Advantages
1. Subpoena power
a. Issue subpoenas ad testificandum, to make witnesses to testify
b. Issue subpoena duces tecum, to order people to bring stuff (evidence)
2. Psychological pressure – imposed by the grand jury setting; prosecutor and no
attorney, under oath
3. The use of immunity grants – if person granted immunity, they cannot rely on 5th
A. privilege against self-incrimination
4. Secrecy – Can’t disclose what goes on inside a grand jury room; exception is the
witness
5. Maintaining public confidence
iii. Alternative Routes to Investigation by Subpoena
1. Alternative criminal investigative authority
a. Some states have
b. "one man grand jury" -- smaller grand juries that use a judge
c. "John Doe" proceeding -- prosecutorial inquiry into the commission of
specified criminal activity, conducted before a judge
d. Special crime commission -- typically a state commission assigned to
investigating and reporting on a particular type of crime
iv. Judicial Regulation: Some Differing Perspectives
1. CRIMPROC Section 8.2(c)
2. Blair v. United States
v. Constitutional right to counsel
1. No right in grand jury proceedings
2. Some states allow it but it is not required and is usually the prosecutor’s
discretion
3. Exceptions:
a. Some states allow lawyers, for some people, sometimes
b. Usually targets
c. Location: outside the grand jury room
d. Witness can go to lawyer after every question
4. United States v. Mandujano
a. Shut down any idea of grand jury 6th A. right to counsel
vi. Federal practice and State Practice
1. Give notification of right to counsel
2. Permitted reasonable opportunity to step outside the grand jury room if desired
3. State cts may be less liberal in allowing witnesses to leave the grand jury room
vii. The location of counsel
1. Generally, outside the grand jury room
2. Witness can leave grand jury room to consult with counsel before answering
questions
3. 20 states allow counsel in the room in certain circumstances
viii. Fed. R. Crim. P. 6
ix. Toobin, “How Not to Use a Grand Jury,” The New Yorker, Nov. 25, 2014,
www.newyorker.com/news/news-desk/use-grand-jury
b. Fourth Amendment Issues – Compelling Testimony (And Identification
Exemplars)
i.Generally, 4th A. does not protect against grand jury inquiry
ii.Corporations do not have rights against self-incrimination
iii.Miller – third party records have no expectation of privacy from the 4th A.
iv. United States v. Dionnisio
1. FACTS: Grand jury sought evidence, one guy refused
2. A grand jury subpoena is not a 4th A. search
a. Because it’s not a search, no probable cause is necessary
3. If the grand jury summons you, you must go
4. A person has no “relevance” objection to grand jury subpoenas
5. The sound of one’s voice is not considered private, so not a seizure
a. No reasonable expectation of privacy in voice or physical appearance
6. There is no requirement that the grand jury demonstrate the reasonableness of
its request.
v. Underlying 4th A. violations
1. United States v. Calandra
a. FACTS: A witness has no right to refuse to answer a grand jury question if
derived from illegal evidence
b. No exclusionary rule in grand jury proceedings.
i. It would impede grand jury function
c. Indictment is not about guilt or innocence, but probable cause to
proceed.
i. Preliminary hearing
d. Evidence cannot be used at trial unless form an independent source
c. Self-incrimination and Immunity (Grand Jury Testimony and the Privilege
Against Self-Incrimination)
i. The 5th A. privilege against self-incrimination does apply to grand jury proceedings
ii. Miranda doesn’t apply to grand jury witnesses
iii. Grand Jury Testimony
1. Application of the privilege
a. Testifying is pursuant to a subpoena so compulsion is present
b. Self-incrimination is about when the evidence will eventually be used, not
when it is compelled
2. The nature of “incriminating” testimony – What is incriminating?
a. If witness asserts their 5th A. privilege judge generally called to determine
if witness would actually incriminate themselves by answering the
question
b. If judge agrees with witness that their answer would be incriminating,
prosecutor can decide to ask ct to grant immunity to the witness, forcing
them to testify
c. Hoffman v. United States
i. An administrative judge will resolve whether or not an answer
would be incriminating
ii. Any information that could be a “link in the chain of evidence” can
be incriminating

iii. Can claim the privilege if the answer may eventually lead to
incriminating questions
3. Incrimination under the laws of another sovereign
a. Previous rule: Could be called in front of federal grand jury and if it could
incriminate on state level (you could be forced to speak)
b. Murphy v. Water Commission
i. Fixed the above rule
ii. Protected under incrimination of any US law (but not laws outside
of US)
4. Waiver
a. If a witness answers an incriminating question, the privilege is waived on
that issue/offense and must answer more questions about that offense
i. Can’t insist on the 5th A. privilege as to the details of what you’ve
already revealed
b. Can reassert the privilege for new offenses
iv. Immunity Grants
1. Immunity: removes protection of 5th A. privileges, but witness cannot be
prosecuted for that crime. Witness must answer the questions.
2. Prosecutors can design immunities, but only cts can grant them.
3. Scope of the immunity
a. Counselman v. Hitchcock
i. Transactional immunity: prosecution couldn’t prosecute for
anything connected to the transaction of the immunity
1. Very broad; no longer done
ii. Use and derivative use immunity: prosecution cannot use direct
testimony and evidence derived from it
1. Not as broad as transactional immunity
b. Immunity does not apply to perjury or incriminating answers that are not
responsive to the questions
c. Prosecutions can still prosecute if they have other evidence
i. Kastigar v. United States
1. Prosecution must prove that evidence was not tainted by
immunized testimony
2. Taint Hearings: prosecution (gov’t) must prove, after doing
a whole trial, that every bit of evidence was not tainted by
immunized evidence
V. Police Interrogation
a. Background
i. Historical Background
1. Police interrogations can be attacked with:
a. Miranda (5th A. right against self-incrimination)
b. Messiah (6th A. right to counsel)
c. Voluntariness (based on the due process clause)
2. Police statements are powerful evidence
3. Kinds of statements
a. Inculpatory – statements that incriminate a D
b. Exculpatory – statements that exonerate D

i. D usually still incriminates himself
4. Miranda creates a 5th A. right to counsel
5. 5th A.: “no person… shall be compelled to be a witness against himself”
6. Why do people still talk?
a. Most people don’t have the ability not to talk
7. Police Professionalism and the Rise of the Police Interrogation Manual
a. The Myth of Psychological Interrogation by R. Leo
i. We have many post-conviction DNA exonerations
1. We know the crime didn’t happen
2. 25% of these cases have a false confession or statement of
guilt
ii. Many common interrogating techniques lead to false confessions
iii. Other countries have moved to other methods of police
questioning
8. History of Confessions
a. Through 1930s to 1960s there was a recognized confessions problem
b. Miranda was designed to solve this problem
c. Problem of “the third degree”
d. Standard was voluntariness
i. Still a standard for confessions today
ii. Due process origin
9. Voluntariness
a. First seen (30s – 50s) as trustworthiness and reliability of confession
i. Question for voluntariness: did the interrogation produce a
trustworthy reliable statement?
ii. If it did, ct doesn’t care how it was gotten.
b. Then (40s – 50s) concern is objectionable methods
i. Question for voluntariness: whether the statement was reliable or
not was produced by objectionable methods?
c. Voluntariness becomes about the objectionable methods used
d. Voluntariness was judged by the totality of the circumstances
e. Was an unpredictable standard
10. Massiah and Escobedo: The Court Closes in on the “Confession Problem”
a. Massiah v. United States
i. FACTS: D was charged and then got a lawyer. Then co-D who had
turned informant talked to D in his car and got incriminating
statements.
ii. This is the 6th A. right to counsel for evaluating confessions.
1. Gov’t cannot question a D without his lawyer after he has
invoked his right to counsel
2. Gov’t cannot go around the 6th A. right to counsel
3. This case was at a “critical stage”
b. Escobedo v. Illinois
i. FACTS: Interrogation occurred before adversarial proceedings had
begun (unlike Massiah). D asked to speak with a lawyer. Police
would not let his lawyer see his client. Police arrange a
confrontation between co-Ds and get incriminating statements.
ii. Also, a 6th A. case
1. Right to counsel attaches when adversary proceedings
begin
2. Case must be at a critical stage to have the right to counsel
a. Confessions are very important and are a critical
stage that should have counsel
3. Makes no difference that this was pre-indictment
a. He was accused for all practical purposes
4. Once D is focused on, questioning violates 6th A. right to
counsel if they evoke that right
5. Extends the right to counsel beyond Massiah
c. *These cases do not resolve the confessions problem.
b. Miranda v. Arizona
i. FACTS: Guy interrogated without contact and without advisement of his rights until he
confessed.
ii. Principle case of the Warren ct’s criminal procedure revolution
iii. ISSUE: What are the restraints (rules) society must observe as it prosecutes individuals
for crimes
1. Theme of all criminal procedures
iv. Miranda warnings only govern statements taken in police custody (custodial
interrogations)
v. Ct refocuses on 5th A.
1. Ct re-explains Escobedo
2. Says it was really about 5th and 6th A.
vi. HOLDING:
1. Can’t use (admissibility) statements (any because people don’t know the difference)
from custodial interrogation (police questioning) unless police show the use of
procedural safeguards
2. Custodial interrogation: questioning initiated by law enforcement after the D is in
custody and deprived of his freedom in any significant way
a. Reframes the “focused on” from Escobedo
3. Safeguards
a. What they are (warnings)
i. Suspects have a right to remain silent
ii. Any statement made can and will be used against them
iii. Suspect has a right to the presence of an attorney
iv. If suspect cannot afford one, one will be appointed to him
b. Waiver
i. D can waive this right after the warnings
ii. Burden is on the gov’t to prove that they were waived
1. Waiver must be voluntary and knowingly
c. Invocation
i. If the suspect invokes these rights, questioning must stop
vii. Current interrogation processes are psychological pressure
1. The purpose of modern interrogations is to subject the suspect to the will of the
police
a. Just being in custody itself puts a heavy toll on a suspect’s liberty
b. There is an interrogation environment

i. Promotes coercion
c. This is at odds with the principle that a person cannot be compelled to
incriminate himself
i. 5th A. protects against this coercion
ii. Without protections, no custodial statement could be voluntary
iii. Custodial interrogation is equivalent to compulsion to speak
d. Without safeguards, custodial interrogation has inherently compelling
pressure which compels an individual to speak which violates the 5th A.
i. In order to combat these pressures, police must advise suspects
of their rights, and honor the exercise thereof
ii. In-custody interrogations is equivalent to compelled testimony,
but we have an answer
iii. Can still do in-custody interrogation, but we must warn the
suspect of these things and honor them
iv. The warnings “dispel” the compelling atmosphere
viii. Must tell suspects:
1. They have the right to remain silent
2. Anything they say can and will be used against them
3. You have the right to an attorney
4. If you cannot afford one, one will be supplied for you
5. If you invoke these rights, questioning stops
ix. Police must prove they gave warnings
1. Even if D says they’re aware you still have to give warnings
x. Waiver
1. Suspects can waive these rights
2. Waiver cannot be assumed from talking
3. State must prove waiver (heavy burden)
xi. Warnings and proof of waiver are absolute prerequisites to use custodial statements
xii. Dissent – Harlan
1. This decision won’t change anything
xiii. Dissent – White
1. This will end all interrogations
2. The majority simply distrusts confessions
3. Will slow down investigations
c. The Meaning of Miranda
i. The Big Picture (Early to now)
1. General trend is to weaken Miranda
2. Deconstitutionalization of Miranda
a. Not constitutional in themselves, just a prophylactic rule
b. Tucker, Quarles, Elstad
ii. “Exploiting a criminal’s ignorance or stupidity”; “intelligent” waivers vs. “wise” ones
1. State v. McKnight
a. “Intelligent, knowing, and voluntary” means you were aware of your
rights and understood them in a basic way, does not matter if suspect
understood their whole scope

iii. Adequacy of warnings
1. Duckworth v. Eagan
a. FACTS: In their Miranda warnings, cops said “we can’t get you an
attorney,” but you will “have one when and if you go to ct”
b. Ct said this was sufficient
c. ISSUE: whether the warnings reasonably convey the rights as required by
Miranda
2. Miranda does not require specific wording; just must convey the 4 requirements
a. State can stray from the wording, but can’t change the meaning
iv. Need for police admonitions in addition to the four Miranda warnings
1. Colorado v. Spring
a. There is no right to be told what the police are interested in
b. Suspect only needs to know what his rights are
v. “Custody” v. “focus”
1. Beckwith v. United States
a. FACTS: Cops go to guy’s house and question him, wasn’t Mirandized and
gave incriminating statements. Ds said he should have gotten warnings
because investigation focused on him
b. A suspect must be in custody to require Miranda warnings, not just the
focus of an investigation
vi. What constitutes “custody” or “custodial interrogation”?
1. Custody: movement is restrained and the person does not feel free to leave (EX.
street questioning is not custody)
2. Oregon v. Mathiason
a. FACTS: Suspect was asked and went on his own to the police station. Was
not given Miranda warnings. Police used his statements.
b. RULE: Voluntarily in a police station is not custody.
3. California v. Beheler
a. FACTS: D voluntarily agrees to go to the police station with the police
b. RULE: Voluntarily going to the police station accompanied by the police is
also not custody.
4. Berkemer v. McCarty
a. RULE: Traffic stops are not custody for Miranda purposes.
i. It’s out in public; no compelling pressure of atmosphere.
ii. It’s temporary
b. Custody test: would a reasonable person feel that they were free to
leave?
5. Howes v. Fields
a. FACTS: D is already in prison and question him in a conference room with
no Miranda rights given. When he was done he went back to his cell. He
was told he could go back to his cell.
b. RULE: Being in prison is not necessarily in custody for Miranda purposes.
i. Test – ask if suspect reasonably felt free to leave
6. J.D.B. v North Carolina
a. FACTS: Juvenile was questioned by police in a closed-door conference
room at school. Not given Miranda warnings, nor allowed to see his
guardian.

b. Objective test: To determine if someone is in custody, we ask if a
reasonable person would feel free to leave
i. But we must consider the age of minor suspects in the reasonable
standard
vii. What constitutes interrogation within the meaning of Miranda?
1. Voluntary statements unsolicited by questions are not interrogation and do not
have Miranda protection
2. Rhode Island v. Innis
a. FACTS: D was arrested and put in police car. Had already invoked his
rights. Officers in the car started talking about handicap kids school in the
area and it would be a shame if they found the gun. Guy interrupts and
says he’ll show them where the gun is. He does. No Miranda warnings.
He just says stuff.
b. ISSUE: Whether he was interrogated
c. HOLDING: This was not an interrogation
i. There were no direct questions
ii. They were not talking to the suspect
iii. There is no evidence of his susceptibility to handicapped children
d. No doubt D was in custody
e. Interrogation: express questioning and any words or action by police that
they should have known were reasonably likely to illicit an incriminating
statement
i. Factors for “should have known:”
1. Unusual/particular susceptibility to something
2. Any known susceptibility counts
ii. Questioning or its functional equivalent
3. Arizona v. Mauro
a. FACTS: Husband and wife suspects. Wife wants to talk to husband. Police
allow it but put a tape recorder on the table.
b. This is not an interrogation.
c. Miranda is only concerned with police interrogation, not questioning
between suspects.
viii. The “jail plant” situation; “surreptitious interrogation.”
1. Illinois v. Perkins
a. FACTS: Police use informants to get a person to admit to a murder he is
the suspect of.
b. Jail plants are acceptable; they are not custodial interrogation.
i. Ct does not want to require informants to give Miranda rights
c. Miranda is not required when the suspect is not aware he’s being
interrogated by law enforcement
i. No police dominated atmosphere
ii. Interaction of custody and official interrogation
iii. No 6th A. right to counsel concerns
d. Miranda requires both (1) police custody and (2) interrogation to apply
ix. Pennsylvania v. Muniz
1. FACTS: Guy arrested for DWI and during booking they ask him a normal booking
questions and then the 6th birthday question. Replies “no I don’t.”
2. There is a routine booking question exception to Miranda
3. Standard booking questions are not interrogation.
a. These questions were not testimonial
b. Not being compelled to give an answer to incriminate him
4. The 6th birthday question was interrogation
a. This question was testimonial in nature
b. The content of the information/answer is incriminating and thus
testimonial
i. Shows his thought patterns
c. Testimonial questions and answers have Miranda protection
d. What he says, not how he says it, is testimonial
x. When does a response to an officer’s question present a reasonable danger of
incrimination?
1. Hiibel v. Sixth Judicial Court
a. FACTS: Nevada statute says when the police ask you for your name you
have to give it.
b. Miranda does not apply when police request a person’s name, but it may
in other cases
i. No danger of incrimination when providing one’s name
ii. Not a 5th A. right against self-incrimination issue
iii. If giving one’s name could/does incriminate, a ct must consider
that when deciding if the 5th A. privilege applies
c. Allowed the police to ask for a name for Terry purposes
i. Seemed to overrule the Terry concept that police need reasonable
suspicion to force person to answer questions
ii. Normal rule: if police lack reasonable suspicion a person has the
right to walk away for a police encounter
xi. Questioning prompted by concern for “public safety”
1. New York v. Quarles
a. FACTS: Man seen in supermarket that matched the description of a
suspected rapist. Man hid his gun. When police grabbed him, they frisked
him and found an empty holster. When asked, he pointed out where the
gun was.
b. There is a public safety exception to Miranda
i. Objective test – exception applies whether or not there are any
actual safety concerns; applies if there is a possibility of danger
1. Danger of someone else finding the gun
2. But at the time there was no real danger of others being
harmed
a. Police were not in danger
b. No evidence of an accomplice
3. The need for public safety outweigh the need for these
prophylactic rules
c. He was not compelled to give a statement
xii. Use of a pretrial psychiatric examination at a capital sentencing proceeding
1. Estelle v. Smith
a. ISSUE: In cases where a D’s mental health is an issue and there are
psychiatric evaluations, can the state use statements made to the
psychiatrist state agent when the D was not given Miranda warnings?
b. The use of these questions in the penalty phase of the trial violates both
the 5th and 6th As.
i. 5th A. protects against giving evidence against oneself
c. All responses to questions from a state agent about the crime is of course
testimonial and requires Miranda warnings
xiii. Miranda and juveniles
1. Don’t understand Miranda rights
2. Don’t understand working with authority
xiv. Miranda and the mentally retarded. The Cloud-Shepherd-Barkoff-Shur study.
1. Mentally challenged and low IQs interfere with Miranda
2. Those who fall under this category won’t understand
xv. Is the failure of the police to notify the consular post of a detainee’s home country
that he has been arrested, a notification required by the Vienna Convention, ground
for suppressing the detainee’s subsequent statements to the police?
1. Sanchez-Llamas v. Oregon
a. FACTS: U.S. authorities failed to get in touch with suspects country’s
consulate. There is a treaty for this. Suspect got Miranda rights and
waived them; gave an incriminating statement.
b. Suspect was not informed of his right to consulate.
c. Sup. Ct. said this is not enough to suppress the statement.
d. Waiver of Miranda Rights
i. Meeting the “heavy burden” of demonstrating waiver” – should tape recordings of the
warnings and police questioning be required?
1. Heavy burden rests on the gov’t to demonstrate that the D knowingly and
intelligently waived his privilege against self-incrimination and his right to retain
or be appointed counsel
ii. How onerous is the gov’t’s burden of proof in confession cases?
1. Colorado v. Connelly
a. Need only prove Miranda right by a preponderance of the evidence
iii. Implied waiver
1. North Carolina v. Butler
a. FACTS: D got rights, was silent, then talked, but would not sign any forms
saying he waives his rights.
b. HOLDING: D waived his rights.
c. The gov’t has a great burden to prove waiver
d. Waiver is not shown just by giving the D Miranda warnings and then
talked…
e. BUT – Waiver can be implied without a specific statement of a waiver of
his rights
i. Seems to contradict what is said in (d) about waiver not being
shown
ii. Law is made unclear
f. RULE: Ds can make implied waivers
iv. “Qualified” or “conditional” waiver.
1. Connecticut v. Barret
a. FACTS: D talked, but refused to sign a waiver form or make a statement
without an attorney.

b. A person knowingly talking is a waiver even if they are somewhat
confused over the nature of the waiver
c. Ds can make qualified, conditioned waivers
i. Doing something inconsistent from remaining silent without a
lawyer is to waive the right enough
v. What constitutes an invocation of Miranda rights?
1. Fare v. Michael C.
a. FACTS: Interviewing juvenile and he gets Miranda warnings and wants to
see his probation officer. Police officer doesn’t allow it but says you can
have an attorney. Juvenile talked. (Juvenile probation officers are kind of
like guardians and are required to help.)
b. Formalism RULE: A request for anyone other than an attorney is not an
invocation of Miranda 5th A. rights.
c. If a person gets Miranda warnings and requests an attorney, they must
be given one
i. This right only applies to attorneys
ii. A probation officer is not like an attorney
d. Court must look at the totality of the circumstances to determine
whether a request for an attorney has been made
vi. The scope of “second-level” Miranda safeguards – the procedures that must be
followed when suspects do assert their rights – and the distinction between invoking
the right to remain silent and the right to counsel.
1. Michigan v. Mosley [RIGHT TO SILENCE]
a. FACTS: Suspect is given rights and invokes right to silent. Then a few
hours later he is taken to another place and asked about an unrelated
murder. Then he talks.
b. Right to silence:
i. Standard: Police must “scrupulously honor” the right to silence
1. They waited 2 hours, re-Mirandized him about a different
crime
ii. The state is allowed to resume questioning when:
1. About different crimes
2. After a significant time
3. And a new set of Miranda warnings
iii. The right to silence is offense specific
2. Edwards v. Arizona [RIGHT TO COUNSEL]
a. FACTS: D is questioned and said he wanted a lawyer, thus invoking his
right to counsel. Taken to jail and then questioned the next day, read
rights, waives them, and now gives a statement
b. HOLDING: Statements are inadmissible because they violated his right to
counsel.
c. Right to counsel:
i. Once a D has invoked the right to counsel, no further questioning
unless counsel has been made available to the D or unless D
reinitiates conversation on his own
1. For the right to counsel talking does not show waiver
2. Unlike Mosley, these statements are not admissible

3. Arizona v. Roberson [RIGHT TO COUNSEL]
a. ISSUE: Can police resume questioning after the invocation of the right to
counsel for different crimes?
b. The right to counsel is not offense specific like the right to silence
i. This means it doesn’t allow questioning even if it’s about different
subjects
c. There are different rights for the right to counsel then the right to remain
silent
4. Minnick v. Mississippi [RIGHT TO OCUNSEL]
a. FACTS: Guy invokes the right to counsel and is given counsel. Then the
police question him again, without counsel, and this time he waives and
makes statements.
b. Edwards rule is extended
i. Once the right to counsel has been invoked the police cannot
resume questioning unless and until the attorney is present
vii. Limiting Edwards – When do the Edwards protections come to an end? What
constitutes a “break in custody?”
1. Maryland v. Shatzer
a. FACTS: Guy is questioned while in prison about a crime and invoked his
right to counsel and questioning ceases. He is released back into general
population. 2.5 years later the police question him again and now he
waives his right to counsel and talks and is convicted.
b. ISSUE: When do the Edwards right to counsel protections end?
c. Edwards is not a constitutional rule, rather it is a ct made rule designed to
protect the assertion of the right to counsel
i. A ct made rule must justify its costs with its benefits
1. Cost-benefit balancing
d. A break in custody changes the extent of the Edwards rule
i. A return to the general population is not the Miranda custodial
setting
1. Miranda custodial setting – not allowed to leave, police
allowed to ask questions
ii. This is a break in custody
e. Edwards protection, after an invocation of the right to counsel and a
break in custody lasts 14 days
i. A 14-day break in custody ends Edwards protection
viii. Re-initiating Conversation – What constitutes “initiating” further communication with
the police?
1. Oregon v. Bradshaw
a. FACTS: D is read rights and invokes right to counsel. On his way to jail he
asks officer “what’s going to happen to me now.” Officer says we can’t
talk unless you want to. He says, yeah, he wants to know what’s going to
happen. This talk lead to a polygraph which lead to an incriminating
statement.
b. RULE: Edwards protections terminate when the D initiates conversation
with the police
i. Asking “what’s going to happen to me now” was initiation

1. Showed he wanted a generalized discussion about the
investigation
ii. Questions about routine incidents of custody do not re-initiate
questioning
1. Can I go to the bathroom, etc.
ix. How direct, assertive and unambiguous must a suspect be in order to invoke the right
to counsel?
1. Davis v. United States
a. FACTS: Suspect is being questioned. Suspect says, “maybe I should talk to
a lawyer.” They ask if he wants a lawyer and says, “no I don’t want a
lawyer.” A little later he does ask for a lawyer.
b. Reasoning – the right to counsel:
i. RULE: The D must invoke the right to counsel unambiguously
1. Request must be such that a reasonable officer would
understand it as a request for an attorney
2. Ambiguous statements are not invocations to the right to
counsel
3. Police do not need to clarify ambiguous statements
x. Another look at implied waiver: the distinction between the right to remain silent and
the right not to be interrogated.
1. Berghuis v. Thompkins
a. FACTS: D got Miranda warnings and made D read the rights out loud. D
was questioned for a few hours and was silent. When asked about God
and forgiveness he answers and it was incriminating.
b. Right to remain silent:
i. RULE: D must invoke the right to remain silent unambiguously
1. Simply remaining silent does not invoke the right to
remain silent
2. D does not have to use formal language
3. The Davis rule was clear and we like it
c. Not waiving:
i. D was read rights
ii. D understands these rights
iii. Made an un-coerced statement
d. RULE: When one acts inconsistent with their rights, they have waived
e. Suspects answers were not coerced
f. Idea of a heavy burden on the state is pretty much gone
xi. When suspects are not in custody, and therefore not given any Miranda warnings, do
they have a “right to remain silent?” If they do, must they expressly invoke this right?
1. Salinas v. Texas
a. FACTS: Man did not claim his rights, but when asked about shotgun
matching the murder weapon he did not say anything and looked away.
b. The right to remain silent in interrogation is different from not testifying
at trial.
c. Can use Miranda right to remain silent against the D
d. Pre-Miranda silence does not invoke either. Invocation of right to silence
requires unambiguous request.
2. Seems to suggest that a person does not truly have the right to remain silent
xii. The Miranda-Edwards rule and the 6th A. right to counsel compared and contrasted.
1. McNeil v. Wisconsin
a. FACTS: 2 sets of crimes. The suspect invokes right to counsel on the first
set. Waives his rights on the second set.
b. Ct says he invoked the 6th A. not the 5th A.
c. Right to counsel under 5th A. is not offense specific
2. Montejo v. Louisiana
a. FACTS: D did not invoke 6th A. right to attorney. The judge assigned him
an attorney.
b. Having a lawyer appointed to you is not an invocation of the 6th A. right
to counsel
xiii. If a suspect has not requested a lawyer but, unbeknownst to him, somebody else has
retained one for him, does the failure to inform the suspect that a lawyer is trying to
see him vitiate the waiver of his Miranda rights? If the police mislead the attorney
about whether her client will be questioned or otherwise deceive an inquiring
attorney, should the confession be excluded?
1. Moran v. Burbine
a. FACTS: D in custody. His accomplice tells the police about the D’s
unrelated murder. Sister got him a lawyer while in jail, lawyer calls the
police department and tells them if they question him, the lawyer needs
to be there. Officer says they are done with him, which was not true. D
never knew an attorney was trying to see him.
b. Ct says this does not taint confession and they are valid.
c. Events occurring outside the presence of a suspect are unknown to him
and have no bearing on his waiver of constitutional rights
i. RULE: Waiver only needs to be knowing, voluntary, and intelligent
1. As long as he knew his rights, D was not coerced, could be
silent, could request a lawyer, and we will use the
statements, the waiver analysis ends
ii. RULE: Police do not have to give a suspect information to make a
more informed decision about waiving his rights
d. The goal of Miranda was to dissipate the compulsion inherent in
custodial interrogations and guard against abridgement of the suspects
5th A. rights
i. How the police treat a suspect’s attorney is not a factor in the
analysis
e. Miranda has a limited function
f. Dissent – Stevens
i. The majority has changed the meaning of Miranda
1. It is not okay to interfere with the attorney-client
relationship. It violates the due process clause.
e. Evaluating Miranda – Modern Miranda
i. Why do so many suspects waive their rights?
1. “If not, I’ll look guilty.”
2. They think they can talk themselves out of the jam.
3. They want to tell their story.
4. They can’t get themselves to remain silent.

5. “The Impact of Miranda Revisited” by Richard Leo
a. Made observations and studied hundreds of interrogations
b. Miranda has no adverse impact on law enforcement
c. Miranda has professionalized the police
i. Made police pay attention to the rules
d. Police have adapted to Miranda successfully
e. 78% waive, 21% invoke after being informed
f. The only people who really invoke are those with felonies records
i. But still, most talk and waive
ii. Excerpt, David Simon, “Homicide: A Year on the Killing Streets” (1991) (TWEN)
1. The warnings and monologue
2. The form
3. Deception
4. The out
5. Illusion and transformation
6. Miranda is a noble gesture, a compromise, a symbol, and nothing more.
iii. Other Miranda problems discussed elsewhere in the book.
1. Miranda is a safeguard, not constitutional
2. Constitutional aspect is the right against self-incrimination
3. Section 3501 – Congress trying to overrule Miranda
a. Only rule to follow is due process voluntariness
b. Legislative branch can’t overrule the constitution so if Miranda is a
constitutional decision, Congress can’t just make a law and overrule it
iv. Dickerson v. United States
1. FACTS: Congress passed a statute that repealed Miranda and used a
voluntariness standard.
2. ISSUE: Is Miranda a constitutional decision?
3. HOLDING: Miranda is a constitutional decision. Ct refuses to overrule it now.
a. Thus, Miranda cannot be countered by a statute.
4. Surprising that Rehnquist upheld Miranda
5. The cases that say that Miranda is just prophylactic and not the constitution are
all state cases, and we wouldn’t have jurisdiction unless it was a constitutional
case.
a. Thus, Miranda must be a constitutional case.
6. Stare decisis
a. These warnings are part of our national culture (TV)
b. These rights Americans actually know
7. Miranda’s impact
a. Not great
b. But core of decision is repeatedly reaffirmed
8. Dissent – Scalia
a. Does what Scalia does and has a fit
f. Voluntariness
i. The “Due Process”-“Voluntariness” Test Revisited
1. 3 ways to test a statement:
a. Miranda (5th A.)
b. Voluntariness / due process test

c. Massiah (6th A.)
2. Voluntariness standard
a. Still valid
b. Examining the statements for coercion
c. Use when:
i. Miranda is complied with and there is a waiver
ii. Questioning but not custody
iii. Questioning in custody done by a private actor
iv. When the statement is used to impeach but not prove the case in
chief
d. Still a problematic doctrine
e. Trickery is still allowed
i. Lying is officially sanctioned
ii. Telling suspects that they have scientific/DNA evidence against
them
3. What Kinds of Trickery or Deception, If Any, May the Police Employ After a
Suspect Has Waived His Rights?
a. Miller v. Fenton
i. FACTS: There is an audio recording of the confession. Detective
got him to confess and afterwards he passed out. Officer
somewhat made a promise to get suspect mental help.
ii. HOLDING: Ct said this was voluntary.
iii. Voluntariness/coercion standard
1. Under the totality of the circumstances,
2. Was the interrogation sufficiently manipulative/coercive
to overbear the will of a person with the D’s
characteristics?
iv. Totality of circumstances: D’s characteristics, questioning length,
what the police said (charges/promises)
v. Tactics
1. Sympathy (friend)
2. Lying
3. Emotional impact
4. Minimization of culpability – offer the suspect an excuse
for what was done
a. Mental illness
5. Makes promises – the current interpretation of Bram
allows promises
a. The promises were not literal
vi. Dissent –
1. The case was already solved, they did it to get a confession
which just makes it easier for law enforcement
2. The majority does not recognize his collapse as relevant
4. The malleability of the “totality of circumstances” test.
a. The voluntariness standard is difficult to apply and judges disagree on it.

5. Drawing a line between expressions of sympathy and implied promises of
leniency.
a. Sympathy v. promises
i. Expressions of sympathy is allowed
ii. Bram is no longer taken literally
iii. Most promises are now allowed
iv. Promises not to prosecute divide cts
1. Some cts exclude these statements, others don’t
6. Bram v. United States a century later.
a. Promises of leniency combined with threats of punishment are the
“primary cause of police induced confession”
7. Resisting “freeing a murderer” because of a promise not to prosecute.
a. United States v. LeBrun
i. FACTS: During interrogation, promises were made regarding no
prosecution.
ii. Should ask whether the police overbore the D’s will by what they
said
8. False verbal assertions by the police vs. the fabrication of scientific evidence.
a. Lies are permitted in interrogations
b. Doesn’t invalidate from Miranda point of view or from a due process
voluntariness point of view
9. Offering to protect a prisoner from physical harm at the hands of other
inmates.
a. Arizona v. Fulminante
i. FACTS: D is a suspected child killer and in prison for something
else. The police bring in an informant, who is masquerading as a
mafia man and tells the D he can protect you if you come clean to
me. He does.
ii. HOLDING: This is coercion.
iii. Appeals cts make de novo determinations of voluntariness.
iv. RULE: Statements are not voluntary if they are made due to actual
violence or from credible threats of violence
ii. Did the court decline to expand the “voluntariness” test or did it revise the test
significantly?
1. Colorado v. Connelly
a. FACTS: Man goes up to a police officer and confesses to a murder. He was
having command hallucinations telling him to confess.
b. HOLDING: Confession was not coerced.
c. RULE: Coercion must originate in police conduct to make statements
involuntary.
i. Unless it comes from the police, suppressing this evidence would
deter nothing
2. Private Party Coercion
a. KKK tortured a black man until he confessed…
b. Cts struggle with private party coercion
iii. Miranda, the Privilege Against Compelled Self-Incrimination and 14th A. Due Process:
When Does a Violation of these Safeguards Occur?

1. Chavez v. Martinez
a. FACTS: Police shot a man and the lead detective was investigating him.
He was not charged but sues the police for interrogating him while he
was at the hospital and in great pain.
b. HOLDING: This is not a 5th A. or due process violation
c. This does not violate the 5th A.
i. RULE: There is no violation of the 5th A. right against self-
incrimination unless the compelled statements are used in trial
d. This does not violate the 14th A. due process clause
i. This conduct does not shock the conscience
1. Detective did not interfere with treatment
2. Questioning did not exacerbate the pain
g. The Massiah Doctrine: Sixth Amendment Right to Counsel
i. 3rd confessions test which is based on the 6th A. right to counsel
ii. Massiah v. United States
1. FACTS: D had an attorney, been to ct, and plead guilty. Gov’t had his co-D lure
Massiah into his car and wired the car for sound. Took incriminating statements
from Massiah.
2. HOLDING: This is a violation of the 6th A. right to counsel.
3. This is not the most appropriate way to deal with the confessions problem.
4. This is clearly a state where the D is entitled to a lawyer’s help.
a. This case was at a critical stage.
b. When a person is entitled to have an attorney, the police cannot go
around that attorney
c. For 6th A., ask if the adversarial system been engaged
i. Here, yes, he was indicted
5. This might be worse than custodial interrogation because the D does not know
he is facing gov’t power
a. He does not know to keep his guard up
b. Gov’t can continue to investigate after indictment
c. But once a person has been indicted and has counsel police cannot
extract statements from him without his counsel present
iii. Escobedo v. Illinois
1. FACTS: Interrogation occurred before adversarial proceedings had begun (unlike
Massiah). D asked to speak with a lawyer. Police would not let his lawyer see his
client. Police arrange a confrontation between co-Ds and get incriminating
statements.
2. Also, a 6th A. case
a. Right to counsel attaches when adversary proceedings begin
b. Case must be at a critical stage to have the right to counsel
i. Confessions are very important and are a critical stage that should
have counsel
c. Makes no difference that this was pre-indictment
i. He was accused for all practical purposes
d. Once D is focused on, questioning violates 6th A. right to counsel if they
evoke that right
e. Extends the right to counsel beyond Massiah

iv. *These cases do not resolve the confessions problem.
h. The Revivification of Massiah
i. Brewer v. Williams (Williams I)
1. FACTS: Man abducted a little girl in Des Moines. A lawyer told him to turn
himself in in Davenport. The lawyer in Des Moines told him not to talk to the
police. While in custody in Davenport a lawyer there told him not to talk to
police. Lawyers have arrangement with police that they will not question him
until he is back in Des Moines and meets with his lawyer. On the car ride, they
start talking about many things. Then they start talking about religion and officer
gives Christian burial speech. Police suggest that they need to stop and find the
body. He eventually guides the police to the body.
2. HOLDING: This was a violation of the 6th A.
3. Ct says no Miranda problem
4. Ct says no voluntariness problem
5. There is a Massiah violation
a. Adversarial process had begun
i. He was already before a judge
ii. He had lawyers
b. The 6th A. right to counsel had “attached”
i. 6th A right to counsel attaches when prosecutorial judicial
proceedings have initiated
ii. Once legal proceedings begin the D has a right to the presence of
a lawyer
c. Officer was aware of suspect’s susceptibility
i. This officer knew he was deeply religious and was eliciting
incriminating statements
1. “Deliberate elicitation of incriminating statements” – 6th A.
test for whether there was interrogation; interrogation
without direct questions
a. Equivalent to the Miranda “questioning or its
functional equivalent test”
d. This was not a waiver
i. He said he would talk to them after he saw his lawyer
ii. He did not waiver his right to counsel
iii. Waiver standard = “knowing, voluntary, and intelligent”
1. Same as the Miranda standard
2. A D can waive 6th A. right to counsel
a. He just did not do that here
iv. State did not meet burden of showing waiver
e. The police still would have found the body, but would not have the
statement from him that he put it there.
ii. What constitutes a valid waiver of the “Sixth Amendment – Massiah” right?
1. Patterson v. Illinois
a. FACTS: D was indicted and locked up and when he was told. He asked
why wasn’t X indicted; he did everything.
b. HOLDING: D waived his 6th A. right to counsel.

c. Miranda warnings are enough for both 5th A. purposes and 6th A. right to
counsel purposes.
i. Ds can waive the 6th A. after Miranda warnings a la Burbine – not
telling a D his lawyer is present does not violate Miranda, but in a
6th A. context it would be a violation.
iii. If the gov’t obtains incriminating statements from a D after her right to counsel has
attached, but the gov’t does so for legit reasons unrelated to the gathering of
evidence concerning charges to which the right to counsel has attached are the
statements admissible at the trial of the crimes for which formal charges had already
been filed?
1. Maine v. Moulton
a. Violation of the 6th A., done for legitimate reasons, unrelated to the crime
that the right to counsel has already attached
b. Cannot use these statements
i. Proper to continue to investigate, but gov’t cannot get and use
statements in this way
ii. When seeking evidence on pending cases, gov’t is limited by the
6th A.
iii. Any other rule would invite abuse
c. No problem continuing investigation, just can’t continue in the form of
getting statements
i. “Passive” vs. “Active” Secret Agents
i. United States v. Henry
1. FACTS: Jail plant is told to not question the D and there is no evidence that he
had.
2. HOLDING: This was a 6th A. violation.
3. If in jail, right to counsel has attached and suspect is in custody.
4. High point of Massiah’s reach
5. Active Listener: he had conversations with the D, had he been passive the D
would not have said anything
a. Even if gov’t didn’t intend to elicit statements, they must have known this
was the likely result of the situation they created
b. The gov’t got statements, so they must have done something to get these
statements
i. Rule seems to prohibit getting evidence from jail plants
c. Very different rule from the 5th A.
i. RULE: For 5th, non-police questioning is not interrogation
ii. RULE: For 6th, non-police questioning or deliberately eliciting is
interrogation and violates 6th A.
ii. Kuhlmann v. Wilson
1. FACTS: Informant was in jail cell and told not to question D. After the D’s brother
came to visit he changed his story and made incriminating statements.
2. If in jail, right to counsel has attached and suspect is in custody.
3. Active Listeners: D did something to stimulate the statements (i.e. indirect
interrogation)
4. Passive Listeners: D did not stimulate the statements
a. This case is not interrogation and is a passive case

b. Does not violate the 6th A.
c. Just said “your story doesn’t look good”
5. Narrows the Henry rule
a. Henry required “deliberate elicitation”
iii. Private citizens v. state agents
1. Informants
a. Are problematic
b. Have a strong motivation to come up with information to implicate
others to remove their charges
c. Has led to wrongful convictions
j. Once the 6th Amendment Right to Counsel Arises, Does It Attach to All Other
Offenses Closely Related to the Particular Offense Charged?
i. Whether counsel has attached, effects the validity of pretrial identification, statements,
and confession
ii. Texas v. Cobb
1. FACTS: D charged with burglary and has appointed counsel. He makes a
statement about a murder that occurred with the burglary, but not the burglary.
Lower courts have held that the right to counsel applies to “closely related
factually” crimes.
2. The 6th A. right to counsel is offense specific. (McNeil v. Wisconsin)
a. RULE: The right does not attach until a prosecution commences for a
crime.
th
3. The 6 A. right to counsel only applies to other non-charged crimes if it meets
the Blockburger test
a. Blockburger test: Looks at the elements of the case and asks if there are
any differences in elements; if not, then they are the same offense
b. The 6th A. right to counsel will apply to uncharged crimes that are lesser
included offenses of the charged crime
i. The burglary and murder charges here have completely different
elements.
k. Miranda-Edwards rule and 6th Amendment right to counsel compared and
contrasted
i. Montejo v. Louisiana
1. FACTS: D didn’t assert his 6th A. rights. He was assigned a lawyer.
2. Michigan v. Jackson the D asked for a lawyer
a. Police may not initiate interrogating once D asserts RTC
3. The 6th A. right to counsel protection does not apply when the lawyer is
appointed to the D
4. Counsel must be assertively invoked
a. Miranda, Edwards, and Minnik are sufficient to protect this
b. Jackson no longer serves a purpose
ii. McNeil v. Wisconsin
1. FACTS: 2 sets of crimes. The suspect invokes right to counsel on the first set.
Waives his rights on the second set.
2. Ct says he invoked the 6th A. not the 5th A.
3. Right to counsel under 5th A. is not offense specific

VI. Pre-Trial Identification
a. Right to Counsel
i. Background
1. Eyewitness identification is regarded as solid evidence by jurors
2. Memory effects
a. Violence actually reduced memory reliability
b. Memory is plastic and subject to manipulation
c. Cross-racial identifications is much less accurate
3. Vocabulary
a. Lineup: multiple people lined up and all seen by the witness
b. Showup: a one-person lineup and witness identifies them
c. Array: lineup oh photos
4. Two main tests:
a. 6th A. right to counsel
b. Due process/suggestiveness
ii. Wade and Gilbert: Constitutional Concern About the Dangers Involved in Eyewitness
Identifications
1. United States v. Wade
a. FACTS: D was indicted and had a lawyer. He was put in a lineup 15 days
after the crime and his lawyer was not present. The victims pick the D out
of the lineup. The victims had observed him standing alone with FBI
agents in the hallway. They pick him out at trial and the lineup is brought
out.
b. The 6th A. right to counsel gives a D a right to counsel any time the
adversarial system is engaged.
c. RULE: Pre-trial identification is a critical stage
i. Pre-trial identifications are likely to be reiterated at trial
ii. The identification at trial is a mere formality
d. Ct recognizes that eyewitnesses are not perfect
e. RULE: Counsel must be present for pre-trial identification when the 6th A.
right to counsel has attached
i. Deprives D of the right to cross examine
1. Can’t ask about pre-trial identification because lawyer
wasn’t there to see it
ii. Attorneys won’t obstruct the process
f. A bad pre-trial identification does not require that an in-court
identification be automatically thrown out
i. RULE: The gov’t must show that in-ct identification has an
independent basis other than the (bad) pre-trial identification by
clear and convincing evidence
ii. Ds conviction may not rest on in-ct identification that is the fruit
of a suspect’s pretrial identification
2. Wade in practice
a. Prosecution’s burden to show an in-ct identification’s independent basis
is easy to meet
i. Witness can just say they can identify D from the incident itself,
not from pretrial identification

ii. Burden is basically on D instead
b. RULE: A D’s refusal to be in a lineup can be used against them
i. Inference of guilt
c. Dealing with lineup problems
i. Blank lineups – two line up that shows to the witness that the
person may or may not in the lineup
ii. Expert witnesses that show there are problems with them
d. Role of Counsel at Pretrial Identification
i. Current practice – counsel present but silent, can reconstruct
procedure later
ii. Best practice, per defense bar – counsel can remain silent, can
object, or simply write down what they observe
iii. The Court Retreats: Kirby and Ash
1. Pre-indictment identification procedures
a. Kirby v. Illinois
i. FACTS: Victim confronts 2 suspects in a police station. Ds have no
counsel, pre-indictment. Victim says they are the guys.
ii. Ct retreats from the Wade ruling
iii. The 6th A. right to counsel only attaches when there has been
some kind of judicial proceedings that show the adversarial
process has begun (initiation of adversarial proceedings)
1. An arrest alone is not enough to show the adversarial
process has begun
a. Need something like a preliminary hearing,
alignment, formal charges
2. The ct limits Escobedo
3. Ct says this is more than mere formalism, rather it is a
commitment from the gov’t to prosecute these suspects
4. No right to counsel in routine investigations.
iv. In reality, most pretrial identifications occur before ignition of
adversary proceedings; so, most are no longer affected by 6th A.
right to counsel
b. Bottom line
i. Most pre-trial identifications occur before charges are brought
ii. In practice, the Wade rule applies to very few identification cases,
most cases fall under Kirby
2. “Custody” vs. “the initiation of adversary judicial criminal proceedings”
a. The 6th A. does not apply to being in custody
b. It only applies after the ignition of adversarial proceedings begin
3. Photographic versus corporeal identification
a. United States v. Ash
i. FACTS: Victim was shown a photo array 3 years after the crime, D
was not present and did not know about it, and he did not have
counsel.
ii. Ct said there was not a violation of the right to counsel
iii. Photo arrays do not need D counsel to be present
1. They can be reconstructed unlike a lineup

2. The D is not present and cannot be taken advantage or
harmed
3. The problems of the array can all be addressed in cross
examination
4. Prosecutorial abuse will be addressed by ethical rules
binding a prosecutor
4. After Ash and Kirby
a. 6th A. right to counsel does not apply in most retrial identifications
b. Will either be done before initiation of adversary proceedings or via
photo array
5. Adversarial proceedings
a. Moore v. Illinois
i. FACTS: Victim identifies the D at a preliminary hearing.
ii. Ct said adversarial proceedings began and he needed counsel.
iii. Adversarial proceedings begin in a preliminary hearing, the D does
not necessarily need to be indicted
1. But it is more than just being in custody
b. Due Process Limitations
i. Separate test from Wade/Kirby
ii. Suggestive test/standard: Was the procedure so unnecessarily and irreparably
suggestive to incorrect identification to be a violation of due process
iii. Manson v. Brathwaite
1. FACTS: Undercover drug buy from black man. 2 days later the officer’s
supervisors showed the officer a photo of a man and the officer identified the
man as the dealer without any doubt.
2. Ct held this was reliable identification and cannot be suppressed
3. Due process/suggestiveness standard for pre-trial identification:
a. STANDARD: Under the totality of the circumstances, whether the
identification was reliable, even though it was suggestive
i. Takes for granted some suggestiveness
ii. If it was still reliable, it does not violate the due process clause
iii. Reliability is the linchpin of the analysis
iv. Factors:
1. Opportunity to view the action
2. Degree of attention that was paid
3. Accuracy of the description given at the time compared to
Ds actual appearance
4. Witness’s level of certainty
5. And time between conduct and identification
4. Factors applied:
a. He had 2-3 minutes just a few feet away to view the D
b. The officer was a trained officer and was a black man himself
c. The accurate description was given just minutes later
d. The officer was very certain
e. The time between crime and identification was just 2 days
5. Under the totality of the circumstances, there is little likelihood of incorrect
identification

6. Majority ignores some of the science on eyewitness identifications known even
then
7. Dissent –
a. Takes account of new science on eye witness identifications
b. Factors applied:
i. Viewing time as short as 15-20 seconds and he was observing
other things and distractions take away from accuracy
ii. Attention was not entirely on the D, police testimony needs
special scrutiny
1. Police are no better than civilians at identifying faces
iii. This was just a general description, no mention of his west-Indian
accent
iv. Certainty meaningless
v. Most decay in memory occurs in 48 hours
iv. When is an identification procedure unnecessarily suggestive?
1. Stovall v. Denno
a. FACTS: Police showup to witness in the hospital with 2 suspects and ask
the victim if they were the guys.
b. Ct allows this because the victim might have died.
c. A very suggestive procedure that is necessary, is allowed in certain
circumstances
v. Does the unnecessarily suggestive identification procedure have to be arranged by the
police or does any identification obtained under suggestive circumstances satisfy the
threshold requirement?
1. Perry v. New Hampshire
a. FACTS: Woman was in apartment and saw outside the man police had
detained. They asked her to give a description of him. She looked and
saw him on her own. Her description was likely colored by what she saw.
b. Due process clause only requires suppression of identification procedures
for reliability purposes when the police employ (start) suggestive
procedures
c. Trial cts have broad discretion to determine whether pre-trial
identifications were suggestive
i. Elected judges don’t want to tell witnesses they can’t tell the jury
what they saw
c. Social Science Research on Identification Procedures and the Need for Reform
i. Eyewitness identifications can be made more accurate
1. Blind lineups – person creating lineup is not involved in investigation and does
not know who the suspect is
a. No feedback from the police
2. Eyewitness be told suspect might not be in the lineup or array
3. Clear statements of witness confidence taken at tie of identification
4. Sequential lineups: show people one at a time; all at once lineups makes witness
pick the person who looks most like the person
ii. Estimator variables (cannot control)
1. Witness characteristics (eyesight, hearing, etc.)
2. Witness vantage point
3. Cross-racial identification issues, etc.
iii. System variables (can control)
1. How pretrial identification procedures are conducted
2. Recommendations include:
a. Blind lineups (person conducting does not know who suspect is)
b. Witness should be told suspect might not be in lineup, don’t have to
make an ID
c. Persons in lineup should resemble each other, with at least 5 per lineup
d. Witness should not get any feedback at all; just asked how certain they
feel
e. Sequential lineups (one at a time, not all at once)
iv. Paula Reed Ward, “New Pittsburgh Public Safety Director Spars with District Attorney on
Eyewitness IDs,” Pittsburgh Post-Gazette, July 31, 2014 (TWEN)
VII. Administration of the Exclusionary Rules
a. Fruit of the Poisonous Tree
i. Fruit of the poisonous tree: the evidence in question was not illegally seized, but was
derived from or follows from illegally seized evidence
1. The initial illegality is the poisonous tree
2. Evidence derived from an initial illegality is the fruit
3. Attenuation: at some point the evidence is distant enough to not be a violation
a. From an independent source
ii. Difference between primary / direct or secondary / derived evidence
iii. 4th A. Violation
1. Wong Sun v. United States
a. FACTS: 1) Toy handcuffed at his store and arrested. ILLEGAL. Toy gave
statements about Yee. 2) Go to Yee’s house. He surrenders drugs. He
makes a statement about himself, Toy, and Wong Sun. 3) Go to Wong
Sun’s house and arrested him. ILLEGAL. 4) After release, Wong Sun
voluntarily goes back 3 days later and makes incriminating statements.
b. HOLDING: Wong Sun’s statements were attenuated; coming back to
station to make statements was an independent source
i. FOPT: Drugs and Toy’s and Yee’s statements.
c. Verbal statements can be fruit of the poisonous tree
d. Not all following statements are fruit of the poisonous tree just because
they are the but-for cause
i. Not a but-for test
ii. Statements can be so attenuated as to dissipate the taint
iii. If they come at by exploitation of the illegal seizure, then will be
the fruit
e. TEST: “Whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable, to be purged of the primary taint”
f. 3 exceptions to exclusionary rule for 4th A. violations
i. Independent Source: when the gov’t learned of the evidence from
a source independent of the illegal activity (Silverthorne)
ii. Inevitable Discovery: when evidence derivative illegality would
have been inevitably discovered by legal means

1. Cousin of independent source
2. “hypothetical independent source”
iii. Attenuation Doctrine: when the connection between illegality and
evidence has become so attenuated as to dissipate the taint
1. Wong Sun’s statements were 3 days later after he
returned on his own
2. His statement wasn’t so connected to the original illegality
iv. Proximate Cause: Attenuation Doctrine
1. Can Miranda warnings break the casual chain between an illegal arrest and a
subsequent confession?
a. Brown v. Illinois
i. FACTS: Confession after an illegal arrest
ii. Miranda warnings do not purge the taint of past illegality
1. Otherwise, would be a “cure all” and would incentivize
police misconduct
iii. The Miranda warnings relevance are examined case by case
iv. RULE: Confessions made after illegal arrest are fruit of the
poisonous tree
v. Ct uses 3 factor test for attenuation doctrine
1. Temporal proximity
2. Presence of intervening circumstances
3. Purpose and flagrancy of the official misconduct
vi. This case, only 2 hours between illegal arrest and confession, no
intervening circumstances, and police conduct, while not flagrant,
was still purposeful. Overall, not attenuated.
b. Dunaway v. New York
i. Giving 5th A. warnings (Miranda) is not enough to purge 4th A.
taint
ii. Reaffirmed Brown
2. Extending Brown and Dunaway
a. Taylor v. Alabama
i. FACTS: Period between illegal arrest and statements was 6 hours;
he was Mirandized and met with girlfriend.
ii. This did not dissipate the taint.
3. When is witness a tainted fruit?
a. United States v. Ceccolini
i. A witness cannot be fruit of the poisonous tree when its ID is
obtained illegally.
ii. Willing witness either comes forward or they don’t. Likely be
discovered by legit means anyway
4. Identification of a person as a fruit of an illegal arrest.
a. United States v. Crews
i. FACTS: Victim makes an in-court ID
ii. RULE: In-court id is not the fruit of a poisonous tree
1. An in-court id almost always has an independent course
2. The victim is at trial and can testify about the offense
5. Confession as the fruit of a Payton violation.
a. Payton v. New York
i. Can’t make a warrantless entry into a home to make a warrantless
arrest
b. New York v. Harris
i. FACTS: Police did an in-home arrest in violation of Payton
(entered D’s home to make arrest without a warrant) but had
probable cause to arrest. Want to use the statement made just
outside the home.
ii. A statement made inside the home in violation of Payton is a
violation and fruit of the poisons tree
iii. A statement made outside the home is not fruit of the poisonous
tree
v. Does the discovery of an outstanding arrest warrant break the causal chain between
an unconstitutional stop and the discovery of evidence found incident to an arrest
based on the warrant?
1. Utah v. Strieff
a. FACTS: Officers had information of drug activity at residence, but they did
not have probable cause. Strieff walks out of home and officer stops him
and performs Terry stop. After getting ID, finds out he has a warrant.
Arrests him, leads to search, and officer finds narcotics.
b. HOLDING: Taint (Terry stop without reasonable articulable suspicion) was
dissipated by warrant.
c. Ct applies Brown rules
i. Temporarily proximate
ii. Intervening circumstances present
iii. Was the police misconduct purposeful and flagrant?
d. Dissent – Sotomayor
i. This is how we get to mass incarceration.
vi. Search warrants
1. Murray v. United States
a. FACTS: Agents pry open doors and look inside without a warrant and see
pot. So, they get a warrant without mention of the pot inside.
b. Independent source doctrine:
i. As long as the information in the warrant is clean, the search will
have an independent source.
ii. Gov’t is not supposed to profit by illegal conduct, but is not
supposed to be put in a worse position if it is as if the illegal
conduct never happened.
2. Segura v. United States
a. FACTS: Police illegally entered D’s apartment, saw contraband, then
remained until search warrant was obtained.
b. Application for search warrant did not mention anything seen in police’s
illegal entry; only what they knew beforehand.
c. HOLDING: evidence found in execution of search warrant is admissible if
found due to independent source.
i. As long as search warrant not procured with illegally obtained
information, can be independent source

vii. Inevitable Discovery
1. Nix v. Williams
a. FACTS: Drive back Christian Burial speech case. Tried again without illegal
statements, but details of the body allowed. Police were actively looking
for the body when he showed it to them. Williams appeals on fruit of the
poisonous tree grounds, says the condition of the body is derivative
evidence.
b. Inevitable discovery: There would have been an independent source for
the body.
i. They would have found it anyway
ii. Proper balance – put gov’t in the same position it would have
been had there been no problems
iii. It is not necessary that the use of derivative evidence be in good
faith
iv. Must have a reason why it would have been inevitably discovered
2. Examples
a. When search has begun and is moving in the right direction
b. Inventory booking policy searches are inevitable discovery
c. Knock and announce violates are not excluded because the warrant is still
an independent source and inevitable discovery
viii. Miranda, the privilege against compelled self-incrimination and 14th A. due process:
when does a violation of these safeguards occur?
1. Chavez v. Martinez
ix. Is physical evidence or a “second confession” derived from a failure to comply with
the Miranda rules admissible
1. Oregon v. Elstad
a. Ct seemed to hold that because of Miranda violation not violation of real
constitutional right.
b. Not entitled to or worthy of fruit of the poisonous tree doctrine
2. Dickerson
a. Miranda violation IS a constitutional violation
3. United States v. Patane
a. FACTS: D was arrested and given Miranda, and interrupts them and says
he knows his rights, and the police officer stops. Then they ask him where
the glock is and he tells them it is on the self in the bedroom and he is
charged.
b. D claims the pistol was the fruit of the poisonous tree
c. HOLDING: Gun is admissible
d. Plurality
i. Must give the Miranda warnings even if the D tells police not to or
that he knows them
ii. There is no violation in the failure to warn, the violation is the
admission of the evidence at trial
1. Miranda was about unwarned statements
a. Won’t extend to physical fruits
b. The right against self-incrimination is not violated
by the production of non-testimonial evidence

obtained through voluntary but Miranda-violating
statements
i. Thomas distinguishes between
voluntariness and Miranda
c. Non-testimonial fruit like the gun doesn’t implicate
the right against self-incrimination
d. Non-testimonial fruit would only be excluded if
statement was actually coerced, not presumed
coerced as in Miranda
iii. Physical evidence derived from Miranda violations that are
voluntary statements are not fruit of the poisonous tree
iv. Physical evidence derived from non-voluntary statements
violations are fruit of the opinions tree
e. Concurrences
i. Do not endorse the idea that it’s only a violation of it’s used at
trial
4. Missouri v. Seibert
a. FACTS: Police do deliberate Miranda violations. They would question, the
Mirandized after then confessed, then got the statements against.
Essentially the purposeful working of Elstad rendered Miranda
ineffective.
b. Miranda is violated by questioning before, Mirandizing, and questioning
again
i. This undermines the effectiveness of Miranda
ii. D would not understand they still had a right to remain silent
iii. Didn’t tell her the 1st statements could not be used
c. Police cannot deliberately go around Miranda using Elstad and 2 step
questioning approach
d. The ct does not confront or resolve the question of whether the 2nd
statements were fruit of the poisonous tree
b. Impeachment with Illegally Obtained Evidence
i. Idea – illegal evidence can’t be used for the case-in-chief, but can be used to impeach
1. For credibility only, not the truth
2. Threat of impeachment prevents Ds from testifying
3. Want to prevent Ds from committing perjury
ii. The Fourth Amendment
1. Opening the door to impeachment with illegally seized evidence
a. Walder v. United States
i. FACTS: D said he never ever had drugs
ii. Ct allowed illegal statements to impeach the credibility of the D to
rebut perjurous statements
iii. Impeachment with illegally obtained evidence states narrow
1. Gov’t cannot get the impeachment out in cross-
examination

2. Expanding a once-narrow exception
a. United States v. Havens
i. FACTS: D denies involvement in direct, on cross the prosecution
forces the D to make specific denials about the facts of a piece of
cloth, then ct allows impeachment on the cloth.
ii. If the cross questions are “reasonable suggested” by the direct
questions, the cross questions can be used to impeach the D
iii. Practically makes the impeachment exception under the control
of the gov’t
3. The Court refuses to extend the impeachment exception to defense witnesses
other than the defendant.
a. James v. Illinois
i. FACTS: Gov’t wants to use illegal statements to impeach D
witnesses, witness says his hair was black then. But D made
statements illegally about his hair being red at the time.
ii. The prosecution cannot impeach witnesses other than the D with
the D’s statements
iii. Such a rule would dramatically enhance the value of illegal
evidence
iii. The Fifth Amendment Miranda Right
1. The impeachment exception
a. Harris v. New York
i. FACTS: Improper Miranda violations and statements taken, D says
he knows cop on stand but did not sell drugs.
ii. Illegal evidence is only banned for the case-in-chief and nothing
else
iii. Ct broadens the use of illegal evidence for impeachment
2. Expanding the impeachment exception to cases in which the suspect invokes
her Miranda right
a. Oregon v. Hass
i. FACTS: Clear Miranda violations and statements take.
ii. Illegal statements can be used to impeach Ds, but not in the case-
in-chief
iii. This could create an incentive for police to gather illegal
statements after Miranda evoked, but that’s just speculation
iv. Violations that come within Impeachment Exception
1. Immunity grants – can’t use statements from immunity grants for any purpose
2. Involuntary statements – can’t use statement acquired involuntarily for any
purpose
3. Massiah violations – can use statements to impeach acquired in violation of 66 th
A. right to counsel
4. Silence
a. Doyle v. Ohio – D claims he was framed, remained silent after being
Mirandized. Prosecution wants to impeach him with his silence.
i. Can’t use silence after Miranda warnings for impeachment
purposes
b. Jenkins v. Anderson – At trial, D claims self-defense, questioned why he
waited 2 weeks to turn himself in. Why was he silent pre-arrest?
i. Pre-arrest, pre-Miranda warnings for impeachment purposes
c. Fletcher v. Wier -- was silent after arrest, but without Miranda. D claimed
self-defense.
i. Can use pose-arrest, but pre-Miranda silence to impeach
d. Silence can be used to impeach, expect when it is post-arrest, and after
Miranda warnings
e. Greenfield – cannot use silence to attack an insanity defense
v. Excerpt, Transcript of California Police Training Videotape: Questioning “Outside
Miranda” (1990) (TWEN)
c. Burdens of Proof
i. Burden of production (going forward): have to have enough evidence that a judge will
put the crime before a jury
ii. Burden of persuasion: ultimate burden, to prove guilt beyond a reasonable doubt
iii. When there is a suppression motion, it matters who has what burden
1. Often determines who wins
iv. Burden approaches for suppression issues:
1. Federal system and most states
a. Whether or not there is a warrant
b. This is for 4th A. suppression
c. If there was a warrant, D has to carry both burdens
d. If case without a warrant, prosecution is going to have to carry both
burdens
i. D has to make a prima facie showing of no warrant
2. Both burden on the defendant - movant carries the burdens
3. Both burdens on gov't - gov't wants to use the evidence
4. Gov’t has burden of going forward, D has burden of proof to show that they did
not
v. By how much?
1. Generally, preponderance of the evidence
2. Lego v. Twomey
a. For voluntary confessions, the prosecution only has to show the
confession was voluntary by the preponderance of the evidence
th
3. 4 A. claims – prosecution only has to prove by a preponderance of the evidence
i. Consent requires a little more
4. Miranda violations – burden of production on the D to assert Miranda violation;
state must show Miranda was not violated by a preponderance of the evidence
5. Voluntariness: prosecution has both burdens
vi. To whom?
1. Generally, suppression questions are argued to the judge
2. Typically, pre-trial
3. If suppression comes up at trial, judge should remove the jury
d. Harmless Constitutional Error
i. Idea – not every trial error should result in a new trial
ii. Test – Reversal is only done when the error might have made a difference to the
outcome

iii. Champman
1. FACTS: Prosecutor comment on the D’s silence at ct. Ct said this was not an
automatic reversal, this was harmless
2. Not all errors require reversal
3. Even if there is a constitutional error, the gov’t must show it was harmless
beyond a reasonable doubt
a. Burden to prove the error is harmless beyond a reasonable doubt is on
the prosecution
4. There are some errors that always result in reversal
a. Coerced confessions
b. Lack of counsel
c. Biased judge
iv. Fulmanante
1. FACTS: Jail informant acting as mafia don and made a D confess to get
protection.
2. Ct saw this as an involuntary statement and not harmless
3. 2 types of error
a. Trial error – stuff that happens all the time at trial, not automatic reversal
i. Admission of bad evidence
ii. 4th A. violations
iii. 6th A. violations
iv. Involuntary statements
b. Structural error – mistakes and errors that effect the entire proceeding,
results in automatic reversal
i. Biased judge
ii. No right to counsel
4. Involuntary statements are trial errors, not structural
5. Still the prosecution’s burden to prove the error was harmless
e. State Constitutional Interpretations
i. Federal constitution functions as a minimum standard
1. Sets a floor
ii. States are free to do more and provide more protection than the federal constitution
1. Some do for some cases
iii. Supreme ct favors the idea that states are legal laboratories
1. But actually, the Sup Ct doesn’t like state variation very much in criminal
procedure
iv. Standard – for a state decision to hold up on state law grounds, the decisions must be
based completely on “adequate and independent state grounds’
1. State ct must be explicitly clear that the decision was based only on state law

4TH AMENDMENT TEMPLATE
Does 4th A. apply?
YES: Is X a 4th A. YES: Was there a

search and seizure? warrant?
Katz Test:
Is there a reasonable YES: Presumptively NO: Does an
expectation of proper exception apply?
privacy?
Possible excetions:
1. Extingent
circumstances
2. Plain view

MIRANDA INVOCATION CHART
RTS = Right to silence RTC = right to counsel
Mosley 5 A. RTS - scrupulously honored

- fresh warnings
- 2 hours passed
- different crime
- RTS IS offense specific

- Can question about other crimes
Berghuis 5 A. RTS - Invocation requires unambiguous
request
- Reasonable person or police
officer
- Being silent not enough
Salinas 5 A. RTS - Pre-Miranda silence does not
invoke wither
- Invocation of RTS requires
unambiguous request
Edwards 5 A. RTC - Can’t question until attorney is
made available
Roberson 5 A. RTC - 5 A. RTC
- NOT offense specific
- Can’t question about other

crimes
Minnick 5 A. RTC - Edwards rule extended
- Can’t question until attorney
present
Shatzer 5 A. RTC - Edward protection ends with
“break in custody”
- 14-day rule
- Release to general population
(jail) is enough
Bradshaw Meaning of "initiate” - Statements about routine aspects
of custody: Edwards rule applies
- General conversation: No Edward

protection
Davis 5 A. RTC - Attorney requests must be
unambiguous
- Police needn’t clarify or stop
- Reasonable person or police
officer
McNeil 6 A. RTC - Can’t invoke 6 A. on crime 2
- Invoking 6 A. does not invoke 5 A.
- 6 A. RTC IS offense specific

Crim Pro Outline Harris 2017

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Crim Pro Outline Harris 2017

Uploaded by

Copyright:

Available Formats

I. Introduction ……………………………………………………………………………………………………………………….…………....

Criminal Procedure 2017 – Harris 3

Criminal Procedure 2017 – Harris 5

Criminal Procedure 2017 – Harris 6

Criminal Procedure 2017 – Harris 7

Criminal Procedure 2017 – Harris 8

Criminal Procedure 2017 – Harris 9

Criminal Procedure 2017 – Harris 10

Criminal Procedure 2017 – Harris 11

Criminal Procedure 2017 – Harris 13

Criminal Procedure 2017 – Harris 15

Criminal Procedure 2017 – Harris 16

Criminal Procedure 2017 – Harris 20

Criminal Procedure 2017 – Harris 21

Criminal Procedure 2017 – Harris 22

Criminal Procedure 2017 – Harris 23

Criminal Procedure 2017 – Harris 24

Criminal Procedure 2017 – Harris 25

Criminal Procedure 2017 – Harris 26

Criminal Procedure 2017 – Harris 27

Criminal Procedure 2017 – Harris 28

Criminal Procedure 2017 – Harris 29

Criminal Procedure 2017 – Harris 30

Criminal Procedure 2017 – Harris 31

Criminal Procedure 2017 – Harris 35

Criminal Procedure 2017 – Harris 37

Criminal Procedure 2017 – Harris 38

Criminal Procedure 2017 – Harris 39

Criminal Procedure 2017 – Harris 41

Criminal Procedure 2017 – Harris 43

ii. United States v. Hensley

Criminal Procedure 2017 – Harris 44

Criminal Procedure 2017 – Harris 45

Criminal Procedure 2017 – Harris 47

Criminal Procedure 2017 – Harris 48

Criminal Procedure 2017 – Harris 49

Criminal Procedure 2017 – Harris 50

Criminal Procedure 2017 – Harris 51

Criminal Procedure 2017 – Harris 54

Criminal Procedure 2017 – Harris 57

Criminal Procedure 2017 – Harris 59

Criminal Procedure 2017 – Harris 60

Criminal Procedure 2017 – Harris 62

Criminal Procedure 2017 – Harris 63

Criminal Procedure 2017 – Harris 64

Criminal Procedure 2017 – Harris 67

Criminal Procedure 2017 – Harris 68

Criminal Procedure 2017 – Harris 69

Criminal Procedure 2017 – Harris 71

Criminal Procedure 2017 – Harris 72

Criminal Procedure 2017 – Harris 73

Criminal Procedure 2017 – Harris 74

Criminal Procedure 2017 – Harris 75

Criminal Procedure 2017 – Harris 76

Criminal Procedure 2017 – Harris 77

Criminal Procedure 2017 – Harris 78

Criminal Procedure 2017 – Harris 79

Criminal Procedure 2017 – Harris 80

Criminal Procedure 2017 – Harris 81

Criminal Procedure 2017 – Harris 83

Criminal Procedure 2017 – Harris 85

Criminal Procedure 2017 – Harris 86

Criminal Procedure 2017 – Harris 87