Criminal Procedure 4th 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. Steps in 4th Amendment analysis: 1. Was there a search or seizure? 2. If yes, was search or seizure reasonable? 3. If not reasonable, is there a remedy available to the victim (exclusionary analysis)? A. Searches 2 requirements for searches: 1. Government action (government actor). 2. Encroachment on protected interest. • Katz: The test for encroachment on a protectable interest is whether the person has an expectation of privacy, which requires: 1. An actual (subjective) expectation of privacy (hard to prove- defendant will always claim that he had this) 2. A reasonable (objective) expectation of privacy (most important element).  Considerations for whether there’s a reasonable expectation of privacy (balancing test): a. Property concepts o The defendant’s legal (not practical) right to access, legal right to exclude, functional security features (e.g. lock). b. Societal customs What may be sufficient to find government action: • Need a state or federal actor. • Does not mean that a search by a private person will never constitute government action. • State action must be ties to the search itself- subsequent prosecution is not sufficient. • A nexus between a private actor and the government: private actor acted within scope of government authority; pervasive regulation of private actors; use of government property; concrete directives by government; encouragement, endorsement, or participation by government. • The purpose of the state actor is irrelevant. He doesn’t have to be concerned with criminal matters, as long as he’s a state actor. • The government’s state of mind/ bad faith/ pretext is irrelevant to whether there’s a search. 2 lines of cases with searches: 1. Misplaced loyalty doctrine • Katz: the government must exploit the defendant’s risk of voluntary loyalty. 2. Voluntary loyalty cases • Any information that people divulge, they do so at the risk of exposing the information. • The government does not have to exploit the information; they can collaterally take the information. • What a person knowingly exposes and/or voluntarily conveys to the public, even in his own home or office, is not protected.

Question to ask: Was the information revealed to the world? The distinction is important because with misplaced loyalty the government must exploit the defendant’s risk, and with voluntary loyalty, the government does not have to. - Search for an analogy to the mail, phone, e-mail, etc. • People never assume the risk of illegal government searches of someone else’s things. e.g. A and B share a storage unit. A assumes the risk that B is an informant, stupid, or will consent to a search, but A never assumes the risk that the government will conduct an illegal search of B’s things. The risk that is assumed is that the police will come in lawfully. The reason for the police entering does not have to be related to the source of the arrest and is irrelevant, as long as the entering is lawful.

Curtilage v. Open Fields: Steps in curtilage analysis: 1. Is it curtilage or open fields? - Curtilage: the land immediately surrounding and associated with your home. The intimate activity associated with the sanctity of the home is extended to the curtilage. - People have a reasonable expectation of privacy in curtilage, but not in open fields. - Factors to whether land is curtilage: a. The proximity of the area claimed to be curtilage to the home. b. Whether the area is included within an enclosure surrounding the home. c. The nature of the uses to which the area is put. d. The steps taken by the resident to protect the area from observation by people passing by. 2. If curtilage, is there an exception to the curtilage rule (i.e., the sidewalk/pathway rule)? - Pathways to the door from the sidewalk (even if they go through curtilage), which are used by the general public, are not protected. - Driveways leading to garages attached to the home are curtilage. Driveways leading to unattached garages are not curtilage. - There is no curtilage for structures on open fields. The government can come all the way up to the structure and look in, but cannot search it. Cases and examples: 1. Olmstead: The government’s use of wiretaps did not constitute a search because there was no physical intrusion on the defendant’s property (trespass doctrine). 2. Katz: Overrules Olmstead. The government placed a wiretap on top of a public telephone booth and listened to and recorded the defendant’s conversation. The court found that the wiretap was a search that intruded upon the defendant’s privacy interests. The 4th Amendment protects people, not places, and what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. What the defendant sought to protect was the uninvited ear, not the intruding eye, and did not shed his right to do so because he made his calls from a place where he might have been seen. • Hypo: Defendant was talking loudly, government could have heard the conversation if they were standing next to the booth, government still used the wiretap. The defendant would still prevail. Just because the government could have seized on the opportunity to hear the conversation, does not mean that the recorded conversation can be used. The defendant assumed the reasonable risk that people outside the booth would hear him, but not that the booth would be bugged.

Just because the defendant may have thrown away some of their privacy (assume some risk), does not mean that they have dispensed with all of their privacy rights. e.g. Just because Katz talked loudly in the booth, does not mean that he assumed the risk of the bug.

3. Lewis and Hoffa: The defendant had no privacy interest in incriminating conversations had with undercover agents. The defendants’ disclosures were a result of their misplaced confidence that the informants would not reveal the conversations, not caused by the unilateral action of the informant. 4. Smith v. Maryland: People have no reasonable expectation of privacy in the telephone numbers dialed from their home telephones. 5. Pg. 157 Problem 3: Defendant has a party and leaves drugs on the table. Assumes risk that an officer in plain clothes will come in the house and see the drugs. Does not assume the risk that the government will install a camera before the party. Does not assume the risk that a cop in uniform will just come in the house. Assumes the risk that people will leave the party and tell cops about the drugs.

6. Pg. 158 Problem 5: Undercover officer tapes defendant’s drug sale with a hidden video camera: The 4th Amendment does not protect visual data. 7. Olson: Overnight guests have a protected privacy interest in the dwelling. Social guests only have an expectation of privacy in areas that they have permission to use. 8. The majority of courts hold that trespassers have no reasonable expectation of privacy. 9. Car passengers have no reasonable expectation of privacy when asserting neither a property nor a possessory interest in a car or the property inside. 10. Time, addresses, IP addresses, e-mail addresses, and phone numbers are not protected. The substance (content) of e-mails, letters, and phone conversations is protected. Internet surfing- the initial webpage you visit isn’t protected; any subsequent pages visited from the initial webpage are protected. 11. Greenwood: The defendant did not have a reasonable expectation of privacy in the garbage bags left on the sidewalk for trash collection. The defendant assumed the risk that the bags’ contents would be exposed to the public, and thus voluntary conveyed the bags’ contents to the public. It is common knowledge that plastic garbage bags left on the street are readily accessible to the public. The defendant could not have reasonable expectations of privacy in items he discarded. 12. The use of narcotics detective dogs, which find only illegal drugs, does not violate reasonable expectation of privacy. The searches only expose to the public the defendant’s contraband, and cases indicate that the 4th Amendment protects only legal behavior, not illegal behavior. Noncontraband items that would otherwise remain hidden from public view are not exposed. The information obtained is limited and the property owner is not subjected to more intrusive investigative methods. 13. Knotts: The defendant was suspected of drug manufacturing and the police worked with the store to place a tracking device in a container of ingredients to make drugs. The


defendant bought the container, put it in his car, and drove home. The police tracked the defendant by sight, but also lost the defendant’s car and used the tracking device to locate the defendant’s car. The police tracked the beeper to outside the defendant’s home. The court held the defendant had no reasonable expectation of privacy. The government surveillance by beeper amounted to the following of an automobile on public streets, which a person has no reasonable privacy expectations in. Nothing about the inside of the defendant’s home was revealed, as the beeper was tracked to the land outside of the home. People travelling on public roads have no expectation of privacy in their movements. People voluntarily convey their location and movements to the world. Court finds that defendant assumed the risk of the government following him, but not of the government putting the beeper in the container. The inquiry is whether the police, in the aggregate, could have followed the defendant to his home and tracked the location of the container.

Karo: the same situation as Knotts, except that after driving his car into the garage, the defendant left in his car and the police tracked the beeper to inside the house. The defendant’s reasonable expectations of privacy were violated because the monitoring indicated that the beeper was inside the house, a fact that could not be visually verified. - When the police track a beeper without knowing whether the defendant left with or without the beeper, using the beeper necessarily reveals new information and the inside of the home, because the police would have no way of knowing the location of the beeper merely through visual surveillance. - Reasonable expectation of privacy is violated If the government gets more new information by use of the beeper that could be obtained with just visual surveillance. Corroboration is not new information. - The size of the container that holds the beeping device matters. e.g. if the tracking device is in a car, reasonable expectation of privacy is not violated if the defendant leaves without the car, because visual surveillance would reveal that the car is still in the home. - Reasonable expectation of privacy is violated when the car/person/etc. leaves. Knotts inquiry: 1. Does the tracking device go into a protected area (protected area is anywhere that the police cannot visually track)? 2. Protected route- did something leave that could have held the beeper? If so, at the point of exit, the continued use of the tracking device necessarily gives the police more information. 14. Aerial surveillance: Factors supporting no violation of reasonable expectation of privacy: • Aircraft is legally entitled to fly at that altitude. • No interference with normal use of curtilage. • No intimate details revealed. • Use of surveillance device in the general public. 15. Kyllo: The use of a thermal-imaging device to detect heat coming from homes that use heat lamps to grow pot constituted a search. The device revealed information about the inside of the home that was not available through the naked eye. It did not matter that no “intimate details” were revealed, because the 4th Amendment’s protection of the home is not tied to the measurement of the quantity or quality of the information obtained. In the home, all details are private details. - Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a

Affidavit 2. Probable cause  There must be probable cause to believe both that the items listed for seizure in the warrant are in fact evidence of specified criminal activity and that these items are presently located at the premises for which the search warrant is being sought. the 4th Amendment requires that a hearing be held at the defendant’s request. B. which is a more reliable safeguard against improper searched than the hurried judgment of law enforcement officers. 4 corners rule: probable cause must be written only on affidavit and not supplemented by oral testimony (federal rule). Arguing that the supporting affidavit on its face did not establish sufficient probable cause to support the issuance of the warrant. Warrants themselves make searches reasonable. but cannot build inferences on inferences. aren’t executed properly. Particularity The neutral magistrate can draw reasonable inferences from the affidavit. was included by the affiant in the warrant affidavit. or with reckless disregard for the truth. • • Challenging Warrants Warrants can be challenged by: 1. Searches conducted with a warrant are per se reasonable (assuming that the search was within the scope of the warrant). and. 3. Search Warrants • • • • • Search warrants provide detached scrutiny of a neutral magistrate. with the affiant’s false material set to one side. the affiant’s remaining content is insufficient to establish probable cause. 2. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence. Reasonableness The defendant must first establish that there was a search before reasonableness is analyzed. Searches may be unreasonable if the warrants. Allegations of negligence of innocent mistake are insufficient. The government has the burden of showing that the search was reasonable. at least where the technology in question is not in general public use. To get a search warrant you must have: 1. although themselves are reasonable and valid. the search . but without them. Searches conducted without a warrant are per se unreasonable. the search is not necessarily unreasonable.constitutionally protected area constitutes a search. and if the allegedly false statement is necessary to the finding of probable cause. Challenging the accuracy or veracity of the statements in the affidavit which on their face establish probable cause. Where the defendant makes a substantial preliminary showing that a false statement (or omission) knowingly and intentionally.

Truthful does not mean that every fact in the affidavit be correct. Curtilage and the owner’s vehicles are searchable even if the warrant only includes the residence. Search warrants must be executed within the time period prescribed by the issuing magistrate. not to exceed the period established for execution of a search warrant in the applicable jurisdiction (10 days for federal law). Futile 3.g. to the police or anyone else) 2. Just because you take something not listed in the warrant does not mean everything seized in invalid. There is a preference for daylight searches. Or Inhibit the effective investigation of the crime (e.warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit (Franks). The particular exigency (e. There is an assumption that the facts in the affidavit to establish probable cause will be a truthful showing. The police do not have to knock and announce if knocking and announcing would be: 1. Warrants become invalid or stale when probable cause dissipates. The use of excessive force or unnecessary property destruction violates the defendant’s rights. If the warrant only includes the car. individuals may be detained and handcuffed while the search warrant is being conducted. individuals may be detained for up to 2-3 hours. but does not trigger the exclusionary rule. The exigent need of law enforcement will trump a resident’s interest in avoiding all property damage. Warrant Execution • • The common-law “knock and announce” principle is part of the reasonableness inquiry. can’t open a small drawer to find a big thing). in addition to the residence. but all people can usually be searched. Warrants may only be executed once. The scope of the search is limited to the items listed in the warrant (e. If warrant only has residence named to be searched. In inherently dangerous situations. the destruction of evidence). The length of the detention without cause depends on the dangerousness of the situation. will determine the time the police has to wait after knocking and announcing before entering (wait time). and after 15 seconds cannot come in. the cops cannot come in. the residence cannot be searched. Depending on the circumstances of the case.g. Before 5 seconds. Dangerous (there is a threat of physical violence.g. but particularized reasonable suspicion that the occupants are participating in a crime is needed to frisk them. police do not need suspicion to detain or stop people in the residence. but that the information is believed or appropriately accepted by the affiant as true. Police may not use excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. If warrants includes all persons and/or vehicles on the property. but police can constitutionally search at night. • • • • • • • • • • • • . the search must be of cars reasonably owned and used by the residents on the premises. if officers have reason to believe that evidence will likely be destroyed if advance notice were given).

That the fruits. You can consider with probable cause: the neighborhood and race/ethnic identity of the area and the defendant’s prior criminal record (factors are relevant but not dispositive). Refusal to consent to a search is not probable cause to search.  More detail on the basis of knowledge and the person’s batting average makes the person more reliable. Probable Cause • Probable cause for a search requires: 1. The federal exclusionary rule does not apply to knock and announce violations. The police observed the defendants’ behavior. which corroborated the note for the most part. Police do not have to give immediate notice of the warrant to the defendant. but are not all required. • Tips from concerned citizens (an individual not associated with the criminal behavior) is assumed to be reliable and credible. • The test should be an evaluation of the totality of the circumstances. truthful. Proof that a crime was committed 2. and there was a fair probability that the writer obtained the information from the defendants or someone they trusted.  The general credibility and veracity of the individual. The evidence obtained in the search will not be excluded. the letter was corroborated by the officer’s observations. standing alone. the letter contained predictions about the future. instrumentalities or evidence of crime exist 2. not easily predictable. An anonymous note was received by the police and described how the defendants fly to Florida and drive back with drugs. And that they can be found at the place to be searched. • Tips from government informants (cops know their identity) and anonymous tipsters (cops don’t know their identity) are presumed unreliable. the basis of their knowledge (how they acquired the information) are relevant factors. • • • • • Gates: Overrule’s Spinelli’s test for evaluating the reliability of a government informant or anonymous tipster. Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed (Carroll). There was probable cause. including the . common-sense decision whether. The observations of the officers. given all the circumstances set forth in the affidavit before him. the note was insufficient for probable cause because there was no information that the note was reliable.• • Sneak and peak searches (the defendant is not present) are ok so long as there is notice in a reasonable amount of time (7-10 days). the reliability of the information. And that the person to be arrested committed it. Corroboration by police informant’s facts and self-verifying detail (what they say will happen happens) bolsters the credibility of the informant. Probable cause for an arrest requires: 1. • The task of the issuing magistrate is to make a practical. and had a solid basis for the predictions. It is fair probability or reasonable belief. Alone. Probable cause does not mean more probable than not. was sufficient to establish probable cause.

The evidence must be in plain view.  Police cannot trespass to be in plain view. If the book cover says child pornography. Ex: Can you seize a bookmaking document (e. not the underlying documents/information in the files. the 4th Amendment requires no more. not searches. If you don’t feel anything.  You cannot stack probable cause in home searches. you can seize it. The officers may have an idea that the evidence could be discovered in the place searched.they can’t linger searching for more evidence of crimes. cannot seize because its criminal nature is not immediately apparent. The item’s incriminating character must be immediately apparent (a subjective standard) 3. Excel) while searching for child pornography?  If the computer is not listed in the warrant. you can search computer files reasonably related to child pornography. there is a fair probability that contraband or evidence of a crime will be found in a particular place.  Plain feel doctrine: In a frisk. the government cannot search. Plain View Exception • This exception deals with seizures. Limits on the exception:  Police must stop the search after they find the items listed in the warrant.  Officers cannot move objects. • The discovery of the evidence not need to be inadvertent. you can look at the entire book. . if you find probable cause for another crime. The standard for review of an issuing magistrate’s probable cause determination is that so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.  If it is like a drawer (think a see through drawer).  Issue is whether the computer file is like a book or a drawer. The government wants it to be like a book. In a search for one crime. and allows you to seize evidence of a crime that’s in plain view. The warrant is only to see file names.• veracity and basis of knowledge of persons supplying hearsay information. and the drawer says child porn. you cannot continue to frisk (you cannot exceed the scope of the frisk). 2. 3 requirements: 1. you must get another warrant.  There is a new 4th Amendment moment when the cops have to actually open the file. Files like Excel can’t be searched because child pornography probably won’t be in there. The officer must be lawfully located in a place from which the object can be plainly seen AND she must have a lawful right of access to the object itself.g.  If the computer is included in the warrant. if you feel a weapon. Warrantless Searches and Seizures • Warrantless searches and seizures are per se unreasonable subject to the exceptions. A.

cannot arrest for a misdemeanor committed outside the officer’s presence). he was also interested in finding other evidence connecting the defendant to the crime. can’t arrest for not wearing a seatbelt).the area from within which he might have obtained either a weapon or something that could have been used as evidence against him).g. so the seized evidence was not discovered “inadvertently.people’s safety and destruction of evidence. Absent exigent circumstances. SILA justifications. the police may not enter a house without a warrant to arrest. the area from which he might gain possession of a weapon or destructible evidence. the officers were lawfully in the defendant’s residence pursuant to a valid search warrant.Horton: Pursuant to a warrant. and police searched the entire house pursuant to SILA. Search incident to legal arrest • When the police make a legal arrest. but cannot search unless they get a search warrant. but with an arrest warrant. . A SILA may generally extent to the area that is considered to be in the possession or control of the arrestee. There can be a reasonable seizure even if state law is violated. they have the right to make a search incident to that arrest. A legal arrest is one where there is probable cause that the defendant committed a crime or there is a warrant. and the guns were in plain view. the police searched the defendant’s residence for fruits of a robbery and the weapons used to commit it. Police may conduct a SILA of the arrestee’s person and the area within his immediate control. while the defendant protested to the search. The police can enter a home without a search warrant. regardless of how dangerous they look. There was no justification or exigency for searching the entire house.  SILA applies to all people. Police officers may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony (in or outside of the officer’s presence) or a misdemeanor (in the officer’s presence. Police obtained an arrest warrant to arrest defendant for burglary. While police were searching for jewelry. The search was unreasonable. Deadly force is permissible only when the suspect poses a threat of serious physical harm to either the officer or to others. The gun’s incriminating character was immediately apparent.” The court held that inadvertence is not required for the plain view exception and the guns were properly seized pursuant to this exception. No search warrant had been issued. The officer testified that while he was searching for the stolen jewelry. 4th Amendment rights are not violated if the police do this. Pretext and subjective intentions play no role in ordinary. for police officers have strong interests in ensuring the arrestee does not have access to weapons. • • • • • • Chimel: The search incident to a lawful arrest cannot extend beyond the defendant’s person and the area within his immediate control (aka the grab area. they found guns in plain view and seized them. probable cause analysis. If the state gives the defendant more rights (e. B.  The grab area extends from the area that the defendant is arrested and the path along which the defendant is escorted out of the house.

or evidence of crime. Generally. Most courts say cell phone contents incident to arrest can be searched. Gant: The police may search a VEHICLE incident to a lawful arrest only when there is reasonable belief that (i) the arrestee (must be the arrestee) is unsecured and within reaching distance of the passenger compartment at the time of the search. The ready mobility of the automobile justified lower expectations of privacy. and can open doors on the way out along the grab area.  “Reasonable belief” is probably less than probable cause. and subject to regulation and inspection. The police conducted a search without a warrant or consent and found drugs. The defendant’s home was readily mobile. including containers and glove compartment.  There are lower expectations of privacy in automobiles because of their ready mobility and the pervasive schemes of regulation. the area to be searched is in plain view and is subject to pervasive driving regulations. handcuffed him. but once you are in. was licensed to operate on public streets. also. Mobile homes can be viewed as vehicles or as automobiles. Police officers arrested the defendant. Carney: Defendant was suspected of exchanging drugs for sex. if it has convenient access to a public road.  The interior of the car. C.  If. a SILA cannot be justified based on evidence revealed during the search itself. The police may conduct a sweep of the house if there’s suspicion that there are others in the house that pose a danger. anything can be searched. if it’s licensed. if it’s connected to utilities. at the time the car is seized the warrant exception applied (there is probable cause). The defendant was arrested for driving with a suspended license. can be searched but the trunk cannot (interior = everything except the trunk).there’s already the automobile exception that allows searches where there’s probable cause.  Factors in deciding if it’s a home or automobile: location. The search was unreasonable because there was slight possibility that the defendant would be able to access the vehicle and slight likelihood of discovering offense-related evidence. The defendant was arrested and a subsequent search of the mobile home was searched while in police custody. The search may be conducted at the police station. . Chimel does not require that police have any requisite state of mind or belief in order to search the grab area. then conducted a search of the defendant’s vehicle. Look for something to show that a reasonable officer would realize that it wasn’t mobile. the police can wait up to 3 days to search. The police conducted surveillance on the defendant’s motor home and spoke with a boy who corroborated the suspicions. Buie: Police can also open doors to see if there’s other individuals in the house. instrumentalities. if police have reasonable suspicion. placed him in the back of a patrol car. services in public places. Gant tells you how to initially get into the car. Automobile exception • Where the police have probable cause to believe than an automobile contains the fruits. The search was reasonable.       The police may escort the defendant out of the HOUSE and come back to search the grab area. readily mobile or on blocks. or (ii) when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. they may search the vehicle without a warrant.

D. you find probable cause to search the trunk. • The question of whether consent to a search was in fact voluntary. Once probable cause for an offense that you’re not searching for is found. Bustamonte: An officer pulled over a car of 6 people. Only one of the 6 had identification and the officer had everyone step out of the car. • Proof of knowledge of the right to refuse consent is not a necessary prerequisite to demonstrating a voluntary consent. you can stack probable cause and search the trunk. it would be very hard for the state to prove voluntariness and easy for defendants to simply testify that he did not know he could refuse to consent. but the state had the burden of proving the consent was. but not SILA. while monitoring their movement. The officer found 3 stolen checks underneath one of the seats. • A search authorized by consent is wholly valid. Either way. by implied threat or covert force. The defendant put the bag in his trunk. if the search is supported by probable cause. Consent Some courts treat consent as an exception to the warrant requirement and others treat it as part of the search analysis (there are no reasonable expectations of privacy when consent is given). The scope of SILA is limited to the interior of the car. the analysis is the same. and the police pulled the defendant over. consider subtly coercive police questions and the possibly vulnerable subjective state of the person who consents. In analyzing whether coercion occurred. None of the people were threatened with arrest and the car’s driver gave consent to search the vehicle. including the defendant. The search was reasonable. you can search for evidence of that offense.  Probable cause with the vehicle exception defines the scope of the search.  Officers can “game” and wait for you to get into the car with the container. 2 more officers were called. whether the probable cause is general or specific to a container in the vehicle. is a question of fact to be determined from the totality of the circumstances. express or implied. freely and voluntarily given.  Probable cause must exist at the time of the search. Police observed the defendant enter the residence where the cocaine was located. • Consent by not be coerced. The consent was valid and the search was reasonable. but they still must have probable cause to search the car generally. The state need not prove an intentional relinquishment or abandonment of a known right or privilege. Closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception may also be searched because of their presence in the vehicle. . and found cocaine.  With vehicle searches. Otherwise. You need a warrant for closed containers outside of the vehicle (the seizure and opening of the container are 2 different 4th Amendment moments). The defendant left carrying a brown paper bag about the size of the bags of cocaine.Acevado: Closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception can also be searched. opened the trunk and bag. or was the product of duress or coercion. The scope of the search is limited to the target of the officer’s reasonable belief. The driver opened the trunk and glove compartment of the vehicle.  Do not need a warrant to search inside the vehicle. because the car had a busted headlight. in fact. While searching the interior of the car. Police intercepted bags of cocaine and let them be delivered. by express or implicit means. probable cause CAN be stacked.  Police can get into the trunk through the vehicle exception.

• Shared social expectations are a key factor in consent analysis. Shared tenancy is understood to include an assumption of risk on which officers are entitled to rely.g. and vice versa. The question is whether customary societal understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The husband was present and expressly refused to consent to the search. they arrived at their home. Police arrived at the ex-girlfriend’s residence. or from a third party who possesses common authority over the premises. and the police found drugs lying on the table. but rather only that warrants are supported by probable cause. so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the area to be searched. • Even if a person affirmatively states that they live at a residence. The wife said there were drugs in the home and gave consent to search. • Common authority is not synonymous with a technical property interests. without more. but rests rather on the mutual use of the property by persons generally having joint access or control for most purposes. The ex-girlfriend gave officers permission to move around the living room. was present. or for specific purposes. • A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable to him on the basis of consent given to the police by another resident. There may be apparent common authority.• • The standard for proving consent was valid is that consent was in fact voluntarily given and not the result of duress or coercion. • Authority can be sole. His disputed invitation. Rodriguez: Police were called to investigate an assault by the defendant on his ex-girlfriend. the search is valid. hotel manager). After wife called the police. Sole authority can be transformed into common authority. The ex-girlfriend called it “our apartment” and said she had clothes and personal belongings there. The burden of proving common authority rests with the state. Randolph: The defendant and wife were separated. either from the individual whose property is searched. The reasonableness is in significant part a function of commonly held understanding about the authority that coinhabitants may exercise in ways that affect each other’s interests. The search was unreasonable because the defendant possessed common authority over the house. landlord. • The consent of one who possesses common authority over premises or effects is valid as against the absent nonconsenting person with whom the authority is shared. Common authority rests on the mutual use of the property by persons generally having joint access or control for most purposes. gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. and objected to the police’s entry. The questions is whether the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If yes. There is no common understanding that one cotenant generally has a right or authority to prevail over the express wishes of another. express or implied. and obtained her consent for her to go with the police to the defendant’s residence to unlock the defendant’s residence. Police officers have no duty to advise people that they are “free to go” before seeking consent. limited (e. • A search may validly conducted where voluntary consent has been obtained. the factual determinations must be judged against an objective standard. • “Reasonableness” does not demand that the police be in fact correct. There was no arrest or search warrant. . common (shared).

The standard for a frisk is that there is reasonable suspicion that the person is armed and dangerous. Stop and Frisk • • • • • • Encounter: No cause required.defendant’s awareness of right to refuse consent. The officer felt a gun in the defendant’s overcoat. With equals (e. so that you can search. intrusion. The officer noticed 2 people pass by the same store repeatedly and look in the windows. but they cannot bluff (they must reasonably believe that a warrant will be issued) otherwise the consent is invalid. there cannot be consent. Reasonable suspicion of criminal activity allows you to make a stop. but arrest is the core seizure. The officer grabbed the defendant and patted down the outside of his clothing. intelligence. The search and seizure were reasonable. Police can use discretion (e. The officer had interests of general crime control and prevention and of assuring that the suspects didn’t have weapons that could be used against him. Terry: A plain clothes police officer was patrolling an area for pickpocketers and shoplifters and had 35 years of experience as a detective. Search: Need probable cause to search. “Search” where there are no reasonable expectations of privacy: no cause required. the person objecting wins and police cannot search based on consent. The officer seized the defendant and subjected him to a search when he took hold of him and patted him down. and the men mumbled something.• • • • • • • • The person granting consent may define its terms and scope. offer to make a deal for a lesser charge) to obtain consent. Terry search. coercion. The standard for a stop is that there is reasonable suspicion of criminal activity. The perspective on the analysis is from the reasonable officer.g. Consider the hierarchy of people (e. custodial status (if they’re arrested). education. The officer approached the men and asked for identification. parent trumps child).g. The police officer must be able to point to specific and articulable facts . The reasonableness of Terry is a function of need vs. • To assess the reasonableness of the officers’ actions. get a warrant) if the person doesn’t consent and this will not render the consent invalid. Stop: a mini. There can only be voluntary consent with a lawful arrest. and suspected them of casing the store. Terry seizure. The officer removed the overcoat because he couldn’t access it without removing it and removed the gun. Frisk: a mini. Seizure: Probable cause of criminal activity allows you to make an arrest. Cops can say what they will do (e. Stops and arrests are both seizures. E. duress.g. The officer did not have probable cause to arrest. The officer’s actions were designed to further only his interests in his immediate self-protection. • Whenever a police officer accosts an individual and restrains his freedom to walk away. husband and wife).g. The officer never placed his hands beneath the suspects’ outer garments. first focus on the governmental interest which allegedly justified intrusion upon the constitutionally protected interests of the private citizen. Police cannot use pre-text (the primary purpose is avoiding the objection) to remove the objecting party from the premises. he has seized that person. If the arrest is unlawful. Factors in evaluating voluntary consent.

. • The search does not apply outside of the school context. The principal demanded to search the defendant’s purse and drugs were found. However. To search the car. Included in the stop is the demand for the driver to step out of the car. The reasonableness inquiry considers (i) whether the action was justified at its inception. then the officer may frisk the passenger in the stopped vehicle. Under ordinary circumstances. (Plain feel doctrine). and the person does not need to be within the car’s grab area. where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries. and (ii) whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety. police must have reasonable suspicion of criminal activity (any criminal activity will do). If the police are immediately sure it’s a weapon. it does not show the tipster has knowledge of concealed criminal activity. An accurate description of a subject’s readily observable location and appearance is reliable only in the limited sense that it helps identify the person the tipster has accused. and the burden is on the defendant to show that their refusal to consent didn’t show he was dangerous. The search was reasonable. there is a rebuttable presumption that they are dangerous. TLO: Defendant was caught smoking in the school bathroom by the principal. Police can only grope containers where they reasonably think that the item sought will be. but officials have greater latitude. The legality of searches in the public school setting is still based upon reasonableness under the totality of the circumstances. The scope of patdowns is limited to those directed at locating weapons or contraband. To pull over a car. they can remove it. Where a police officer observes unusual conduct which leads him to reasonable conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. If a vehicle is validly stopped. The reasonableness inquiry requires that a tip be reliable in its assertion of illegality. • The school cases only apply to public schools because there must be a government actor. The defendant will want the standard to be probable cause. The facts must be judged against an objective standard from the perspective of a reasonable officer. and the prosecution will want reasonable suspicion. and passengers are considered stopped when the driver is stopped. not just in its tendency to identify a determinate person. and the officer has reason to believe that the passenger is armed and dangerous. If there is reasonable suspicion that the person is armed. the police need more than reasonable suspicion of criminal activity. he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. However. Discovery of rolling papers and a list of “people who owe me money” gave rise to reasonable suspicion that the defendant was selling drugs. Such a search will be permissible when the measures adopted are reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.• • • • • which. a search of the student by a school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student had violated or is violating either the law or the rules of the school. reasonably warrant that intrusion. whereas in SILA you can open containers even if they couldn’t hold a weapon. police can get into the car pursuant to Terry to search for weapons if they have a reasonable suspicion that the person is armed and dangerous (similar to the “grab area”). taken together with rational inferences from those facts.

pills. it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention. purses. The lesser standard for school searched could be described as a moderate chance of finding evidence of wrongdoing. and she did so. He showed her knives. and obtained consent to search. • Other investigatory searches and seizures: In addition to authorizing a “frisk”. the over the counter pills posed limited threats. Because the search of the defendant’s person was not preceded by an impermissible seizure of her person. Another agent arrived. lighters. and for searched by school officials a careful balancing of governmental and private interests suggests that the public interest is best serve by a standard of reasonableness that falls short of probable cause. The defendant was sent to the nurse and strip searched down to her bra and underwear. The defendant displayed the characteristics of persons unlawfully carrying narcotics. confirmed that the defendant gave consent. Regarding the required knowledge component of probable cause for law enforcement officer’s evidence search is that it raises a “fair probability” or a “substantial chance” of discovering evidence of criminal activity. . because the voluntariness of her responses does not depend on her being so informed. they asked to see the defendant’s ID and for her to accompany them for further questioning. it was merely an encounter. and there were no specific facts indicating that she was hiding pills in her underwear. and herself informed the defendant of her right to refuse consent. asked for identification. The agents asked the defendant if she would accompany them to the airport’s DEA office for further questioning. the agents wore uniforms and did not display weapons. • • To conduct a strip search. The search of the backpack and outer clothing were justified because if the student was reasonably suspected of giving out contraband pills. etc. either in being stopped initially or in being taken for more questioning (both moments should be analyzed). although did not give a verbal response. they approached the defendant and identified themselves as federal agents. There must be a reasonable suspicion of danger or of resort to underwear for hiding of evidence of wrongdoing before a search can go from the outer clothing and bags to the undergarments. The strip search was extremely intrusive. The agents asked to search the defendant and told her she had a right to decline to do so. and saw that her airline ticket was in a different name than her ID. Mendenhall: Defendant was observed behaving suspiciously at an airport by DEA agents. and no pills were found.• There is a broader scope and lighter standard with school searches. The school setting requires some modification of the level of suspicion of illicit activity needed to justify a search. Terry also authorizes police to make a “stop” which is a form of seizure. she is reasonably suspected of carrying them on her person and in her bag. The principal searched the defendant’s bags and found nothing. and said he received reports that she was handing out the pills. Drugs were found on the defendant’s person. there must be reasonable suspicion of danger of what’s hidden or distinct justifications that the item is in it’s location. there was no indication of danger to the students from the power of the drugs or their quantity. and the defendant consented. Redding: The defendant student was questioned by the principal. The search was unreasonable. It does not matter that she was not informed that she was free to leave. The defendant was not seized. The agents approached the defendant. School officials can go through pockets. etc. The events took place in a public concourse.

A frisk requires reasonable suspicion that the defendant is armed and dangerous. but whether the officer’s words and actions would have conveyed that to a reasonable person. this kind of police presence does not. the officer tackled the defendant and handcuffed him. and the teens fled. Would a reasonable person feel free to cut off conversation (if in a Bostick situation) or leave? • A seizure can end after the person had been briefly seized (e. or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. The officers chased the defendant. The defendant had not been seized when he dropped the drugs. there can never be consent with an unlawful arrest. An assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. • An arrest requires either physical force or.• • • • • There can be consent as long as the arrest is lawful. his freedom of movement is restrained. the display of a weapon by an officer. The package contained drugs. When an encounter becomes a stop: objective standard. standing alone. the passenger of the vehicle (as well as the driver) is seized within the meaning of the 4th Amendment. • Police chase can be a factor in considering reasonable suspicion. would a reasonable person have believed that he was free to leave? Both the officer’s and person’s subjective beliefs are irrelevant. saw a cop as he was almost upon him. whether or not it succeeds in subduing the arrestee. would be the threatening presence of several officers. • The test for existence of a “show of authority” is an objective one: not whether the citizen perceived that he was being ordered to restrict movement. When a police officer makes a traffic stop. and tossed away a package.g. the mere grasping or application of physical force with lawful authority. a reasonable person would have believed that he was not free to leave. and may challenge the constitutionality of the stop. • The test for seizure is that there is either (i) show of authority from the government AND (ii) force) OR submission. which may not be apparent from the chase. they’re on a moving bus): would a reasonable person feel free to cut off the conversation? Hodari D: Police officers saw a group of teens.g. The defendant had been untouched by the officer when he discarded the package. by the party making the arrest for that purpose. There can be no arrest without either touching or submission. while no actual. In the absence of such evidence. where that is absent. however slight. in view of all of the circumstances surrounding the incident. . Constructive detention will constitute an arrest where there is mere touching. an inoffensive contact between police and citizens is not a seizure. Mere words will not constitute an arrest. by means of physical force or a show of authority. Examples of circumstances that might indicate a seizure. is sufficient. • While the very presence of a police car driving parallel to a pedestrian could be somewhat intimidating. but isn’t in itself dispositive. The police officer following the defendant in a cruiser did not convey the message that he was not free to disregard the police and leave. • To constitute an arrest. The question is whether a reasonable person in that situation would have believed himself free to terminate the encounter with the police. An unlawful arrest taints all subsequent searches. constitute a seizure. the reason for the stop is irrelevant. physical touching is essential. even when the person did not attempt to leave. approached them. A person has been seized only if. submission to the assertion of authority. Bostick: Standard for when people are not free to leave for external reasons (e. the suspect runs away). If the person has no reasonable suspicion that they’re not free to leave. The defendant was looking behind as he ran. even though the suspect is never physically controlled. the physical touching of the person. A moment later. A person is seized only when. Passive acquiescence is enough to establish submission.

pre-textual motivations for the stop are irrelevant. but considerable less proof of wrongdoing by a preponderance of the evidence. The officers asked the defendant to accompany them. the police would have held his luggage and sought a warrant. • By itself. Probable cause means a fair probability that contraband or evidence of a crime will be found.• But-for causation analysis is used for physical force and whether police caused it. young. You must consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.based upon the whole picture the detaining officers must have a particularized and objective basis for suspecting that the particular person stopped of criminal activity. After warning the defendant that he would be arrested if he didn’t comply. The officers approached the defendant and asked if he had a moment to speak with them. The officers asked if he would consent to a search of the luggage. Hibel: The officer was called to the scene after an assault was reported. during which time it was necessary to detain the defendant. The officer found a man and asked for identification. It’s dependent upon both the content of information possessed by police and its degree of reliability. The defendant was taken into a small room. casually dressed. Had the defendant refused to consent to the search. What began as a consensual inquiry escalated into an investigatory procedure in a police interrogation room. • Reasonable suspicion should be determined using the totality of the circumstances standard. the luggage was retrieved and brought into the room. but without oral consent. the defendant produced his ID and ticket. meeting a drug courier profile is insufficient to establish probable cause or reasonable suspicion. only wrote a name and destination on the luggage tag). unsatisfied with previous explanations. but whether the police acted unreasonably in failing to recognize or pursue it. • Statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act or free will. The state has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. which he did. Upon request. The method used should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. • Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. • There is no rigid time limitation on Terry stops. and the level of suspicion required for a Terry stop is less demanding than that for probable cause. Royer: Officers observed the defendant at the airport and found he met a drug courier profile (carrying heavy luggage. he was arrested. and the defendant didn’t provide identification. The man refused and taunted the officer. • The subjective. The defendant was never informed that he was free to leave and reasonably believed he was being detained. The question is not simply whether some other alternative was available. The arrest was . Examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly. paid for the ticket in cash. Without his consent. • An investigatory detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. The officer continued to ask and was refused. appeared to be pale and nervous. sought to confirm their suspicions. and the defendant opened it and drugs were found. whose names didn’t match. where the police. • Reasonable suspicion involves something more than an inchoate and unparticularized suspicion or hunch.

pursuant to a “stop and identify” statute which permitted an officer to ask or require that a suspect reveal his identity. A protective sweep. as police have interests in ensuring there aren’t other people who pose a danger. • As an incident to arrest. the exigency of the circumstances. aimed at protecting the arresting officers. • The stop must be justified at its inception and be reasonably related in scope to the circumstances which justified the initial stop. if justified by the circumstances. knowing if they have the right person. • Questions concerning a suspect’s identity are routine and accepted as part of many Terry stops. the police had the right. whether the evidence is likely to be destroyed. whether police made reasonable efforts to reconcile their law enforcement needs with privacy interests. but does not change the nature of the stop itself (its duration or location). consider whether the police had probable cause to believe evidence of a crime exists. • In balancing privacy interests and law enforcement concerns when police secure a residence and restrict the owner’s movements while waiting to search. was arrested. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Buie (amends Chimel): The police obtained an arrest warrant for the defendant. and the length of time the restraint was imposed. searched. Knowing the suspect’s identity serves government purposes such as knowing the person’s criminal history. police found plaintiffs naked in bed and ordered them . The defendant came out. One officer shouted into the basement. to search anywhere in the house that the defendant might have been found. Until the point of arrest. During the search. rationale. look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched. Retelle: Police were unaware that the suspects have moved from the residence 3 months before the search. the request. The limited intrusion on the personal security of the person was justified by such substantial law enforcement interests that the seizure could be made on articulable suspicion not amounting to probable cause. Beyond that. The request for identity has an immediate relation to the purpose. Then. as a precautionary matter and without probable cause or reasonable suspicion. once the defendant was found. the officers could. The police arrived at the defendant’s residence and fanned out throughout the first and second floors. taken together with reasonable inferences from those facts. and handcuffed. an officer entered the basement “in case there was someone else” down there and found evidence of the crime and seized it. A protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. etc. is nevertheless not a full search of the premises. would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. and practical demands for a Terry stop. but may extend only to a cursory inspection of those spaces where a person may be found. • A person may be temporarily detained while their residence is being searched. the search was over and there was no longer the particular justification for entering any rooms that had not yet been searched. • Police may order drivers and passengers of vehicles to exit the vehicle with the requisite suspicion. However. • A Terry frisk occurs before a police-citizen confrontation has escalated to the point of arrest. The search warrant was not required. and the requirement of a response did not contravene the 4th Amendment’s guarantees. The stop. ordering anyone to come out. there must be articulable facts which. pursuant to the authority of the arrest warrant. This doesn’t mean the rooms couldn’t be entered.

With Terry. In the cases below. The police followed a particular procedure. • Where there is no probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations. there was no probable cause to believe the driver was violating a driving law. objective facts can be combined with permissible deductions from particular facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. and Buie there was reasonable suspicion of something. Plaintiffs stood naked for a few minutes before being allowed to dress. • There must be a showing that the state chose the checkpoint location.out of the bed. etc. The detention only occurred for a limited amount of time and lasted no longer than necessary for the police to determine that they weren’t the suspects. Prouse: The policeman stopped a vehicle to check the driver’s license and registration. • When used by trained law enforcement officers. The officer’s actions were reasonable. time. . The stop was unreasonable. • The interest of a checkpoint cannot be advancing general interest in crime control. but there are some special needs that justify the search. and the officers did not have discretion to determine the cars to be stopped. The police had interests in ensuring there were no weapons beneath the covers and in remaining in control of the situation. The officer smelled pot in approaching the vehicle and saw pot in plain view on the car floor. • The use of canine sniffs on vehicles stopped for violating traffic laws is permissible. The state has interests in ensuring people are fit to operate vehicles and are following regulations and laws while driving. strategically in order to serve their stated interests. but was not acting pursuant to any standards or procedures for doing so. a predetermined number of vehicles to be searched was established. • The defendant will focus his case on the scope of the intrusion and the prosecution on the need for the intrusion. • Roving stops (suspicionless stops) are unconstitutional. the stop was brief. However. there is no reasonable suspicion.or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregisteredthere is no legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver to check his license and registration. Edmond: The city set up checkpoints for vehicles to interdict unlawful drugs. Long. • In determining what individualized suspicion is required. • Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonger and unnecessary period of time. There is a grave danger of police abuse and unbridled discretion. consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. There were no standards governing the reasons for stopping and the procedures for conducting the stop. There were other ways to accomplish the state’s interest. The checkpoints were unreasonable because the primary purpose of the checkpoint is to advance the general interests in crime control. Checkpoints that have been upheld have been designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Standards protect against arbitrary police stops. The seizure is less intrusive if conducted on neutral grounds. • Checkpoint cases have recognized only a limited exception to the general rule that a seizure must be accompanied by some measure of individualized suspicion.

Lidster: Police may set up a checkpoint designed to obtain information about an accident that occurred in the area from the motoring public. The policy was reasonable. not to prevent general crime. trunk. Special needs • Allows the government to search or seize without probable cause and sometimes even without reasonable suspicion. • Immigration roadblocks are permissible within 100 miles inside the border.g. The intrusiveness of the stop depends on the nature of the stop. The primary purpose of the stop was to elicit information about a crime that already occurred. this is a routine stop. and safety. The government’s authority to conduct suspicionless inspections at the border includes the authority to remove. • Except at the border and its functional equivalents.• • Reasonable suspicion cannot be built on a failure to consent (a theme in the 4th Amendment). The search was reasonable. luggage. • Routine searches of outer clothing. Between 2 and 24 hours. The degree of intrusion was minimal. reasonable suspicion is required. • Can search laptops and look at the files at the border. the police may pull them over. and reassemble a fuel tank. and glove box (property and the vehicle) are constitutional. Functional borders (e. Within the 100 miles. there must be reasonable suspicion of criminal activity. The government’s interest in excluding unwanted persons and effects is at its peak at the border. The test results were kept . The search was brief and did not cause safety concerns or extensive property damage. disconnected. People are on notice that these types of searches occur at the borders. Border searches Flores-Montano: A customs inspector inspected the defendant’s vehicle. and drugs were found. as only a faculty member listened to the student pee. examined. sent the vehicle for a second search. After 2 hours. reasonable suspicion is needed for a strip search and searching body cavities. locations chosen. If a person approaching a roadblock makes a u-turn that is against the law. and applies especially in safety and administrative cases. Within 100 miles. there must be reasonable suspicion. go to the intrusiveness. officers on roving patrol (suspicionless stops) may stop vehicles only if they are aware of specific articulable facts that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. Earls: The public school’s policy required all students to take a drug test and submit to random drug testing to participate in extracurricular activities. The sequencing protocol. Outside of the 100 miles. need reasonable suspicion and the police must offer to x-ray the person or provide laxatives. etc. disassemble. Students have reasonable expectations of privacy in their urine. F. No suspicion is required. Taking urine is a search and testing it is another search. which allows the officer to stop the car. The expectation of privacy is less at the border than in the interior. health. The test was conducted using urine samples and detected only illegal drugs. need reasonable suspicion of an immigration violation. Students’ privacy interests are limited in the public school environment where the state is responsible for maintaining discipline. airports) can set up checkpoints. The car was then raised. • People can be held for 1-2 hours at the border. G. However. fixed checkpoints are permitted as long as they’re looking for immigration violations and meet other requirements for checkpoints. If the search is really severe and destructive. and the gas tank sounded solid.

• The exigencies of the circumstance make the needs of the law enforcement so compelling that the warrantless search is objectively reasonable. The person restrained was spitting up blood and being restrained. Exigent circumstances Stuart: Police arrived at defendant’s residence after being called about a loud party. Officers observed through a screen 4 people trying to restrain someone. If the woman tested positive. • Use special needs where there is no individualized/particularized suspicion. While the ultimate goal may have been to help women seek treatment. . There was ongoing violence occurring within the home. The government had important concerns in preventing drug abuse by children. • Reasonableness usually requires a showing of probable cause. The policy was used to coerce patients into substance abuse treatment. In the context of safety and administrative regulations. The hospital sought to test and give the police the results without the women’s knowledge or consent. There were 2 4th Amendment moments. they heard shouting from inside the house and proceeded down the driveway to investigate. make the warrant and probable cause requirement impracticable. a search unsupported by probable cause may be reasonable when special needs. The results were not turned over to police and did not lead to the imposition of discipline or academic consequences. The officer did not have to wait to enter until the situation became dire. Officers observed 2 juveniles drinking beer in the backyard and entered the backyard. The officer opened the door and announced his presence. it’s permissible to allow searches of the home of the parolee/probationer without a warrant and without probable cause. one when the officer entered the yard and one when the officers entered the home. but no one noticed and the officer entered the home. The policy was unreasonable. Ferguson: The state was concerned about drug use by pregnant women and implemented a policy of testing women suspected of using drugs who received treatment from the state hospital. People have reasonable expectations of privacy that their test results will not be given to third parties. The purpose was indistinguishable from general interest in crime control. with only reasonable suspicion. Particularized or pervasive drug problems have not been required to be proven before allowing the government to conduct suspicionless drug testing. Threats of law enforcement involvement was made to women who refused to be tested and who refused to comply with treatment. but only reasonably effective means. The officer could reasonably find that the person was in need of help and could be substantially injured. not to disseminate the results to a third party without authorization. the use of the adverse test was to disqualify an individual from a particular benefit. • In the cases where the testing has been upheld. Prosecutors were highly involved in the day-to-day operations of the program. Parole/Probation: When stated by statute or in the conditions of parole/probation. The entry was reasonable. There was no misplaced loyalty because people at hospitals don’t think they can leave when asked to give a urine sample. because they have notice of the potential confidential files. Upon arriving. she was forced to enroll in a drug counseling program. the immediate objective was to generate evidence for law enforcement purposes to reach that goal. Reasonableness does not require the least intrusive means. beyond the normal need for law enforcement. There was a specific purpose of incriminating the patients. H. but may be inappropriate in administrative cases because probable cause is peculiarly related to criminal investigations.

nor be deprived of life. • • • • • Police Interrogations and Confessions Fifth Amendment: No person shall be…compelled in any criminal case to be a witness against himself. Need probable cause that it is evidence of the crime. Even if the defendant was given Miranda rights and made a knowing. 3 types of exigency: (i) public safety (requires probable cause that someone is in danger). the evidence may still be excluded under M-M if the defendant has not been arraigned within 6 hours of the arrest. The 4th and 15th Amendment Due Process Clauses governed the police practices and admissibility of confessions in state and federal court. Before the 6 hours is up. voluntarily. It means some sort of chase. Officers can enter curtilage under this exigency if the evidence is evidence of a crime. (iii) destruction of evidence. respectively. there is no pursuit. The government cannot impermissibly create the exigency. Police cannot ignore a clear opportunity to get a warrant. M-M applies only in federal courts. and intelligent waiver. and the subjective views are irrelevant. McNabb-Mallory rule: The 6th Amendment is violated if a person is held more than 6 hours and not taken before a magistrate. (ii) hot pursuit. liberty. but the test does not protect people from wrongdoings at the police station. and without compulsion. Was it reasonable to anticipate that the officer would create the exigency? Police cannot use this exception if they missed an opportunity to obtain a warrant. The Due Process approach does not require physical coercion. that the police knew or should have known about the defendant’s weaknesses. Pre-Miranda Doctrines Torture is bad because it deprives people of human dignity and the confessions are not trustworthy. or property without due process of law… Sixth Amendment: In all criminal proceedings. The Due Process standard still applies today to confessions. voluntary. . The inquiry is from the perspective of the reasonable officer. Need (i) probable cause that a felony had been committed and the felon is in the area being searched. the evidence is admissible. Destruction of evidence: evaluate the gravity of the offense and the destructibility of the evidence. Look at the totality of the circumstances and balance the defendant’s particular characteristics with the degree of police brutality. and any statement made after this period is inadmissible. in order to enter a protected area without a warrant and without cause. There must be some degree of police overreaching. There is a circuit split on whether the officer intended to create the exigency or actually created the exigency. the defendant must be arraigned or M-M waived for the evidence to be admissible. and (iii) probable cause that the fleeing felon is aware that he is involved in a pursuit. The confession must be made freely. If the defendant is in his house. the accused shall enjoy the right to…have the assistance of counsel for his defense. A.• Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. but it does not have to be a dramatic chase throughout the public can be mental or psychological coercion. Hot pursuit is an exigent circumstance. (ii) pursuit. and after the 6 hours.

The event of arrest does not qualify as this type of proceeding. The inquiry is whether the defendant is the focus of the investigation and if there is a legal proceeding. • You cannot claim the privilege if the statute of limitations has run on the crime that you have been convicted of. • You cannot claim the privilege if you’ve been acquitted because you’re protected from prosecution by double jeopardy. Statements by the defendant broadcast to the police were introduced. whereas Miranda rights do not apply to persons in either category. There was no search because of misplaced loyalty. B.Pre-Miranda 6th Amendment right to counsel. M-M does not apply because the defendant was not in custody. If the government grants you immunity.Massiah: Defendant was indicted. A co-defendant agreed to hide a radio transmitter under his car seat and broadcast conversations to the police. The atmosphere of custodial interrogation carries its own badge of intimidation. you cannot claim the 5th Amendment privilege. failed to effectively warn the defendant of his right to remain silent during the custodial interrogation. The Fifth Amendment and Miranda Limitations: • There must be a criminal matter looming. The defendant’s Sixth Amendment rights were violated. and therefore at a time when the defendant is entitled to a lawyer’s help. and denied the defendant’s request to consult with counsel. . Massiah rights apply to indicted persons who are not in custody. • There must be some degree of compulsion. The very fact that confessions are elicited during the stage between arrest and indictment makes it critical that the defendant be afforded the right to counsel. Escobedo (overruled): The Massiah right to counsel was extended to arrestees who are not yet indicted. retained a lawyer. The Fifth Amendment privilege against self-incrimination is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will. and was released on bail. The period from indictment to trial is critical. Kirby: Overrules Escobedo. The right to counsel applies only to critical stages of a prosecution that occur after the commencement of adversarial judicial proceedings. then the adversary process begins to operate for Sixth Amendment purposes. A confession deliberately elicited by the police after an indictment is made. denies the defendant effective representation by counsel. no statement obtained from the defendant can truly be the product of his own free choice. from and after the finding of the indictment. • Any secret interrogation of the defendant. The defendant’s rights were violated where the police began to focus on the defendant in custody as a particular suspect. Once the police process shifts from investigatory to accusatory. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings. without the protection afforded by the presence of counsel. so that the purpose of the process is to elicit a confession. and to indicted persons who are questioned surreptitiously by government agents. contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of the person charged with crime.

the authorities cannot rationally ignore his request on the basis that the individual does not have or cannot afford a retained attorney. . the privilege against selfincrimination is jeopardized. Without the additional warning that a person will be appointed a lawyer if he cannot afford one. Such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. he must be informed in clear and unequivocal terms that he has the right to remain silent. the following measures are required. but also of the consequence of forgoing it. The warning may serve to make the individual more acutely aware that he is faced with a phase of the adversarial system. if no warnings are given. the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. Procedural safeguards must be employed to protect the privilege and in the absence of other fully effective measures. The warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to recognize it. The warning is an absolute prerequisite to interrogation. An individual need not make a pre-interrogation request for a lawyer. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. but also to have counsel present during the questioning. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings have been given. and such opportunity afforded him. The warning is an absolute prerequisite to interrogation. The need for counsel to protect the privilege extends not merely to pre-questioning counseling. that he has the right to the presence of an attorney. Because the Fifth Amendment privilege is fundamental and the warning is so simple to say. 4. no evidence obtained as a result of interrogation can be used against him.the threshold requirement for an intelligent decision as to its exercise. Opportunity to exercise these rights must be afforded to him throughout the interrogation. his failure to make the request does not constitute a waiver. If a person in custody is to be subjected to interrogation. After such warnings are given. 3. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. This warning is needed in order to make him aware not only of the privilege. that he is not in the presence of persons acting solely in his interest. For those unaware of the privilege. there is no inquiry into whether the defendant was aware of his rights. 2.When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. that anything he says can be used against him in a court of law. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs. The right to have counsel present in the interrogation is indispensable to the protection of the Fifth Amendment privilege. But unless and until such warnings and waiver are demonstrated by the prosecution at trial. the warning is needed simply to make them aware of it. 1. The person must be warned prior to any questioning that he has the right to remain silent. the admonition of the right to counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to retain one. An individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have a lawyer with him during the interrogation under the system for protecting the privilege.

at any time prior to or during questioning. 7. 2 inquiries for custody: a.5. If the interrogation continues without the presence of an attorney and a statement is taken. The warnings cure the imbalance of power in the police station. the privilege does not apply. a heavy burden rests with the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. they may refrain from doing so without violating the person’s privilege so long as they do not question him during that time. the interrogation must cease until the attorney is present. Then the burden shifts to the prosecution to show adequate warnings were given and a valid waiver was made. subtle or otherwise. the interrogation must cease. If police authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out. any statement taken after the person invokes the privilege cannot be other than the product of compulsion. Custody The duty to give Miranda warnings arises only when police interrogate a person who is in custody. the individual must have an opportunity to confer with the attorney and have him present during any subsequent questioning. Given those circumstances. An express statement that an individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and leave. The concepts of custody and interrogation are distinct and must coexist during the “custodial interrogation” in order to give rise to Miranda rights and duties. if the individual indicates in any manner. There must be both custody and interrogation. The fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights and only made the statement after the compelling influence forced him to do so. C. . 1. that he wishes to remain silent. objective suspect. What were the circumstances surrounding the interrogation? b. No arraignment is required. Requires actual police presence. Miranda court was concerned about the intimidating environment and suspects having the odds stacked against them. 6. At that time. If the individual states that he wants an attorney. At this point. No distinction can be drawn between statements which are direct confessions and statements which amount to admissions to part or all of an offense. Miranda’s application Miranda applies in custodial interrogations. If the person is never prosecuted. • • • • The Fifth Amendment privilege only prevents a defendant from being compelled in any criminal case to be a witness against himself. The court must apply an objective test to determine the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest? The perspective is that of a reasonable. Once warnings have been given. The defense has the burden of proving custody and interrogation. he has shown that he intends to exercise his privilege.

for the custody analysis. if undisclosed. Interrogation . Even more intrusive government behavior is needed. Age is a factor for waiver though. by word or deed. ask about the relative confinement. that leads to Miranda duties. does not bear upon the question whether an individual is in custody. Being in jail is neither a necessary nor sufficient condition for custody analysis. so that police officers do not have to make guesses about a person’s subjective experiences before deciding they may interrogate a person. whether they’re taken from their typical environment. If a person is in jail to begin with. most courts have modified the standard to be a reasonable adolescent. the typical stop is public. military and supervisor. The initial determination of custody depends on the objective circumstances of the interrogation. to the individual being questioned.g. A person’s prior history with law enforcement and the person’s age are irrelevant. etc. not on the subjective views harbored by either the interrogating officer or the person being questioned.• • • • • Custody can be either (i) a formal arrest. A policeman’s unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time. and not the strength or content of the government’s suspicions at the time the questioning was conducted. Those beliefs are relevant only to the extent that they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his “freedom of action.” The objective standard is meant to clarify the custody test. It is the compulsive aspect of custodial interrogation. A police officer’s subjective view that the individual under questioning is a suspect. However. 3 types of custody cases: (i) ordinary citizen. The same principles apply if an officer’s undisclosed assessment is that a person being questioned is not a suspect. if there’s some new disequilibrium. • • • • • • • • • • • • 2. principal and student). A voluntary interview at the police station may not qualify as custody if the interview does not exhibit restraint on freedom of movement of the degree associated with a formal arrest. An officer’s knowledge or beliefs may bear upon the custody issues if they are conveyed. A noncustodial situation is not transformed into a custodial one simply because the questioning took place in a coercive environment. Miranda warnings go away between 2-6 hours. (iii) a hierarchical relationship (e. or (ii) a restrain on movement of the degree associated with a formal arrest. Just telling someone that they’re under arrest does not necessarily mean that an objective person wouldn’t believe that they’re not free to leave. 4th Amendment factors for whether a stop was a seizure or arrest can be applied in the Miranda custody-arrest analysis. circumstances surrounding the stop are not such that the person feels completely at the mercy of the police. and the atmosphere is substantially less police dominated than in other situations. Routine traffic stops do not create custody under Miranda because it is presumptively temporary and brief. The reading of the Miranda warnings is irrelevant to the custody analysis and does not create custody. if they’re more confined. (ii) prisoner.

the police officers make comments to each other. and these techniques of persuasion. (ii) by interrogating improperly after warnings without obtaining a valid waiver of rights. and was placed in a patrol car and driven to the station. or (iii) by violating the duty to cut off questioning and interrogate in violation of Miranda after the person in custody invokes the right to remain silent. no questions about the ownership and purchase of the gun were made until after Miranda was read. Police arrest the unarmed defendant. the defendant invoked his right to counsel. No action because police did not seek to use the wife as a tool and went into the room for reasons other than to gain information. (ii) undercover agents. The public safety exception to Miranda applied. The question is whether a reasonable officer would know that an incriminating response could be elicited. . so it was not reasonably likely to elicit an incriminating response. • Interrogation is either express interrogation or its functional equivalent (some word or actions). The police talked about the handicapped children in the area and it would be a shame if one of the children discovered the shotgun and was killed. regarding the missing shotgun. but not to the defendant. he ran. • Miranda safeguards come into play whenever a person in custody is subjected to either (i) express questioning. and the remarks were not particularly evocative. or (ii) its functional equivalent. Quarles: Police spotted a suspect in a relatively empty grocery store at night. This was nothing more than a dialogue between the officers. the right to counsel. The “functional equivalent” portion focuses on the perceptions of the suspect.Police may violate Miranda by impermissible interrogation in 3 situations: (i) by interrogating a person in custody without giving Miranda warnings. or both. finding an empty shoulder holster. • The starting point for defining interrogation is in Miranda where the court stated that “by custodial interrogation. Interrogation refers also to any words or actions on the part of the police (other to those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. • Ex: Police have husband in a room at the station and is arrested. and police accompany her into room for safety reasons and record the conversation. rather than the intent of the police. The police believed the defendant recently disposed of the gun in the supermarket and posed a danger to customers. and the police caught and frisked him.” • Interrogation is not limited to express questioning. may amount to interrogation. There was no express questioning. we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The defendant interrupted the conversation and directed the officers to the gun. wife insists on going into room to speak with police. and (iii) public safety. On the way to the station. The defendant was handcuffed and asked about the location of the gun. although not express questioning. the area was public. the remarks were brief. the defendant was advised of his Miranda rights three times. police want her to stay away. Miranda was concerned about the use of psychological ploys and surreptitious police means. the officers only asked questions about the missing gun before reading Miranda. • Exceptions to interrogations (i) questions asked that are normally attendant to booking or custody (where to get food). the officers did not know that the defendant was particularly susceptible to an appeal of his conscience concerning the safety of handicapped children. Innis: Police suspected the defendant of using a shotgun to commit murder. There was no interrogation.

such questioning does not constitute an interrogation under Miranda. The Miranda warnings were adequate to convey his right to a free lawyer during and before interrogation.belief that the suspect will know what you’re asking them. (iv) question must be tailored to the danger. and weight. It is the premise of Miranda that the danger of coercion result from the interaction between custody and official interrogation. The defendant argued that he was not properly advised of his right to consult with a free attorney before and during interrogation and was not explicitly informed of his right to counsel before further questioning. address. The exact words of the Miranda opinion are not required to be delivered.bad phrasing cases and mid-stream warning cases. When an undercover agent questions a suspect in custody. police cannot ask more questions than necessary. 3. The next day. the defendant may argue that the warnings were inadequate because they did not reasonably convey the Miranda rights. • Must use “will” not “may” • Cannot use “in accordance with the law. there is no interplay between police interrogation and police custody. When the agent carries neither badge nor gun and wears not police blue. • No talismanic incantation is required to satisfy Miranda. the prosecution must prove that the Miranda warnings were given before interrogation occurred.” Eagan: Defendant was read a version of Miranda rights which alluded to the right to free counsel “if and when you go to trial. then the post-warning statement is inadmissible. or contempt. (ii) concreteness. Routine booking questions. Whenever custodial interrogations take place. (iii) legitimate public danger. The essential ingredients of a police dominated atmosphere and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. such as name. Police questions that are normally attendant to arrest and custody do not qualify as interrogation.” The defendant signed a waiver and made an initial statement. which is not present when the suspect believes the listener has no power over him. • “Represent” to a lay person may mean representation at trial. The first warnings were adequate in their totality to . called for the defendant to explicitly or implicitly relate a factual assertion or disclose information. with the right to appointed counsel separated from the right to counsel before and during the interrogation. but the same prison gray as the suspect. and it subjected the defendant to the cruel trilemma of self-accusation. Even where the warnings were given. “Do you know the date of your sixth birthday?” was not routine because it called for a testimonial response. • “You’re entitled to counsel at trial”. are used to secure the bibliographical information needed to complete the booking. Adequate warnings 2 types of warning cases. Rather. The warnings may be inadequate if they are phrased so as to provide incomplete or misleading information about the rights. the defendant was read the standard Miranda warnings and signed a waiver and made a second statement. courts examine whether the warnings to determine if the reference to the right to appointed counsel was linked to some point in the future after the police interrogation. perjury. Proysock: The defendant was given a version of the Miranda warnings.• Guidelines: (i) immediate necessity. If a court determines that the Miranda warnings were inadequate.problematic because links right to counsel to some future event.

because the earlier and later statements are realistically seen as parts of a single. • Just as no talismanic incantation in required. exhaustive. a suspect would hardly think he had a genuine right to remain silent. the defendant was not advised that her prior statement could not be used. same officer. Both statements were inadmissible. the break between interrogations was only 15-20 minutes. as no Miranda warnings were given before the first interrogation and the midstream recitation of warnings before the second interrogation did not effectively comply with Miranda. and if so. unless the suspect waived his rights. the subsequent statement is inadmissible for want of adequate Miranda warnings. the questioning was systematic. the interrogator was the same. The interrogation stopped for 20 minutes. which the defendant did. the mere recitation of the litany does not suffice to satisfy Miranda in all circumstances. The “if and when you go to trial” described the procedure for obtaining counsel. unwarned sequence of questioning. and the same officer gave warnings then resumed a second interrogation and obtained incriminating statements that repeated the same information obtained from the first interrogation. no steps were taken to dispel the image that the second interrogation was merely a continuation of the earlier questioning. If not. The interrogation was in the stationhouse. the defendant would have viewed it unnatural to refuse to answer what she just confessed to. Midstream warnings are likely to mislead and deprive the defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. the issues of waiver and voluntary statement can be analyzed. and managed with psychological skill. if not the break is irrelevant. • The threshold question when interrogations question first and warn later is whether the warnings effectively advised the suspect that he had a real choice about giving an admissible statement or that he could choose to stop talking if he had talked earlier. • There is an emphasis on the nature of the break between the interrogations. • By any objective measure. The suspect does not have to have made a confession during the first interrogation. .you have to finish saying the warnings. where she made incriminating statements. same subject matter. If the warnings could reasonably be found to be effective. The inquiry is simple whether the warnings reasonably conveyed to a suspect his rights as required by Miranda. ask whether there was a sufficient break. • Bright line rule. the warnings will be ineffective in preparing the suspect for successive interrogation. the interrogations took place in the same location. Upon hearing the warnings only in the aftermath of interrogation and just after making a confession. Kennedy’s concurrence asks first whether it was in bad faith. Miranda does only requires that police not question a suspect who invokes his right to counsel and police cannot give the counsel. close in time and similar in content. etc. curative instruction (that nothing from the first interrogation can be used against you). Seibert: The police officer made a conscious decision pursuant to interrogation techniques to withhold Miranda warnings. The defendant was interrogated for 30-40 minutes. it is likely that if the interrogators employ the technique of withholding warnings until after the interrogation succeeds in eliciting a confession. • The necessary inquiry is whether the warnings reasonably convey to a suspect his rights as required by Miranda. let alone persist in so believing once the police began to lead him over the same ground again. Look at the totality of the circumstances: the length of time. • The nature of the right to remain silent is that you have the right to stop questioning. • Plurality’s approach for 2-tier interrogations asks whether there was a sufficient break between the bad interrogation and the reading of warnings. same room.convey his Miranda rights.

the interrogation must stop. but cannot trick them that Miranda says something that it does not. If the suspect invokes the Miranda rights. reads Miranda. conference with a lawyer). and other circuits say it’s the subjective point of view. Midstream warnings. there must be warnings. • Knowingly and intelligently. read his Miranda rights. the cops do not have to tell the suspect that the lawyer is there. the lawyer is present and the cops know. Cop B comes in. thinks there’s been a waiver and interrogates.g. The inquiry has 2 distinct dimensions. • Voluntariness is from the perspective of a reasonable officer. it becomes stale if there is an intervening event (e. ask whether it would be contrary to the goals of Miranda and the police tactics it tried to prevent. To evaluate whether there was a valid waiver in 2-tier interrogations.whether the defendant actually could waive knowingly and intelligently.some circuits use the standard the officers knew or should have known that it wasn’t knowingly and intelligently waived. or deception.g. So long as the defendant is read and knows the warnings. The police arrested the defendant for selling illegal firearms. reads Miranda.g. Waiver If there is custodial interrogation. knowingly. Under Kennedy’s approach. 4. If there is a waiver. Cop B realizes there’s no waiver. the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation.can claim that the waiver was involuntary but the use of 2-tier interrogations was proper. the waiver must have been made knowingly and intelligently. new evidence brought to the attention of a suspect. First. Follow up questions (e. the defendant waived. and the police questioned the defendant regarding both . The age of a minor from the perspective of a reasonable officer is relevant to waiver. cannot attach warnings because not made in bad faith. look at the same circumstances in determining whether there was a sufficient break between the warnings. Second. The proper police conduct is to repeat the warnings and do not answer the question. A confession by itself constitutes a waiver. Even when the required Miranda warnings are given. Spring: An informant’s tip provided police with information that the defendant committed an unrelated homicide. the interrogation may begin. but not to custody.• The 2 tier approach can make either the warning or waiver invalid. and intelligently waiver his or her Miranda rights. does not get waiver. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court conclude that the Miranda rights have been properly waived. the prosecution must prove by a preponderance of the evidence that the suspect voluntarily. If there is a waiver. silence). coercion. • • • • • • • The police can use trickery to convince a suspect to talk. With the different police actions. the interrogation may begin without an express. if the defendant has not invoked. If the suspect waives the rights or is equivocal (e. Ex: cop A interrogates. with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. “should I contact a lawyer”?) are relevant to waiver. unequivocal waiver. passage of a night.

especially where the Miranda warnings make clear that anything said can be used against you. the diverse pressures which sap or sustain his powers of resistance and self-control. and words. Miranda warnings ensure that a waiver of the privilege is knowing and intelligent by requiring that the suspect be fully advised of his rights. including the critical advice that whatever he chooses to say may be used as evidence against him. followed by statements are a waiver. knowingly. not its knowing nature. The defendant’s waiver was valid and the defendant’s awareness of all crimes about which he may be questioned was not relevant to determining the validity of the waiver. waiver can be inferred from a suspect’s silence. actions. could only affect the wisdom of a Miranda waiver. they will affirmatively assert their rights. if they want. • The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. police officers are not required to inform a person in custody the duty to cut off questioning. There was no evidence or indication that the defendant failed to understand the basic privilege or the consequences of speaking freely to the police. Absent evidence that the suspect’s will was overborne and his capacity for self-determination critically impaired because of coercive police misconduct. but are neither necessary nor sufficient to establish waiver. The question is not of form. the police may assume that the suspect does not wish to exercise them and may attempt safely to seek and obtain waiver. • Mere silence by law enforcement officials as to the subject matter of the interrogation has not been held to be trickery sufficient to invalidate a suspect’s waiver of Miranda rights. • Tradition indicia or coercion: the duration and conditions of detention. Events occurring outside the presence of the suspect and entirely unknown to him have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Requests for counsel.incidents. A waiver will not be invalidated because such information was not conveyed. In some cases. The additional information. 2 months later police read his Miranda rights. the defendant waived. • • 5. his waiver of Fifth Amendment privilege was voluntary under Miranda. Deliberate or reckless withholding of information is only relevant to the waiver inquiry if it deprives the suspect with knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Police do not have to inform a suspect that his sister called regarding a lawyer she retained for him. Miranda requires the police to case questioning immediately. accompanied by announcements of willingness to speak with police. Invocations of Miranda rights If a person in custody receives the Miranda warnings and invokes either the right to counsel or the right to remain silent. A valid waiver does not require that an individual be informed of all information useful in making his decision or all information that might affect his decision to confess. in some circumstances such as here. • An explicit oral or written waiver is not necessary under Miranda. his physical and mental state. Just because you invoke counsel does not mean that you have done so for all purposes. The waiver was voluntary and there was no traditional indicia of coercion. and intelligently waived. However. but rather whether the defendant voluntarily. and was questioned regarding the murder. In the absence of such notice. They are strong indications of a waiver. It is assumed that once a person is notified of their rights. the manifest attitude of the police toward him. The analysis: .

and defendant waived Miranda. read Miranda. • If a suspect requests counsel at any time during an interview. the suspect must unequivocally request counsel. the second occurred at a different location. Did the defendant effectively communicate an invocation to the interrogating officer after the warnings? b. so the police were not required to stop questioning. did the officer cut off questioning immediately without further waiver seeking or interrogation? c.” The interrogator stopped. for someone who neither invokes nor waives. questioning ceased. • The suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstance would understand the statement to be a request for an attorney. the questioning does not have to cease. If so. The break between interrogations was 2 hours. informed the defendant of his rights to counsel. If so. • The Miranda rights are not invoked “generally”. The statement was vague. • When a suspect makes an ambiguous or equivocal statement. and the defendant said “No.” The statement “maybe I should talk to a lawyer” was not an invocation. Rather. a few hours later defendant was again read Miranda. Invocation of right to silence Mosley: Defendant was arrested. he is not subject to further questioning and the rule requires courts to determine whether the accused actually invoked his right to counsel. This is an objective inquiry.a. Miranda’s right to counsel. said he did not want to answer any questions regarding the crimes. a.just stares back. it will be good police practice to clarify whether or not the suspect actually wants an attorney. • The police must understand that the defendant understood the Miranda rights to start interrogations. there was no mention of the first interrogation or the subject matters discussed. did later circumstances establish the lawfulness of another attempt to seek waiver? Invocation does not necessarily establish permanent immunity from interrogation. or both are invoked. The consequences of an invocation depend on whether a person invokes the right to silence or the right to counsel. the second interrogator was different from the first. The police honored the defendant’s right to cut off questioning and properly sought waiver. but this clarification is not required. If the statement fails to meet the requisite level of clarity. Waiver seeking after invocation i. and during questioning said “maybe I should talk to a lawyer. Unambiguous invocation requirement Davis: Defendant was questioned. b. I don’t want a lawyer. • Miranda proscribes different consequences for different kinds of invocations: an invocation of silence does not trigger the requirement of a lawyer’s presence before interrogation can . the topic of the second was different. Either Miranda’s right to counsel. If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel. and Miranda warnings were promptly given. the questioning need not stop.

Invocation of right to counsel ii. an accused may himself validly waive his rights and respond to interrogations. exchanges. unless the accused himself initiates further communication. the only thing that police can do is re-read Miranda and waiver seek. and allows the suspect to control the duration and subjects of interrogation. The waiver was invalid. and the defendant waived and made incriminating statements. The police then said they wanted to question him. but if you start talking. and this discomfort is what Edwards sought to eliminate. It envinced a willingness and desire for general discussion about the investigation and was not merely a necessary inquiry arising out of the custodial relationship. This gives the suspect leverage. but if the individual states that he wants an attorney. Edwards: The defendant was interrogated and told that the prosecutors wanted to discuss a deal with him. • When an accused has invoked the right to have counsel present during custodial interrogation. After a person invokes the right to counsel. is not subject to further interrogation by the authorities until counsel had been made available to him. A critical Miranda safeguard is the right of the suspect to cut off questioning. and overall. the defendant said he did not want to talk. Invoking the right to counsel implies that the suspect does not feel comfortable answering questions without an attorney. a valid waiver of that right cannot be established by should only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. • The invocation lasts for 14 days in the suspect’s natural circumstances. The police. The right to counsel sends the message that the person is not equipped to handle custodial interrogations by themselves. He said that he wanted a lawyer before making a deal. read Miranda. additional safeguards are needed where the accused asks for counsel. unlike his request for counsel. even if you’re seeking to question the suspect about a different crime. and can be remedied with a change of situation. and after this period the police can waiver seek. An accused. the defendant was subjected to custodial interrogation at the instance of the authorities.if there’s a subsequent break.• • • occur. no counsel was present. The police may not waiver seek for interrogation regarding a different crime once the right to counsel is invoked. not the defendant. the cops cannot initiate the interrogation. any further interrogation without counsel having provided will surely . or conversation with the police. • Invoking the right to counsel. • Although after being initially advised of his Miranda rights.if invoked. A person’s invocation of silence. then the interrogation must cease until an attorney is present. police told the defendant he had to talk with them and the defendant said he didn’t want to talk with anyone. does not raise the presumption that he is unable to proceed without the advice of a lawyer.” the defendant initiated further conversation. initiated the second conversation. Bradshaw: In asking “what is going to happen to me now. evens the playing field. Invoking silence. The next day. The cooling off period and whether the readings are attenuated are relevant inquiries. having expressed his desire to deal with the police only through counsel. The right to silence sends the message that the suspect needs to reassert control over the situation/dialogue. police can re-warn and waiver seek. The initiation nullified the invocation of the right to counsel.

warnings. Massiah. focus on government deliberate elicitation (not government interrogation). complaint. Far more elastic than adversarial proceedings. consider whether warnings were adequately conveyed. Both must be analyzed. whether waiver was voluntary. information. Government should not act to interrupt the communication and relationship between the defendant and counsel in trial preparation period. Sacred period between formal adversarial proceedings and trial. cooling off period between rewaiver seeking. An interrogation can trigger Miranda.triggered upon formal adversarial proceeding (indictment.6th Amendment right to counsel. etc. told D not to talk with police. Can apply pre-indictment or post-indictment. interrogation. lawyer told detective he could not interrogate. etc.triggered upon custodial interrogation.exacerbate whatever compulsion to speak the person may be feeling. arraigned.custody. invocation. Massiah lawyer. you need overt police presence. during trip D said when he got back to city he’d say what . detective refused to let other city counsel travel to DM. whether invocation was ambiguous. waiver. car found 160 miles from DM (in Davenport) and car abandoned. implications of invocation. surreptitious means etc. The duty of police to cease interrogation continues after the defendant had spoken with counsel. in Miranda. Deliberate elicitation from government. Waiver seeking after invoking the right to counsel is improper. Massiah. Absence of waiver of Massiah rights. Miranda lawyer. However. invoking the right to counsel is invoking a general right. Arrest warrant issued for D because he was seen carrying child into his car in Des Moines on Christmas eve. whether or not the accused has consulted with his attorney. knowing. and intelligent. Massiah. Brewer v Williams: Resurrection of Massiah. subterfuge. In Massiah. violate Massiah.the lawyer at interrogation. and officials may not reinitiate interrogation without counsel present. interrogation must cease. It was irrelevant that the second interrogation involved a different officer and different subject matter. Miranda. DM authorities travelled to pick him up. Massiah. or both. Miranda. When counsel is requested.focused on how to protect suspects from stationhouse interrogations. counsel in other city appointed to represent him. Look to adversarial proceedings to trigger Massiah. etc). undercover police/agents. no need for an overt police presence.5th Amendment right to counsel. Miranda right to counsel protects you from questioning about any offense (Mosley). Offense specific nature of the Massiah right. Massiah Doctrine Miranda.Massiah doesn’t protect you from questioning about matters unrelated to the subject matter underlying the formal adversarial proceeding. D turned himself in on advice of DM counsel.the lawyer at trial. Miranda’s goal was to create equilibrium between police and suspect.

and his statement that he would speak when he got to DM indicated that he wanted the presence of counsel before any interrogation occurred. refused to let counsel travel with them. No Miranda warnings were read. His behavior indicated that he did not want to speak without the advice of counsel. Defendant’s 6th Amendment rights were violated in car when subjected to speech. The defendant had secured counsel at both ends of the trip. put in cell with Lee. and intelligent waiver? Government must prove waiver.happened. Kuhlmann: Defendant was arraigned on robbery and murder. conversation turned to religion. warnings given. detective talked about how D could give the parents a proper Christian burial but they had to act quickly because the body would decay by spring. to listen to defendant and report information about co-conspirators. Lee agreed to be police informant. 1. Did the government deliberately elicit incriminating statements/information from suspect? Yes. or arraignment. public safety exception could be applied and questioning would not be interrogation. 6th Amendment right to counsel violated. The defendant did not waive his rights. detective sought isolation of defendant. and counsel told police to not interrogate him. voluntary. Police may question an indicted defendant about uncharged offenses that are factually related to the charged offense. • Although the Innis court said that the concepts of interrogation and deliberate elicitation are distinct and not interchangeable.No counsel present. information.had been arraigned. lawyers at both end of journey. Lee . was advised by counsel. suggesting that an interrogation may have been found on the facts of Brewer. D directed detective to body. D tries to direct detective to shoes and blanket. detective gave him a few minutes to think. • To prove a waiver. the government must prove the intentional relinquishment or abandonment of a known right or privilege. The detective deliberately and designedly set out to elicit information from the defendant. The defendant expressly and implicitly asserted his rights. The detective purposely sought to isolate the defendant from lawyers to obtain as much incriminating evidence as possible. If detective believed that girl was still alive. Were adequate warnings given? Did Williams waive his right. Here no waiver. he has the right to legal representation when the government interrogates him. Had formal adversarial proceedings commenced against the defendant? Yes. in Innis detectives had no special knowledge about suspect’s vulnerabilities. preliminary hearing.knowing. 3. and bragged later that he hoped it would lead to an incriminating statement. knew defendant was a Christian. indictment. detective learned D was former mental patient and deeply religious. Was there an interrogation? Innis found the police’s conduct was not the functional equivalent of interrogation. • Once adversary proceedings have commenced against an individual. • Adversarial judicial criminal proceedings: formal charge. the factors that found interrogation did not exist in Innis were opposite to those facts in Brewer. and government must prove valid warnings and waiver. defendant didn’t want to talk until got back to city. Miranda violation? There was custody. Same standard as Miranda. Brewer cont. no adequate warnings before the incriminating speech given. • Cobb: police may question an indicted individual about any uncharged offense that requires proof of a fact not required by the definition of the charged offense.: Judicial proceedings had been initiated against the defendant because he was arraigned and committed by the court to confinement in jail. 2. the definition of offense is the double jeopardy definition. police knew about defendant’s mental health and religious beliefs.

don’t punish government if suspect blurts out incriminating statements. in order for the informant’s conduct to constitute state action. beyond merely listening. Analyzing deliberate elicitation. it should be equated to the intentional creation of an opportunity to circumvent the right to counsel. The Sixth Amendment is not violated when. There was no deliberate elicitation. there is no Massiah violation. • The primary concern of Massiah is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Lee told defendant “that doesn’t sound like good story”. Analogous to Miranda. Listening post exception to Massiah doctrine: Massiah applies to surreptitious questioning. the state obtains incriminating statements from the accused after the right to counsel has attached. the moment when one requests counsel at formal adversarial proceeding. Deliberate elicitation is impermissible after formal adversarial proceedings if no valid warnings and waiver. defendant was put in a cell overlooking scene of crime. It is treated as invocation of Massiah rights to counsel. It’s a windfall for the govt. It was a sheer coincidence that defendant was placed in cell overlooking crime. Government informant can be present. would . but cannot engage in deliberate elicitation of statements in Massiah (unlike in Miranda when they can jump in to a full interrogation). invoked Miranda rights to counsel. that was designed deliberately to elicit incriminating remarks. and (ii) the determination of an informant’s status will turn on factual inquires into the extent of police involvement with the informant. Police cannot engage in any deliberate elicitation that includes covert or overt police questioning. • • 6th Amendment is not violated if government learns of incriminating evidence by luck or happenstance. even if the defendant initiated the meeting. • When the government knowingly exploits an opportunity to confront the accused without counsel being present. (ii) After the arraignment or initial formal proceeding where defendant makes request for counsel. Waiver seeking: 2 situations where government is barred from reading warnings and waiver seeking: (i) suspect is subject to formal adversarial proceeding. Lee told police. read rights. they’ve waived Miranda and Massiah rights. knowing what they knew about this suspect.When are massiah rights invoked? Government cannot engage in deliberate elicitation of a suspect about the offense underlying the formal adversarial proceeding outside the presence of the lawyer when Massiah rights invoked.from objective perspective. It is from the reasonable officer’s perspective. Don’t need to give Miranda and Massiah warnings. police told Lee to just keep his ears open. Scraping away the fact of placement of defendant in that cell. If someone has been given Miranda warnings after a formal adversarial proceeding. • Factors that make an informant a government agent: (i) an agency relationship between the government and informant. Traditionally. and they waive their Miranda warnings. The defendant’s statements were unsolicited and spontaneous. If the statement was obtained by luck or happenstances. a reasonable person would not find it likely the conduct would lead to elicitation.didn’t ask questions. • • • Questions about invocation.give warnings.would the reasonable person find it likely that a planned course of conduct would lead to elicitation of incriminating evidence by this suspect. The defendant was not placed in the particular cell by design. by luck or happenstance. defendant told Lee real story few days later. defendant recounted story given to Lee. Miranda warnings will suffice for purposes of conveying Massiah rights. The defendant must demonstrate that the police and their informant took some action. Securing waiver of Massiah. where the informant deliberately elicits information.

Montejo. Waiver inquiry: was the accused. So long as the accused is made aware of the dangers and disadvantages of self-representation during postindictment questioning by use of the Miranda warnings. The counsel was automatically appointed and the defendant made no comment about wanting counsel. was read Miranda rights. of his right to counsel. Massiah rights can be invoked. The court treated the request for counsel at arraignment as an invocation of the Sixth Amendment right to counsel. If one is assertive in their rights. cannot be waiver seeking absent initiation. The Miranda warnings suffice to make the accused aware of their right to counsel. Later that day. Government can continue to waiver seek. if less than that. The state’s decision to take an additional step and commence formal adversarial proceedings against the accused does not substantially increase the value of counsel to the accused at questioning or expand the limited purpose that an attorney serves when the accused is questioned by invocation of rights and precludes further waiver seeking. deliberately elicitation after Massiah rights are invoked may be ok if valid waiver. Treated as waiver of Massiah rights as well. defendant waived Miranda right to counsel. Montejo. Montejo overruled this bright line rule. can do something in between if mild. .When does one invoke their massiah right to counsel? Standing up and acquiescing is not sufficient. or if mild/acquiescing. government may not deliberately elicit right away but can only waiver seek. his waiver of Sixth Amendment right to counsel at such questioning is knowing and intelligent. The defendant’s rights were not violated when the police sought a waiver after the preliminary hearing.may do something to Massiah. Government came back and waiver sought.triggered by formal adversarial proceeding. and made incriminating statements.mild. received Miranda warnings. made sufficiently aware of his right to have counsel present during the questioning. who waived his 6th Amendment rights during postindictment questioning. cannot do anything if invokes. The marginal benefits of Jackson are outweighed by its costs and was overruled. Massiah. • Jackson: the defendant made an express request for counsel at arraignment. and interrogated. the defendant was asked by police to help them search for the weapon. waived. government cannot deliberately elicit. Under old standard. when Massiah invoked (either at arraignment or after) government cannot continue to waiver seek if invocation is clear and assertive. government could not even seek a waiver after invocation. Shatzer-14 day period after period you can re-warn in Miranda counsel situation. Police officers may not initiate and interrogation after a defendant’s assertion. waiver requires reading of Miranda warnings. The Jackson rule and its progeny were designed to prevent police from badgering someone who has expressly asserted their rights. A few days later. and clearly deliberately invokes Massiah. When invoke Massiah right to counsel. this will preclude the government from further waiver seeking. the defendant was brought before a judge in a preliminary hearing and was appointed counsel. at an arraignment or other similar proceeding. acquiescence invocation of the right to counsel. and of the possible consequences of the decision to forgo the aid of counsel? • Whatever warnings suffice for purposes of Miranda will suffice in the context of postindictment questioning. government can talk to you but only to waiver seek. waived Miranda rights. gave warnings. where Massiah attaches. sub-verbal. Can deliberately elicit if waiver. Montejo: Defendant was arrested.

when they are interrogated by secret agents. Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause. a Due Process claim will be the only basis for arguing that the statements are inadmissible. there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. • Coercion can be mental a well as physical. when they confess while not in custody. • • • • • Deterrence: Do the benefits of ER outweigh its costs? The only motive for ER is cost benefit analysis.they have an interest in catching criminals. not bad judicial misconduct. society is losing. Are police already deterred by alternative remedies? Will the ER encourage more deterrence or have no effect on police conduct? . Logical to incorporate b/c 4th A incorporated. but is not a sufficient condition. Defendants lack Miranda arguments when they waive their rights. The Exclusionary Rule requires a violation of a 4th. Exclusionary rule justifications: fundamental fairness.For defendants who do not have viable Miranda or Massiah claims. • Absent police conduct causally related to the confession. ER is integral to 4th A. so ER should be integrated. judicial integrity. and when they face impeachment on the stand with Mirandadefective statements.Implications for government for violating Fourth. police become more risk averse. Balance the 2 to determine whether ER should apply. deters bad police misconduct. deterring police misconduct. Violation is a necessary condition. The Exclusionary Rule The exclusionary rule prevents the state from using evidence seized in violation of a defendant’s constitutional rights to convict the defendant of a crime. Sixth. violation of rights isn’t enough to suppress fruits of violation. or Fourteenth Amendment rights. its admission may be found to be harmless error only if the prosecution shows that it was harmless beyond a reasonable doubt. Benefits of ER. Defendants who qualify for Massiah rights may lose them through waiver. Marginal benefit of ER must outweigh marginal cost. • Statements must be a product of rational intellect and free will. The prosecutor bears the burden of proving that a confession does not violate Due Process by a preponderance of the evidence. which incorporates the factor of police compliance with Miranda.deter police misconduct. or 14th Amendment rights. Fifth. and need not result in physical harm to the defendant. ER recognized in Weaks case. If a confession is admitted at trial and is later held to be unconstitutional by Due Process standards. • A pre-trial judicial hearing is required to determine the voluntariness of the statement because a jury cannot be expected to produce a fair and reliable finding on this question during the trial on the issue of guilt. The test is a totality test. Napp incorporates ER to the states. Weighed against cost of ER. Remedies. 6th.criminal goes free.

focus on 25%. . of course not. Can government use unlawfully gained evidence for impeachment purposes at trial (as opposed as prima facie evidence of a crime)? Costs. 25% of officers will not be deterred by threat of suppression in civil hearings. executing police officer acted reasonably in relying on judge’s determination. parole revocation. sentencing.will the exclusionary rule in impeachment purposes deter those 25% from engaging in misconduct? Is there any marginal deterrent benefit from extending the ER to impeachment context? No.controversial b/c directly affect how ER is applied. Individual can assert qualified immunity. This is a big police deterrent. 2.e. With a 5th Amendment Miranda violation. ER as applied to the government’s case in chief is extremely beneficial. not other witnesses. 3. ER is to deter police.only applies to state officials. grand jury. if not deterred by exclusion during the prosecution case in chief. Don’t exclude in other government hearings (e. No marginal deterrent benefit. who provides information to the active entity. whereas other witnesses would not know what was said. (1983 suits. There’s no marginal deterrent benefit of extending ER.g. Search violated Fourth Amendment because there was no probable cause.The judge was negligent in issuing warrant. Benefits of excluding evidence for impeachment purposes. grand jury.g.don’t want people to perjure themselves in criminal trials. 75% deterred from unlawful behavior by exclusion of evidence. and a secondary entity. Alternative remedies weaken the effect the same as 1983 suit. another entity acted unreasonably. The acting entity acted perfectly reasonably. etc. If government wants to use evidence seized ancillary to the evidence. usually only individuals. With a 4th Amendment violation. Police are not thinking about trial procedure. just thinking about establishing elements of crime. Federal.• Alternative remedies. Leon. The good faith exception Applies only where there are at least 2 entities: an active entity. who executes the search/seizure or interrogates. misconduct. 25% not.police prosecuted for violating citizens’ constitutional rights. Criminal trial. Police officer acted reasonably in relying on negligent information provided by a non-police entity. Good to expose liars as such. Impeachment Benefits of suppression are extremely high when the evidence that would be used to prove an element of a crime is excluded because it was seized pursuant to an unlawful search. Evidence gained unlawfully may be used to impeach trial testimony. to use in a different crime. civil). not judicial. the fruits may be used in any impeachment context.) 1. Defendant will be on notice and can tailor trial testimony accordingly. fruits can only be used to impeach defendant’s testimony. No marginal benefit of exclusion.Bivens suits. The active entity relies on the secondary entity. Forum Exception ER only applies in the context of prosecution’s case in chief.

Fourth Amendment rights are person rights which cannot be vicariously asserted.A has standing.Police searches accomplice or third party’s house looking for evidence to incriminate you. E. one against whom the search was directed.Police search A’s residence looking for evidence of A’s crime.secondary entity is another cop. Acting cop acts reasonably on another police’s negligence. Although not phrased in such person terms. Since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment. the exception does not apply. Look to whether the acting officer was reasonable and secondary entity was no worse than negligent. find evidence that incriminates B.Good faith exception applies when the legislature enacts an unconstitutional law. the exception does not apply. The court rejected the defendant’s target theory.B does not have standing. If acting officer was negligent or worse. ER should be applied. Intra-police reliance can satisfy good faith reliance to trigger ER. and police acted reasonably in relying on legislative determination (the secondary entity). the glove box and under the seat. In order to be a person aggrieved by an illegal search and seizure.Police search A’s residence. one must have been a victim of a search or seizure. Bright line case. and does not know B was involved in the crime. The defendants. • A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. The search violated the 4th Amendment because there was no probable cause to search the car. Herring. 4. as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. The passengers of the car did not have standing to challenge the admissibility of the evidence. Problem area. it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections. this rule would allow a widespread number of people to have standing and provide few benefits. Officers can launder their negligence through other officers. Secondary entity acted merely negligently. . Bright line case. police conduct unlawful search. that anyone at whom a search was directed would have standing to challenge the admissibility of evidence. Passengers would not normally have reasonable expectations of privacy in these areas. The passengers of the car (not the driver) sought to exclude the evidence. can call another officer and tell them he has probable cause to search a trunk and in good faith the other officer searches the trunk. Standing The Fifth Amendment privilege against self-incrimination is personal and can only be asserted by the person whose rights have been violated. Rakas: Police officers pulled over a car thought to be involved in a robbery and searched the glove compartment and under the seat. and found bullets. had no reasonable expectations of privacy in the areas searched. Acting pursuant to this law.g. as merely passengers in the car. If secondary entity acted recklessly or worse.

The defendant had standing to challenge the evidence seized in the apartment concurrent with the arrest.• • • • • • • The issue of standing involves 2 inquiries: (i) whether the proponent of a particular legal right has asserted injury in fact. and the arrest was invalid because there was no arrest warrant and no probable cause to arrest. Legitimate expectations must have a source outside the 4th Amendment. Passengers could still challenge the legitimacy of the stop and that the police did not have the requisite suspicion to stop. Defendants did not challenge the stop of the car and the opening of the car door. but government can use misplaced loyalty. As an overnight guest. sole occupancy. because the passengers also would not feel free to leave. • Day guests. The inquiry turns on whether the disputed search and seizure have infringed upon an interest of the defendant which the Fourth Amendment was designed to protect. and right to access and exclude are factors in analyzing REP. and (ii) whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. Whether the ER will apply depends on a cost-benefit analysis. are more vulnerable. The defendant was arrested in the apartment. • Overnight guests usually have REP. but police exceed the scope of consent. either by reference to concepts of real or personal property or to understandings that are recognized and permitted by society. The guest will probably have freedom to access the property. Analyze the specific area that police searched to see if the defendant had REP in the area searched or the thing seized. The purely commercial nature of the transaction. possessory or ownership interests. and the lack of any previous connection between the defendant and owner.ask whether they’re social or business guests. Business guests will have harder time of proving REP. entrust their belongings with the owner. or on the invasion of such interest. • There is a special relationship associated with overnight stays. They challenged the search of the glovebox and under the seat. • Defendants may not have REP in short. Staying at another’s house is a longstanding practice recognized by society. REP has been found in shared office space. • Several people can have REP in the same item (e. Having a key. Expectations of privacy need not be based on a common-law interest in real or personal property. Property interests alone may not be sufficient to establish REP.guests access more of the house. the defendant had reasonable expectations of privacy in the apartment. The inquiry for 4th Amendment purposes asks whether the person had legitimate expectations of privacy in the area searched. the defendant may have standing to challenge the evidence. • REP has not been found where the defendant asked a friend to carry his drugs in her purse. where there was understanding that one’s desk and belongings were private. If defendants could have proven by a preponderance of the evidence that they owned the items seized or had a possessory interest in the glovebox or under the seat. • If the search is based on consent. the relatively short period of time on the premises. multiple people have a key). they would have standing. and was on the premises with the permission of the owner. Someone with REP does not have to be physically present to have their rights violated. Legitimate expectation of privacy means more than a subjective expectation of not being discovered. overnight visits for commercial purposes. . REP of an overnight guest is contextual and extends only to those areas where REP exists. Olson: Defendant was an overnight guest at an apartment. are factors to consider. had clothes there.g.

automatic standing. but based on the illegal search of the car and the information gathered to obtain the warrant. but can be used for impeachment purposes. the search of A’s house is valid because a warrant was issued. Direct result of 4 is 5. The 4th Amendment was not violated because the documents were voluntarily conveyed to the VP. 3 is unconstitutional because they illegally entered the house.anything you say to establish possession at a motion to suppress hearing cannot be used at the merit trial. and attenuation.Payner: The government investigated the financial activities of a bank. A’s motion to suppress will not be based on the search of the house. The statement did not result from an intervening independent act of a free will and was not sufficiently an act of free will to purge the primary taint of the unlawful invasion. you have standing.Gives up Yee. but the information gained in the search is the fruit of the unlawful search of the car and is inadmissible. determine constitutional violations. Search of B’s house is legal because it was conducted pursuant to a warrant grounded on probable cause and particularity. Ex. If the warrant says police can also search A’s house. 5. took his briefcase. standing. and made copies of the documents.Wong Sun confesses 1 is unconstitutional because there is not probable cause to arrest. Toy has standing to challenge everything because it flows from unlawful moment 1. B has no standing and no remedy because the search of B’s house was lawful behavior. Wong Sun has no standing to challenge 2 and 3. To analyze fruit of the poisonous tree. Fruit of the Poisonous Tree The FPT rule prevents police from using evidence derived from direct evidence obtained illegally. the police entered the apartment where the VP was staying. Find note about B selling drugs. 1. only that it’s reliable. Direct result of 1 are 2-5. The connection between the unlawful arrest and the statement had become so attenuated as to dissipate the taint. Either way. Illegal search of A’s car. • Old rule. The court then declined to use its supervisory powers to suppress the evidence. Wong Sun: Toy’s declarations and the contraband taken from Yee were the fruits of the agents’ illegal actions and should not have been admitted as evidence against Toy.Arrest Wong Sun 5. Yee has no standing because his rights weren’t violated. causation. 2-5 are fruits of the poisonous tree. • Use immunity. The search of A’s house is lawful. but has standing to challenge 5. B cannot suppress the evidence found in his house. With Wong Sun’s statement. Get warrant to search B’s home and search B’s house. list chronological events. . admits to drugs 3.Arrest of Toy 2.Yee says drugs are from Toy and Sea Dog 4. An undercover agent lured the vice president out to dinner. If you can establish possession. The costbenefit analysis weighed in favor of not using the exclusionary rule. he was released on his own recognizance and voluntarily returned several days later to make the statement. and at the same time. Don’t care that PC is based on good police behavior.

there is automatically no attenuation and it is admissible. Attenuation. how upset the defendant was. but would not be sufficient fully to protect the Fourth. Brown: Police illegally arrested the defendant because they lacked probable cause for the arrest. it is attenuated from 1. Miranda warnings. The defendant was taken to the stationhouse. granting establishment of the primary illegality. The second statement was the fruit of the first statement. and the purpose and flagrancy of the official misconduct are all relevant. Factors in analyzing include the show of force. Defendants did not challenge the statements as unlawful. Wong Sun). If the suspects 4th Amendment rights are violated and he makes more testimonial statements.objective test designed to put police in the status quo. the question is whether. But they are not the only factor to be considered. does not alone sufficiently deter a Fourth Amendment violation. Proximate cause. If 5 is attenuated from 4. If the fruits are more incriminating statements. consultation with a lawyer.The attenuation doctrine applies with 5 and the evidence will be admitted. • The Miranda warnings. time passed. the causal connection between the illegality and the confession. the presence of intervening circumstances. and there was no intervening event. The first statement was separated from the illegal arrest by merely 2 hours. The illegality and questioning had a quality of purposefulness. and the exclusion of a confession made without them. They cannot assure that the 4th Amendment has not been unduly exploited. 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 mere reading of the Miranda rights and waiver will be sufficient attenuation as long as they . The Fifth Amendment Miranda violation does not suppress physical fruits of an illegal search from information gained as a result of the violation. for Fourth Amendment purposes. there must be a sufficient break. read Miranda. these are treated under the 2-tier warnings analysis. If a different person makes the testimonial statements. alone and per se. The voluntariness of the statement is the threshold requirement. The temporal proximity of the arrest and the confession. With those leading to testimonial fruits. but challenged them as fruits of the illegal arrest. • The Miranda warnings are an important factor in determining whether a confession is obtained by exploitation of an illegal arrest. and interrogated. etc. • Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness. and the burden of showing admissibility rests on the prosecution. The court held that the statements made were inadmissible. not under the exclusionary rule. • Exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment. With a Fourth Amendment violation leading to physical fruits. It thus mandates the consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment. Rather. Later that night. it is very hard for attenuation to apply and a really long chain of events is required. cannot always make the act sufficiently a product of free will to break. but that it be sufficiently an act of free will to purge the primary taint. the defendant was again read Miranda and interrogated a second time. • All evidence is not fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police.g. same room. not as much attenuation is required (e.

• Goal of FPT is to put police back to the status quo when cost-benefit analysis supports it. but the body was admissible pursuant to the inevitable discovery communication between the 2 sources. Law and order. • Inevitable discovery requires (i) independent investigation. the first violation. The defendant’s statement was inadmissible. The independent source doctrine did not apply because the search party did not actually find the body.aren’t the original victim of illegality and the police don’t refer to the underlying illegality.arrest then immediate Miranda Does overnight guest have rep in place or in things at the place. and (ii) lawfulness. The inevitable discovery doctrine applied where evidence showed that search parties in the area would have found the body within 3-5 hours after the confession. (ii) defendant was detained for a period of 45 minutes at his house and was free to move about the first floor. (iii) the statements were spontaneous reactions to the discovery of drugs in a purse. • Government does not have to show the 2nd line/search was in active pursuit for inevitable discovery. Rawlings: the confession was sufficiently attenuated from the illegal arrest where (i) the defendant received the Miranda warnings mere moments before he gave the incriminating statements. it merely put the state back at the status quo. weighing heavily in favor of finding that the defendant acted of free will unaffected by the initial illegality. . (ii) lawful investigation. • Independent source doctrine requires (i) independence. The state gained no advantage at trial and the defendant suffered no prejudice by admitting the evidence. and (iii) independent source. • Government has the burden of showing the exceptions apply. • Independent source rule: Allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. then the deterrence rationale has so little basis that evidence should be received. • Fruit of the poisonous tree consists of (i) attenuation. Nix: Continuation of the Christian burial speech case. and (v) defendant did not argue that his admission to owning the drugs was anything but voluntary. (iv) the conduct of the police did not give rise to the level of conscious or flagrant misconduct. • Inevitable discovery: If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. (ii) inevitable discovery. and (iii) discovery of evidence would have been inevitable had it not been for the underlying violation.

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