CRIMINAL PROCEDURE I

Donald Dripps
Fall 2016

TABLE OF CONTENTS

I. FOURTH AMENDMENT
TEXT
1. ORIGINS AND FOUNDATIONS OF THE MODERN DOCTRINE
1. Origins of the Fourth Amendment
2. Emergence of Police
3. Federal Regime Based on Boyd
4. Search and Seizure in the U.S.
2. BRIEF SEIZURES OF THE PERSON FOR PURPOSES OF INVESTIGATION OR CITATION
1. Terry v. Ohio
2. When Has a Citizen Been Seized?
3. Reasonable Suspicion
4. Incidental Protective Search Powers
5. Limits
3. SEIZURES OF THE PERSON: “ARRESTS”
1. Classification as Arrest and the Probable Cause Standard
2. Required Judicial Authorization
3. Right of Entry
4. Search Incident to Arrest
5. Limits
6. SEARCH FOR EVIDENCE
1. Reasonable Expectation of Privacy Test
A. Jones and Kyllo
B. Open Fields
C. Magic Bullets
D. The Assumption of Risk Doctrine
2. The Warrant Requirement
A. Overview of the “Requirement” and “Exigent Circumstances” Exceptions
B. Search Incident to Arrest (See Chapter 3)
C. Automobile Exception
D. Inventory Searches
3. Requirements of a Valid Warrant
A. Probable Cause
B. “Detached and Neutral Magistrate”
C. “Particularly Describing”
D. Veracity of Affidavit
4. Manner of Execution
A. Knock and Announce
B. Incidental Detention and Search Powers
5. Consent Searches
6. Administrative Search Doctrine
7. FOURTH AMENDMENT REMEDIES
1. Habeas Corpus
2. Constitutional Tort Action Under 42 U.S.C. § 1983
 3. Bivens Actions Against Federal Officers
4. The Exclusionary Rule (Exceptions)
A. Standing
B. Attenuation, Independent Source, Inevitable Discovery
C. Collateral Proceedings
D. Impeachment
E. Good Faith and the Future of the Exlcusionary Rule
5. Institutional Reform Litigation

II. FIFTH AMENDMENT

TEXT
8. SELF INCRIMINATION CLAUSE LIMITS ON POLICE INVESTIGATIONS
1. Origins of the Fifth Amendment
2. General Fifth Amendment Doctrine: Compulsion, Testimonial Evidence, Incrimination
3. Miranda Doctrine: Basic Principles
4. Miranda Doctrine, First Level: Custody and Interrogation
5. Miranda Doctrine, Second Level: Waiver, Invocation, Counsel, Silence, and Initiation
6. The Miranda Exclusionary Rule

III. SIXTH AMENDMENT

TEXT
9. THE SIXTH AMENDMENT COUNSEL CLAUSE AS A LIMIT ON POLICE INVESTIGATIONS
1. Origin and Evolution of the Sixth Amendment Counsel Clause
2. Attachment
3. Critical Stages
4. Waiver
5. The Sixth Amendment Exclusionary Rule

IV. FIFTH AMENDMENT DUE PROCESS

[REFER TO FIFTH AMENDMENT FOR TEXT]
10. DUE PROCESS LIMITS ON POLICE INVESTIGATIONS
1. Origins of the Fifth Amendment Due Process Clause
2. Due Process as Fundamental Fairness
4. Due Process after Incorporation
 PART I: FOURTH AMENDMENT

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

CHAPTER 1: ORIGINS AND FOUNDATIONS OF THE MODERN DOCTRINE

1. Origins of the Fourth Amendment

A. Materials: The Writs of Assistance Case and MacDonald Commentary (1)*, James Otis Argument (3),
Smith Commentary (5), Entick v. Carrington (5), Virginia Declaration of Rights (18), Massachusetts
Constitution (19), U.S. Constitution (19), Act for the Collection of Revenues (19), Wrexford v. Smith (19)
B. Bill of Rights ratified in 1791; Fourth Amendment originally intended to protect
Americans against abusive pre-revolution English search and seizure laws that did not
regulate police activity or hold them accountable (general warrants, writs of assistance)
i. Displaces common law criminal procedure, which really only used tort law
(invasions of privacy, theft, etc.)

2. The Emergence of Professional Police in the Nineteenth Century

A. Materials: Responding to Challenges… (20)
B. Once Fourth Amendment is ratified, law enforcement becomes formalized, public police
forces are formed

3. Federal Regime Based on Boyd v. United States

A. Materials: Boyd v. United States (21)*, Weeks v. United States (28), Olmstead v. United States (34)*
B. Boyd (1886)*: For first time, court says admissibility of evidence bears on how the
evidence was obtained; before evidence was always admissible, party only had tort
replevin action against government, but still could be prosecuted
i. Facts: Government issued a notice for criminal documents, notice said that if the
documents weren’t produced, the subject party was presumed guilty –
blackmail/forced self-incrimination is violation of Fifth Amendment, so evidence
not admissible
ii. Held: A subpoena of an individual’s private books violated the Fifth Amendment
C. Weeks (1914): Creation of the exclusionary rule – if illegally obtained evidence could be
used against the accused at trial, “the Fourth Amendment…is of no value, and…might as
well be stricken from the constitution,” court only says this applies to federal law
enforcement
i. Two rationales for e-rule: 1) make sure officials respect citizen’s Fourth
Amendment rights; 2) judicial integrity
ii. Only applies to the federal law enforcement (Exclusionary rule did not apply to
the state law enforcement)  What about Fourteenth Amendment?
D. Olmstead (1928)*: Reviews the development of exclusionary rule until 1928, says
wiretapping is not a literal search, Fourth Amendment not implicated unless there is
an actual, physical search or seizure, (not modern rule at all), Brandeis’s dissent and e-
rule history are most important parts
- Held: Wiretap placed on the telephone lines of a suspect’s house was not a search
or seizure within the confines of the Fourth Amendment. (Rationale: the officers
did not actually trespass on the premises of the defendant, Communications were
not “persons, houses, papers, or effects”)
 - Dissent (Brandeis): “that the makers of our Constitution…conferred, as against
the government, the right to be let alone – the most comprehensive of rights and
the right most valued by civilized men.”
i. Silverthorne Lumber (1920): Government cannot illegally seize evidence
photocopy it, return it, then use copy as basis for lawfully obtaining document
ii. Amos (1921): First time court orders the return of contraband; starting to see
need for more than common law tort remedy for illegally seized evidence
iii. Gouled (1921): Government had friend of a criminal steal criminal’s papers from
his house while pretending to just visit; Court says this should have been
excluded because he entered by fraud and his search exceeded the risk the
criminal assumed by letting him into his house (assumption of risk)
iv. Agnello (1925): Government doesn’t have to return illegally seized contraband if
it’s excluded; (Can we reconcile with Amos?)
v. Brandeis dissent: law enforcement didn’t literally trespass, but they did invade an
expectation of privacy, so it was a search – beginning of privacy based analysis
that would later be adopted in Katz.

4. Search and Seizure in the United States

A. Materials: People v. Defore (45), Irvine v. California (51), People v. Gonzalez (61), Mapp v. Ohio (62)**
B. Defore (1926): New York state case, Cardozo opinion, minimal treatment; Cardozo
upholds clearly unlawful, warrantless search because social costs of letting criminals go
is too high – “We should punish police, not let criminals go free…”
C. Irvine (1953): U.S.S.C. declines to extend Fourth Amendment e-rule to states
D. Gonzalez (1959): Michigan state case, evidence admitted by state constitution even if
there was a Fourth Amendment violation
E. Mapp (1961)**: Seminal case; See Saltzburg 84, 93, and 377; U.S.S.C. holds that
Fourth Amendment protections are applicable as against state law enforcement as
well as federal law enforcement; recognizes the failure of states to rectify abusive
searches and seizures with civil tort remedies (“all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible in a state
court.”)
i. Some strange voting on this case – the ruling above was not actually a majority
ruling, but court reporter says it's the opinion of the court
ii. Black (Concurrence): Fourth Amendment, standing alone, would not be enough
to bar the introduction into evidence against an accused of papers

CHAPTER 2: BRIEF SEIZURES OF THE PERSON FOR THE PURPOSE OF INVESTIGATION OR CITATION

1. Terry v. Ohio (1968)**

A. Materials: Terry v. Ohio (70)
 B. Ruling #1: Absent probable cause, a police officer can conduct a “stop” (i.e. a brief
seizure of the person) if he or she has reasonable suspicion that crime is afoot.
i. A stop requires justification, an encounter does not.
C. Ruling #2: If an officer makes a legal stop, he can conduct a protective frisk of a
suspect if he has reasonable suspicion to fear that the suspect is armed and
dangerous.
D. Facts: After seeing them case a site for a robbery, an officer stops two men (without
probable cause), finds illegal weapons on their person. (Terry and two others walked
several times back and forth past a store. Officer, an experienced policeman, saw this
activity and suspected that the three men were casing the store in preparation for a
robbery. Officer approached the suspects and identified himself, and asked them to
identify themselves and explain their conduct. When the suspect mumbled something
that he couldn’t hear, officer grabbed Terry, patted down the outside of his clothing, felt
a pistol in Terry’s pocket, and confiscated the pistol. Terry was convicted on charges of
carrying a concealed weapon, and he challenged the search and seizure of the pistol.)
E. The broader the definition of Fourth Amendment  Harder to apply the Fourth
Amendment
2. When Has a Citizen Been Seized?
A. Materials: United States v. Ford (86)
B. Ford (2008): Illustrative circuit case showing Mendenhall standard for determining
whether a seizure occurred, tiers of encounters between law enforcement and citizens
i. Standard for distinguishing stops (“seizures”) from encounters and variants:
a. Mendenhall standard: “a person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed he
was not free to leave”
b. Hodari later explained: “whether the officers’ words and actions would
have conveyed [the above] to a reasonable person”; this is an objective
standard
c. Factors (non-exhaustive – no single factor is dispositive in any case):
1) threatening presence of several officers, 2) the display of a weapon by
an officer, 3) some physical touching, 4) use of language or tone of voice
indicating possible compelled compliance, 5) whether informed of right to
terminate encounter
1. Hodari: any time an officer physically touches someone, this is an
automatic seizure
2. Sibron: “Come outside!” is a seizure
ii. Tiers of police-citizen encounters:
a. Encounters/minimally intrusive interactions: law enforcement
approach and ask questions without using any coercion; this is not a
Fourth Amendment “seizure” so there is no need for even reasonable
suspicion
b. Stops: law enforcement use some degree of coercion; must have
reasonable suspicion, but probable cause is not necessary; this is a
“seizure” and the officer can, for safety purposes, search for weapons if he
has reason to fear for his safety, but he can’t search for evidence
c. Arrests: some degree of coercion; must have probable cause; “seizure”;
incident to arrest, officer can conduct full search for weapons or evidence
1. Peters: Attempted burglary, cop grabs suspect by collar – seizure
occurred, and cop had at least reasonable suspicion

C. Dripps’s “Modern Fourth Amendment in Four Slides”:

 i. Categorize the Fourth Amendment event:
a. Consensual encounter, no search or seizure: outside Fourth Amendment
b. Terry stop for purpose of investigating potential commission of some
crime: requires reasonable suspicion
c. Traffic stop: could happen as a Terry stop (reasonable suspicion
required), or as a traffic citation (probable cause now exists, but does the
officer unreasonably prolong the seizure beyond the purposes of the
citation?)
d. Arrest: actual or de facto (held for unreasonably long period of time),
requires probable cause
e. Search for evidence: free-standing, e.g. when someone is not in their car,
requires probable cause, warrant, or consent
ii. Did police have required suspicion? (See above)
iii. Did police need a warrant?
a. Warrant generally required to enter homes to arrest or search, unless
exigent circumstances
b. No warrant needed to arrest in public, search incident to arrest, search
vehicles for evidence, or conduct a Terry stop
iv. If there was a violation, will the evidence be excluded? Mapp requires exclusion,
but there are exceptions: standing, inevitable discovery, impeachment, good faith

3. Reasonable Suspicion
A. Materials: United States v. Valentine (91), Illustrative cases (100)
B. Valentine (2000): details are irrelevant; cites to Terry and subsequent cases which define
reasonable suspicion: “objective articulable facts that criminal activity is afoot”
i. Much less demanding standard than probable cause
a. Both PC and RS look at common sense analysis of facts, deference to law
enforcement expertise, totality of circumstances, and reasonable mistakes
b. But RS requires much less quality and quantity; also called “possible
cause”
C. Factors for reasonable suspicion analysis (non-exhaustive, totality of circumstances):
1) whether there is a pattern of activity, 2) whether appears unfamiliar with surroundings,
3) day or night (night is better for government), 4) neighborhood/high crime area, 5)
whether criminal record consistent with suspected activity, 6) whether evasive of
surveillance, 7) whether gives implausible answers during encounter, 8) Observation by
the Police officer
i. Non-cooperation, non-consent, nervousness are not grounds for RS unless it is
out of the ordinary
D. Informant tips and reasonable suspicion: it will be an important factor if it turns out that
it correctly predicts future activity (which need not be criminal); but something that can
is currently observable doesn’t really matter (anything that is observable to anyone who
has no inside information); also have to ask what kind of informant they are (anonymous
vs. confidential)
E. Illustrative Cases
i. What specific facts support RS (Reasonable Suspicion)?
ii. How can D minimize their force?
iii. What specific facts counter RS?
iv. How can P minimize their force?
v. What other facts might the parties have brought out at the suppression hearing?
1) United States v. Dupree: 7 p.m, black male, hoodie  RS (O)
 2) United States v. Jones: behavior typical of someone trying to conceal a
handgun, high-crime neighborhood, experienced policeman  no tips, No
record check, Did not see weapon, No evasive behavior  RS (X)
3) United States v. Fuller: No mention in class
4) United States v. Gonzalez: No mention in class

4. Incidental Protective Search Powers

A. Materials: United States v. Askew (104), United States v. King (119)
B. To determine whether a frisk incident to a stop is kosher, you have to ask 1) whether the
stop itself is legal, and 2) whether the frisk was reasonably related in scope to the
circumstances that justified the stop
i. Must be reasonable suspicion for the stop itself (see above)
ii. For frisk, there must be reasonable individualized suspicion that the suspect is
armed and dangerous and/or has committed a violent crime and therefore poses a
threat to the bodily harm of the officer (any number of factors indicate this).
a. Ybarra: can’t frisk someone just because they are somewhere were
criminal activity occurs (e.g. a biker bar)
C. Askew (2008): Defendant suspected of armed robbery, officers pat down outside of
jacket (first frisk), then unzip his jacket and find evidence; court says the first frisk would
be fine if there was reasonable suspicion, but the second frisk is not justified because it’s
not protective in nature – it’s just a search for evidence; main holding is that officer
safety, not a need for evidence, must be the purpose of the frisk
i. Dickerson (discussed in Askew): Officer manipulated pocket of suspect to
determine whether he had contraband; court says that as soon as she knows it’s
not a gun, she can’t frisk any further because it’s become a search for evidence
D. King (2009): No notes in class, very short case, not too helpful, just applies tests

5. Limits
A. Materials: Rodriguez v. United States (121), United States v. Leal (131)
B. Rodriguez (2015): A police stop exceeding the time needed to handle the matter for
which the stop was made violates the Constitution’s shield against unreasonable seizures.
i. Issue: whether the Fourth Amendment tolerates a dog sniff conducted after
completion of a traffic stop.
ii. Held: A seizure justified only by a police-observed traffic violation “becomes
unlawful if it is prolonged beyond the time reasonably required to complete
the mission” of issuing a ticket for the violation. (7-8min  Remand)
C. Leal (2007): How do we draw the line between a Terry stop and an arrest 1) duration
of stop, 2) law enforcement purposes in justifying the stop, 3) whether police acted
diligently in carrying out those purposes given the circumstances, 4) and alternative
means available to the police
i. In the case, 80 minute wait for drug sniff was still on the reasonable suspicion
side of things, given the circumstances
ii. If on the arrest side, probable cause would have been needed as opposed to
reasonable suspicion
D. Purcell (2001): No class notes; in case, withholding license from suspect was okay
because he was issuing a citation; most traffic stops are analogous to Terry stops, and so
the officer’s actions during the stop must be 1) reasonably related to in scope to the
reasons for the stop, and 2) must be limited the time necessary to process the traffic
violation or effectuate the purpose of the stop, unless there is articulable suspicion of
other illegal activity
 i. If traffic stop has run over reasonable amount of time, anything discovered after
that point is inadmissible, even if discovered with consent; but if records check
hasn’t finished yet, extra time can be de minimis
ii. Mere questioning of whether they had guns, etc. is not a search or seizure
iii. Traffic stop in this case was a Terry stop, and it only lasted 14 minutes

CHAPTER 3: SEIZURES OF THE PERSON: “ARRESTS”

1. Classification as Arrest and the Probable Cause Standard

A. Materials: Cortez v. McCauley (136)*, Maryland v. Pringle (152), Hill v. California (156)
B. Probable cause is required to make an arrest; judged on totality of the circumstances;
this standard requires more than reasonable suspicion does, but does not require proof
beyond a reasonable doubt or preponderance of the evidence – such standards are tested
out in court
 i. Supplement definition of probable cause from Illinois v. Gates: “…enough
particularized facts to lead a common sense person of reasonable caution to
believe that there is a fair probability of criminal activity”
- “Fair Probability” standard (Probable cause is a standard that permits
investigations of suspects, and investigations are needed to allow the state
to obtain proof beyond reasonable doubt.)
- Fact: police received an anonymous tip that Gates were drug trafficker.
Police found out the tip was reliable, and obtained a warrant to search the
Gates’ house and car. Police found drugs in both places.
- Held: Rejected the Anguilar-Spinelli test as a controlling framework for
evaluating hearsay information in determining probable cause.
Information supporting probable cause should be evaluated the way that a
common sense person would. A common sense person would look at the
totality of information, considering the fact that some of it was hearsay,
and make a common sense determination of the reliability and sufficiency
of the information supporting probable cause.
ii. Hill (1971): Officers can make reasonable mistakes in determining probable
cause – “sufficient probability, not certainty, is the touchstone of
reasonableness
under the Fourth Amendment”
a. Officers arrested a wrong man; but there was probable cause even though
the wrong person protested his innocence (criminals commonly protest
innocence)
iii. Totality of circumstances determine probable cause
iv. Courts defer to police experience (even though the Gates standard talks about a
“common sense person”)
v. Question under Gates - Would the common sense person, suspicious of tip
because it is hearsay, feel sufficiently assured by the fact that police investigation
found that the tip was true in at least some respects?
C. Cortez (2007)*: Introduction to the meaning of “probable cause”; at hospital, mother
claims babysitter’s husband raped her daughter, police forcibly enter the house detain
babysitter and husband, questions are whether 1) arrest or Terry stop, and 2) whether
there was probable cause or reasonable suspicion; husband was clearly arrested
(handcuffed, placed in a squad car, taken downtown), wife was Terry stopped (no
coercion, but reasonable person would not feel free to leave, etc.); court says there was
no probable cause for him and no reasonable suspicion for her; they cite the Pringle
probable cause standard:  “qualified immunity” ([Federal Law] when police
reasonably believe that there are exigent circumstances or there are consent, police can
be immune  Even if the plaintiff’s constitutional rights are violated, there is no liability
unless the officer violated clearly established law) can be played a role here.
i. Pringle (2003): “Probable cause is based on the totality of the circumstances
and requires reasonably trustworthy information that would lead a reasonable
officer to believe that the person about to be arrested has committed or is about
to commit a crime”; officer arrests everyone in the car for possession of cocaine
when he finds baggies in the backseat arm rest. Did he have probable cause to
arrest everyone? Yes – based on the location of the cocaine, it was not
unreasonable for him to believe they were all engaged in the enterprise.
- Difference between probable cause and reasonable suspicion
- Anonymous tips v. informant’s tips (given during the past  100%
reliable)
- Evidence (anglo-saxson): hearsay evidence (probable cause can be
established by hearsay)
 - Fact: A police stopped a car for speeding at three o’clock in the morning,
and the driver consented to a search of the car. The officer discovered
$763 in the glove compartment and five plastic baggies of cocaine in the
back seat armrest. Police arrested all three occupants, including Pringle,
who sat in the front passenger seat.
- Held: it is reasonable for an officer to find probable cause to arrest all of
the passengers of a car containing cocaine based on the inference that the
occupants had knowledge of and exercised dominion and control over the
cocaine.
D. What sort of things can provide probable cause to arrest?
i. Firsthand observations by police officers
ii. Collective knowledge or information from other police and warrants (unless the
warrant is based on anything less than probable cause)
iii. Statements to police by victims or witnesses, to the extent that they’re good
a. Unless the police know more about the situation that destroys probable
cause
iv. Tips, but depending on the nature of the tip and whether the tipster is reliable
(more on this later)
a. Aguilar-Spinelli: former test, still used in some districts; looks at 1)
reliability, and 2) source of the informant’s information
b. Gates: current Supreme Court test looks at the totality of the
circumstances, is much more permissive, especially where a tip is
corroborated by police
c. Also very helpful for probable cause if informant provides some sort of
contraband as part of the tip

2. Required Judicial Authorization

A. Materials: United States v. Watson (158), County of Riverside v. McLaughlin (164), Shadwick v. City of
Tampa (178)
B. There must be some semblance of judicial oversight when it comes to probable cause,
regardless of whether it happens before the arrest (warrant) or after (post-arrest probable
cause hearing). This is because courts recognize that the police officer who makes the
arrest may be biased or may have made a mistake.
C. Watson (1976): Warrant is not required for public arrest [even felony], as long as
probable cause (reasonable suspicion [brief detention] is less guilty than probable
cause) \
- Rationale: Benefits of a warrant requirement were outweighed by the costs to law
enforcement of having to obtain warrants for public arrests.
- Post-arrest determination of probable cause by a magistrate or judge.
i. Payton: Warrant is required to make an arrest in a home (but see next section)
- if no probable cause: illegal custody (entry is not justified)
D. County of Riverside (1991): When an officer arrests someone in public without a warrant
(based only on probable cause), the arrestee must have a prompt probable cause
hearing
i. Court says the benchmark is the reasonableness of the length of detention
a. [McLalughlin’s Rule] 48 hours is per se reasonable unless there is
evidence that the detention is unreasonable (i.e. need time to gather more
evidence, just want to hold them longer).
- However, what about it can be done within 3 hours?  Judgment call
- Function of post-arrest determination of probable cause: Keep the damage
from an erroneous arrest to a minimum
 b. Remedies? (Burden shifting) If it lasts longer than 48 hours, the
government must show why. (Any delay beyond 48 hours would be
unreasonable, and the state would have to present compelling
circumstances to explain the delay.)
c. Dissent (SCALIA): 24 hours is appropriate
ii. Special Rules for DV: Mandatory Arrest Laws
a. Colorado: probable cause to believe a crime of DV was committed
b. NY: mandatory if PC to believe a felony is committed
c. CA: requires advising victim of right to make citizen’s arrest
E. Shacwick (1972): Exactly who determines probable cause is not a major issue; In the
case, state law authorized a non-lawyer, municipal court clerk to issue arrest warrants for
municipal violations. Supreme Court upholds this, saying judicial officers can issue
warrants as long as they are 1) neutral and detached, and 2) capable of determining
probable cause; there is no per se rule about which employees can’t issue warrants
i. This does not apply to federal courts, where magistrates – who are lawyers by
definition – issue arrest warrants under 18 U.S.C. § 3060.
ii. The types of warrants they can issue warrants for depends on their capacity in the
second prong of the test
F. Warrantless misdemeanor arrests: common law rule is police can make arrests for
misdemeanor if either 1) reason to suspect they committed misdemeanor in the officer’s
presence, or 2) the offender breaches the peace.
i. Atwater: Supreme Court says breach of the peace is not a requirement for a
warrantless (Held: It is not a violation of the Fourth Amendment for a police
officer to arrest an individual if he has probable cause to believe that the person
has committed even a very minor criminal offense in his presence.)  No crime
is trivial.
- Fact: A police officer arrested a woman for a seatbelt violation (misdemeanor).
The woman was handcuffed, searched, and detained in a jail cell for an hour.
- Dissent (O’Connor): Seizure unreasonable. When there is probable cause to
believe that a fine-only offense has been committed, the officer should issue a
citation unless he can point to “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the
intrusion” of a full custodial arrest.
ii CA P(a): may arrest a person whenever any of the following circumstances occur

3. Right of Entry (Exigent Circumstances)

A. Materials: United States v. Johnson (182), Mascorro v. Billings (187)
B. Under what circumstances police can enter a home without warrant to effect an arrest? If
no consent: Police must have probable cause that the suspect committed a crime, but
there must also be an exigent circumstance ( Police are not required to obtain a
warrant if “exigent circumstances” exist.)
i. (This changes when we’re talking about a search for evidence, in which case
probable cause that evidence of a crime would be found is required)
ii. Rationale: It takes time to obtain a warrant, some type of harm might occur
during the delay caused by the warrant process.
iii. Risks that trigger the exigent circumstances: Hot pursuit of a suspect, Risks to
police or public safety, the risk of destruction or loss of evidence
a. Hot pursuit: If officers are in hot pursuit of a suspect, this will excuse
and arrest warrant where one is otherwise required, and it will also excuse
a search warrant where a search of an area must be conducted in order to
find and apprehend the suspect. (Rationale: The delay of obtaining a
 warrant could allow the fleeing suspect to destroy evidence or to create a
dangerous situation for police officers or members of the public.)
b. Risk to Public or Police Safety: The warrant requirement will not be
excused unless the Government can establish facts which indicate that the
officers faced an imminent risk to public or police safety.
c. Risks of destruction or loss of evidence: The ground of exigency
invoked when there is an imminent risk of destruction or loss of evidence.
C. Cases leading up to Johnson discussing exigent circumstances:
i. Hayden: [Hot Pursuit] Fleeing armed robbery suspect enters someone’s house;
police knock and get consent from landlady; Supreme court says this is okay
because consent and hot pursuit (no test for hot pursuit)
ii. Santana: The doorway of a house is considered a public place
iii. Payton: Even with probable cause, cops must have a warrant to effect an arrest
inside a suspect’s home (but see exceptions)
iv. Steagald: Arrest warrant for S does not get you into X’s house; police need a
search warrant to get inside X’s house
v. Welsh: [Minor Crime][Hot Pursuit][Risk to Public or Public Safety]
- Police in hot pursuit can’t forcibly enter S’s house to arrest without a
warrant if S is fleeing a non-serious crime
- “Hot Pursuit” exception cannot apply where the suspect is unaware that
he is being pursued by police officers.
- Welsh presented no imminent risk to public safety (sitting in his home)
vi. Olson: Lists exigent circumstances, adds a fourth category: “A warrantless entry
may be justified by hot pursuit of a fleeing felon or imminent destruction of
evidence, or the need to prevent the suspect’s escape, [or if he poses danger to the
police or to others.]”
D. Johnson (2004): Survey of exigent circumstances; suspect discharges a firearm at his
house, runs inside, police barge in and arrest without a warrant; court says hot pursuit
applies here. Also, Olson factor applies here.
i. [Hot Pursuit] The shotgun was found and seized incident to the search for the
gunman
ii. [Olson Factor] The officers had ample justification for fearing for their own
safety
i. Hot Pursuit: Suspect must be aware of pursuit
E. Billings (2011): The main gist of the case is that there’s no exigency (or consent) that
justifies a warrantless entry and arrest
i. Minor offense: exigent circumstance exception cannot apply
ii. Felonies: exigent circumstance exception can apply
F. Variants for Exigent Circumstances:
i. King: Police officers cannot create the exigent circumstances
ii. McNeely: Warrantless, non-consensual blood and breath analysis tests are
presumptively unreasonable (no destruction evidence exigency)
iii. Illinois: reasonable to detain a suspect outside home for a reasonable period of
time to get a warrant when the officer has probable cause to believe drugs inside

4. Search Incident to Arrest

A. Materials: United States v. Brown (193), United States v. Tejada (196), Arizona v. Gant (199)* Riley v.
California (212)
B. Assuming an arrest is lawful, to what extent can police search the suspect’s person,
effects, vehicle, or the area where the arrest is carried out? This is the main question.
i. Analysis tends to favor rules over standards
ii. Underlying policy is that suspect may either destroy evidence or harm the officer
C. Precedent for Search of the Person and Effects
i. Robinson and Gustafson: pursuant to arrest, police can conduct a thorough search
of the person and his effects without any justification other than the arrest itself
a. Robinson: A police officer conducted a body search of the defendant
incident to an arrest for a traffic violation. During this search, the officer
felt an object on the defendant’s person and although he could not identify
whether it was evidence of criminal activity, he pulled it out of
Robinson’s pocket. The object was a crumbled cigarette package. The
officer opened the package and found heroin. The officer had no probable
cause or eve reasonable suspicion to believe that Robinson was carrying
narcotics, nor was the officer concerned with self-protection when he
arrested Robinson. (Held: a valid arrest supplies police officers with the
automatic power to neutralize an arrestee in order to protect against
danger to the officer and destruction of evidence, whether or not such
risks exist on the facts.)
b. Gustafson: A police officer arrested the defendant for driving without a
valid driver’s license, and then conducted a full scale body search of the
defendant. (Held: no requirement that a custodial arrest must be
mandated, only that it must be authorized.)
ii. Generally, can search effects if you could have done so at the scene of the arrest
a. Edwards: Search of clothes 11 hours after arrest is okay because officers
could have searched the clothes at the scene; but see next case
b. Chadwick: Search of suspect’s footlocker well after arrest is not okay
because a footlocker is not an effect (A footlocker was not “immediately
associated” with the arrestee)
- Fact: Police officers arrested the defendant at a railroad station,
and then brought his footlocker to the police station and searched
it there without a warrant. (Held: searches of possessions within an
arrestee’s immediate control cannot be justified by any reduced
expectations of privacy caused by the arrest.)
D. Brown (2007): Case notes the difference in scope of search of person incident to Terry
stop (just for weapons) versus arrest (full search for evidence); suspect argues he was
Terry stopped, and so search of his crotch was unlawful; court says he was arrested.
i. (Strange approach by defendant – most want to have been under arrest because
there must have been probable cause rather than just reasonable suspicion)
ii. The search was neither more intrusive than necessary for the purpose
E. Tejada (2008): Police officers clearly see cocaine, suspect switches deal to his small
apartment, hears sirens, police barge in and arrest him (lawful arrest because destruction
of evidence exigency) – to what extent can they search his house without a warrant?
Court says they can 1) do a protective sweep of the place to make sure no one is hiding
who will hurt them (not at issue here because he lived in a studio), 2) cannot search a
gym bag in his entertainment center because he could not have reached the evidence
there
i. General limitations inside house without warrant are 1) protective sweep, and 2)
area within suspect’s reach or immediate control at the time of the arrest (Chimel)
F. Gant (2009): Limiting Belton with Chimel; court holds search of passenger
compartment incident to arrest without aw arrant is ok ONLY if one of these two things
are true
i. First Step – Arrestee has access to the passenger compartment at the moment of
the search (which will virtually never be the case if standard police practice is
followed) Grab Area)  Access
or
 ii. Second Step – When police reasonably believe evidence relevant to the crime of
arrest might be found in the passenger compartment
iii. Belton: “When a policeman has made a lawful custodial arrest of the occupant of
an automobile, he may, as a contemporaneous incident of that arrest, search the
passenger compartment of the automobile.”  Passenger compartment of a car is
always within the arrestee’s grab area, even if the arrestee does not have access to
this area at the time of the search.
iv. Chimel: the Court limited the geographical scope of the arrest power rule.  The
Court confined the scope of a search incident to arrest to areas which in fact are
accessible to the arrestee.  The police may, incident to a lawful arrest,
secure the person and the grab area of the arrestee without reasonable
suspicion or probable cause, and without a warrant.

5. Limits
A. Materials: Virginia v. Moore (230), Tennessee v. Garner (238), Cardenas v. Fisher (252), Missouri v.
McNeely (255)
B. Moore (2008): Any violation of additional state search and seizure law, in excess of what
is constitutionally provided, does not require suppression under the Federal exclusionary
rule – in short, there are no federal remedies for violations of state laws  arrests based
on probable cause constitutional even if in violation of state law (Police did not
violate the Fourth Amendment when they arrested Moore based on probable cause and
searched him incident to the arrest even though the arrest was in violation of Virginia
law.)
i. State restrictions do not alter the Fourth Amendment’s protections.
C. Force Used to Effect Arrest
i. Garner (1985): When a suspect poses no immediate threat to the officers and no
threat to others, the harm resulting from failing to apprehend him does not justify
the use of deadly force, [but where police reasonably believe he poses a threat to
himself or to others, they may shoot him…]
a. Old common law rule was that you could use deadly force to stop a
fleeing felon; but there were only a few felonies under common law and
they were all very heinous or violent
1) Cannot apply today because
- Almost all crimes formerly punishable by death no longer are
- The common-law rule developed when weapons were rudimentary
ii. Fisher (2009): General reasonableness standard used to assess whether non-deadly
force used to effect an arrest was excessive – was the force used reasonable under
the circumstances?
a. Objective reasonable standard: alleged crime’s severity, threat a suspect
poses, the suspect’s efforts to resist or evade arrest
iii. McNeely: No class notes, nothing in supplement; basic holding is that a
warrantless, non-consensual blood and breath analysis tests are presumptively
unreasonable (no destruction evidence exigency)

 Plain view doctrine for warrantless seizure of evidence (often used in search
incident to arrest)
o 3 requirements
 officers must not have violated 4th amendment in arriving at the place
from which the items are plainly viewed
 incriminating nature of the items must be immediately apparent nad
 officer must have lawful right of access to object itself
 Exigent Circumstances
o BAC Test (can sometimes get blood)
o Easily destroyed contraband
o Need for fast action
 Need to save someone’s life

CHAPTER 4: SEARCH FOR EVIDENCE

Generally: Why does it matter whether something is classified as a search for Fourth Amendment
purposes? It matters because if it is a search, the appropriate standard must have been met: 1) probable
cause and a warrant, 2) probable cause and an exception to the warrant requirement, or 3) consent.

1. Reasonable Expectation of Privacy Test

A. Jones and Kyllo
i. Materials: United States v. Jones (273)
ii. Cases aren’t in any subheading; they’re just primers for the search doctrine
iii. Katz (1967)**: In Olmstead (1928), Supreme Court said that if a common law
trespass had occurred, then a Fourth Amendment violation had occurred; this
wasn’t sufficient (in the case, placing a microphone on top of a phone booth was
not a common law trespass), and so in Katz, they say that the “Fourth
Amendment protects people not places” and (in Harlan’s concurring opinion that
was later adopted as the majority view) that a Fourth Amendment search occurs
when:
a. There is a subjective expectation of privacy
b. Society is prepared to recognize that expectation of privacy as objectively
reasonable
c. Katz: Fact - Government officials intercepted Katz’s telephone
conversations by use of an electronic listening and recording device
attached to the outside of the public telephone booth from which Katz
placed his calls. (Held – Fourth Amendment was designed to protect the
legitimate expectations of the people to privacy and security.)
- There is no legitimate privacy interest in illegal activity.
iv. Moving from Katz to Jones: Shift toward acceptance of technology
a. Smith (SCOTUS 1979): no REP in telephonic envelope information 
The use of the pen register was not a search
b. Miller (SCOTUS 1979): no REP in bank records held by bank (discussed
in
Sotomayor’s concurrence in Jones at 292)  Obtaining copies of Miller’s
checks, deposit slips and financial statements is not a search.
c. Knotts (SCOTUS 1982): [Beeper] Concealing a tracing device in
chemicals purchased by S, and monitoring the transport of the chemical
by vehicle outside private premises, not a “search”. S voluntarily shared
the vehicles location with the public. no REP in public vehicle movements
when short distance tracer placed inside barrels of chemicals in back of
vehicle;
- Fact: Police officers tracked the movements of the defendant’s
vehicle by using an electronic device which sent out radio
“beeping” signals. (Held: the use of the beeper was not a search in
these circumstances.)
d. Karo (SCOTUS 1983): [Sale of Merchandise Containing a Beeper]
Installing beeper itself is not a search or seizure. (No information is
obtained by the installation). But, if the beeper, voluntarily put in the
chemicals by an informant, is used to inform police that the chemicals are
inside particular private premises, the use of the beeper is a search
requiring a warrant and PC. REP where beeper informs police when
chemicals are inside certain premises.  The defendant had a reasonable
expectation of privacy in movements inside the house
e. Place (SCOTUS 1982): [Dog Sniff] Use of a property – trained drug-
detecting dog does to detect drugs in a luggage is not a “search”  The
cocaine found in Place’s luggage had to be suppressed. (Rationale: There
 is no protectable privacy interest in contraband, and through the sniff, the
officer learns nothing about any personal, innocent information contained
in the luggage.)  The seizure could only be reasonable if the officers
had probable cause to detain the luggage.
f. Greenwood (SCOTUS 1988): combing through garbage on curb is not a
“search” (Rationale: since passersby, snoops, scavengers, the trash
service, and animals have access to trach left out at the curb, the trash is
exposed in equal measure to the police.)
v. Kyllo (2001): [Thermal Imaging Device] Court holds where an item not in
general public use is used to surveil a home 1) exposes details inside the home,
and 2) is not a magic bullet (i.e. exposes more than just contraband), REP exists
and need to go through the proper procedure (warrant, probable cause, exception,
consent); in the case, officers used thermal imaging device to see heat coming
from house
a. The court reasoned that the device obtained information that could not
have otherwise been obtained without physical “intrusion into a
constitutionally protected area”
vi. Jones (2012)*: Government GPS tracking device monitors movements 24/7; the
case is distinguishable from Karo and Kyllo in that it constantly and cheaply
monitors movement on a global scale; majority (Scalia) holds that this is a
trespass and therefore a search; his test (the debatable current approach) is:
a. Common law trespass, or
b. Katz (Reasonable expectation of Privacy)
B. Open Fields
i. Is there any invadable privacy outdoors? Distinguishing between areas that are
outdoors but private from areas that are outdoors and “open”
a. The Fourth Amendment has no applicability beyond the curtilage?
ii. Materials: United States v. Vankesteren (289)
iii. Vankesteren (2009): illustrative case for open fields/curtilage distinction; uses
Hester and Dunn, gives four factors for looking at the distinction on a case-by-
case basis: 1) proximity of the area claimed to be curtilage to the home, 2)
whether the area is enclosed by some barrier that surrounds the home, 3) the
nature of the uses to which the area is put, and 4) steps taken by resident to
protect from observation by passers-by
a. Dunn: [Curtilage Remains Protected] The barn was not within the
curtilage (A barn was 60 yards from the farmhouse, outside the interior
fence)  not a search (the distance between the barn and the house was
“substantial” / the house was enclosed by an interior fence which did not
include the barn / the officers possessed objective data that the barn was
being used as a place for manufacturing drugs / D did not sufficiently
manifest an expectation of keeping the barn)  A homeowner’s curtilage
is not free from aerial observation if members of the public routinely fly
overhead and can see into the curtilage with the naked eye.
iv. What about aerial surveillance of an allegedly private outdoor space? Riley and
Ciraolo both upheld warrantless aerial surveillance of such spaces – but what
about cameras on poles? Courts are split on that issue.
a. Rationale: Since members of the public could fly over the defendant’s
yard and view the activity therein, defendant could not reasonably expect
to exclude the police from doing so. (Majority thinks there is no
difference between a commercial airliner and a police plane. 
Dissent)
  The issue is whether the public would ordinarily have access to the
defendant’s information.
b. Ciraolo – Fact: police officers used an airplane to conduct aerial
surveillance of defendant’s backyard, and found marijuana growing there.
The police had no warrant or probable cause to conduct the aerial
surveillance. The airplane flew over the defendant’s yard in navigable
airspace at a height of 1,000 feet. (Held: The Fourth Amendment did not
apply to the police conduct because the aerial overflight was not a search.)
c. Riley – Surveillance of a backyard from a helicopter hovering at 400 feet
was not a search. (Issue – whether the public had access to the
information in Riley’s backyard by way of aerial surveillance.)
C. Magic Bullets
i. Technology whose use is not a search because it only detects contraband (i.e.
drug-sniffing dogs, in most cases)
ii. Materials: Florida v. Jardines (293)
iii. Place and Caballes: drug-sniffing dog can be used at airport and on the side of a
road to sniff a car because it is a magic bullet being employed in public space
(Dog sniff can only tell the officer whether the luggage contains contraband or
not)
a. Place: Officers could arbitrarily use dogs to sniff any piece of luggage
without justification. But, the cocaine found in D’s luggage should be
suppressed (police detained the luggage for 90 min  “seizure”
b. Caballes: A dog sniff conducted during lawful traffic stop. Court found
that the dog only sniffed the exterior of car while D was legally stopped.
The sniff did not prolong the time of the traffic stop and only reveal the
location of contraband which had no legitimate expectation of privacy.
iv. Jardines: [Drug Sniff] Supreme Court draws a line at the home and says that law
enforcement cannot bring a drug-sniffing dog onto private property to sniff a
house; the distinction is that a home is private and therefore protected in its
surrounding areas against invasions of REP and common law trespasses; bringing
a dog onto the property is a trespass, so a Fourth Amendment violation occurred
D. The Assumption of Risk/Third-Party Doctrine
i. Materials: United States v. White (307), Historical Cell Site Data (324)
ii. Generally, there is no search where incriminating information is willingly shared
to accomplices or to informants who either are wearing a wire or turn around and
tell the police.
iii. White (1971) plurality opinion (now accepted): “Inescapably, one contemplating
illegal activities must realize and risk that his companions may be reporting to the
police”; “[fourth amendment does not protect a defendant’s] misplaced
confidence that [the informer] would not reveal his wrongdoing”
- Statements made to wired Government informant were legally obtained;
Fourth Amendment does not protect the defendant’s mistaken assumption
that “a person to whom he voluntarily confides his wrongdoing will not
reveal it”; the Court concludes that “one contemplating illegal activities
must realize and risk that his companions may be reporting to the police”
a. Hoffa: spy in criminal circle is not a search
- Use of informant does not violate the Fourth Amendment where
defendant voluntarily gave informant access to incriminating
information; the Fourth Amendment did not protect the
defendant’s “misplaced confidence that [the informer] would not
reveal his wrongdoing”
 b. Lewis: someone who goes into house or converses with a defendant while
wearing a mic is not a search (Fact: An undercover narcotics agent posed
as a buyer of drugs in order to gain entry to the defendant’s home where
suspected drug transactions were taking place. Lewis invited the agent
inside to purchase drugs, though of course he did not know that the
ostensible purchaser drugs, though of course he did not know that the
ostensible purchase was in fact an undercover agent. The agent, upon
entry, obtained substantial evidence of drug activity. // Held: the agent’s
conduct did not violate the Fourth Amendment.)
iv. Limitations on Assumption of Risk:
a. Consent to conveying the information is the major boundary
1. Gouled: Guy enters friends house, then steals papers from his
desk; this is outside the scope of the assumption of risk because
the friend didn’t contemplate his friend stealing his papers
2. If someone walks into a room and plants a mic, information
obtained is only not a search when he is in the room, when he’s
not in the room, it’s a search and they need a warrant
v. Historical Cell Site Data (2013): Basically, when you sign up with a cell phone
company and buy a phone, you voluntarily surrender to the company certain
information (i.e. GPS location); the cell phone company has lawful possession of
the information and can provide it to the government; the fact that an inference
can be drawn from the information about something that may be protected under
the Fourth Amendment does not mean you have a reasonable expectation of
privacy in the information.
a. So the government acquiring envelope information for cell phones
(sender, receiver locations, etc.)
b. But they cannot get content of communications without a warrant
c. Generally need to know more about this case

2. The Warrant Requirement

A. Overview of the “Requirement” and “Exigent Circumstances” Exceptions
i. Materials: Mincey v. Arizona (345), O’Brien v. City of Grand Rapids (350)
ii. Dripps’s “Official Model”: A search (any intrusion into a reasonable expectation
of privacy or any common law trespass) is “unreasonable” under the Fourth
Amendment unless police have:
a. A valid warrant supported by probable cause; or
b. Probable cause (so that a judge could have issued the warrant) and at
least one exception to the warrant requirement; or
c. Consent
iii. Warrantless searches are per se unreasonable
iii. Why have warrants? Do they add value? Because they require an objective
observer to determine if there is probable cause, and therefore gets it out of the
jury’s head that the officers were biased or motivated by competition
iv. Exigent Circumstances Exception to Warrant Requirement
a. Exigent circumstances: any situation in which obtaining a warrant would
be unduly burdensome and time-consuming because it risks destruction of
evidence
1. Mincey (1978): The severity of a crime committed has nothing to
do with whether an exigency exists, especially when law
enforcement can easily obtain a warrant
2. Johnson: When cops smell burning opium from a hotel room, this
is not an exigency, they could have obtained a warrant
 3. Vale: Incident to an arrest on porch, police search an entire house;
court looks at Chimel and Schmerber, says drugs seized inside the
house were not in the process of being destroyed, there was no
reason for the police officers to think they were being destroyed so
no exigency
4. Kentucky v. King: Cops may not create or develop exigent
circumstances or threaten to violate the Fourth Amendment to
create exigent circumstances
B. Search Incident to Arrest (See Chapter 5, Section 4.)
i. Basic distinction is where the person is arrested:
a. Indoors: Chimel, police can search area within reach/immediate control
b. Vehicle: Gant, area within suspect’s reach at the time of the search and/or
if there is reason to suspect that the vehicle may contain evidence of the
crime they are being arrested for
c. On sidewalk: Robinson, can conduct full search (but not if Terry stop)
C. Automobile Exception
i. Materials: United States v. Burgess (350)
ii. Carroll: Generally, if the officer has probable cause to believe (if, given the
circumstances he has a reasonable belief) “that the automobile contains that
which by law is subject to seizure and destruction, the search and seizure are
valid.” Basically, if an officer has probable cause to think that there is evidence or
any sort of contraband in the car, he can search the car without a warrant. This is
an exception in and of itself, and it is justified by the fact that cars are mobile
iii. What about mobile homes? California v. Carney says that they are like cars in
Carroll; really just depends on the extent to which they resemble homes (with
attachments to utilities, etc.) versus cars.
- Carney: [Justification for the automobile exception] (1) Mobility of the
automobile (2) Diminished expectation of privacy in automobiles.
iv. Can they search the effects found inside a vehicle? California v. Acevedo says
yes, as long they have probable cause to believe that the effect contains evidence
of criminal activity (police wait until a guy with a bag of coke gets into his car
and drives off, then pull him over and search the bag)
a. Wyoming v. Houghton: Police with probable cause can search a
passenger’s purse found on the seat; police can search all containers found
therein
v. What if no one is present to arrest or question? Doesn't matter as long as they
have probable cause…
D. Inventory Searches
i. Materials: United States v. Lopez (357)
ii. Generally: Inventory searches are constitutional administrative searches and
require neither probable cause nor a warrant, but the police must have some
established policy to limit police discretion
iii. Purposes of inventory searches: 1) protect owner’s property while it is in police
custody, 2) protect police against claims of lost or stolen property, and 3) protect
police from potential danger
iv. Lopez (2008): Everything above, and also good faith is not necessarily a
requirement for an inventory search

3. Requirements of a Valid Warrant

A. Probable Cause
i. Materials: Illinois v. Gates (364)**
ii. Recall: Sources of information that can provide probable cause:
 a. Firsthand observations by police
b. Reports by citizens, including victims
c. Criminal records, especially of a suspect having committed a similar
offense
d. Tips from confidential and anonymous informants
iii. Gates (1983)**: Totality-of-the-circumstances test; a warrant is based on
probable cause if there are “enough particularized facts to lead a common sense
person of reasonable caution to believe that there is a fair probability of criminal
activity”; for this, you have to look at the totality of the circumstances
a. Because this was a plurality decision, some jurisdictions haven’t adopted
it yet as far as evaluating information that forms the basis of a warrant
goes; those jurisdictions still use the Aguilar-Spinelli two-prong test:
1. Is the person giving the information reliable and credible? (i.e.
police officer, citizen informants, informants with track records,
informants giving information that would subject them to criminal
liability, all as opposed to anonymous informants)
2. Does he or she explain or imply personal knowledge as the basis
of his or her tip? (i.e. “I heard/saw” or a very detailed
statement)
A. The prongs are independent and either can override the
other
b. General factors when determining whether a warrant is based on probable
cause: corroboration of the tip, reliability of the informant, detail of the
statement, whether anyone could have witnessed the activity reported,
how stale the information is, whether staleness matters, criminal record
iv. Draper: Corroboration and detail helped overcome fact that informant had no
track record
v. Florida v. JL: No probable cause to support warrant where a person calls in and
reports what anyone in the world could have seen
a. Fact: police officers received an anonymous tip that a young black male
standing at a particular bus stop wearing a plaid shirt was carrying a gun.
Two officers went to the bus stop minutes later and saw three black males,
one wearing a plaid shirt. Without any additional information, one of the
officers ordered the male wearing the plaid shirt to put his hands up on the
bus stop. The officer then frisked him and seized a gun from his pocket.
b. Held: the anonymous tip in this case lacked the indicia of reliability as
required in White. (There was no prediction of future activity or other
information that would show that the tipster had knowledge of concealed
criminal activity.)
B. “Detached and Neutral Magistrate”
i. Materials: State v. Brown (383)
ii. Some general rules:
a. Coolidge: State attorney general is not detached enough to issue warrants
b. Lo-Ji Sales: Judge who helps execute a search warrant is not neutral
c. Connally v. Georgia: Judge who receives even minimal compensation for
issuing a warrant is not neutral
d. Shadwick v. City of Tampa: Case specific; a court clerk is neutral and
detached and capable of determining whether there is probable cause, so
he can issue arrest warrants (no need for the individual to be a lawyer)
iii. Brown (1994): Chief of police is married to a judge with emergency magistrate
duties; court says this alone is enough to say that the judge is not neutral or
detached, but more information could swing it the other way
 C. “Particularly Describing”
i. Materials: Levenduski v. State (389)
ii. Generally: Warrants must describe in reasonable particularity the places to be
searched and the things to be seized, otherwise, they are just general warrants
iii. Levenduski (2007): Warrant authorized seizure of marijuana related items and all
other evidence of a crime; police execute the warrant and find meth-related items
which were not in plain view; court says these items were seized pursuant to the
catchall clause which is invalid, so the meth-related evidence is suppressed (but
all the marijuana evidence is allowable)
a. Rule: Anything obtained pursuant to a catchall clause that was not in plain
view during the legal search has been obtained illegally and can be
suppressed
D. Veracity of Affidavit
i. Materials: People v. Gales (392)
ii. Generally: The warrant must be based on truthful statements; affidavits
supporting warrants are presumptively valid; but defendant can have a perjury
hearing if he or she makes a substantial preliminary showing that 1) the affiant
made the false statement knowingly and intentionally, or with reckless disregard
for the truth, and 2) the information was necessary for a finding of probable
cause; at the hearing, defendant must prove knowing or reckless falsity of
statement by preponderance of evidence to be able to exclude

4. Manner of Execution
A. Knock and Announce
i. Materials: Whittier v. Kobayashi (400)
ii. Kobayashi (2009): Case-by-case analysis of whether knocking and announcing is
necessary for proper execution; police generally have to knock and announce
when executing a warrant, but knocking and announcing is not required
a. Under circumstances presenting a threat of physical violence (kid in house
was known to carry a gun), or
b. Where police officers have reason to believe that evidence would likely
be destroyed (kid was known to be a drug dealer)
iii. ƒ: we don’t exclude the case just because there is no knock and announce
B. Incidental Detention and Search Powers
i. Materials: Muehler v. Mena (404)
ii. Some general holdings:
a. Maryland v. Buie: [Protective Sweep] protective sweep of the premises is
allowed if it is reasonable to suspect that there might be confederates who
would help the suspect
- Fact: Following an armed robbery, police obtained arrest warrants
for Buie and his accomplice, and went to Buie’s house. Buie was
arrested upon emerging from the basement. The officers did a
cursory search of the basement to see if anyone else was there, and
in the course of that search, they found incriminating evidence in
plain view.)
- Held: The reasonable suspicion standard was an appropriate
balance between the arrestee’s remaining privacy interest in the
home and the officer’s safety-based interest in conducting a
protective sweep.
- Protective Sweep: a quick and limited search of a premises,
incident to an arrest and conducted to protect the safety of police officers
or others.
 b. Michigan v. Summers: during the execution of a search warrant, police
can detain the occupant of the premises they have a warrant to search
c. Ybarra v. Illinois: no automatic right to detain, frisk, or search all patrons
of a bar just because the bar is the subject of a warrant
d. Muehler v. Mena: with specific facts suggesting danger, three hour
handcuffing of suspects is not unreasonable as a matter of law (a warrant
existed to search the residence, and D was an occupant of the resident at
the time of search)
iv. Leveto (2001): Case involved search of a house for evidence of income tax
evasion; there is obviously no apparent danger (violence or destruction of
evidence); suspects were frisked and held a long period of time; court says this is
all a clear violation of Fourth Amendment rights

5. Consent Searches
A. Materials: United States v. Price (414)
B. Generally: Consent searches are an exception to the warrant and probable cause
requirements; but if consent is obtained pursuant to an antecedent unlawful search or
seizure (i.e. a traffic stop without reasonable suspicion or probable cause), then evidence
is excludable; consent can be withdrawn at any time
i. Consent must be voluntary.
ii.. Government has burden of proof of showing that consent was voluntary by a
preponderance of the evidence.
C. Schneckloth: [Test for voluntariness of Consent] No presumption of coercion in
consent cases; court looks to totality of circumstances to determine whether consent was
given; general factors to consider.
- Fact: a police officer stopped a car due to a traffic infraction. Six people were in
the car. The officer asked an occupant if he could search the car. The man agreed
and opened the trunk for the officer. Later, he objected that his consent was
involuntary because he never knew that he had a right to refuse the officer’s
request.
- Held: Although defendants need not know of their right to refuse in order for
consent to be voluntary, such consent cannot be “coerced, by explicit or implicit
means, by implied threat or covert force.”
i. Notice to defendant that they can decline to give consent
ii. Coercion to consent/nature of confrontation: violence, where request happens,
displays of weapons, numbers of officers, types of suspect (i.e. how easy it is to
coerce them, how likely it is that the suspect felt coerced)
a. Price (2009): Person who gave consent was 1) sober, 2) adult, 3) of
normal mental capacity, 4) there were few officers present, 5) there was
no display of weapons, but 6) she was not informed of the right to refuse,
and 7) was told her boyfriend had been arrested; Court finds she gave
consent to search the house, but did she also give consent to search the
basement?  Issue 2 Slide is Final exam!!!!!
1. Scope of search: Jimeno: consent extends to things that are equally
or less secure than the original area or place for which consent to
search was given (i.e. cannot search a locked container in a car
when only consent to search the car is given) Basically, what
would a reasonable person assume the consent extended to?
D. Third-Party Consent - A third party may consent to the search of an area in which a
suspect has an expectation of privacy, if the third party voluntarily consents to the search
and has authority to consent to the search of the area.
 - Rationale (1) if third parties have access or control over a private area, they have
an independent privacy interest in that area and an independent right to forego
such interests. (2) Because the suspect has granted a third party access to a
private area, the suspect has assumed the risk that the third party may consent to a
search.
i. Generally: a person can give consent if they have actual or apparent authority to
exclude people from that place, room, container, vehicle, etc.
ii. People who live in different rooms, but share a common room can all consent to
the common room, but only consent to their respective rooms
iii. Test for apparent authority: would a reasonable police officer believe that the
person had authority to give consent? (i.e. did that person have a key?)
iv. If two people live on premises, and both are asked for consent, “No” trumps
“Yes”.
E. Revocation: Consent can be revoked at any time

6. The Special Needs Doctrine

A. Materials: Patel v. Los Angeles (424), Maryland v. King (438)
B. Generally: If a search or seizure is justified by some governmental special needs beyond
criminal law enforcement, the court balances the state interest in conducting the search
against the individual privacy interest at stake; government can usually conduct these
searches without probable cause or individual suspicion, and in a lot of cases without a
warrant; essentially its own doctrine apart from traditional search doctrine (warrant,
probable cause, consent)
i. The general test for special need is whether the purpose of the search is to find
evidence so they can refer the person for prosecution – if it is, it’s subject to the
traditional model
C. Inspections of homes: As long as there is an established inspection policy these are
allowed, but it usually requires an administrative warrant (Probable cause not required)
D. Inspections of business: Businesses have a diminished privacy interest, particularly
those that are part of a heavily regulated industry (i.e. junkyard in Burger);
Administrative inspections of businesses can be conducted without probable cause (as
long as there is a governmental interest), and highly regulated businesses can be searched
without a warrant (as long as the search is for the advancement of a governmental
interest and as long as there are substitutes for the warrant requirement such that the
police officer is limited in discretion)
i. Not a search where inspecting an area open to the general public
E. Civil-Based Searches: Where government inspects individuals for some overriding
regulatory purpose without a warrant or probable cause (i.e. at airports, public
transportation, random drug testing, etc.); evidence uncovered can be used in a criminal
proceeding as long as the search was conducted with a regulatory purpose
i. Chertoff: Government has a weighty interest in protecting citizens from terrorists
ii. People must usually be given the option to not consent to the search by leaving
the airport, municipal building, train station, etc.
F. Once you’re over the special needs question of whether there is a non-criminal law
related government interest, you have to balance the reasonableness of the search against
the citizen’s privacy interests; factors to look at:
i. Significance of citizen’s privacy interest
ii. Intrusiveness of the search
iii. Weight of government’s interest
iv. Efficacy of the search policy
 G. Drug testing students: Veronia v. Acton upheld this as reasonable for kids who
participate in sports and received notice ahead of time under the analysis above;
Pottawatomie County later upheld this for all kids involved in extra-curriculars
i. But the most important question we have to know here is whether the school is
conducting the search with the intent to report to the police – if so, then it is
subject to the traditional model for searches (warrant, probable cause, consent,
etc.)

CHAPTER 5: FOURTH AMENDMENT REMEDIES

Fourth Amendment Remedies

 Prosecution of police
 Tort suit
o Qualified Immunity
o Interlocutory Appeal
o Attorney’s Fees
 Institutional Reform Litigation
o By DOJ under 14141
o By private parties as in Floyd
 E-Rule

1. Habeas Corpus
A. Materials: L.A.E. v. Davis (462)
 B. Generally: If someone believes they are being detained wrongfully, they file a habeas
action, which requires the prison warden, etc. to present them before a court and show
cause for their detention (i.e. there are charges against them, there was probable cause for
their arrest, they received the proper pre-detention hearings, etc.); if their detention is
somehow defective, they are released.

2. Damage Actions under State Tort Law

A. Materials: Spears v. Akron Police Department (462), Timmons v. Metropolitan Government of Nashville
and Davidson County (468), Niderstadt v. Townn of Carrizozo (476)
B. Spears (2010)
C. Timmons (2009)
D. Niderstadt (2008)

3. Constitutional Tort Action Under 42 U.S.C. § 1983

A. Materials: 42 U.S.C. § 1983 (483), Poolaw v. Marcantel (484), 42 U.S.C. § 1988 (500), Poy v. Boutselis
(500), Angiolillo v. Collier County (509)
B. 42 U.S.C. § 1983 (1871): “[Anyone who, acting under the color of state law, deprives
another person of their Constitutional rights shall be liable to that party in a civil
action.]”
i. Only applies to state actors, not federal actors
ii. Typical remedy for violation is damages, but injunctive relief also available
(except in most cases where the official is a judicial officer)
iii. Pierson v. Ray (1967): good faith immunity defense exists
iv. Monnell v. Dept. of Social Services (1978): local government can be sued, but
not merely on respondeat superior; must be some link between the government
and the actions of the individual
1. This limitation doesn’t really matter though: employers will be de facto
liable because defendant employees will indemnify them
v. Mitchell v. Forsyth (1985): when a court decides whether the defendant has
qualified immunity, that decision is immediately appealable under 18 U.S.C. §
1291 (interlocutory appeal jurisdiction)

C. Poolaw v. Marcantel (2009): Two officers prepare a bad affidavit and get a bad search
warrant, then have other officers execute it; subjects of the search warrant sue the
officers on § 1983 claims; they can’t be liable on respondeat superior, but they can be if
“an affirmative link exists between the Constitutional deprivation and either the officer’s
personal participation, his exercise of control or direction, or his failure to supervise”;
basically, they can be held liable if they cause the violation; court finds for plaintiffs,
saying that any reasonable officer would have known that “mere propinquity” is not
enough for probable cause
i. General triage for 42 U.S.C. § 1983 claims:
1. Did the defendant cause the violation of the plaintiff’s rights?
2. Were those rights clearly established at the time of the violation?
3. Is the defendant entitled to immunity? (Would a reasonable officer have
known that such conduct is Constitutionally impermissible?)
D. 42 U.S.C. 1988(b): “[Pursuant to a § 1983 decision, the court may award reasonable
attorneys fees to the prevailing party, unless the losing party is a judicial officer, in
which case, attorneys fees are only proper if his or her conduct was far removed from his
or her judicial capacity.”]
i. Poy v. Boutselis (2003): Whether a party gets attorneys fees depends generally on
whether they were a “prevailing party” (i.e., did they succeed on some significant
issue?), whether their success was purely technical or de minimis, whether fees
claimed are excessive, and any other special considerations
 ii. Angiolillo v. Collier County (2010): Attorneys fees are not specific to plaintiffs;
defendants can win them too where the plaintiff brings a frivolous claim or where
there has been no prima facie showing of evidence

4. Bivens Actions Against Federal Officers

A. Materials: Ashcroft v. Iqbal (513)
B. Generally: Bivens claim is essentially a § 1983 claim, but against federal officers instead
of state officers; it is an “implicit cause of action” contained in the Fourth Amendment
C. Ashcroft (2009): regardless of what their titles are, government officials can only be held
liable to Bivens plaintiffs if they acted with the purpose of causing the violation (i.e. by
creating a policy of discrimination); complaints in federal court must state a “plausible”
claim for relief and where there is an equally or more plausible explanation for the
misconduct (i.e. racial discrimination vs. anti-terrorism), the complaint doesn’t satisfy
this requirement – it was more plausible that they were protecting the country from
terrorists
i. Important to note that this case only dealt with Ashcroft and Mueller; and not the
prison guards

5. The Exclusionary Rule (Exceptions)

A. Standing
i. Materials: Atkins v. Commonwealth (525), Carter v. State (530)
ii. Generally: A person must have standing to invoke the exclusionary rule; this
means that their own personal Fourth Amendment rights must have been
violated; people usually have standing if they have an objectively reasonable
expectation of privacy in the area searched or if they were personally searched
1. A violation of someone else’s rights doesn’t give you standing
2. Merely being the “target” of a search doesn’t give you standing (i.e.
Payner, where Payner was the target and Payner’s lawyer’s privacy was
invaded, and that search yielded incriminating evidence against Payner)
- Payner: Federal courts may not exercise their supervisory power
over the conduct of litigation to exclude evidence in situations
where the standing requirement is not met. (Fact: IRS agents
investigating Payner stole the briefcase of another person and
photocopied hundreds of documents. These were all offered in
Payner’s trial.)
iii. Standing in Vehicles
1. Rakas v. Illinois: passenger in a car tries to invoke exclusionary rule after
law enforcement unlawfully search the glove box and under the front seat;
court says he can’t because he didn’t own the car, he wasn’t driving the
car or otherwise in possession of the contraband, and he claimed no
interest in the article seized (merely being in a vehicle with someone’s
permission doesn’t give him standing); court says the test for standing is
the same as Katz (1. The person challenging the search must demonstrate
a subjective expectation of privacy in the place searched or a possessory
interest in the thing seized. 2. The person must demonstrate that this
subjective expectation is one that society accepts as reasonable.); standing
to challenge one Fourth Amendment violation is not standing to challenge
any other associated violation
- Difference with Katz: Standing  whether the defendant’s
personal rights were violated // Katz  whether any Fourth
Amendment search or seizure has occurred at all
a. Ownership is highly indicative, but not dispositive, of standing
 b. Holding for Rakas: Denied standing to a passenger who attempted
to
challenge an automobile search even though the passengers were
legitimately in the car. (Rationale: a person legitimately on the
premises may well not have a reasonable expectation of privacy in
the particular area that is searched.)
2. Atkins v. Commonwealth (2010): passenger case, similar to Rakas;
defendant has standing to complain about the traffic stop, but no standing
to complain about the search of the glove box; Court says when looking at
whether there is a REP, we should look at the following factors from
Rakas:
a. Whether the defendant has a possessory interest in the place
searched  Possessory Interest in Items Seized is insufficient
b. Whether he has the right to exclude others from there
c. Whether he has a subjective expectation of privacy
d. Whether he took normal precautions to protect his privacy
interests
3. Arnold v. Commonwealth (1993): Applying Rakas factors, a passenger
had a REP (and therefore standing) in the shopping bag at his feet in the
car and where he claimed that he owned the bag and its contents
iv. Private Premises
1. Same Katz subjective/objective standard as above
2. Generally have standing in the home where you live, even when you’re
not there
3. What about people who don’t live on the premises?
a. Minnesota v. Olson: [Overnight Guests] Social, overnight guests
usually have standing in the premises (why? “Overnight guest had
an expectation of privacy in the home that society is prepared to
accept as reasonable”)
b. Minnesota v. Carter: [“Business” Guest] Someone in an
apartment for business (drug dealing) purposes only, for a short
period of time, with no previous connection to the occupant does
not have a REP in the premises (Applying “Rakas” ‘legitimate
expectation of privacy’ analysis  individual with no previous
connection to a homeowner who visits the home for a relatively
short period of time solely to conduct a commercial transaction is
not entitled to Fourth Amendment protection.)
c. Carter v. State: [Girlfriend’s motel room] Does the defendant
have standing to challenge the search of the toilet tank in his
girlfriend’s motel room? This is the middle ground case; he has an
intimate relationship with his girlfriend, but then again a guest
would also probably not root around in the plumbing in the
bathroom, he won’t be there for very long, and she’s really only
his “girlfriend”; court says no standing after going through the
same factors as in Atkins.
B. Attenuation, Independent Source, Inevitable Discovery
i. Materials: State v. Le (535)
ii. Attenuation - The link between the illegal search or seizure and the evidence
obtained is so attenuated that the evidence can no longer be meaningfully
considered “tainted” or the “fruit of the poisonous tree.”  When evidence is so
attenuated from the illegality, courts reason that the deterrent effect of the
 exclusionary rule is equally attenuated and therefore the cost of excluding reliable
evidence outweighs thee negligible benefit of deterrence.
1. Wong Sun v. United States (1963): “Whether […] 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.” The idea here is that the deterrent effect of using the
exclusionary rule is negligible in compared to the social costs of
excluding the evidence.
- Fact: Federal narcotics agents broke into Toy’s apartment without
probable cause, and handcuffed him. Toy immediately made a
statement implicating Yee in the sale of narcotics. The agents went
immediately to Yee, who surrendered heroin to them upon the
officers’ order to do so. Yee stated that he had bought the drugs
fro Toy and Wong Sun. Wong Sun was then illegally arrested, and
both he and Toy were arraigned and released pending trial. Several
days later, Wong Sun came to the offices of the Bureau of
Narcotics, and was interrogated th ere. He was warned of his right
to remain silent and his right to have a lawyer. Wong Sun
confessed.
a. There is no “but-for” test – the violation must be the thing that
proximately caused the obtaining of the evidence (Wong Sun
would never have come to the officers and confessed but for his
prior illegal arrest.)
b. Analyzed on a case-by-case basis under the TOC test
c. Brown v. Illinois (1975): What factors are important? Time
between the events, purpose and seriousness of the violation,
whether defendant made a voluntary, conscious decision to discard
evidence, and any other intervening circumstances
- Fact: Brown came into his apartment and found two
policemen pointing guns at him. He was informed that he
was under arrest for murder, handcuffed, and driven down
to the police station. While at the station, Brown was twice
given Miranda warnings and twice confessed. The first
confession occurred 90 minutes after the arrest, the second
occurred seven hours after the arrest.
- Held: Both confessions were the tainted fruit of the illegal
arrest  should be excluded
d. Contrasting Brown and Wong Sun: Both defendants gave
admissions after getting Miranda, but Wong Sun gave his several
days after his arrest and release, whereas Brown gave his 90
minutes and 7 hours, respectively, after his arrest while still in
custody
-
e. Giving Miranda warnings is useful, but not dispositive (Case-by-
case approach is necessary)  in Brown, Miranda Warnings do
not per se break the chain of causation.
f. In-court identifications of illegally arrested individuals are
sufficiently removed from the illegal arrest
iii. Independent Source: Evidence will not be excluded as the fruit of the poisonous
tree if the Government can show that it was derived from an independent legal
source. The independent source exception operates to admit the fruits of illegally
 obtained evidence, when such fruits are also found by legal means unrelated to
the original illegal conduct.
1. When evidence is obtained by illegal means, and then by unrelated,
independent legal means, the exclusionary rule does not apply
a. Rationale: the exclusionary rule is meant to deter police from
committing violations, not punish them. So it should put them in
the position they would have been in without the illegal search
b. This would be a good exam question topic
iv. Inevitable Discovery:
1. When the government can show that the evidence would have inevitably
(not “possibly”) found by legal means, the exclusionary rule does not
apply
a. For example, if searching a house, they illegally obtain something
that would have been found in a legal search incident to arrest
b. This is a “hypothetical independent source” – the legal means
must come from a source unrelated to and independent of the
illegal activity
c. Rationale is the same as for independent source
d. Sometimes, the legal means must be under way at the time of the
illegal search
C. Collateral Proceedings:
i. Materials: Logan v. Commonwealth (541)
ii. Evidence can only really be excluded during the prosecution’s case-in-chief – it is
usually admissible in “collateral proceedings” (those in which deterrence of
police or government behavior is not an issue)  The Court has consistently held
that illegally obtained evidence can be used for collateral purposes. (Rationale:
sufficient deterrence of illegal searches and seizures will flow from the exclusion
of illegally obtained evidence from the prosecution’s case-in-chief, and therefore
that the minimal benefits of preventing collateral uses of such evidence are
outweighed by the costs of exclusion.)
iii. What counts as a “collateral proceeding”?
1. Grand jury: The exclusionary rule did not apply to grand jury
proceedings (Rationale: exclusion rule seriously impede the grand jury
and delay and disrupt grand jury hearings.)
2. Sentencing (usually): Lower courts have consistently held that the
exclusionary rule is generally inapplicable to the trial court’s
consideration of evidence for purposes of sentencing. (Rationale: The
principal deterrent effect of the exclusionary rule is attributable to
exclusion of illegally obtained evidence from the prosecution’s case-in-
chief.)
3. Civil deportation hearings: The Supreme Court held that the
exclusionary
rule is inapplicable in a civil deportation hearings. (Rationale: sufficient
deterrence flowed from excluding the evidence for a criminal
prosecution.)
4. Civil tax proceedings: The Supreme Court held that the exclusionary rule
could not operate against the Government in civil tax proceedings.
(Rationale: Exclusion in a Federal tax proceeding “is unlikely to provide
significant, much less substantial, additional deterrence” because the tax
proceeding “falls outside the offending officer’s zone of primary interest.)
5. Parole hearings: The Supreme Court held that the exclusionary rule is
 inapplicable in parole revocation proceedings. (Rationale: The costs of
applying the exclusionary rule in parole revocation proceedings
outweighed the potential benefits of deterring law enforcement
misconduct.)
6. Habeas proceedings: The Court held that a habeas petitioner could not
ordinarily invoke the exclusionary rule to challenge evidence seized in
violation of the Fourth Amendment. (Rationale: the costs of applying the
exclusionary rule in habeas proceedings outweighed the benefits in
deterrence that exclusion would apply.)
7. Probation proceedings
iv. What doesn’t count?
1. Case-in-chief/trial
2. Sentencing (sometimes): While illegally obtained evidence is not
ordinarily excluded from consideration at sentencing, courts have
acknowledged an exception to this principle where the defendant makes a
showing “that officers obtained evidence expressly to enhance a
sentence.” (Tejada)
3. Forfeiture proceedings (government is enriching itself): The
exclusionary rule was applicable to forfeiture proceedings.
v. Logan v. Commonwealth (2010): “[Exclusion should be proper in proceedings
where bad faith by the police officers is shown]”
1. For example, where officers obtain evidence just to enhance a sentence
D. Impeachment
i. Materials: Wilkes v. United States (545)
ii. Illegally obtained evidence can still usually be used to impeach a witness
1. Judge instructs that the evidence should only go to the witness’s
credibility, but really, it’s just a means of backdooring excluded evidence
2. Rationale: exclusionary rule is not a license to commit perjury
iii. United States v. Havens (1980): It does not matter whether the witness lies during
direct (Walder) or on cross, as long as the prosecution’s questions which lead to
the lie are “plainly within the scope of direct”
1. Walder (1954) – Fact: the defendant, charged with narcotic sales, testified
on direct examination and again on cross-examination that he had never
bought, sold, or possessed narcotics. The prosecution was allowed to
question the defendant about heroin that was illegally obtained from his
home two years earlier; the judge gave a limiting instruction that the
evidence could only be considered in assessing the defendant’s credibility
as a witness. (Held: the illegally obtained evidence was properly admitted
for impeachment purposes)
- Rationale (Cost/Benefit analysis): Cost  an application of the
exclusionary rule to prevent impeachment would not only impose
the substantial cost of excluding reliable evidence // Benefit  the
principle deterrence effect of the exclusionary rule lies in the
exclusion of illegally obtained evidence proffered in the
prosecution’s case-in-chief, and that the incremental deterrent
effect of exclusion for impeachment purposes would be minimal.
2. Havens: [Impeachment of Testimony First Brought Out on Cross-
Examination] The Supreme Court extended the impeachment exception
to a situation where the defendant successfully avoided contradiction with
the illegally obtained evidence on direct examination, but was nonetheless
impeached with the evidence due to his answers on cross-examination.
 a. Fact: Officers stopped McLeroth and Havens coming off the
flight. They illegally searched Havens’ suitcase and found a shirt
from which a pocket had been torn out. When McLeroth was
searched, the officers found a pocket sewn into his clothing. This
pocket matched the shirt found in Havens’ suitcase. Cocaine was
found in the makeshift pocket. McLeroth pleaded guilty and
testified against Havens; he admitted to having cocaine on his
person. Havens took the stand and after acknowledging that he
hard McLeroth’s testimony, was asked by his counsel whether he
had ever “engaged in that kind of activity with Mr. McLeroth.”
Havens answered in the negative. On cross-examination, Havens
was asked more pointed questions – whether he had anything to do
with sewing pockets into McLeroth’s clothing and whether he had
a shirt in his suitcase with the pocket missing. He answered both
questions in the negative, and was impeached by the shirt and by
testimony about its discovery.
b. Held: in terms of the impeachment exception, there is “no
difference of constitutional magnitude between the defendant’s
statements on direct examination and his answers to questions put
to him on cross-examination that are plainly within the scope of
the defendant’s direct examination.
iv. Caveats
1. Illinois v. James (1990): Prosecution cannot impeach defendant’s
witnesses with illegally obtained evidence, because we don’t want to stop
defendants from putting on witnesses for fear that they may somehow
contradict the illegally obtained evidence and allow for its use in open
court
a. But see Wilkes (1993): Defendant’s witness was a psychiatrist
who was testifying as to defendant’s mental state; the court said
you can impeach such witnesses because they are the functional
equivalent of the defendant themselves (because the defendant was
the ultimate source of the information).
b. James: [Exclusionary Rule Prevents Impeachment of
Defendant’s Witnesses with Illegally Obtained Evidence] The
Court refused to extend the impeachment exception to allow
impeachment of the defendant’s witnesses with illegally obtained
evidence.
- Facts: James told police officers that he had changed his
hair color and style on the day after taking part in a
shooting. The trial court suppressed this statement because
it was the fruit of an arrest without probable cause.
Prosecution witnesses at trial identified James, though they
admitted that his hair color and style at trial was different
from that of the perpetrator at the time of the shooting.
James called a family friend, who testified that just before
the shooting, James’ hair color and style was the same as it
was at trial, thus creating an inference that James had never
changed it.
- Held: Defendant’s witnesses with illegally obtained
evidence is admissible.
E. Good Faith and the Future of the Exclusionary Rule
i. Materials: Herring v. United States (558), Davis v. United States (572)
ii. Good Faith Exception
1. Essentially asks: “Were the officers the ones who screwed up?”
2. United States v. Leon (1984): The exclusionary rule does not apply when
law enforcement act in objectively reasonable reliance on a search warrant
that is later found to be unsupported by probable cause
a. Fact: A confidential informant of unproven reliability informed
police officers of drug activity at 620 Price Drive. He stated that
he had personally observed a sale of drugs at that residence five
months earlier. The police investigated, and found that some of the
cars parked at the Price Drive residence belonged to persons who
had been arrested for drug offenses. Officers also witnessed people
often going into the house and then exiting with small paper sacks.
Further investigation indicated that the suspects were associates of
Leon, who had also been previously arrested on drug charges.
Leon’s house was then put under surveillance, and officers
witnessed comings and goings consistent with drug activity. Based
on these and other observations summarized in an affidavit,
officers prepared an application for a warrant for the Price Drive
residence, Leon’s house, and another house associated with the
suspects. A facially valid search warrant was issued, and the
searches uncovered drugs and other evidence at each of the
locations.
b. Holding: The exclusionary rule should not apply.  admissible
c. Rationale: The officers did nothing wrong, so there’s no reason to
deter them; there is no point in deterring magistrates who issue
these warrants because they don’t have an interest in the outcome
of the case
d. Officers can also reasonably rely on state or federal statutes later
found to be unconstitutional (Illinois v. Krull), court record later
found to be inaccurate (Arizona v. Evans), police record later
found to be inaccurate (Herring v. United States), binding
appellate court precedent later overturned before defendant’s case
is on appeal (Davis v. United States)
- Krull – [Reliance on Unconstitutional Legislation] Fact:
an officer conducted a warrantless inspection of an
automobile wrecking yard. The officer relied on an
administrative inspection statute that was subsequently
held to be unconstitutional. (Held: the evidence obtained in
the inspection was admissible under the good faith
exception)
- Evans – [Mistakes by Court Clerical Personnel] Fact:
Officers stopped Evans for a traffic violation. They entered
his name into a computer data terminal, and were informed
that there was an outstanding warrant for Evans’ arrest, so
they arrested him. In fact, the information in the computer
was inaccurate. The arrest of Evans was illegal. A search
incident to the arrest uncovered evidence, which Evans
moved to exclude. (Held: the good faith exception applies
when an officer reasonably relies on information from
court clerical personnel which happens to be mistaken.)
3. [Exceptions to the Good Faith Exception  An officer’s reliance on a
warrant would be unreasonable.] When should the good faith exception
 not apply? Generally, when reliance is objectively unreasonable (Leon:
The officer’s reliance on the magistrate’s probable cause determination
and on the technical sufficiency of the warrant he issues must be
objectively reasonable.)
a. [Misleading Information] Officers flagrantly misrepresent facts
or present them with reckless disregard of the truth in an affidavit
for search warrant to a magistrate
b. [Abandonment of Judicial Role] Officers should know that the
magistrate is abandoning his judicial role
c. [Affidavit Clearly Insufficient to Establish Probable Cause]
Officers should know that the affidavit is not sufficient for a
finding of probable cause
d. Officers rely on a statute that is clearly unconstitutional
e. Police records are recklessly kept or knowingly falsified to lay
groundwork for arrests
4. [Davis and Retroactivity Omitted]
iii. Future of the Exclusionary Rule
1. In Davis, the court suggested abandoning the exclusionary rule altogether.
Breaking down the opinions, it would seem that four of the justices want
to abolish it, seven want to go a Calandra balancing test, and two want to
go all the way back to Boyd. What would happen if the Supreme Court
abandoned the rule?
a. States would retain their own rules of exclusion
b. Civil actions under § 1983 and § 14141 would become prevalent
c. The exclusionary rule be back within ten years

5. Institutional Reform Litigation

A. Materials: City of Los Angeles v. Lyons (587), Floyd v. City of New York (605), 42 U.S.C. §14141 Cause
of Action (609)
B. Encompasses two different kinds of actions for equitable relief:
i. Civil actions for declaratory or injunctive relief against police practices
ii. Actions brought by the AUSA under 42 U.S.C. § 14141, wherein the federal
government wants to compel police to change their practices
C. Reform litigation is the middle ground between civil damages actions and exclusion
i. Ideal compromise between the two because 1) there is no suppression of
evidence, 2) no money changes hands, 3) violations are prevented, 4)
enforcement is quick and inexpensive, 5) it allows for the participation of
multiple stakeholders and interest groups
D. Lyons (1983): Plaintiff is seeking damages and declaratory and injunctive relief against
the LAPD for their practice of using a choke hold to subdue suspects; this case happens
before 42 U.S.C. 14141 existed, hence the private damages claims; Court says that
plaintiff may succeed on a damages claim because of the use of the chokehold on him,
but he did not have standing for injunctive or declaratory relief; Why?
i. Speculation that someone will be injured by the conduct in the future is not
enough for standing – they must show that there is an immediate likelihood that
they will continue to suffer the injury in the future because of this conduct
1. The fact that they anticipate breaking the law in the future is not enough
to show likelihood
ii. Plaintiff also failed to allege an established practice by the LAPD; he must allege
either 1) that all LAPD officers always administer the chokehold during traffic
stops, or 2) that the LAPD authorized the use of chokeholds in such situations
 iii. City will correct its own behavior because it won’t want to keep paying damages
iv. Standing for damages doesn’t give standing for equitable relief
E. Floyd (2012): District court case against the NYPD to cease stop-and-frisks; court finds
that plaintiffs have standing because “the possibility of recurring injury ceases to be
speculative when actual repeated incidents are documented” – in short, there is a
sufficient future likelihood under Lyons when there was a high number of past
documented incidents; Some important facts to remember:
i. The main plaintiff had been stopped three times in the past
ii. It’s not like Lyons where they are essentially saying that there is a sufficient
likelihood of injury because they anticipate breaking the law in the future – here,
the prospective injured parties cannot avoid this police conduct by acting lawfully
iii. This is not a Supreme Court case, so it’s not binding precedent
F. 42 U.S.C. § 14141: Gives the AUSA a cause of action against law enforcement for
violating the Fourth Amendment and immediate standing to obtain equitable relief
i. Only really useful for the government – private citizens still have to get over
Lyons
ii. How does it work? AUSA sends threatening letter to police department, who then
agrees to talk things over; Complaint and settlement are filed the same day, so all
the AUSA is really doing is settling with the police department
1. Settlements and consent decrees are final and can’t be appealed
2. They are usually just long lists of how the police department will rectify
its policies
 PART II: FIFTH AMENDMENT

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.”

CHAPTER 8: SELF INCRIMINATION CLAUSE LIMITS ON POLICE INVESTIGATIONS

1. Origins of the Fifth Amendment

A. Materials: Lilburne’s Case (621), Blackstone’s Commentaries on Laws and Customs of England (627),
James Joiner’s Case (627), Virginia Declaration of Rights (630), Massachusetts Constitution (630), United
States Constitution (630), Judiciary Act of 1789 (630)
B. Privilege against self-incrimination originated in seventeenth Century English common
law after years of trial by ordeal and torture by the Star Chamber and various other
“courts”; incorporated into the United States Constitution in the eighteenth century
C. Underlying policies behind the privilege as listed in Murphy v. Waterfront
Commission: 1) Fairness, 2) reliability/accuracy, 3) permissive of First Amendment
political/religious dissent, 4) adversarial proceedings instead of inquisitorial proceedings,
5) privacy; Various other policies: 6) protection of the innocent, 7) accused not subject to
“cruel trilemma” (choose between incrimination, perjury, and contempt of court), 8) less
perjury, 9) deterrence of improper police practices
i. Bentham’s and others have criticized many of these as false reasons (i.e. there
really is no “cruel trilemma” out of court because contempt only applies in court)
1) Avoid the “cruel trilemma of perjury, self-accusation or contempt”
2) Preserve the “adversarial system” where the government “shoulders the
whole load”
3) Prevent torture
4) Protect freedom of religion and freedom of speech
D. Original intent of the Fifth Amendment privilege against self-incrimination was to
abolish inquisitorial and torturous systems, but…
i. It’s interesting to note that the founders still retained interrogation as lawful; that
is, they didn’t completely outlaw tactics to coerce self-incrimination; however,
because the Fifth Amendment has, since its adoption, been interpreted to provide
a privilege against police questioning as well as testimony, this is now a moot
point
E. Cases are largely unimportant – if need be, refer to class notes or text

2. General Fifth Amendment Doctrine: Compulsion, Testimonial Evidence, Incrimination

A. Materials: Barrett v. Acevedo (631), United States v. Ponds (637)
B. At its most fundamental level, the Fifth Amendment privilege against self-incrimination
bars 1) compelled disclosure (compulsion) 2) of testimonial evidence 3) tending to
incriminate the suspect
C. Compulsion (judicial process backed by the contempt sanction)
i. Common Cases:
1. Threat of being held in contempt is the core case (witness told he or she
will go to jail if he or she declines to answer the question)
2. Custodial interrogation without Miranda safeguards (more on this later)
ii. Less Common Cases:
1. Conditioning public employment, contract, or waiver on some answer
 2. Judicial or prosecutorial comment on the failure to testify
3. Prison interview cases
D. Testimonial Evidence (The privilege only protects an accused from the compulsion
of
testimonial or communicative evidence)
i. Any evidence given in response to “cruel trilemma” where perjury is a choice:
- Cruel Trilemma: The Fifth Amendment says that a person cannot be
compelled to make a choice between imprisonment for contempt for
remaining silent, imprisonment for telling the truth and incriminating
himself, and imprisonment for perjury for lying.)
1. Can the suspect give a true or false statement? If so, it is testimonial
2. If the evidence compelled cannot be “true” or “false”, as with physical
evidence, then the evidence is not testimonial
ii. Examples of non-testimonial evidence: (1) production of blood sample
(Schmerber), (2) physical appearance in a lineup (Wade), (3) DNA Swab (King)
(4) slurred character of speech (Muniz)
a. Schmerber: The state did not violate the defendant’s Fifth Amendment
rights by withdrawing a blood sample from the defendant and subjecting
it
to chemical analysis despite the defendant’s refusal.
b. Wade: Forced participation in a line-up does not violate the defendant’s
Fifth Amendment privilege
c. Muniz: Muniz’s slurred speech was physical evidence and was not
protected by the Fifth Amendment (Fact: Police officers arrested Muniz
for
drunk driving. During custodial interrogation the officers failed to give
Muniz Miranda warnings. In response to police questioning, Muniz
exhibited slurred speech, failed a sobriety test, and stated that he did not
know the date of his sixth birthday.)
E. Incrimination
i. Might the evidence demanded possibly tend to incriminate the witness? More
specifically, could the testimony provide a link in a chain of evidence that might
incriminate the witness?
1. Possibility of incrimination is required, not certainty
ii. Case law: When does evidence not incriminate?
1. Hiibel: No incrimination where a statute requires someone to identify
themselves to the police (identity alone generally doesn’t incriminate)
a. But it’s possible that it could where a refusal to identify is based
on a real and appreciable fear of incrimination
2. Immunity – generally, immunized testimony forecloses the possibility of
incrimination, thus taking it outside the scope of the privilege:
a. Hitchcock: [Transactional immunity] Transactional immunity
(immunity from prosecution for any “transaction” described in the
testimony)  If an individual receives transactional immunity, the
Government guarantees that it will not prosecute him for any
transaction described in the testimony.  Compelling testimony
after grant of transactional immunity does not violate 5A
b. Murphy: Transactional immunity given by one sovereign is treated
like use + fruits immunity in the courts of another sovereign
b. Kastigar: [Use and Derivative Use Immunity] “Use-Plus-
Fruits” (a narrower form of immunity) also forecloses
incrimination  A grant of use and derivative use immunity is
 coextensive with the Fifth Amendment privilege, and therefore
that a person who receives such immunity has no right to refuse to
testify.
F. General Doctrine as it Relates to Compelled Production of Documents
- Compelled production of testimonial evidence tending to incriminate, but
there is no incrimination when the government grants ex ante either
transactional or use of fruits immunity. And the privilege is waived by answering
questions without refusing to do so.
- Pre-Existing Documents: Boyd, Fisher, Doe, Hubbell
a. Boyd: A subpoena of an individual’s private books violated the Fifth
Amendment
b. Doe: Contents of records voluntarily prepared by a taxpayer are not
protected by the privilege, since the Government did not compel the
taxpayer to prepare the incriminating records.
c. Fisher v. United States (1976): The contents of documents are not
protected by the Fifth Amendment if they were prepared before a
Government subpoena was ever served. (Rationale: The preparation of the
documents is voluntary and an act completely independent from the
compelled act of producing the documents for use by the Government)
1. Compelled document creation is clearly compulsion
2. Compelled production of pre-existing documents is more
difficult because document creation is voluntary
i. Can production be testimonial?
1. Yes, because it is usually an admission that the documents exist, that the
producing party owns them, and that the documents are authentic
a. However, recall that the privilege can only be invoked if the
testimony is incriminating. Where the mere existence, control, and
authenticity of the documents is not incriminating (which is
usually the case), the government can still compel their
production. This is a great point for argument.
ii. Is existence, control, and authenticity a foregone conclusion?
1. If there is independent evidence that the producing party has the
documents, there is no significant risk of incrimination, so the party can
still be compelled to produce the documents
a. Hubbell [Pro 8.3]: Can the government describe the documents
with reasonable particularity?  There is compulsion because of
existence of evidence
- Fact: While Hubbell was serving time for tax evasion and
mail fraud, the Independent Counsel served him with a
subpoena duces tecum asking for the production of
volumes of documents in eleven broad categories. Hubbell
appeared before the grand jury and invoked his Fifth
Amendment privilege against self-incrimination. After the
prosecutor granted him immunity “to the extent allowed by
law,” Hubbell produced 13,120 pages of documents and
records, the contents of which led to a second prosecution
of Hubbell, this time for mail and wire fraud and various
tax-related crimes. (Held: Hubbell’s act of producing the
documents clearly provided the Government with a lead to
the incriminating evidence that resulted in the second
prosecution.)
 b. Is the government just fishing for evidence or do they actually
know it exists?
iii. United States v. Ponds (2006): AUSA gives use-plus-fruits immunity to attorney
before subpoenaing documents about representing a certain client; they later
prosecute him using some of that evidence. Can they do this? The court says the
AUSA can use any evidence from that production that was a foregone
conclusion.
1. In other words, when the lawyer produced the documents, all of those
documents were outside the privilege because they either 1) weren’t
incriminating merely because they were immunized (i.e. the government
was using immunity to go “fishing”), or 2) weren’t incriminating because
their existence was a foregone conclusion (i.e. the government was not
“fishing”). In subsequent prosecutions, the government can use the latter
but not the former.
v. Reminder: When the government gets documents by executing a search warrant
(as opposed to issuing a subpoena), that is not a Fifth Amendment question
because there is no compulsion.

3. Miranda Doctrine: Basic Principles

A. Materials: Miranda v. Arizona (651)**, Dickerson v. United States (677)
B. Background before Miranda: abusive, torturous police interrogation techniques that
were ultimately ineffective; due process was the main test for interrogations; Chambers
v. Florida (1940) [Due Process Voluntariness Test  Fourteenth Amendment
(statement should be voluntary); violated due process to use this confession  even if
there is no fifth amendment issue, the statement will be inadmissible if there is a
violation of fourteenth amendment] banned police torture, but conditions were still badly
Crooker v. California (1958) adopts a totality-of-the-circumstances test for
compulsion, but this is too difficult to apply, and the defects become apparent (police
had to guess, lower courts had to guess, conflict between state and federal courts on
petitions for habeas corpus); Supreme Court can’t agree on what the test should be for
interrogation; in the early 60’s, alternative approaches to legality of police
investigations start to emerge: 1) Mapp applied the Fourth Amendment to the states (e-
rule to states), 2) Gideon applied the Sixth Amendment to the states (right to counsel to
the states), 3) Malloy applied Fifth Amendment privilege to the states); Escobedo v.
Illinois (1964) causes all sorts of counsel issues; the court sees the need for a bright line
rule, and so compiles four cases in Miranda.
- After Escobedo: Do the police have to warn the suspect about right to counsel?
- Why interrogation is still necessary  Homicide; victim cannot testify against
the defendant (4th Amendment  Possessory Crimes, Drug-related crimes)
- Miranda is Really Four Cases
1) Miranda v. AZ: No warnings given
2) Vignera v. NY: No warnings given
3) Westover v. US: Warnings given after 14 hours in custody and after hours of
unwarned interrogation
4) CA v. Stewart: No clear evidence in the record that S was warned or not warned
C. Miranda v. Arizona (1966)** A confession made during custodial interrogation is
inadmissible unless the suspect receives four “warnings” describing his rights, and then
gives a “knowing, intelligent, and voluntary” waiver of these rights. (Rationale: the
Miranda rules were required in order to safeguard a suspect’s Fifth Amendment right to
remain silent from the inherently coercive pressures of custodial interrogation by police
in the absence of such safeguards.)
i. Fifth Amendment applies to police interrogation
 ii. Custodial interrogation is presumed to compel testimony
iii. The warning of the right to remain silent and the right to counsel dispels the
inherent coercion of the custodial environment; required warnings:
1. “You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to consult with a lawyer and to have a lawyer with you
during questioning.
a. (Note: The difference between the Sixth and the Fifth Amendment
rights to counsel is that the Fifth must be invoked and the Sixth
applies automatically)
4. If you cannot afford attorney, one will be appointed to represent you.”
iv. The suspect can knowingly, intelligently, and voluntarily waive his rights to
counsel and to silence without consulting counsel or appearing in court
D. White’s dissent in Miranda:
i. There should not be a presumption because not all custodial interrogations are
coerced
ii. The logic is anomalous – if this environment is truly coercive, how is it possible
that the accused can make a voluntary waiver of his rights?
E. Dickerson* (2000): The Miranda warnings are constitutional requirements and, thus,
cannot be overturned by federal statute (18 U.S.C. 3501) that requires the totality-of-the-
circumstances test (Justice Renquest)
- Scalia (Dissent): Many previous cases confirmed the non-constitutional status of
Miranda and that the language was central to the holdings in these cases. 
Miranda should be overruled in favor of a totality of the circumstances
voluntariness standards.

4. Miranda Doctrine, First Level: Custody and Interrogation

A. Materials: Howes v Fields (692, 2009)
B. First Level: Does Miranda apply at all?
- Custody + Interrogation = Compulsion
- Compulsion – the warning  No Compulsion
i. It only applies to “custodial interrogation”: 1) custody, and 2) interrogation
ii. Statements during custodial interrogation are presumptively compelled
1. Reminder: Evidence still must fall within the other privilege requirements
C. What counts as “custody”?
i. Fourth Amendment arrest is dispositive of custody
ii. Absent Fourth Amendment arrest, whether there is custody depends on whether
the circumstances objectively suggest that the person is in custody:
1. Does the detention take place in the home (strong presumption of no
detention) or at the stationhouse (strong presumption of custody)?
a. Orozco: Suspect arrested in house in middle of night is in custody
- Fact: A defendant was effectively “in custody,” when he
was awakened at 4:00 a.m. and questioned in his bedroom
by four police officers. One of the officers testified that the
suspect was not free to go, but was “under arrest,” even
though there was no evidence that the defendant was so
informed. The police questioned the defendant as to his
name, his presence earlier that night at a restaurant where a
homicide was committed, whether he owned a gun, and the
location of the gun. The defendant was not given Miranda
warnings. (Held: his statements were held to be
inadmissible, and his murder conviction was reversed.)
 b. Beckwith: Interview at home by IRS agents is not custody
(“interview with a government agent” possessed none of the
“inherently coercive” element of the stationhouse interrogations at
issue in Miranda.)
c. Mathiason and Beheler: [No Automatic Rule of Custody for
Stationhouse Interrogation] Non-arrest questioning at
stationhouse is not custodial
- Beheler: Custody is determined by whether there is a
“formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest”
d. Berkemer: [Custody Does not exist during a normal traffic
stop] Traffic stop questioning is non-custodial (Terry Stop =/=
Arrest)
2. Has the suspect been told that he is or will be placed under arrest?
a. Smith v. State (2009): “We’re going to arrest everybody,” is
tipping point for custody
3. Who is asking the questions? (i.e. IRS in Beckwith versus police in
Orozco)
4. How many police?
5. Were weapons used?
6. Were handcuffs used? (i.e. Smith, where handcuffs weren’t dispositive of
custody)
iii. Prison
1. Mathis: There is no blanket rule that Miranda does not apply to prisoners
a. Held: a person who was interrogated while in jail, serving a
sentence on a charge that was unrelated to the interrogation, was,
under the circumstances presented, in custody for Miranda
purposes.
2. Howes v. Fields (2013): Inmate serving time in county jail is interviewed
by sheriff’s deputies in a conference room for 5-7 about a matter that was
unrelated to the offense of conviction; the court holds that this is not
custody; “Custody is a term of art that specifies the circumstances that are
thought to generally present a danger of coercion”
a. Inmate not under immediate shock of arrest
b. Prisoner told he could go back to his cell at any time
c. Comfortable room, no handcuffs
3. Hypos from class:
a. Custody when asked questions not related to suspect’s
incarceration in environment controlled by officers
b. No custody when questioned about something related to
incarceration having to do with prison safety (i.e. contraband);
would be a different story if they were asking him about
something on the outside related to his incarceration
c. Questioning about a murder in the prison could go either way

D. What counts as interrogation?

i. United States v. Woods (703)
ii. Rhode Island v. Innis (1980)*  In Finals, argue for both sides!
1. Fact: The defendant was arrested for the shotgun murder of a cab driver
at 4:30 a.m., and placed in custody in a police car for the drive to the
station. One of the officers said to another, within the defendant’s hearing,
“there’s a lot of handicapped children running around in this area
 [because of a nearby school], and God forbid one of them might find a
weapon with shells and might hurt themselves.” The other officer said
they should continue to search for the weapon. At this point, the defendant
interrupted them, and offered to show them where the shotgun was, near
the scene of the arrest.
2. Rule: Interrogation is “express questioning or its functional
equivalent”: should police have known that their words or actions were
“reasonably likely to elicit an incriminating response from an average
suspect.”
3. Holding: The Court found that the defendant’s statements concerning the
shotgun were properly admitted, as they were not the product of any
interrogation by the officers – the statements by the officers concerning
the gun were not “interrogation” within the meaning of Miranda.
E. Exceptions: When is there no presumption of compulsion, despite custody and
interrogation?
i. Jailhouse Snitches
1. Illinois v. Perkins: Suspect, an inmate, is in custody and being
interrogated, but custody and interrogation are just proxies for coercion
and this is not the type of coercion that Miranda contemplates  But
Sixth Amendment can play (“indictment”)
ii. Public Safety
1. New York v. Quarles: Police tackle suspect, handcuff him knowing he has
a gun, and ask him, “Where is the gun?”; there is custodial interrogation,
but there is a legitimate public safety reason here and there is no
prolonged questioning in a police dominated atmosphere

5. Miranda Doctrine, Second Level: Waiver, Invocation, Counsel, Silence, and Initiation
 It’s not enough for suspect the invoke, the government has to waive before the
interrogation
A. Materials: Berghuis v. Thompkins (710), United States v. Hutchins (731)
B. Presumption of Compulsion Rebutted by Showing of Adequate Warning
i. Second level analysis begins after the government rebuts the presumption
compulsion by showing that it gave adequate Miranda warnings before custodial
interrogation. Generally, warning defects are rare.
ii. Thompkins: The fact that Thompkins made a statement that three hours after
receiving a Miranda warning does not overcome the fact that he engaged in a
course of conduct indicating waiver.  Waiver should be voluntary
ii. How do we know the warnings were adequate?
1. California v. Prysock (1981): Warnings are found to be adequate, despite
the fact that they were not given in Miranda’s exact required language and
did not expressly (but did implicitly) state that S had a right to counsel
both before and during questioning
2. Duckworth v. Eagan (1989): “We have no way of giving you an attorney,
but one will be appointed for you, if you wish, if and when you go to
court,” found to be an adequate warning
iii. Warning defects are very rare
C. Waiver – “Voluntarily, Knowingly, and Intelligently”
i. If the state wants to introduce statements made during properly Mirandized
custodial interrogation, it must satisfy the “heavy burden” of showing that
the suspect “voluntarily, knowingly, and intelligently” waived their rights to
counsel and silence; waiver can be express or implied (North Carolina v. Butler)
 - Butler: Defendant’s waiver of Miranda rights was invalid because he did
not explicitly state that he waived his right to assistance of counsel. (Fact:
The defendant received written warnings, and was asked to sign a waiver
form. He replied, “I will talk to you but I am not signing any form.” He
then made incriminating statements, and was convicted of kidnapping,
armed robbery, and assault.)  An express written or oral waiver of his
right to counsel was not an absolute requirement for a valid waiver, and
remanded the case to the state court for resolution of the waiver issue.
1. Express Waiver: the suspect waives his rights by expressly agreeing to
speak with police; he can do this verbally or in writing
2. Implied Waiver: the suspect’s actions and words suggest a waiver
a. Berghuis: The state still has to show that the suspect understood
the rights contained in the warnings before he waived
b. Silence after Miranda cannot be construed as a waiver
ii. Even if the suspect waives, the officers are still subject to the Due Process, TOC
voluntariness test (they cannot coerce a confession out of him)
iii. Even if the suspect waives, he can withdraw the waiver and invoke the right to
silence or counsel at any time
D. Invocation (Where the suspect receives warnings, decides to invoke his right to silence
or to counsel, and then changes his mind and decides to speak to the police.)  should
be Clear & Unequivocal
** Davis v. US  Invocation must be express
** Suspect cannot invoke before the warnings (Good exam question!!!!)
i. Of the right to remain silent (Silence) – Consequence of Invocation
1. Berghuis (2010): A suspect must clearly and unambiguously invoke his
right to remain silent; there is no implied invocation of the right to remain
silent; but waiver can be implied; In the case, the suspect remained silent
for 2 hours and 45 minutes without invoking or waiving, and then made
incriminating statements in response to questions about god
 The standard applies to invocations of silence as well as counsel
- Davis (1994): [The Right to Silence Must Be Clearly Invoked]
Police have no duty to clarify ambiguous or equivocal references
to counsel. (“I probably shouldn’t tell you anything, my brother
will be mad.”  The right must be clearly and unambiguously
invoked.)
2. Miranda: Once a suspect clearly invokes the right to remain silent, the
police officers conducting the questioning must “scrupulously honor” that
right; but this does not mean that any resumption of interrogation is a
violation by the police
a. On his own, the suspect can reinitiate interrogation
b. Michigan v. Mosley (1975): Interrogation can resume after an
invocation of silence if there is a significant change in the
circumstances; In the case, after suspect unequivocally invokes his
right to remain silent, police lock him up on the 9th floor of the
building; at 6 PM that night, he is taken to the 5th floor, where he
is given fresh Miranda (which he waives), and talks with a
homicide detective about a homicide robbery thought to be related
to his case; Supreme Court holds that this is a significant enough
change in circumstance that the questioning was okay, even post-
invocation
- Held: “Interrogation after a momentary cessation” would
be impermissible.
 - RTS: [Cops] Different cops, different time elapse /
[Suspect]
- RTC: [Cops] 14 days / [Suspect]
ii. Of the right to counsel (Consequences of Invocation)
1. Invocation of right to counsel obviously has to be express – there’s no
situation in which police should imply that a suspect wants counsel
present
2. Edwards v. Arizona (1981): [Waiver after the invocation of the right to
counsel] Once a suspect invokes the right to counsel, the police must fully
honor that invocation and interrogation can resume only if the suspect
reinitiates negotiation (Fact: The defendant had invoked his right to
counsel by saying, “I want an attorney before making a deal.” The police
ceased interrogation, and then returned in the morning to renew
interrogation. The police gave the defendant new Miranda warnings, told
him they wanted to talk to him, and ultimately obtained a confession. 
Held: the waiver was invalid because of the police-initiated re-
interrogation, and his confession was inadmissible.)
a. Distinction with Mosley: With an invocation of the right to remain
silent only, police can reinitiate contact, and ask the suspect if he
has changed his mind; but when there has been an invocation of
the right to counsel, police cannot talk to the suspect again unless
the suspect reinitiates, and statements thereafter can’t be used
unless he gets cleansing Miranda and waives
b. Exception to Edwards Rule: (1) Release from Custody
(Maryland v. Shatzer (2010)) [S is a prisoner serving time for
child molestation / Police asked S to talk about his relationship
with his son; S refused and invoked counsel / Three years later,
police again approached and S waived, admitting abuse of his son.
(Held: After two weeks break in custody, the Edwards bar lifts).]
3. Arizona v. Roberson (1988): [Interrogating on Unrelated Crimes After
a Suspect Invokes His Right to Counsel] An invocation of the right to
counsel is not offense specific – when someone invokes counsel, this does
not mean that police can then interrogate about any other unrelated
offense. (Fact: When the police offcer sought to interrogate Roberson had
invoked his right to counsel three days earlier during his arrest for an
unrelated burglary. Roberson was given new warnings, voluntarily waived
his rights and confessed to the unrelated burglary. But he had not initiated
the interrogation.  Held: The defendant’s statements made during the
second interrogation was inadmissible in the absence of initiation by the
suspect.)
a. Contrast with Mosley (above) where police question about a
related crime even after an invocation of the right to silence
iii. What if a second team of police does not know that a suspect has invoked?
1. It does not matter; the police must do their due diligence
iv. Initiation (Exception to Edwards Rule (2))
1. Initiation after an invocation of the right to counsel essentially starts the
process all over again – it allows the police to talk with the suspect again
and use any statements he makes after he gets cleansing Miranda and
waives, but what is initiation and what isn’t?
2. Hutchins (2013): Military officer locked up in solitary after invoking his
right to counsel; seven days later, an officer approaches him asks for
consent to search something; while Hutchins is signing the form, he asks
 if he will get to tell NCIS his story; next morning, he gets cleansing
warnings and waives; Court finds for prosecution: the officer was not the
one who reinitiated because he was making “an inquiry about the routine
incident’s of Hutchins’ custody” as opposed to posing ongoing
investigation questions
3. Oregon v. Bradshaw (1983) [When Does the Suspect “Initiate” Re-
Interrogation? – Suspect’s Desire for Generalized Discussion About
the Crime] – Fact: The defendant invoked the right to counsel, and then
in the course of being transported from the police station to the jail, asked
an officer: “Well, what is going to happen to me now?”
a. But things like requests for water or requests to use a phone are
not re-initiation. The suspect must talk with police about the
investigation.
b. Held (Plurality): Bradshaw’s statement to the officer constituted
initiation, and therefore made it possible for the officer to discuss
the investigation, and later obtain a valid waiver when the
defendant received fresh warnings and made incriminating
statements.
4. What facts suggest that Hutchins initiated under Bradshaw?
- No interrogation (“What happens to me now?), subsequent waiver
after cleansing warning, Did not talk for seven days

6. The Miranda Exclusionary Rule

A. Materials: United States v. Nichols (750, 2006)
B. Remedies for Miranda Violations
i. Chavez v. Martinez (2003): No damages action for Miranda violations alone
- Issue: Does 1983 authorize recovery of damages for questioning in
violation of Miranda?
- Thomas: No violation of 5A until statements used at tril. E-rule for
coerced statements is equivalent to formal immunity
- Souter: Miranda violations not “core” 5A violations, and prudential
factors weight against a damages remedy for Miranda violations
ii. Exclusionary rule really is the only remedy
C. Exclusionary rule for Miranda violations is much more limited than for Fourth
Amendment violations
i. Generally: When there is a Miranda violation, the statements made thereafter are
usually excluded, but the derivative evidence from that violation is not excluded
1. Patane (2004): When statements tainted by Miranda violations leads to
discovery of physical evidence, that evidence is usually not excluded
- Agents arrested Patane for violating restraining order, having
information that Patane was a felon in possession of a firearm.
- [Good exam] Valid waiver?  Lower court: not valid waiver
- Plurality (Thomas, Rehnquiest, Scalia); No 5A violation until a
statement is used at trial, The Miranda e-rule is a complete remedy
for mere Miranda violations / Ergo the physical fruits, even though
the object of the illegal interrogation, are admissible.
- Concurrence (Kennedy & O’Conner):
a. Missouri v. Seibert (2004): When police officers deliberately
question without giving warnings, get a confession, and then give
warnings and ask the suspect to give the confession again, the
second confession is excluded, even though it is derivative of the
first non-Mirandized confession; in such cases, the court should
 consider: 1) the completeness and detail of the questions during
the first interrogation, 2) whether the content of the two statements
overlaps, 3) the timing and setting of the first and second
interrogations, 4) continuity of police personnel, 5) degree to
which questions during second round are treated as part of the first
 Plurality’s Five factors in Seibert (cf. Concurrence
[Breyer & Kennedy] It is all about good faith)
ii. Miranda violation confessions can be used for impeachment purposes
1. Harris v. New York, and Hass
a. Harris – Fact: The defendant testified that he sold backing powder,
not heroin, to an undercover agent. In his post-arrest statement to
the police, he claimed to have acted for the agent in buying heroin
from others; this statement was obtained without Miranda
warning, and the prosecution made no attempt to introduce it in its
own case. However, the prosecution did introduce these statements
on cross-examination of the defendant, in order to show that his
trial testimony was inconsistent with his previous statement.
(Held: The Miranda-defective statements could be used to
impeach the defendant, where the jury was instructed that the post-
arrest statements could be considered in judging the defendant’s
“credibility,” but not as evidence of guilt.)
b. Hass: The court held that the Harris rule applied to statements
obtained where a police officer violated Miranda by interrogating
a defendant after he received warnings and invoked the right to
counsel.
2. Except where police coerce the statement in violation of due process
iii. Miranda rights are personal
1. One suspect does not have standing to exclude the confession of another
because the confession was obtained by way of Miranda violation
2. They do, however, have a Sixth Amendment right to confront that person

PART III: SIXTH AMENDMENT

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence.”

CHAPTER 9: THE SIXTH AMENDMENT COUNSEL CLAUSE AS A LIMIT ON POLICE INVESTIGATIONS

** Pretrial RTC Doctrine  Attachment, Critical Stage, Waiver, 6A e-Rule

- 6A Pretrial RTC
(1) Has the 6A RTC attached?
(2) Did the police obtain evidence at a critical stage of the prosecution when
 (3) Defense counsel was absent or ineffective;
(4) And the police did not obtain a knowing and intelligent waiver
(5) The evidence so obtained

1. Origin and Evolution of the Sixth Amendment Counsel Clause

A. Materials: Blackstone’s Commentaries (759), Massachusetts Constitution (759), U.S. Constitution (759),
Judiciary Act of 1789 (760), United States v. Bollman (761), Gideon v. Wainwright (762)**, Escobedo v.
Illinois (765), Kirby v. Illinois (772)
B. Origins of the right to counsel: English common law prevented felony defendants from
having counsel at trial, but in practice, the rule was widely ignored; also, the Treason Act
allowed treason defendants to have counsel at trial; Founders did not want the English
common law rule to show up in American law, so they wrote in the Sixth Amendment
C. What does the right encompass?
i. Criminal defendants have the right to counsel of their choosing in any kind of
criminal case if they can afford it
ii. If criminal defendant cannot afford counsel, he or she has the right to appointed
counsel in: (Appointing counsel for the indigent – First Federal Criminal Code,
1790)
1. Johnson v. Zerbst (1938): All federal cases
2. Betts v. Brady (1942): 6A does not apply to Maryland, Due Process
protects fundamental rights
3. Gideon v. Wainwright (1963)**: All state felony cases (The 14A
incorporates the 6A counsel clause)
- Question after Gideon: (1) What about misdemeanors? / (2)
What about Pretrial lineups and interrogation? / (3) How good
must the representation be?
4. (1) (Misdemeanor) Some non-felony state cases  no lawyer, no time
a. Scott v. Illinois (1979): Cases where the defendant gets jail time as
a punishment (in the negative, not in cases where jail time is not
an authorized punishment or where the defendant doesn’t get jail)
 Due Process requires appointing misdemeanor counsel only if
D is in fact sentenced to any period of incarceration
b. Nichols v. United States (1994): When a federal felony conviction
includes a state misdemeanor conviction that enhances potential
sentences under a state recidivism statute (“If you get caught, you
will go to jail for this much longer”) – Uncounseled misdemeanor
conviction can enhance under a recidivism statute
c. Alabama v. Shelton (2002): When the defendant gets probation
after a jail sentence is handed down and immediately suspended –
A suspended or probationary sentence of incarceration for an
uncounseled misdemeanor conviction is void
5. (2) (Pretrial Right to Counsel)
a. [Critical Stage] Massiah v. USA (1964): S was arrested, indicted,
retained counsel, pleaded not guilty, was out on bail when
questioned y an undercover agent. Held: Post-indictment
interrogation represented defendant violated the 6A.  Sixth
Amendment has been held to prohibit the government from
deliberately eliciting incriminating information from a formally
charged defendant in the absence of counsel.
b. Escobedo v. Illinois (1964): Right to counsel attaches when S
becomes the “focus” of the investigation
 c. USA v. Wade (1967): 6A requires assistance or waiver of counsel
at post-indictment corporeal lineup
d. [Critical Stage] Kirby v. Illinois (1972): 6A attaches with the
commencement of formal proceedings
7. (3) (Indigent Defense): Ad hoc appointments, Lump-sum contracts (fixed
contractual price), Full-time public defender offices
- Two types of Conflict of Interest (a) Vertical Conflict: Defender
cannot antagonize the appointing authorities (b)
6. Douglas v. California (1963): For the first appeal of right [to appoint
counsel] under local law (Issue - whether D has right to bring the case to
the appellate level)
a. Ross v. Moffitt (1974): But not for petitions for discretionary
review by state court
iii. The Sixth Amendment right to counsel attaches once the adversarial proceedings
begin and must be recognized during all “critical stages”
iv. Criminal defendants also have the right to effective assistance of counsel (IAC:
Ineffective Assistance of Counsel)
1. (Two-part test for IAC Claim) Strickland v. Washington (1984): To
succeed on an IAC claim, a defendant must show 1) Counsel’s
performance fell outside the range of professional judgment [malpractice,
negligence], and 2) But for counsel’s unprofessional errors, the outcome
might have been more favorable for the defense, if he wins on IAC claim
 he gets a new trial
- IAC Doctrine  applies every stage of case until the first
appeal (a. Counsel’s competence is presumed, b. “Tactical
choices” will not be second-guessed, c. Prejudice can be rule don
without ruling on competence, d. IAC can be raised to challenge
not just trial outcomes but also [1] Sentencing outcomes
(Strickland) [2] Plea bargaining Advice (Lafler v. Cooper / Padilla
v. Kentucky: deportation))
- Strickland’s limitation ((1) Relief is functionally unavailable for
the majority of defendants who do not contest guilt through the
collateral attack stage / (2) The test requires D to prove prejudice
based on a record prepared by allegedly ineffective counsel / (3)
The test does not help, and is in fact perverse, with respect to
caseload pressures)
- Solution for the indigent? (1) Substituting investigators and
paralegals for attorneys (2) Making more effective use of
information technology (3) “Holistic Defense”: treat the clients not
the case
- Triage Orders (An indigent defendant who does not waive and is
not appointed counsel [a] Cannot be convicted of a felony per
Gideon [b] Cannot be sentenced to any jail time per Shelton)

2. Attachment
- Adjudication distinct from investigation
- Hallmarks of commencement of formal proceedings: Courtroom proceedings / Where P
is
represented by counsel
- But the hallmarks are not necessary to attachment
A. Materials: Rothegerie v. Gillespie County (779)
 B. A criminal defendant has an automatic right to counsel during a “criminal prosecution”
(not any more ‘suspect’  became ‘defendant’)
i. The right attaches once adversarial judicial proceedings begin, and
ii. It must be recognized during all critical stages of the proceedings thereafter
iii. (In other words, a “criminal prosecution” is any critical stage after adversarial
judicial proceedings have begun in any of the cases mentioned above)
C. When does attachment occur?
i. As soon as adversarial judicial proceedings begin
1. Rothergerie (2008): At the initial appearance before a magistrate judge
where the defendant learns of the charges against him and his liberty is
subject to restriction (“indictment”); there is no need for a prosecutor to
be present or involved in the process, Held: The 6A right attaches at the
initial PC hearing if a complaint is filed identifying specific charge(s) 
At any subsequent critical stage, D has the right to the presence and
effective assistance of counsel
- R says his RTC attached right after the arrest, and the county says
the RTC attached with the filing of a indictment
- No prosecutor knew about the hearing
2. Kirby v. Illinois (1972): Attachment occurs at the commencement of
formal proceedings  only applies to post-indictment
3. Brewer v. Williams (1977): Pre-indictment arraignment in court on a
warrant after consultation with counsel triggered attachment  the Sixth
Amendment right to counsel attached at the initiation of the “judicial
proceedings” at arraignment, and was not “intentionally relinquished” by
the defendant before the police “deliberately elicited” statements from
him in violation of Massiah.  The Sixth Amendment prohibits police
from deliberately eliciting incriminating information in the absence of
counsel, when a suspect has been formally charged.

** Specific Instances of Attachment

- Indictment: An indictment formally charges a person with a criminal
offense.  The indictment enables a government prosecution of a suspected
criminal actor for the offenses charged in the indictment. (Massiah; Wade)
- Arraignment: The first step in criminal proceeding where the defendant is
brought in front of the court to hear the charges and enter a plea. (Brewer v.
Williams)
- Preliminary hearing: A criminal procedure that is adversarial.  It is
conducted (often by a magistrate) to determine if the prosecution has enough
evidence to continue the prosecution. Witnesses present evidence for the
prosecution and the defendant may also present witnesses. Both sides are
allowed to question, or cross-examine, the witnesses of the opposing side.
The court may dismiss the charges after the hearing if not supported by
probable cause.jurisdiction that has information procedure (defendant can
challenge the probable cause) (Coleman)
- Court hearing to determine PC and conditions of pretrial release or
confinement (Rothgerry)
- In CA, filing of the initial complaint (Viray)

3. Critical Stages  Trial, Court proceedings

- When pretrial proceedings are integral to the trial process as with pretrial motions to
admit or exclude, preliminary hearings where testimony that might be used at trial is
taken, jury selection etc.
 - When pretrial proceedings obtain evidence analogous to trial testimony, e.g.,
interrogation, “elicitation,” lineups, showups
A. Materials: Alexander v. Smith (800), United States v. Kon Yu-Leung (804)
B. Once an adversarial judicial proceeding has begun, the right to counsel must be
recognized during all “critical stages” of the case; what is a critical stage?
- Alexander v. Smith:
- [Consent to Search] US v. Kon Yu-Leung (Rutulo): RTC attached, Not consent
to search a critical stage,
i. Any trial-like event or confrontation where the accused faces a prosecutor or the
procedural system and where there is an inherent potential for prejudice to the
defendant’s rights without the presence of counsel (where prosecution would
“reduced to a mere formality” without the presence of counsel)
1. Coleman v. Alabama (1970): a preliminary hearing is a critical stage 
At arraignment or preliminary hearing, even when this is the proceeding
that triggers attachment
2. United States v. Wade (1967): a post-indictment lineup is a critical stage
 During post-attachment corporeal identifications
3. Guilty plea negotiations and sentencing hearings are also critical stages
ii. Post-attachment “deliberate elicitation” of incriminating evidence as critical
stages
1. Brewer (1977): Christian burial speech case; right to counsel attached at a
pre-indictment arraignment in court; looking to Massiah, the Supreme
Court holds that after the right to counsel has attached, the state cannot
deliberately elicit incriminating information from the charged party when
they know he is represented by counsel and that he hasn’t waived that
right
2. Massiah (1964): Similar to the case above, only that a co-conspirator
informant was the one doing the eliciting; the court holds that post-
indictment deliberate elicitation of incriminating information from a
represented party violates the Sixth Amendment
a. Note: “Deliberate elicitation” under Massiah is much broader than
“interrogation” under Innis.
b. Note: “Deliberate elicitation” does not include things like planting
microphones, etc. because the state is not eliciting anything; but
see Maine v. Moulton, where asking a co-defendant to wear a wire
was deliberate elicitation because the wire-wearer was obtaining
information
** [Examples of ‘Critical Stage’] After attachment, when does D have the right
to the presence and effective assistance of counsel?
 (1) At trial itself, (2) Preparation for trial (Powell) (3) At arraignment or
preliminary hearing even when this is the proceeding that triggers
attachment (Coleman; Brewer), (4) At court proceeding on post-
attachment pretrial motions, (5) During police interrogation whether
custodial (Patterson) (6) During “deliberate elicitation” by undercover
agents (Massiah), (7) During post-attachment corporeal identifications
(Wade)
C. What is not a critical stage?
i. United States v. Ash (1973): Post-indictment photographic identifications
ii. Rutollo: Post attachment consent to search
ii. Gilbert v. California (1967): Handwriting exemplar procedures
iii. Gagnon v. Scarpelli (1973): Probation revocation proceedings
 iv. Kirby: Pre-attachment corporeal lineups (right to counsel during physical
confrontation)
v. Grand jury proceedings
vi. Post attachment interviews with third part witnesses
vii. Forensic tests, e.g., DNA testing

4. Waiver
- Trial Standard is different than the pretrial standard
- But when the trial standard takes over is not clear
A. Materials: Montejo v. Louisiana (813)
B. Brewer: A confession after a warning of Sixth Amendment rights is not a waiver of the
right to counsel; ruling leaves open what the standard is for waiver under the Sixth
Amendment
C. Montejo (2009): A defendant who has been appointed counsel (but not explicitly stated
that he wants counsel nor met with his appointed counsel) can voluntarily waive his
Sixth Amendment right to counsel if police initiate contact with him, read him fresh
Miranda, and he gives a valid waiver of Miranda
i. Contrast with Edwards: After a suspect has invoked his Fifth Amendment right to
counsel, he does not waive that right unless he initiates contact with police
1. Whether police initiation is allowed depends on whether the right to
counsel has been invoked under the Fifth Amendment or merely attached
under the Sixth Amendment: if Fifth Amendment, police may never
initiate, but if Sixth Amendment, police can initiate with post-attachment
contact, and waiver can be obtained after defendant receives fresh
Miranda
ii. Note, however, that, if a defendant requests counsel at trial, police can never
approach him and reinitiate contact (see Brewer and Massiah above) – police can
only obtain a post-attachment waiver if the defendant hasn’t formally requested
counsel at trial
D. Patterson (1988): [The Miranda Warnings Adequately Inform an Indicted
Defendant of the Sixth Amendment Right to Counsel] A valid Miranda waiver of
right to counsel operates as a valid waiver of the Sixth Amendment right to counsel also
- S waived Miranda after arrest and before indictment; S was told he was under
indictment; S received a good Miranda warning after indictment and made a valid
waiver; S made no court appearance before waiving the 6A; Held: Miranda
waiver is enough (No extra warnings are required to establish a knowing and
voluntary wavier of Sixth Amendment rights.)
E. Waiver cannot happen in the undercover context – the defendant must know he is
speaking to a government agent

5. The Sixth Amendment Exclusionary Rule

- Similar to 4A E-Rule: Standing, Attenuation (Inevitable discovery, Independent Source
Impeachment)
- Different with 4A E-Rule: you can exclude evidence pertinent you right to counsel;
charged with robbery not a murder, admission is not admissible in robbery but
admissible in a subsequent murder case
A. Materials: Kansas v. Ventris (835), United States v. Coker (841, 2005), State v. Hunton (853, 2004)
B. Impeachment
i. Ventris (2009): Evidence taken in violation of the Sixth Amendment can still be
used to impeach because the violation is most similar to a Fourth Amendment
violation
- (Immunized testimony? No (Portash), Miranda violation? Yes (Harris &
 Hass), 4A violation? Yes (Havens),  Is a 6A violation more like
immunized testimony or more like a 4A or Miranda violation?  More
like 4A or Miranda Violation)
C. Sixth Amendment Exclusionary Rule is Offense-Specific (Coker)
i. Texas v. Cobb (2001): The Sixth Amendment right to counsel must be
recognized for the charged offense and all others that would be the “same
offense” under the Blockburger double jeopardy test:
1. If one of the offenses is just a lesser form of the other, then they are the
same; i.e. possession and possession with intent to distribute (in the
negative, both of the offenses must contain an element that the other does
not)
2. Cobb – Fact: S is under investigation for a burglary that was followed by
the disappearance the residents. S is arrested, waives Miranda, and admits
the burglary but denies any knowledge of the disappearance. S is charged
with the burglary and retains counsel. S’s dad tell
3. Coker:
ii. What does this mean? The Sixth Amendment exclusionary rule does not apply in
cases for offenses that are not the same (i.e., illegally obtained statements might
be suppressed in a burglary case, but not a subsequent rape case)
iii. 924(c)  see Powerpoint!
D. Identification Risks (leading cause of false convictions)  see powerpoint!
i. RTC and Identifications – only applies to Post-Attachment lineups and showups /
Not to pre-attachment lineups and showups / Or to photo arrays at any stage
E. Independent Source (Hunton)  see powerpoint!
i. Hunton: The trial court suppressed evidence of a pretrial post-attachment lineup.
But permitted the witnesses to id D at the trial. What factors bear on whether the
in-court id is independent?
F. Exclusionary Rule Reaches Derivative Evidence
i. Brewer: Sixth Amendment violation led directly to the discovery of the victim’s
body, which was excludable as evidence derivative of the violation
1. Contrast with Miranda: violations don’t necessarily lead to exclusion of
derivative evidence
ii. But there is an inevitable discovery exception for derivative evidence
1. Nix v. Williams: Derivative evidence is not excluded if prosecution can
establish on a preponderance of the evidence that it would have inevitably
discovered the evidence independent of the violation
 PART IV: FIFTH AMENDMENT DUE PROCESS

CHAPTER 10: DUE PROCESS AS A LIMIT ON POLICE INVESTIGATIONS

Free-Standing Due Process

 “Voluntariness” of confessions tested by TOTC



1. Origins of the Fifth Amendment Due Process Clause

A. Materials: Commentary on the Magna Charta (856), Institute on the Magna Charta (856), Virginia
Declaration of Rights (857), Ratification of the Constitution by New York (857), U.S. Constitution
Amendment V (857)
B. Idea of due process adopted from the Magna Charta and other similar declarations of
rights fundamental fairness is required when the government acts in a judicial capacity
C. Types of Due Process
i. Due Process as a Legality: government cannot order extrajudicial punishment
ii. Procedural Due Process: a judicial process must, itself, be fair (i.e. cannot use
coerced confessions)  punishment must be justified by preexisting law
iii. Substantive Due Process: a law must be facially fair – cannot punish involuntary
acts, etc.

2. Due Process as Fundamental Fairness

A. Materials: Brown v. Mississippi (857), Crooker v. California (862)
B. Before punishment can be handed down, due process under the Fifth Amendment
generally requires that there be a duly enacted law, that the accused violated that law,
that charges are filed, that there is a fair trial and a subsequent conviction
C. Moore v. Dempsey (1923): A mob-dominated show trial is not a trial at all, conviction is
vacated
D. Powell v. Alabama (1932): Trial for a capital crime without appointing counsel is a due
process violation and appointing counsel on the morning of trial is constructive denial of
counsel
E. Brown v. Mississippi (1936): Conviction solely based on the coerced confessions of the
defendant is vacated because it violates due process; consistent with due process, the
court must exclude all confessions that are clearly coerced
1. Fact: Black suspect, White Juries
F. Mooney v. Hallohan (1935): Introduction by prosecution of testimony known to be
perjured violates due process

3. Due Process as “Incorporation”

A. Materials: Adamson v. California (870)
B.

4. Due Process after Incorporation

A. Materials: Dye v. Commonwealth of Kentucky (887), United States v. Sanders (897), United States v.
Delgado (905)
B. Free-standing Due Process I: Coerced Confessions
i. Coerced confessions are excluded as a violation of due process
1. Determining whether a confession is coerced
a. Prior to Dye the Supreme Court looked at the TOC
 b. Dye (2013): Reads the TOC test to focus on three factors: 1)
whether the police activity was objectively coercive, 2) whether
the suspect’s will was overborne, and 3) whether the police
activity was a crucial motivating factor behind the confession
2. Mincey v. Arizona: Coerced confessions cannot even be used to impeach
3. Derivative evidence is always suppressed (but there is no case law on
point)
C. Free-standing Due Process II: Unreliable Identifications
i. Neil v. Biggers (1972): Violation of due process when prosecution wants to
introduce the results of an identification process that:
1. Is unnecessarily suggestive (i.e. possibly showing the accused singly
rather than in a lineup)
2. Carries a substantial risk of irreparable misidentification:
a. Delgado: Factors to consider include 1) the opportunity of the
witness to view the criminal at the crime scene, 2) the witness’s
degree of attention, 3) the accuracy of the witness’s prior
description, 4) the level of certainty demonstrated by the witness
at confrontation, and 5) the length of time between the crime and
the confrontation
ii. This whole process doesn’t preclude an independent source, in-court
identification

 Due Process violation test: Totality of the circumstances

 Typically there are 2 instances where free standing due process applies:
o Coercive confession
 Start with a Miranda violation, then proceed to due process
 If it violates Miranda, this is a factor for TOTC, but not dispositive
 Note that if Due Process is violated, you CANNOT use the coerced
confession to impeach D at trial (you can with Miranda)
o Pre-trial Identification
 Due process violation if confrontation was so unnecessarily suggestive and
conducive to irreparable mistaken identification as to deny a suspect due
process of law
 Use the Stovall test
 TOTC
 Exigent circumstances (i.e. victim is in the hospital and might die so
suspect needs to be ID’d) can mitigate some unfairness
 Simmons Requirements
o Very substantial likelihood of irreparable misidentification2
 SUPREME COURT CASE SUMMARIZED

I. Pre-Warren Court Cases

• Gouled v. U.S., (SCOTUS 1921) (undercover agent on suspect’s premises rifling of desk drawer while suspect was
in the other room was a search requiring probable cause and a warrant)
• Agenllo v. U.S., SCOTUS 1925 (search victim may suppress from evidence even contraband that will not be
returned; but only search victim can invoke the e-rule)
• Ex Parte Jackson (SCOTUS 1878) (opening letter posted in the mails is a search requiring a warrant)
• Wolf v. Colorado (SCOTUS 1949) (substance of Fourth Amendment applies to state, but states need not adopt the
e-rule rather than other remedies)
• Rochin v. California (SCOTUS 1952) (the infamous stomach-pumping case, holding that shocking violations of the
Fourth Amendment require exclusion even in the states as a matter of due process)
II. Terry Cases
• Sibron v. New York (SCOTUS 1968) (companion case to Terry; holding that fact that suspect was known narcotics
addict, without more, did not justify detaining suspect and reaching into this pockets to search for drugs)
• Peters v. New York (SCOTUS 1968) (companion case to Terry; holding that where officer had PC to believe S has
committed a crime and arrests S, a full search of the person, without warrant, is justified incident to the arrest)
• United States v. Mendenhall (SCOTUS 1980) (Stewart, J. concurring gives standard later adopted by the Supreme
Court in long line of cases: “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in
view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.”)
• Florida v. Bostick (SCOTUS 1991) (passenger on interstate bus, confronted on layover by two officers who asked
consent to search luggage, was not “seized” under Mendenhall standard for “seizure” under Terry
• United States v. Sokolow (SCOTUS 1989) (test of RS is TOTC; fact that agents stopped S because S fit “drug
courier profile” did not to, or detract from, specific facts of case)
• Florida v. J.L. (SCOTUS 2000) (anonymous tip corroborated only by publicly visible innocent details does not by
itself establish RS)
• Adams v. Williams (SCOTUS 1972) (conclusory tip from a confidential but known informant that S had a gun,
together with presence in high crime area at 2:15AM, established RS)
• Ybarra v. Illinois (SCOTUS 1979) (mere presence of customer at public establishment when police arrive to
execute a search warrant for the premises does not establish RS to detain or frisk)
III. Arrest Cases
• Atwater v. City of Lago Vista (SCOTUS 2000) Warrantless arrest for misdemeanor consistent with 4A even without
“breach of the peace”
• Warden v. Hayden (1967) (officers in hot pursuit of suspect may follow suspect into private premises without a
warrant)
• Warden v. Hayden (1967) (officers in hot pursuit of suspect may follow suspect into private premises without a
warrant)
• United States v. Santana (1976) (where agents with PC to arrest but no warrant see S standing on the threshold of
her open door looking out, S is in public and subject to arrest without warrant; when S retreats into house and
agents follow before door is closed, warrantless entry is subject to hot pursuit exception)
• Warden v. Hayden (1967) (officers in hot pursuit of suspect may follow suspect into private premises without a
warrant)
 • Steagald v. United States (1981) (when agents with a warrant to arrest Lyons entered Steagald’s home to look for
Lyons, and found illegal drugs, arrest warrant for Lyons, who did not live with Steagald, did not authorize entry of
Steagald’s home; search warrant required to search for target of arrest in third-party premises)
• Minnesota v. Olson (1990)(cited in Johnson at 183) (approving lower court’s standard: “a warrantless intrusion may
be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect's
escape, or the risk of danger to the police or to other persons inside or outside the dwelling.”)
• Robinson v. United States and Gustafson Florida (1973) (incident to lawful arrest, police may conduct a thorough
search of the person, including pockets, containers, and personal items)
• United States v. Edwards (1974) (suspect arrested and held in jail may be searched incident to arrest ten hours later
at the jail)
• United States v. Chadwick (1977) (search of luggage and other effects not immediately associated with the person,
at a place (headquarters) and a time (90 minutes) remote from the scene of arrest, cannot be justified as a search
incident to arrest)
• Chimel v. California (1973) (when suspect is arrested at home, police may search all areas within the suspect’s
grabbing reach incident to the arrest)
• Arizona v. Gant (2009) (when suspect is arrested while traveling in a vehicle, police may search the vehicle for
weapons while the suspect is not secured; once secured, police may search the car if there is a reasonable basis for
believing that evidence of the offense of arrest may be found)
IV. Search-for-Evidence Cases
• Smith v. Maryland (SCOTUS 1979) (discussed in the Kyllo dissent at 279): (No REP in telephonic envelope
information)
• Miller v. USA (SCOTUS 1979) (discussed in Sotomayor’s concurrence in Jones at 292(no REP in bank records held
by bank)
• United States v. Knotts (SCOTUS 1982) (discussed in Jones at 287): Concealing a tracing device in chemicals
purchased by S, and monitoring the transport of the chemical by vehicle outside private premises, not a “search.” S
voluntarily shared the vehicles location with the public.
• United States v. Karo (SCOTUS 1983) (discussed in Jones at 287): If the beeper, voluntarily put in the chemicals
by an informant, is used to inform police that the chemicals are inside particular private premises, the use of the
beeper is a search requiring a warrant and PC.
• Bond v. USA (SCOTUS 2000): Agent gropes bus passenger’s duffle bag, feels a “brick like object,” is a “search”
• California v. Greenwood (SCOTUS 1988) (discussed by the Kyllo dissent at 279): Combing through garbage left
on the curb for collection is not a “search”
• Hester v. USA (SCOTUS 1924) (even if a trespass under tort law, police entry on private property characterized as
open fields is not a search)
• Oliver v. USA (SCOTUS 1984) (posting “No Trespassing” signs and erecting fences does not make entry onto open
fields a search)
• USA v. Dunn (SCOTUS 1987) (discussed in Vanksteren at 301: No REP in a barn fifty yards from residence.
Factors to consider:
• “the proximity of the area claimed to be curtilage to the home,
• whether the area is included within an enclosure surrounding the home,
• the nature of the uses to which the area is put,
• and the steps taken by the resident to protect the area from observation by people passing by.”
• Florida v. Riley (SCOTUS 1989) and California v. Ciraolo (SCOTUS 1986) (both cited in Kyllo at 273) both
upheld warrantless visual inspection of the curtilage by police operating aircraft in compliance with FAA
regulations
• USA v. Place (SCOTUS 1983) (dog sniff by dog trained to alert to illegal drugs and to nothing else does not intrude
on any REP and so is not a search)
• Illinois v. Caballes (SCOTUS 2005) (reaffirming Place)
• Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (government turning a suspect’s old
friend into an informant who spent much time inside suspect’s home with suspect’s consent obtained by pretense is
not a search)
• Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) (undercover agent who obtains entry
into suspect’s home by false pretenses does not commit a search)
• Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (undercover agent who records
incriminating conversations with suspect does not commit a search).
• USA v. Johnson (SCOTUS 1948) (Narcotics police smelled burning opium emanating from a hotel room and
demanded entry; no exigent circumstances.)
• Vale v. Louisiana (SCOTUS 1970) (no exigent circumstances when “The goods ultimately seized were not in the
process of destruction.”)
• Kentucky v. King (2011) (destruction of evidence in response to lawful police behavior still counts as exigent
circumstances; exigency presented by destruction of evidence provoked by illegal police action is fruit of the
poisonous tree)
• Carroll v. USA (SCOTUS 1925): (police with PC to suspect contraband liquor in an auto on the highway may stop
the car and search it, including cutting open the seats, without a warrant)
• California v. Carney (SCOTUS 1985) (mobile home parked on city streets and capable of immediate movement is
vehicle, not home, for purposes of the warrant requirement)
• California v. Acevedo (SCOTUS 1991) (exception to warrant requirement applies to closed container found in
vehicle)
• Wyoming v. Houghton (SCOTUS 1999): Police with PC may search a passenger’s purse found on the seat
• Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (“[An] inventory search constitutes a
well-defined exception to the warrant requirement” under the Fourth Amendment “)
• Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (inventory searches must be done subject to
standardized procedures rather than left to discretion of individual officers)
• Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (A sworn statement of an affiant that “he
has cause to suspect and does believe that” liquor illegally brought into the United States is located on certain
premises will not establish PC)
• Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (An officer's statement that “affiants have
received reliable information from a credible person and believe” that heroin is stored in a home, is likewise
inadequate.”)
• Schckloth v. Bustamonte (SCOTUS 1973) (test of valid consent search is voluntariness in light of the TOTC; failure
to warn suspect of right to refuse is only one factor).
• Bumper v. North Carolina (SCOTUS 1968) (acquiescence to entry after false representation that police had search
warrant is not voluntary consent)
• Florida v. Jimeno (SCOTUS 1991) (consent extends to any zone or container an objective observer would
understand to be included by the consent given; factors include what the police were looking for and whether S has
taken special steps to protect particular zones, such as locking a briefcase or padlocking a room)
• Illinois v. Rodriguez (SCOTUS 1990) (reasonable belief in authority of person given consent is enough to make
search reasonable, even if it later turns out there was no actual authority)
• Georgia v. Randolph (SCOTUS 2006) (when two parties with joint authority to consent are both present, and one
gives and the other refuses consent, the refusal governs)
• Camara v. Municipal Court (SCOTUS 1967) (building code inspections unsupported by specific warrant or pc are
reasonable where conduct pursuant to general area standards set by the inspection authority and accompanied by an
“administrative warrant”)
• New York v. Burger (SCOTUS 1987) (auto dismantling business closely regulated and subject to administrative
search doctrine)
• City of Indianapolis v. Edmond, 531 U.S. 32, 42, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (highway checkpoints
set up by police for purpose of detecting and prosecuting DUI and drug offenses are governed by the traditional
warrant/pc model, not the “special needs” doctrine)
• Ferguson v. City of Charleston, 532 U.S. 67, 80, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (striking down a public
hospital's policy of ordering drug screens for maternity patients suspected of cocaine use because “the central and
indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into
substance abuse treatment”);
• Veronia School Dist. v. Acton (SCOTUS 1995): Suspionless drug-testing program for high school athletes adopted
after sports programs became centers of drug activity upheld.
• Pottawatomie County v. Earls (2002) (extending Acton to participants in all extracurricular activities)
 • USA v. Knights (SCOTUS 2001) (warrantless search of probationer’s home “reasonable” because limitation on
probationer’s privacy was imposed as part of his sentence for offense of conviction)
• Samson v. California (SCOTUS 2006) (extending Knights to uphold suspicionless search of parolee).
V. E-Rule Exceptions Cases
• Alderman v. USA (SCOTUS 1969): (Standing doctrine from Weeks and Agnello survives switch to deterrent basis
following Mapp)
• Payner v. USA (SCOTUS 1980) (No “target standing” even when police flagrantly violate 4A rights of third party
to obtain evidence against defendant)
• Rakas v. Ilinois (SCOTUS 1978): S has standing when S has a REP in the area searched or S himself is “seized”
• Simmons v. USA (SCOTUS 1968) (if defendant testifies at suppression hearing, government may not use that
testimony in its case in chief)
• Rawlings v. Ky. (SCOTUS 1980) (where suspect hid drugs in girlfriend purse, his interest in the abandoned drugs
did not give him standing to challenge search of purse)
• Brendlin v. CA (SCOTUS 2007) (passenger in car has standing to contest stop of the vehicle, but not search of
closed areas such as the glove box)
• Minnesota v. Olson (SCOTUS 1990) (suspect hiding out in sister’s home, where he had previously been an
overnight guest, had standing to challenge entry of her premises when he was present there)
• Minnesota v. Carter (SCOTUS 1998) (one-time visitors to apartment, present briefly for sole purpose of
consummating illegal drug deal, have no standing to challenge search of apartment)
• Brown v. Illinois (SCOTUS 1975): Factors bearing on whether taint of 4A violation has attenuated include: (1)
temporal proximity; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official
misconduct.
• New York v. Harris (SCOTUS 1990) (where police had PC but no warrant to arrest S, entered illegally to effect
arrest, and then transported S to the station, statements made while S is illegally in custody inside are inadmissible;
statements made at the station, where custody is legal because of PC, are admissible).
• Calandra v. USA (SCOTUS 1974) (e-rule does not apply in grand jury investigations)
• Lopez-Mendoz v. USA (SCOTUS 1984) (e-rule does not apply in deportation proceedings)
• USA v. Janis (SCOTUS 1976) (e-rule does not apply in civil tax proceedings)
• One 1958 Plymouth v. Pennsylvania (SCOTUS 1975) (e-rule does apply in civil asset forfeiture proceedings)
• Walder v. United States (SCOTUS 1954) (4A tainted fruit suppressed years before, where suppression terminated
prosecution, admissible in subsequent prosecution to impeach D’s testimony elicited on direct that he had never had
anything to do with narcotics)
• Harris v. NY (SCOTUS 1971) (statement obtained in violation of Miranda admissible to impeach contrary trial
testimony by S)
• United States v. Havens (SCOTUS 1980) (4A tainted evidence admissible to contradict defendant’s testimony first
elicited on cross by the prosecution)
• James v. Illinois (SCOTUS 1990) (4A tainted evidence not admissible to impeach testimony of nonparty defense
witnesses)
• USA v. Leon (SCOTUS 1984) (e-rule does not apply when police reasonably rely on a warrant later found lacking
PC)
• Illinois v. Krull (SCOTUS 1987) (e-rule does not apply when police reasonably rely on a statute later held
unconstitutional)
• Arizona v. Evans (SCOTUS 1995) (e-rule does not apply when police reasonably rely on a court record later found
inaccurate)
• Herring v. USA (SCOTUS 2009) (e-rule does not apply when police reasonably rely on a police record later found
inaccurate)
• Davis v. USA SCOTUS 2011) (when SCOTUS changes 4A law in favor of defense, e-rule applies only to
prospective violations of the new rule; defendants whose cases are still pending on direct review may not claim
benefit of e-rule to conduct legal under binding appellate court precedent)
• Stone v. Powell (SCOTUS 1976) (4A claims not congizable on federal habeas)
• Kimmelman v. Morrison (SCOTUS 1986) (ineffective assistance of counsel claim can be heard on federal habeas
when alleged ineffectiveness was failure to make winning suppression motion)
VI. Fifth Amendment Privilege Cases
 • Lefkowitz v. Turley (SCOTUS 1973)(Conditioning public employment or contracts on waiver of privilege in future
investigations is “compulsion”)
• Griffin v. California (SCOTUS 1965) (Judicial or prosecutorial comment on the failure to testify is compulsion)
• USA v. Dionisio, (SCOTUS 1973) (In general answering questions without claiming the privilege is voluntary
waiver; no constitutional right to Miranda warning before grand jury testimony)
• Schmerber v. California (SCOTUS 1966)( Compelling production of incriminating blood sample not testimonial)
• USA v. Wade (SCOTUS 1967) (Compelled appearance at lineup not testimonial)
• Pennsylvania v. Muniz, (SCOTUS 1990)( Slurred character of DUI suspect’s speech not testimonial; but answer to
the question “What is the date of your sixth birthday?” is testimonial b/c it presents the cruel trilemma )
• Hiibel v. Sixth Judicial District (SCOTUS 2004) (no foreseeable risk of incrimination from compelled production
of identification)
• Hoffman v. United States (SCOTUS 1951) stating standard of incrimination as follows:
• The privilege afforded not only extends to answers that would in themselves support a conviction under a federal
criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime. But this protection must be confined to instances where the witness has
reasonable cause to apprehend danger from a direct answer. . . . However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court,
he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal
perception of the peculiarities of the case as by the facts actually in evidence.’
• Counselman v. Hitchcock, (SCOTUS 1892) (witness may be compelled to give incriminating answers if given
transactional immunity order first)
• Kastigar v. USA (SCOTUS 1972) (witness may be compelled to give incriminating answers if the witness has been
granted use-plus-fruits immunity first)
• Fisher v. United States, (SCOTUS 1976) (subpoena to lawyer to turn over business records prepared by client and
transferred to lawyer to does not compel client to be a witness)
• Andressen v. Maryland (SCOTUS 1976) (warrant to seize private papers from law office does not compel self-
incrimination, abrogating Entick v. Carrington and part of Boyd)
• United States v. Doe (SCOTUS 1984) (court order to hand over pre-existing documents compels only the act of
production, not the uttering of the document which was voluntary; ergo 5A protects only the act of production not
the contents; abrogating almost all of what was left of Boyd)
• United States v. Hubbell (SCOTUS 2000) (after target challenges subpoena and is given immunity for the act of
production, where the government would not have known about the existence, location, or authenticity of the pre-
existing documents without the target’s disclosure in response to the subpoena, documents are derived from
compelled testimony and must be excluded from evidence together with evidence derived from them).
VII. Miranda-Doctrine Cases
• Orozco v. Texas (SCOTUS 1969): S awakened in his bed by 4 officers at 4:00 AM asking him if he owned a gun
and where it was; held, custodial
• Beckwith v. USA (SCOUTS 1976): Interview by IRS agents at S’s home held NOT custodial
• Oregon v. Mathiason (SCOTUS 1977) (S asked to come to the stationhouse and told he was not under arrest; held
NOT custodial).
• CA v. Beheler (SCOTUS 1983): S called police to report a homicide, “voluntarily” accompanied police to the
station, was told he was not under arrest, gave a statement, and was released; held, NOT custodial
• Berkemer v. McCarty (SCOTUS 1984): Traffic stop for citation is NOT custodial
• Stansbury v. CA (SCOTUS 1994): Test of custody is objective not subjective; fact police had undisclosed intent to
arrest S after interview did not make interview custodial
• Rhode Island v. Innis (SCOTUS 1980) (test of interrogation is whether there was an express question or a functional
equivalent; words or conduct that an objective observer would conclude call for an incriminating response)
• Illinois v. Perkins (SCOTUS 1990) (jailhouse snitch questions suspect in custody; but fraud is not force and this is
not the kind of custodial interrogation Miranda covers; no warnings required)
• New York v. Quarles (SCOTUS 1984) (recognizing “public safety” exception to Miranda where single question
about location of firearm was asked in a public place immediately after arrest)
 • Howes v. Fields (SCOTUS 2012) (incarcerated suspect removed from general population and questioned in
conference room about offense unrelated to offense of arrest or conviction is not automatically in custody for
purposes of Miranda; where suspect was told he was free to return to his cell and was not handcuffed, but interview
lasted 5-7 hours and suspect said at points that he didn’t want to talk to the police, no custody)
• CA v. Prysock (SCOTUS 1981) (warning that advised S that he could have a lawyer present during questioning, and
would have counsel appointed to represent him if he could not afford one, although not in the precise order given in
Miranda opinion adequately informed S of his rights)
• Duckworth v. Eagan (SCOTUS 1989) (Warning that followed offer of appointed counsl with “We have no way of
giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court” held adequate to
satisfy Miranda)
• Michigan v. Mosley (SCOTUS 1975) (when S invokes the right to silence, police may re-initiate contact with the
suspect if there is a significant break in the action evidenced by changes in such things as time, subject, location and
personnel; AND if a new, “cleansing” Miranda warning is given and S makes a voluntary waiver
• Edwards v. AZ (SCOTUS 1981) (police may not re-initiate contact with a suspect who invokes the right to counsel;
post invocation-of-counsel interrogation is permitted only if S initiates contact, receives a new “cleansing” Miranda
warning, and makes a voluntary waiver)
• Arizona v. Roberson (SCOTUS 1988) (after invocation of counsel, police may not re-initiate contact with the
suspect about offenses unrelated to the suspected offenses of arrest, absent initiation by suspect, even if the police
involved in the second interrogation are unaware of the prior invocation)
• Minnick v. Mississippi (SCOTUS 1990) (after invocation of counsel, police may not re-initiate contact with suspect
after suspect has consulted with counsel, absent initiation by suspect)
• Oregon v. Bradshaw (SCOTUS 1983) (where S invokes right to counsel and police terminate questioning, and
suspect later asks “What is going to happen to me now?”, and police reminded S of his prior invocation but S
evinced willingness to talk, S has initiated conversation about the case; question about where S was to be taken for
further proceedings distinguished from requests for water, use of the phone, the bathroom, etc.)
• United States v. Patane (SCOTUS 2004) (when Miranda-tainted statement leads to recovery of physical evidence,
physical evidence is generally admissible)
• Missouri v. Seibert (SCOTUS 2004) (when police deliberate question S without warning, elicit a full confession,
and then give warning and ask S to repeat the prior confession, the subsequent confession is inadmissible despite
the usual rule that Miranda violations do not require exclusion of derivative evidence)
• Chavez v. Martinez (SCOTUS 2003) (no majority opinion; majority does rule that violation of Miranda without
more does not give rise to an action under §1983)
VIII. Sixth Amendment Cases
• Scott v. Illinois (SCOTUS 1979): 6A requires appointing misdemeanor counsel only if D is in fact sentenced to any
period of incarceration
• Nichols v. USA (SCOTUS 1994): Uncounseled misdemeanor conviction can enhance under a recidivism statute
• Alabama v. Shelton (SCOTUS 2002): A suspended or probationary sentence of incarceration for an uncounseled
misdemeanor conviction is void
• Massiah v. USA (SCOTUS 1964): S was arrested, indicted, retained counsel, pleaded not guilty, was out on bail
when questioned by an undercover agent. Held: Post-indictment interrogation of represented defendant violated
the 6A.
• Escobedo v. Illinois (SCOTUS 1964): Right to counsel attaches when S becomes the “focus” of the investigation
(overruled by Kirby v. Illinois in the materials at p. 776)
• USA v. Wade (SCOTUS 1967): 6A requires assistance or waiver of counsel at post-indictment corporeal lineup
• USA v. Ash (SCOTUS 1973) Post-indictment photographic identification procedure is not a critical stage.
• Douglas v. CA (SCOTUS 1963): D has an equal-protection based right to appointed counsel for the first appeal of
right under local law
• Ross v. Moffitt (SCOTUS 1974) No right to appointed counsel on petitions for discretionary review by state
supreme courts or on cert. petitions to SCOTUS
• Strickland v. Washington (SCOTUS 1984) (adopting two-pronged test of ineffective assistance; (1) did counsel
make an unprofessional error that (2) that made it reasonably likely that the outcome was worse that it would have
been absent the error)
• Coleman v. Alabama (SCOTUS 1970) (pre-indictment adversary preliminary hearing, including taking of testimony
potentially admissible at trial, triggers attachment and is a critical stage)
 • Brewer v. Williams (SCOTUS 1977) (pre-indictment arraignment in court on a warrant, after consultation with
counsel, triggered attachment; police elicitation of incriminating answers is critical stage)
• Patterson v. Illinois (SCOTUS 1988) (where arrested suspect is indicted, triggering attachment, but has not yet been
to court, valid waiver of Miranda is also a valid waiver of 6A protections provided by Massiah and Brewer)
• Maine v. Moulton (SCOTUS 1985) (when D is awaiting trial on burglary charge, with his 6a right fully attached and
asserted, codefendant informs police that D is planning to kill a witness; police wire the codefendant’s
conversations with D. Held, the recording is not admissible on the pending charge, under Massiah; but it is
admissible on new charges arising from the witness intimidation)
• Texas v. Cobb (SCOTUS 2001) (D is arrested for a burglary after which two residents went missing; he waives
Miranda, admits knowledge of the burglary but denies any knowledge of homicide; he is charged with burglary and
arrested. Based on information from his father, he rearrested for homicide, waives Miranda and makes
incriminating admissions. Held: His admissions at the second interrogation although inadmissible on the pending
burglary charge are admissible at the trial of a later indictment for homicide, even though the two offenses took
place during one criminal transaction.
• Brewer v. Williams (SCOTUS 1977): Massiah tainted statement led directly to discovery of V’s body, which was
suppressed; 6A erule, unlike Miranda erule, reaches derivative evidence.
• Nix v. Williams (SCOTUS 1984) (inevitable discovery exception, when established by preponderance, applies to
physical evidence derived from 6A violations)
IX. Free-Standing Due Process Cases
• Moore v. Dempsey (SCOTUS 1923) (mob-dominated show trial is no trial; sentence rendered is void)
• Powell v. Alabama (1932) (trial of capital crime without appointment of counsel for the indigent violates due
process; appointment of counsel on morning of trial is constructive denial of counsel altogether)
• Brown v. Mississippi (1936) (conviction based solely on confessions obtained by torture violates due process and is
void; trial court has obligation to exclude confessions clearly shown to be coerced)
• Mooney v. Holohan (SCOTUS 1935) (prosecution introduction on direct examination of testimony known to be
perjury violates due process)
• Mincey v. Arizona (1978): Coerced confession inadmissible to impeach.
• Arizona v. Fulminante (1991) Ordinary harmless error rule applies to erroneous admission of coerced confession.
• Neil v. Biggers (SCOTUS 1972) (due process is violated by an identification procedure that is unnecessarily
suggestive AND creates a very substantial risk of irreparable misidentification
I. WAS THE FOURTH AMENDMENT VIOLATED?

A. Was Seizure of a Person Proper?

1. Right to be free from unreasonable searches and seizures of person and
property by government
2. What constitutes a seizure of the person?
a. Under the totality of circumstances
b. Reasonable person would not feel free to decline officer’s requests
and terminate the encounter
c. Must be a physical application of force or submission to a show of force
d. Arrest
1) Must be based on probable cause
2) Warrant not required for public arrest
3) Warrant required to arrest person in own home
e. Investigatory detentions (Terry stops)
1) May be made on reasonable suspicion supported by articulable
facts
2) Reasonable suspicion determined by totality of circumstances
3) Informer’s tips must be accompanied by indicia of reliability
4) Police must act in a diligent and reasonable manner in
confirming or dispelling their suspicion (cannot take too
long)
f. Automobile stops
1) Generally must have at least reasonable suspicion that a law has
been violated
2) Exception—special law enforcement needs can justify suspi-
cionless roadblocks
a) Cars must be stopped on basis of a neutral, articulable
standard
b) Must serve purpose closely related to a particular
problem pertaining to automobiles and their mobility
 g. Subpoena to appear before a grand jury is not within Fourth Amend-
ment protection
h. Use of deadly force is a seizure, and deadly force may not be used
unless reasonable under the circumstances

B. Was There an Improper Search or Seizure of Property?

1. Was there government conduct?
a. Fourth Amendment proscribes only governmental conduct (e.g., the
police and their agents)
2. Does defendant have standing?
a. May complain only about interference with own reasonable expectation
of privacy or physical intrusion into own constitutionally protected area
b. Determined under totality of circumstances
c. Premises—person has a reasonable expectation of privacy in:
1) Places owned by the person
2) Person’s home—whether or not person owns or has a right to
possess
3) Place in which person is at least an overnight guest
4) No reasonable expectation of privacy in things held out to the
public (sound of one’s voice, smell of one’s luggage, etc.)
5) Reasonable expectation of privacy in home extends to curtilage
3. Searches pursuant to a warrant
a. Warrant requirements
1) Issued by neutral and detached magistrate
2) Based on probable cause to believe that seizable evidence will
be found in place to be searched
3) Describes with particularity the place to be searched or items to
be seized
4) Invalid if based on a material false statement that was intention-
ally or recklessly included
5) Must generally knock and announce authority
a) No knock entry permissible if officer has
reasonable suspicion that knocking and announcing
would be dangerous or would inhibit investigation
b) Evidence not excluded based on violation of above rule
b. Exceptions to warrant requirement (generally, other warrantless
searches unreasonable/unconstitutional under Fourth Amendment)
1) Search incident to lawful arrest (contemporaneous requirement)
2) Automobile exception
a) Need probable cause to believe vehicle contains contra-
band or fruits, instrumentalities, or evidence of a crime
b) May search anywhere in/on car where item that is
subject of search may be found
c) Contemporaneousness not required
3) Plain view
a) Legitimately on premises
b) Discover contraband or fruits, instrumentalities, or
evidence of a crime
 c) In plain view
4) Consent (from one with apparent right to use or occupy property)
a) If suspect present, may overrule consent
b) Parent usually has authority to consent to search of
child’s room if parent has access
5) Stop and frisk
a) During valid Terry stop (see above)
b) Police have reasonable belief that detainee is armed and
dangerous
c) May patdown outer clothing for weapons
d) May seize anything that by plain feel is weapon or
contraband
6) Hot pursuit of a fleeing felon
7) Evanescent evidence (i.e., evidence likely to disappear before
warrant can be obtained, such as tissues from under a suspect’s
fingernails)
8) Emergency aid/community caretaker exception (i.e., search
justified by threats to health or safety)
9) Inventory searches incident to arrest
a) Valid if pursuant to established police department procedure
10) Public school searches by school officials valid if reasonable:
a) Offers moderate chance of finding evidence of
wrong- doing
b) Implemented through means reasonably related to objec-
tives of the search
c) Search not excessively intrusive
11) Mandatory drug testing—has been upheld when it serves a
special need beyond the needs of law enforcement
a) High school students in extracurriculars
b) Government employees with access to drugs
12) Border searches—warrantless searches broadly upheld to protect
sovereignty
II. WAS CONFESSION VALIDLY OBTAINED?
A. Was Due Process Violated—Involuntary Confession?
1. Judged by a totality of the circumstances
2. Government compulsion makes confession involuntary
3. Harmless error test applies if involuntary confession erroneously admitted into
evidence
B. Was Sixth Amendment Right to Counsel Violated?
1. Applies at all critical stages of the prosecution
2. Attaches when adversary judicial proceedings are begun
3. Offense specific—pertains to only one charge and defendant must ask again
if later charged with separate, unrelated crime
4. Waivable—must be knowing and voluntary
5. Remedy— if defendant was denied his right at trial, automatic reversal
(harmless error rule applies as to nontrial proceedings)
 6. Statement made in violation of Sixth Amendment may not be used to prove
guilt but may still be used for impeachment

C. Was Fifth Amendment Privilege Against Compelled Self-Incrimination Violated?

1. Miranda warnings:
a. Right to remain silent
b. Anything that is said may be used in court
c. Right to an attorney
d. If cannot afford attorney, one will be appointed
2. Warnings must be given prior to custodial interrogation by police
a. Defendant must know interrogation is by police; does not apply to
informant or probation officer
b. Custody—would reasonable person under the circumstances feel free to
terminate interrogation and leave; if not, is environment coercive?
1) Test is objective
2) Traffic stop noncustodial (temporary and brief)
c. Interrogation—any police words or conduct designed to elicit an
incriminating response
3. Waiver
a. Rights must be explicitly invoked
b. Right to remain silent
1) Waiver must be knowing and voluntary
2) Judge under totality of the circumstances test
3) If warnings given and defendant talked, valid waiver generally
found
4) If right claimed, request must be scrupulously honored (cannot
ask more about the crime)
b. Right to counsel
1) All questioning must cease
2) Defendant may voluntarily reinitiate questioning
3) Request for counsel must be unambiguous
4) Duration of prohibition against questioning—14 days after
defendant returns to normal life
4. Effect of violation
a. Evidence inadmissible at trial
b. Statements may still be used to impeach defendant’s testimony
c. Defendant’s silence after receiving warnings cannot be brought up
d. Harmless error test applies
e. Public safety exception—responses to questioning without Miranda
warnings may be admissible if questioning was reasonably prompted by
a concern for public safety

D. Pretrial Identifications
1. Sixth Amendment right to counsel applies at any post-charge lineup or showup
a. Photo identifications—no Sixth Amendment right
2. Due process standard—unnecessarily suggestive identification procedures
that give rise to a likelihood of misidentification violate due process
3. Improper identifications will be excluded from trial
 4. If out-of-court identification excluded, in-court identifications allowed if from
a source independent of the excluded identification

III. EXCLUSIONARY RULE

A. The Rule
Evidence obtained in violation of defendant’s Fourth, Fifth, or Sixth Amendment rights
generally will be excluded to deter government violation of constitutional rights

B. Fruit of the Poisonous Tree Doctrine

1. All evidence derived from excluded evidence will also be excluded
2. Balancing test—no exclusion if the deterrent effect on police misconduct is
outweighed by the costs of excluding probative evidence
a. Exceptions
1) Independent source—evidence will be admitted if from a source
independent of the unconstitutional conduct
2) Intervening act of free will by defendant
3) Inevitable discovery by police
4) Live witness testimony
5) In-court identification
6) Violations of no-knock entry rule
7) Good faith reliance on a defective search warrant
8) Use of evidence to impeach
3. Outside scope of fruit of poisonous tree
a. Grand juries
b. Civil proceedings
c. Violations of state law
d. Violations of internal agency rules
e. Proceedings to revoke parole
4. Harmless error test applies to violations

IV. PRETRIAL PROCEDURES

A. Preliminary (Gerstein) Hearing

1. Hearing to determine probable cause
2. Not required if probable cause already found (e.g., by grand jury or under arrest
warrant)
3. Hearing must be within reasonable time (48 hours)

B. Initial Appearance
1. Soon after arrest
2. Defendant told of charges, bail set, appointment of counsel if needed

C. Bail
1. Right under Due Process Clause as to federal prosecutions
2. Not required of states but many state constitutions or statutes require
3. Where right exists, excessive bail an Eighth Amendment violation
4. Where right exists, unfair procedures violate due process
 D. Grand Juries
1. Not required of states (but some state constitutions require)
2. Upon finding probable cause, grand jury issues a “true bill”
3. Secret proceedings
4. Broad subpoena power
a. Quashed only if opposing party can prove no reasonable possibility that
material sought is relevant to the grand jury investigation
5. No right to:
a. Counsel
b. Miranda warnings
c. Warnings that witness may be a “potential defendant”
d. Exclude evidence that would be inadmissible at trial
e. Challenge subpoena for lack of probable cause

E. Speedy Trial
1. Under totality of circumstances, court will consider: length of delay, reason for
delay, whether defendant asserted his rights, and prejudice to defendant
2. Remedy—dismissal with prejudice
3. Right attaches on arrest or charging

F. Prosecutorial Disclosure Duties

1. Government must disclose exculpatory evidence
2. Failure = due process violation if reasonable probability trial result would have
been different if undisclosed evidence had been presented at trial

G. Competency to Stand Trial

1. At time of trial, defendant not competent if:
a. Defendant lacks rational and factual understanding of the charges and
proceedings or
b. Defendant lacks ability reasonably to consult with lawyer
2. Trial judge has a duty to raise if no one else does
3. Burden to prove incompetency may be placed on defendant
4. May be detained in mental facility for only short time unless commitment
proceedings are brought

H. Pretrial Publicity
Excessive prejudicial publicity may necessitate change of venue

V. TRIAL

A. Right to Public Trial

1. Sixth and Fourteenth Amendments provide the right to public trial
2. Probable cause hearings presumably open to public
3. Suppression hearings open unless:
a. Party seeking closure has overriding interest
b. Closure is no broader than necessary
c. Other reasonable alternatives were considered
d. Court makes findings to support closure
B. Right to Jury
1. Sixth Amendment right to jury for serious offenses
a. Serious offense—imprisonment for more than six months
b. Civil contempt—no right
2. Number and unanimity
a. At least six jurors
b. 11-1, 10-2, and 9-3 convictions have been upheld
c. Six-person juries must be unanimous
3. Representative cross-section
a. Defendant need not be of excluded group to complain
b. Petit jury need not be representative—just venire
c. Peremptory challenges cannot be used in discriminatory manner
1) If defendant shows facts or circumstances raising an inference of
prejudice,
2) Prosecutor must give race- or sex-neutral explanation, and
3) Judge must then determine prosecutor’s sincerity
4) Defendants similarly limited
4. Right to impartial jury
a. Right to question on racial prejudice if race inextricably bound up
b. Opposition to death penalty
1) May be excluded if view would prevent or substantially impair
performance of duty

C. Right to Counsel
1. Denial of right at trial requires reversal
2. Denial of right at nontrial proceedings requires reversal unless harmless
3. Waiver valid if knowing and intelligent and defendant competent
a. Voluntary and intelligent if defendant has a rational and factual under-
standing of the proceeding
4. Effective assistance of counsel
a. Part of Sixth Amendment right
b. Effective assistance is presumed
c. Ineffective if:
1) Deficient performance and
2) But for deficiency, result of proceeding would have
been different
d. Not ineffective assistance—trial tactics
5. Conflicts of interest—representing multiple clients
a. May be basis for reversal
b. No right to joint representation

D. Right to Confront Witnesses

1. Right not absolute (e.g., disruptive defendant)
2. Co-defendant’s confession
a. Confession implicating co-defendant prohibited unless:
1) References can be excised or
2) Confessing defendant takes stand and subjects himself to cross-
examination
 3. Prior testimonial statement of witness inadmissible unless:
a. Witness unavailable and
b. Defendant had an opportunity to cross-examine witness when statement
was made
c. “Testimonial”—at a minimum includes testimony from preliminary
hearings, grand jury hearings, former trial, and police interrogation
1) Police interrogation—nontestimonial if purpose of questioning
was to respond to an ongoing emergency
2) Results of forensic testing testimonial if offered to prove truth of
testing
3) May forfeit by wrongdoing intended to keep witness from testi-
fying
E. Burden of Proof and Sufficiency of Evidence
1. Burden—proof beyond reasonable doubt
2. Mandatory presumption shifting burden to defendant violates Fourteenth
Amendment due process

VI. GUILTY PLEAS & PLEA BARGAINING

A. Guilty Plea Waives Right to Jury
B. Taking the Plea
1. Judge must determine that plea is voluntary and intelligent
2. Judge must address defendant personally on record to ensure defendant knows:
a. Nature of charge and crucial elements
b. Maximum possible charge and mandatory minimum
c. The right not to plead guilty
d. By pleading guilty defendant waives right to trial
C. Remedy
Unfairly informed defendant not bound by plea
D. Bases for Collateral Attack on Guilty Plea
1. Plea involuntary—errors in plea-taking procedure
2. Court lacked jurisdiction to take plea
3. Ineffective assistance of counsel
4. Failure of prosecutor to keep plea bargain
E. Finality of Plea
1. Defendant not permitted to withdraw plea if intelligent choice among alterna-
tives

VII. CONSTITUTIONAL RIGHTS REGARDING SENTENCE AND PUNISHMENT

A. Right to Counsel Available at Sentencing

B. No Right to Confrontation
1. Exception—magnified sentence based on new findings of fact
2. Exception—capital sentencing requires more confrontation right
 C. Resentencing After Successful Appeal
1. If judge imposes greater punishment at trial (after defendant’s successful
appeal), record must show reasons for harsher sentence
2. Exception—reconviction upon trial de novo
3. Exception—jury trial

D. Substantive Rights Regarding Punishment

1. Eighth Amendment prohibits punishment that is both cruel and unusual; i.e.,
punishment is grossly disproportionate to offense
2. Death penalty
a. Statutory scheme must give fact finder reasonable discretion, full
infor- mation, and guidance in making decision
b. Statute may not be vague
c. Application
1) For murder—valid
a) For accomplice to felony murder—valid if accomplice
participated in a major way and acted with reckless
disregard to the value of human life
2) For rape—disproportionate and invalid
3) If prisoner is insane—invalid
4) If prisoner is mentally retarded—invalid
5) If prisoner was younger than 18 when crime was committed—
invalid
3. Unconstitutional to make a status a crime
4. Unconstitutional to sentence minor to life without possibility of parole
5. Unconstitutional to provide for harsher penalties for those demanding trial
6. Imprisonment of indigent for failure to pay fine violates equal protection

VIII. APPEAL

A. No Right to Appeal

B. If Right to Appeal Is Granted by State Law, Right to Counsel Applies at First

Appeal

C. No Right of Self-Representation

D. Retroactivity of New Rule

New rules announced on direct appeal must be applied to all other cases on direct
appeal

IX. COLLATERAL ATTACKS ON CONVICTIONS

A. Habeas Corpus
1. Civil action challenging lawfulness of detention
2. Petitioner has burden to show unlawful detention by preponderance of
evidence
3. Defendant must be “in custody” (includes on bail, probation, or parole)
X. DOUBLE JEOPARDY
A. Fifth Amendment Right Applicable to States Through Fourteenth Amendment
1. Once jeopardy attaches, defendant cannot be retried for same offense

B. When Does Jeopardy Attach?

1. Jury trial—when jury empaneled and sworn
2. Bench trial—when first witness sworn
3. Juvenile proceedings—at commencement of proceeding
C. Exceptions Permitting Retrial
1. Hung jury
2. Mistrial for manifest necessity to abort original trial
3. Retrial after successful appeal
a. Cannot be for more serious crime than crime convicted of in first trial

D. Same Offense
1. Two crimes are not the same offense if each crime requires proof of an element
the other does not require (Blockburger test)
2. Only repetitive criminal prosecutions (not civil actions) prohibited
3. Charges by separate sovereigns (e.g., state and federal governments) not
prohibited

XI. PRIVILEGE AGAINST SELF-INCRIMINATION

A. Fifth Amendment Right Applicable to States Through Fourteenth Amendment
B. Right for Natural Persons Only (Not Corporations or Partnerships)
C. Applies Only to Testimony
1. Does not apply to physical evidence
2. Does not apply to documents

D. Defendant Can Refuse to Take Stand Altogether

1. Prosecutor cannot comment on defendant’s silence after receiving Miranda
warnings
a. Exception—in response to a claim of no opportunity to explain
b. Harmless error test applies—violation does not automatically require
retrial
E. Witness Other than Defendant Must Take Stand and Invoke Privilege Question-
by-Question
F. Elimination of the Privilege
1. Use and derivative use immunity sufficient to eliminate privilege
a. Immunized testimony is involuntary and cannot be used for impeach-
ment
b. State immunized testimony cannot be used in federal prosecution
c. Federal immunized testimony cannot be used in state prosecution
2. Privilege can be waived
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