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Crim Pro Outline


Introduction, Larger policy considerations a. The Importance of the Warren Court i. Warren Court – not just for historical reasons. Most state constitutional provisions (e.g., VA and MA’s state constitutions look exactly like the 4th amendment. ii. States can afford more rights to the individual (they can’t give them less rights). What are those rights? Just like those rights afforded in the Warren court. This phenomena: New Federalism. b. This class is all about cops i. Who are they? What do they do? They identify, investigate, search, seize, interrogate. The limitations on the police? The fourth, fifth, and sixth amendment. ii. Part of the national psyche: prejudice against minorities in the police force. iii. Courts filling in the gap where elected officials are not responding to social issues. Judicial Review, a countermajoritarian hero. iv. In the 60’s, the Warren court, by regulating the power of police, sought to regulate individual rights. This tension (power of police v individual rights) comes up all over in crim pro. v. Exclusion: 1. As an incentive? Doesn’t really work when the officer actually did try to follow proper procedure. c. Tension: Rights of individual v Power of police. d. A historical perspective. The Big Picture! Federalism v. the New Federalism i. Most criminal prosecutions are done by the states. Well over 99% are done by the states. Some big time crimes are prosecuted by the feds. But large large majority by the states. This is by design, 10th Amendment – we’re leaving everything to the state. ii. Incorporation through the 14th Amendment. 1. They start to apply the first 10 amendments to the states through the 14th amendments, especially with the Warren court. The whole point was so that states apply fairness into their own systems. There were a couple of cases where the cops barge into someone’s bedroom, the suspect swallows the pills, they pumped his stomach and got the drugs. This was shocking the conscience, fundamental fairness. 2. Before this incorporation within the state system, the state system … (note the inverse relationship between individual rights and the power of police). Pre-Warren, in the states, police power was greater. In the feds, individuals had greater rights.

iii. Then came the Warren court. 1. They applied the 4th, 5th, 6th amendments to the states, so the state system the individual rights were in the upswing and defendants got the same treatment in the federal v state system. 2. In addition, the Warren court was concerned about state court judges applying the Bill of Rights correctly. So they opened up he federal courts to someone sitting in state court prison, to allow them to petition for a writ of habeas corpus. They allowed state defendants who were incarcerated to petition to the federal courts, so the feds can look at what the states have done. iv. Power of the State v. Individual Rights: Then came Nixon’s war on crime – the Supreme Court is freeing criminals! He had a war against crime. Then he appointed Burger, Blackmun, Powell, and Rehnquist… so less concern with individual rights, more with law enforcement, etc. Now we have the war on drugs, war on terrorism. 1. 1994 article, the war metaphor, has pressured the supreme court to countenance substantial liberty. The internment of Japanese Americans during WWII, suspension of writ of habeas corpus, dissidents in WWI, the McCarthy Tactics of the Cold War, all of this was justified in the name of war. Now, we have a new war, a war on terrorism. Something to keep in mind. v. New Federalism: As a result of cutbacks in federal protections, since then, the states interpreting their own constitutions (some states) are now providing greater rights than the feds. Ironically, the same rights that were provided during the Warren court. 1. Mass. and NY, courts that are expanding on the rights of the individual defendant. They call this, “new federalism.” In FL, however, voters voted that the state constitution should be interpreted the same as the Supreme Court interprets the federal constitution. An opposite trend. e. Now, we’re going to talk about police officers. i. Discretion at the bottom of the totem pole. Maybe this is why something like Rodney King can happen. There’s also some tightness, trust. ii. Also, more money in wealthier towns… in big cities, maybe they’re less paid. Also training varies. Also, varying levels of education. Training really does depend on the resources. iii. The danger level is high, so there’s a flow of adrenaline. When you’re facing danger, you sometimes can act in ways that are not entirely rational. Solidarity is huge. iv. It’s hierarchical, military-like. Most of the ranks are from the lower ranks. Contributes to the solidarity.


v. Also, by contrast, FBI has more uniformity, more money, better training, more stringent requirements for education. So European nations, likewise, have a national police force. So there’s less of that internal stuff. vi. 50’s, 60’s, and 70’s, the PDs were largely white and male. The civil service exam was not widely publicized, and people learned of it through relatives. Many of the police were family with police officers. vii. These days they are more diverse. Why? Posting laws. Affirmative action lawsuits. Certainly if you were in a community you can better relate to them if you can relate to them. Women, color, LGBT cops. In the 70’s, only 6% were black. Today, 20%. Some cities, like Baltimore, LA, the minorities reflect the city population. Not really the case for women… in Pittsburgh it’s like 25%, but that’s as high as it goes. Does this change things? Mixed studies. viii. Police commissioner appointed by the mayor, prisons (appointed by governors), judges (by the governor). Are they interrelated? Yes… but no. They all answerable to different sources. But they still affect one another. They all have different agendas. Judges – dockets, prosecutors – conviction rates, cops – controlling the scene, prisons – controlling populations. Different agendas! Life cycle of a crime i. First step: a crime. Comes to the cops attention through observations (most crimes), someone calls up (a witness), a grand jury investigation, etc. So lets say the cops get a call, someone’s broken into the house. The cops will probably then go to the house. Gather info, interview witnesses, , focuses on a particular suspect. Then, they might interrogate, get a warrant, etc. With enough evidence, they would arrest the suspect ii. Most arrests in this country are without warrants. Part of the arrest is a search, etc. iii. Once there has been an arrest,t hey take the person to the police station. They take a photograph, fingerprint you, breathalyzer tests, etc. iv. Eventually you get to court. In civ pro you get a complaint. In crim, you also have a complaint in writing. A cop goes to the clerk’s office and says “this is what happened.” v. Then, w/o a grand jury indictment (throughout the states), you end up in a lower court (with a grand jury indictment, you go to a higher court). After you’re booked you’re taken to court as quickly as possible. vi. Initial arraignment. If the court has jurisdiction over the crime, they may take a plea. If not, they cannot. If there is no attorney, automatically not guilty. Also, that first time in court, bail is set. We want to make sure you’ll show up! vii. Grand jury – indicts. 23 members. They review the evidence and charge with specific crimes. The standard, is probable cause. Felonies – grand jury indictment.


viii. In the state system, most states have it. And most states will say, you’re entitled to a grand jury or preliminary hearing. If the prosecutor wants to avoid the preliminary hearing, they might do the grand jury instead. ix. Grand jury = judge, prosecutor, 23 citizens. Not adversarial. x. Then you get to discovery, etc., and in 95% of cases you plea bargain. xi. P 10 of the first article – habeas corpus. Once you’ve gone the state appellate route. You can challenge and say, there was a violation of my constitutional rights! And get it heard in the federal courts. Still possible to petition the federal courts for habeas. g. Stafford case – see the present court. Also, the big policy impacts. i. A civil case brought by the student’s parents seeking damages against the school for a violation of the student’s 4th amendment right. 1983 case. This is a public school, a government actor. In this case, the search WAS unconstitutional, but no collection because of qualified immunity. It wasn’t a clear enough violation at the time of the search. The school officials had justification. But with those justifications, they went too far. The justices were concerned with the scope of the searches. The scope of the search was too great. Now how do the courts seem to measure all of this? It’s a reasonableness test. So with a huge intrusion, the justification needs to be greater. Lesser intrusion, lesser justification. Reasonableness. Exclusionary Rule a. Early Development, 1-20 BB ex p. 7-8 i. Weeks v. United States: Courts should uphold the constitution and be an example and shuoldn’t allow illegally obtained evidence to be used. Return the items! ii. Silverthorne Lumber Co. v. United States: If you can go in illegally, and subpoena people for documents that they found out were there, you shouldn’t reduce the 4th amendment to a form of words! Fruits of the poisonous tree. The trunk of the tree is the fourth amendment violation. As a result, they find certain papers. They copy them. Based on those copies they asked for a subpoena. All resulting from the tree. iii. Wolf v. Colorado - Frankfurter applies the 4th Amendment to the states. How does he do this? Implicit in the concept of ordered liberty, and roots the basis in the 14th amendment. 1. What do we think of this? Justice Black is somebody who wouldve preferred all the bill of rights be incorporated to the states. Instead, we have here was bob bloom would call, selective incorporation. 2. Now, the 4th Amendment is applicable to the states. BUT! That doesn’t mean we should apply the exclusionary rule to the states. Why not? Most states haven’t adopted it and it’s not really used in other parts of the world. Frankfurter also characterized this as a matter of judicial implication. There’s nothing in the Constitution, no Congressional

do we expect DA. You’ve got J. Let the states do their own things. Parole. b. no. Effect? Before Mapp. it was a matter of judicial implication. Grand . put in for Justice Black. So you go to the bottom of p 15. 15) Just mentioned in this case. Now becomes the major justification. The Prosecutor is more directly affected.. 7.. The remedy doesn’t have a direct effect on the police. Bivens v. 33-68. So Bivens decides to sue.3: no exclusionary rule for Grand Jury. i. Instances in which the exclusionary rule does not apply.1 i. In this case. Burger dissenting. (see p.legislation... I hate the exclusionary rule! so then. no direct sanction on the police officer. Harlan: stare decisis! 2. Should the exclusionary rule apply to grand jury proceedings? Court says. Habeas Corpus hearings. After. Court: The exclusionary rule = Deter unlawful police conduct. Treats different cases. Early Criticism 28-33. 1. Six Unknown named Agents of Federal Bureau of Narcotics: Nothing to exclude. you know what? They’re not great lawsuits. iv. why is he dissenting against the creation of an alternative remedy!? Cites Cardozo. they talk a whole lot more about other reasons. So there’s no reason to extend it to the states. the other remedies don’t work! what are the other remedies? Criminal prosecution of the violators. the “intimate relationship” between the 4th and 5th amendments. You need a remedy and it’s part and parcel of the fourth Amendment. Cut Backs. the NYPD got 0 warrants. BB S7.3. It doesn’t seem to have decreased the errors in judgment. They may have their own remedies and that’s cool because of federalism.s to prosecute themselves?! Civil remedies? Well. Ohio: The cops broke down the door looking for a bombing suspect. Finally.3. mapp was convicted for 7 years for a very not serious crime. Exclusionary remedy now applicable to the states where a D’s right against unreasonable searches was violated. They got these books in her luggage... United States v.2. Immigration. what is the hope for law enforcement? It would deter them.. guilty people are gonig free. he defers to Congress. they got 800. J.. The majority created a civil claim for violation of the 4th Amendment. Finally. Mrs. hard to win and because there’s no viable remedy we think the exclusionary rule should apply. EE 7. in thinking about your client. direct cutbacks: 1. Note: J.. c. 7.. deep pockets. Black is reading the 4th Amendment with the 5th Amendment so that he can justify applying hte exclusionary remedy to the states.2.. Murphy dissent: Illusory remedies. etc. the same. 3. Another remedy! 1. The court comes up with a balancing test. etc. Calandra: Can a witness refuse questions based on unlawfully seized evidence. But this deterrence effect becomes very important in cases to come. 75-90. Civil. Mapp v. 1. deceptive..

) v. Scott: Exclusionary rule does not apply in parole revocation hearings either! 1. they have every incentive! ii.. 1. .. NH . Civil. restrict the state. etc. They found out later that the warrant lacked probable cause... the deterrance. the procedural niceties of this proceeding is different from a criminal trial. 2. Leon: Good Faith exception..... The Exclusionary Rule is part and parcel of the 4th Amendment (Mapp). The cost of parole revocation hearings. Judges got $10.. 2. but a lot of harm done to the function of the grand jury. were all instances in whch it wasn’t an initial criminal trial.. ohh.). It applies to criminal trials. Parole.Jury proceedings (Governmental Interest.. 2. it would take longer. i.. 2. Judge not neutral / detached. We’re just guardians of hte 4th Amendment! Illegal evidence should not find sanction in these courts (Weeks). Immigration. but here deterrence really does matter! Cops do have a good idea of who the criminals are and their criminal histories. The Good Faith exception. Lying. ii. I’ll do your balancing. because police and parole officers are different. the benefit (deterrence of police officers). They got a warrant. this would only complicate the process. Habeus Corpus..Attorney General can give out warrants. Penn Board of Probation v. their supervisors.. The government makes a strategic decision to establish an exception to the exclusionary rule. Dissent (Brennan and others). They showed it to the DA. mush up the process of the investigation. (p 49) judges need to be neutral and detached (other cases. that’s an exception to the good faith. Georgia.. US v. Police did a pretty good job.. there’s no deterrent effect. They conclude that there would be minimal additional deterrence (cops aren’t thinking. Grand Jury. Good faith exception 1. It’s different from the other cutbacks on the 4th Amendment. Exceptions to this good faith rule. Souter: ok. When the police lie and that lying contributed to the obtaining of the warrant. gotta get this evidence for the grand jury proceeding). The balancing leaves these guys uncomfortable. They did a stakeout.

legislative authorization. a technical error). 3. .. 1. If the police are acting pursuant to a statute. They’re not connected to law enforcement. no exclusionary rule! 3. It was purged of the primary taint. or if the tree doesn’t belong to you. The exclusionary rule will not deter clerical errors. This is different from Shepard. no outstanding warrant. 2.. legislators. should we have an exclusionary rule? Good faith exception applies. 1. no indication as to what was to be seized – no good faith exception.. Ramirez: On the warrant. Massachusetts v.iii. Cop got an illegal warrant from a judge (warrant says controlled substance when the affidavit talks about a homicide. Evans: Cop pulled some guy over and looked up his record. and the error was made by court employees and not the police. Wong Sun v. no assurance by a Judge and therefore in this case there would be no good faith exception. 5. Krull: Illinois vehicle statute. Indirect cutbacks 1. The items were listed on the affidavit. But the Court says. 4. are not subject to the deterrence remedy of the exclusionary rule. Not engaged in ferreting out crime. outstanding warrant should’ve been quashed. no exclusion because the good faith applies. No way a reasonable officer can believe the warrant was good.. the chief clerk of the justice. Court: the statute was unconstitutional.. it wasn’t even the police. and found three stolen cars. 1981. Arizona v. and asked for cars. The affidavit was sufficient. Deeming this law UnC is enough of a deterrent to legislators. 2. iii. Arizona v Evans (court clerks) and in this case. They were acting pursuant to an Illinois statute. So we’re going to treat them differently from police officers. Leon was about deterring police conduct not mistakes by court employees. United States: The fruits of the poisonous tree can be purged of its primary taint if it is too attenuated. the statement comes in. Illinois v.. 2. Groh v. So lacking any indicia of reliability so as to make it unreasonable. We have expanded the good faith exception to situations where an error was made. The police officer was pretty sure he had a good warrant. and Police went to one of the wrecking yards and asked for records. Sheppard: An early 80’s case. But there was an error in the system. Wong Sun and his statement? His statement was too far removed from the tree. there was an outstanding warrant for him.

i. So sometimes. drugs possession. but the dale County Records was mistaken. 90-103 i. it was an illegal arrest. United States: Independent Source Doctrine.2. but the next county did! They arrested him.. They called it an independent source doctrine. 68-75. then it doesn’t. and a boy reported seeing 2 legs in the blanket... and determine whether or not there was a purging of the taint.. Brown v. United States: Bennie. Nix. no. . 4. Right after they arrest him. 1.. The other factors are: 1. 1. “do we have a warrant?” no. They got a warrant based on surveillance done prior to the illegal search. d. Herring v. And then he confesses. miranda warnings plus these other factors might purge the taint. Murray v. 2. They had a sufficient justification for finding marijuana in that warehouse. 3. Trunk of the tree: Brown was arrested. they give him his Miranda warnings. Trunk = 6th Amendment violation (right to counsel. Williams was seen leaving the YMCA. The illegal entry and they found the marijuana. You should’ve arrested Bennie.. Warden of the Iowa State Penitentiary v. Illinois: Is Miranda enough to attenuate? No. Did the Miranda warnings purge the illegal arrest of its primary taint? If yes. Forced entry into a warehouse and find burlaps of marijuana. Court says.) 3. then we’ll allow an exception to the fruits doctrine. 2. 2. Williams: Court in this case creates the inevitable discovery exception to the fruits of the poisonous tree. surprise! they found the marijuana. 1. They got a warrant! And then they go back. Otherwise cops would just arrest and give Miranda afterwards! Miranda is not unimportant. 3. then cops gave a Christian burial speech and they find the body as a direct result. How flagrant was the police violation. If not. he wanted to ride in the car but was denied. etc. They leave. How close in temporal proximity. 10 year old girl goes to the YMCA and goes missing. then the statement comes in. Court’s current attude. They want to bring in the confession. The Court created another exception: if a state can show by a preponderance of the evidence that the information would’ve been inevitably been discovered by lawful means.

ii. Costs heavily overweigh benefits. . from the 4th amendment. Violation of the knock and announce rule.III.. If you can find something that’s involuntary. Colorado… it’s still important today. (Bryer. Standard is subjective and ad hoc. show me the beef!).. 1. 8. the state can’t use it for impeachment. when there is no custodial interrogation. got to be reckless. It’s especially important when Miranda is not applicable. deliberate... This is the police! 2. We don’t need to apply the exclusionary rule.. Issue: does the exclusinoary rule apply to a police mistake? Different from the other cases because this is police behavior.. EE chap... AND 2.. Hudson v Michigan: violation of the knock and announce rule does not require the suppression of al evidence found in the search. If the trunk of the tree is a Miranda violation. we don’t want this to happen! Judicial integrity (Weeks). Also. Dissents: Ginsburg: wtf.. In order to challenge a confession under the voluntariness standard you need to show that 1. Voluntary 595-638. Rise in police professionalism. A lot has changed since Mapp! You can successfully have civil suits against the police. ii. This kind of negligent behavior is just as deserving.. A lot of history. What does Justice Scalia say. General notes: First things has to be sufficiently deliberate! (not negligent. Public interest law groups have greatly expanded. the voluntary standard. legislator in krull. The only way to get a confession prior to Miranda. As we saw in Arizona. thus inducing an involuntary statement 1. (questionable... constitutional import.) 3.?) Interrogation (597 chart!) a. intentional. This is done through a totality of the circumstances analysis. court clerk in evans. Knock and announce violation. the exclusionary rule should not apply. Chief Justice Roberts. when you balance the cost / benefits. This isn’t the magistrate in leon. 2. If the trunk is an involuntary standard. You can do a tree and fruits analysis. we want to incentivize people to keep the records better! Bryer & Souter: Police misconduct! those other cases dealt with non police people. then you can use the tree/fruit analysis. you can’t really do the fruits analysis. The conduct was sufficient to overcome the will of the suspect (given her particular vulnerabilities and the conditions fo the interrogation). Voluntary standard always in play when dealing with police questioning. The police subjected the suspect to coercive conduct. 1. Bybee memo i. Just as you can sue people in torts. 1.

Justice Jackson: We’ve got to defer to the States. Keep those two in mind. though in this case there was no harmless error) b. Connelly: suspect hears the voice of God and confesses to police. Due Process Clause. Miranda 649-672. Court: federalism. Accustatorial v. In this case. it’s fine for the states to regulate themselves. 3. P 605. Tennessee: Some guy killed his wife. so they were going to suppress the confession. They cite Mapp that the fourth and fifth were very similar. Frankfurter doesn’t really care about the reliability. as well as the reliability piece. Federalism notions need to come to the fore. 1. v. or physical pain of any kind… This is different from the violence situation. So. The Miranda Saga i. Rogers v. they’re pretty sure that this guy did it. This is psychological. involuntary confessions would be tested under the harmless error standard. Court says. Brown v. Ashcraft v. it violates some “fundamental” concept of justice – 14th Amendment. 2. and on the defendant in a totality of the circumstances analysis.iii.1 1. Yes to the voluntariness (5-4) (but note. the confession elicited was (the Court said) coerced. high powered lights in the room. UNLESS. How did he happen to confess? After a 36 hour confession. because of the threat of physical violence. more of a psychological thing. For due process. When would they be overridden? Clear brutality. a paid informant for the FBI. torture. EE S9. but about the methods. Colorado v. State of Mississippi: torture. which they used against him in his trial. Offended by the extremely awful methods. whether it’s true or not. iv. 2. FBI instructed Sarivola to find out. using a . that the admission of the confession does not violate due process because there was no overreaching by the police. it was coerced.” vi. vii. the Court focused on the methods. Richmond: Two basic concerns: reliability and revulsion against methods used to extract coerced confessions. therefore from now on the fifth amendment self-incrimination clause gets applied to the states. 803-816. challenges the confession saying it wasn’t voluntary. Court: confession was not voluntary. United States: federal agents had deliberately elicited from petitioner incriminating words after he had been indicted and in the absence of his counsel. Hogan: Does the same thing that Mapp did. Intro 638-649. went on for 36 hours straight. Relays. Inquisatorial. Arizona v. Fulminante (1991): Sarivola. So the question is “whether the police behavior was such as to overbreak *the suspect’s+ will to resist and bring about confessions not freely self determined – a question o be answered with complete disregard of whether or not *the suspect+ in fact spoke the truth. Malloy v. beating. To find that it was involuntary. starvation. J. Massiah v. Big difference with Brown. 4.

Second. Important.2. 2. custody. statement is inadmissible regardless of the voluntary inquiry. EE S9. obtaining statements are in violation of the 6th Amendment. (opinion by Rhenquist!) ii. This absence of counsel was critical and denied petitioner of his 6th Amendment right. duration. Once the forces of the state focus on a particular suspect and where he requests counsel prior to interrogation. etc. right to have an attorney present and to have one appointed at state expense if he cannot afford to retain one. If the cops don’t give Miranda warnings. and persons present). If the suspect exercises his right to silence. Illinois: Escobedo made inculpatory statements. Clarity. Berkemer v. The warnings: Florida v. Elstad and Michigan v. they have a “heavy burden” to demonstrate that the D “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Arizona: Relying on the 5th Amendment privilege against compelled self-incrimination. 1. We’re not going to distinguish because a misdemeanor can turn into a bigger deal. Post Miranda 672-713. however. 5. reaffirmed Miranda and its constitutional basis. Fourth Circuit drew on cases like Oregon v.2.2 1. Miranda mandated the warnings prior to interrogation of a suspect. Escobedo v. 3. Powell: wording of the warnings don’t have to be exact.1 and S9. Miranda v. Tucker to hold that Miranda was remedial but not constitutional. The Court. Very fact intensive. interrogation must cease until one is present. Right to remain silent and of the implication onot remaining silent.fed-friendly co-conspirator. If the cops do get a statement. was he deprived of . interrogation. and waiver (to be discussed) 4. this kind of does away with the voluntariness standard. Dickerson v. But don’t forget the atmospheric piece! 1. Custody: “What a reasonable person believe that he was not free to leave. You need to then look at warnings. does a traffic stop constitute custodial interrogation? The question is. if he requests an attorney. 4.” 3. interrogation must immediately cease. and the Court said that it was obtained in violation of his 6th Amendment right to counsel. McCarthy: Does Miranda apply to minor things? Sure.” Standard is an objective one: how a reasonable person in his position would have understood the situation (location. 2. United States: Congress tried to pass a statute that imposed the voluntariness standard to do away with Miranda.

Miranda doesn’t grow fruits! (Miranda is not a constitutional tree) 2. I want to see my lawyer. Mauro. Mauro: I killed my son. The mother. Oregon v. Elstad: The cat was out of the bag… so should statements made after a Miranda violation be excluded? No. Pennsylvania v.” 2. 3. Quarles: A narrow public safety exception to the Miranda warnings (gotta find the weapon!) (Miranda is prophylactic) . but you also need the feeling that you can’t leave.” Foreseeable = focus on botht he particular susceptibilities of the suspect and the knowledge the officers had of these at the time. Rhode Island v. not the subjective views harbored by either the interrogating officers or the person being questioned. Objective circumstances. Alvarado: We’re talking about a 17 yr old kid. 816-845 1. 2. Miranda Constrained 780-803. Perkins: fellow prisoner ploy worked. Yarborough v. and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Illinois v. We look to how a reasonable person in the suspect’s situation would perceive his circumstances. but was not interrogated because if you don’t know you’re not talking to the cops it doesn’t mean you were compelled in any way. might find a weapon with shells and they might hurt themselves. no custody. because it was a brief encounter in public and the driver expects he will be allowed to continue on his way. Should the police have known that this would’ve elicited a response? Supreme Court says no. Police dominated? Sure. Mrs. And it’s gotta be atmospheric. ordinary traffic stops do not involve custody for purposes of Miranda. 1. Mauro. not a police dominated atmosphere. Innis: Comes up with the standard. Bruder: likewise. Here. The functional equivalent thing is pretty hard. wanted to speak to Mr. 3. i. Interrogation: Police initiated questioning. iii.freedom? They’re talking about the police dominated atmosphere. Arizona v. 3. New York v. His parents were not allowed to be in hte room with him. There was no psychological ploy. 5-4 decision. but in this case no interrogation (“God forbid one of them children.

Then you do a totality to determine the voluntariness of the waiver.4 and S9. 1983 claim. United States v.” Was this enough of a waiver? Yes. you can implicitly waive. Question. Court: this deliberate effort to circumvent Miranda is no good.2. Even if you don’t explicitly waive.. (3) timing and setting of the first and second statements. 1. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. iv. Get the cat out of the bag. read Miranda. “not compelled to be a witness against himself in a criminal case.3. 5.2.. (4) the continuity of police personnel. coupled with an understanding of his rights and a course of conduct indicating waiver can. P 660.” 4. North Carolina v.3. Background: Miranda. Butler: This person saying “I don’t want to sign a form but I’ll talk. Although just silence isn’t enough. could constitute a waiver. For voluntary. “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. and then record. it’s enough. . Chavez v.2. 2. Waiver 722-780. Miranda only protects aginst use of selfincriminatory statement. Plurality has a test to see whether warnings delivered midstream are good enough: (1) completeness and detail of the questions and answers int eh first round of interrogation. intelligent and voluntary. think Colardo v. Missouri v. Connelly and the need to demonstrate that the waiver resulted from police coercion that overcame the suspect’s will. Trickery or cajoling is only a factor (even though Miranda said it was no good…) 3. the defendant’s silence. Martinez: Civil suit. But! No constitutional violation absent admitting the statement into evidence. Knowing and intelligent: suspect understood that he had the right not to talk to the police or to talk only with counsel present AND that he appreciated the consequences of foregoing these rights and speaking to the police. Seibert: There’s a new training around. S9. It has to be knowing.” “An express statement. EE S9.5 1. get a confession. and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first. dissenters worry about the incentives. (2) the overlapping content of the two statements.” 2. Patane: Physical fruit of the Miranda violation is admissible (such as a gun).

Colorado v. 1. Michigan v. Interrogation shall cease! 2 hours later. this was not enough to be a waiver. an accused’s uncoerced statement establishes an implied waiver. 5. Oregon v. brought ot hte cell.4. All that matters is that you waive your rights. Connelly. Mosely: Mosley. Arizona: The guy invokes his right. OR The person being questioned initiates further communications AND that a knowing. They ask. (indicated aftering receiving the warnings that D would not make a written satatement but would talk about the sexual assuault being investigated. Connecticut v. Court does not exclude the statement. the exercise of rights must be unambiguous. “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused. Next day cops read him his rights again and tell him that he has to talk to them. 9. two new detectives show up. He then indicated a willingness to talk. Whatever happens after that. Edwards v. Focus of the interrogation changed midstream to a homicide to which the D confessed. And then no. He makes a statement.. Bradshaw: D is mirandized. heavy burden to prove waiver is to be proved by a preponderance of the evidence) (giving the warning and getting a statement is not enough. What standard? Simply reading rights again is not sufficient. he’s being transported and asks “what’s going to happen to me now?” Officer says “you don’t have to talk to me…” and Bradsaw replies and he subsequently takes a lie . has Miranda warnings re-read. It’s either Counsel is provided. Thompkins: Is this a waiver? Presumably the D understood his rights. and later confessed) 6. he waived. He’s asked abuot a different crime. What must the State prove? The right to cut off questioning was scrupulously honored AND that there was a knowing and intelligent waiver of Miranda. It would be too high a cost for society to do otherwise. invoking his right to remain silent. (citing Colorado v. 7.. is ok. There just needs to be a minimal understanding of the rights and consequences. Note: Sotomayor’s dissent: this is turning Miranda on its head! 8. Spring: You don’t even have to know the crime. did he waive his rights (there was no “I will talk to you”) and did he invoke his right to remain silent? 1. Berghuis v. intelligent and voluntary waiver subsequently occurred. The Court suppress the statement. Barret: It’s really about giving the warnings. Majority says: Yes. you gotta establish that the accused understood the rights) 2. Even though Miranda says interrogation must cease. But.

even if that normalcy is jail) 2. He spoke to an attorney by phone and was advised not to say anything. Williams: Suspect in child murder surrendered to police. and a narrow inquiry of the deliberate or intentional as opposed to the reasonably foresee inquiry under Miranda. Suspect led Police to the body and made incriminating statements.detector test and made incriminating statements. During the cop ride to Des Moines (160 miles). Normalcy Cases: How long does the request for counsel last? What about waivers after you invoke your right? 1. and police are not obligated to clarify ambiguous requests and may press on with their interrogation. Roberson – Fella is arrested for burglary. c. and some sort of critical stage of the judicial proceedings = right to counsel. Shatzer: D requested counsel. the question is how long does that aspect last. That this occurred after the initiation of judicial proceedings. General: a third way to approach interrogations 1. still need to determine whether the suspect has requested counsel. the point at which the right to counsel is triggered ii. Christian burial speech. rather the accused is entitled to have his attorney present with him during questioning. regaining control. Davis v. Massiah was never cited. Police were not aware that he invoked his right to counsel. you’re good to go. requested counsel. Under Brewer. Minnick v. Brewer v. If there is a break in custody that is of sufficient duration to dissipiate its coercive effects. 3 days later. The gov’t deliberately elicited incriminating statements from the accused in the absence of counsel (or a waiver of counsel). Court reversed conviction: Williams had been denied his 6th Amendment right to assistance of counsel when. United States: Questioning must cease only after an unambugious request for counsel. Massiah: Where we can trace this approach. Maryland v. This was an initiation because this question “evinced a willingness and desire for generalized discussion about the investigation. Deliberate elicitation: did the officer intend to elicit the confession. Arizona v. AND 1. Deliberate elicitation. Sixth Amendment 845-915 i. He was still in custody 3. and he’s questioned about a different burglary (still in custody). (Return to normalcy. after .” (4 justice plurality) 10. 11. Mississippi: merely providing the opportunity to consult with counsel outside the interrogation room is not sufficient. Doesn’t matter. iii. “Maybe I should talk to a lawyer” is not a request. 2.

Anyway. D never requested counsel. 2. The Statements regarding the prior were suppressed but the ones re: the latter were NOT. iv. which is not offense specific. the 6th Amendment is not violated. Michigan v. concluding that the gov’t had intentionally set up a situation likely to induce Henry to make incriminating statements. Cobb: Adopts a narrow definition of offense specificity: Cobb. Informant did nothing to stimulate conversation. the initiation of judicial proceedings. US v. But the forces of the state have decided to hone in on the individual. 2. the police deliberately elicited incriminating statements without affording him the opportunity to consult with attorney. Note: Edwards v. Waiver and Exceptions to the Massiah doctrine 1. mere fact of custody imposes pressures. so it triggers the 6th Amendment. v. Jackson: Arraignment – it’s a court appearance. but uncharged offenses without violating the 6th Amendment. Moulton: 6th Amendment is offense specific. not when the full power of the state is levied on the individual. Henry: A paid informant wasn’t really asking questions but gets incriminating statements from the D. informant was no more than a fellow inmate. At what point does Massiah apply. Court held that police may question a suspect about related. 2. indicted for a home burglary. Three factors: the informant was being paid (not a passive listener). Prison situations 1. Maine v. This is to protect the police the badgering the suspect to waive his rights. So. Patterson v Illinois: Edwards is not applicable. At this court appearance. vi. Now. the Court does not import a similar safeguard into the 6th. the critical stage! 1. Jackson). Unlike Miranda. Wilson: but if the informant is merely a passive listener. Court suppressed the statements. he asked for counsel. can he waive it? Edwards is applicable so nope. We do NOT assume that a subsequent waiver is invalid (overturning Michigan v. All that’s required is the Miranda waiver – the only time that . Texas v. was questioned by police in the absence of counsel (afer a Miranda waiver) re: murders in that home burglary. 3. so this interrogation was not at arms length. no deliberate elicitation. you can still pursue the Edwards line. Kuhlman v. Arizona rule terminates interrogation at the point of invoking the right to counsel unless the suspect is either provided with counsel or himself initiates further communication.the initiation of judicial proceedings at his arraignment. Henry was in custody and under indictment at the time he was engaged in conversation. Prosecution got incriminating statements that related both to charges that were already pending against Moulton and then a subsequent crime.

Applies to other “trial-like confrontations”. kinda like Elstad). 1. send it back to the 8th circuit to decide fruits will grow. 1. and voluntarily waived his Miranda rights. just because something has been around for a while doesn’t mean it’s correct. He was taken to the jail where he made a second statement. To waive state needs to show that D had been advised of. But does not apply to photo arrays. The other issue is stare decisis. Fellers v United States: Court did hold that a statement was elicited in violation of the 6th. what to do with that 2nd statement. are not a 5th Amendment violation. Wade) Unless you get counsel present (or waive that right) evidence of ID at the lineup is not admissible. so it doesn’t fit here. Court declined to suppress an incriminating letter even though the suspect wrote it while on an excursion with police to locate the murder weapon after he had been formally charged in court with the murder. voice exemplars. Keep your ears open! He made statements to one of the D’s. i. Maybe if it was compelled though. and just put in Miranda warnings per Patterson. we won’t allow it. Jackson. what about impeachment evidence? Let it in. They overrule Jackson because they didn’t think it was necessary to extend the Edwards rule. Then they go through a balancing act. They’re prepared to find a 6th A violation. Montejo v. Now that we’ve determined the trunk of the tree. etc. So voice identification. Question is. The purpose of the Edwards rule is to prevent police from badgering. understood. It’s one thing to suppress evidence for case in chief. “Something more serious is weighing on your mind. EE 11. Does not trigger the fourth amendment because there is no reasonable expectation of privacy in one’s physical appearance. Does not trigger the fifth because the 5th only protects against testifying against oneself. Cost-benefit. Lousiana: OVERRULES Michigan v. we look to: i. Instead.IV. But. 5. Identification – 915-960. the Edwards rule would come into play is when there was a request for counsel. 6th Amendment – so you need a lawyer at the pretrial lineup! (US v.” Is this a deliberate elicitation? Or is he merely a passive listener? Anyway. Court hasn’t taken up this issue of fruits yet. . 4. Kansas v. The sixth is not superior to the fifth. b. Besides the Edwards rule is just a prophylactic one.1 a. So they overrule Jackson. such as one on one showups. the state is conceding deliberate elicitation. 6. and before he had an opportunity to confer with counsel. Ventris: A cellmate in jail. 8th Circuit said we won’t do fruits (prophylactic. handwriting exemplars.

the in court identification of the witness is inadmissible unless the prosecution can establish that it was independently based upon another source (remise is similar to the independent source exception to the fruits analysis). Analysis to determine whether the courtroom testimony is free of the taint uses the same reliability factors as the DP analysis. Even if it’s unnecessarily suggestive. but a show-up. Wade: Sound of your voice. Note. and unreliable threshold. because it was precourt appearance. if Totality-of-the-circumstances. d. Opportunity of the witness to view the perp at the time of the crime 2. Right does not attach until commencement of adversary judicial proceedings. etc. pre-indictment. Witness’s degree of attention 3. Accuracy of his prior description of the perp 4. Exclude evidence. The assistance of counsel – to make sure the line-up doesn’t have subtle tricks 2. United States v. and i. pre-indictment/charges lineups do not require counsel (Kirby v. ii. c. you have to inquire into both (1) prejudicial nature of procedure and (2) the circumstances that necessitated. counsel doesn’t attach until the forces of prosecution are wedded to pursuing this individual. or handwriting exemplar is not a 5th amendment violation. When and why do we have counsel? 1. suggestive. Brathwaite). Due Process – any ID procedure (before or after initiation of formal charges) must conform to due process standards of fundamental fairness 1. Not looking at the substance of what the person said. a court must determine whether a challenged procedure was 1. Very rare because of the unnecessary. Unnecessarily suggestive. Level of certainty demonstrated at the confrontation 5. 2. Factors to be weighed against the “corrupting effect of the suggestive ID itself”: 1. Linchpin (Manson v.). voice. If pretrial ID is suppressed either because of 6th or DP. it can still come in if it seems reliable. Cases i. . Elapsed time between crime and confrontation. But see Black’s dissent: 5th Amendment is violated whenever you are compelled to produce something against yourself (even blood. So. The attorney is there they can confront the witness on the stand. Illinois).2. Likely to lead to a mistaken identification i. Kirby v Illinois: Not a line-up. ii. 2. Stovall. In this case.

Is there gov’t involvement 2. Is the 4th Applicable? 1. ii. If 4 is applicable 1. which is in essence the out of court independent thing. So anyway. Warrants 2. Is there an expectation of privacy in the above government involvement th ii. reasonable Suspicion 2. Arrest 2. etc. Reasonable Cause: Balancing. attention. a schoolkid has one. Justification 1. adopts a per se type ruling. 1. which all go back to the time of the incident). 6th amendment is offense specific. Now we worry about justification 1. kicks in the 6th Amendment. witness’s level of certainty. Stovall:Due Process: a totality of the circumstances. how can you assist him if D is not present! Photo array doesn’t trigger the 6th. iii. Legitimate expectation of privacy – subjective and socially recognized. Is this a gov’t actor? Public school officials can be construed as gov’t officials. (Opportunity. Search 3.. Remember. Overview of the 4th Amendment 106-120.Was it necessary? vi. Applicability of Fourth Amendment a.V.: 3 Basic Pinricples underlying the Court’s 4th Amendment Jurisprudence. 2. Scope b. Manson v Brathwaite: Per se: if it wasn’t really necessary to do it this way the out of court ID gets excluded… then you need an independent basis. 2 i. Probable Cause 2. Warrant 1. Totality: Reliability. Rothgery v Gillespie: Any kind of court appearance. New York and MA for example. Warrantless searches are per se unreasonable: With some exceptions 2. TLO: i. v. Reliability is the lynchpin. Is the 4th Applicable? 1. The 4th Amendment is not limited to the police. Point out Brennan’s understanding of the 4th Amendment. iv. Particularity 1. EE chap. United States v Ash: The D is not present. requires probable cause anyways . Administrative 3. Full scale searches: Whether in accordance with a warrant. accuracy.

i. Steps taken to protect the area from observations 2. Devices: 1. 2. NO 3. EE S3. like flashlights. Karo) 3. United States. Mere enhancement of sensory perception. But once this gets into the home! You’re in trouble (US v. Expectation of Privacy 120-192. How close is the place (barn) ii. ii. like a telephone booth. a drugdetection dog. it’s ok. If you can just see it from the street. Curtilage enjoys moderate applicability. 4. even if they’re bugged (not the case in Mass). Justice Blackmun – the only times I won’t read it together if in times there’s a need for a greater flexibility in law enforcement.g. Dunn) i. because it doesn’t reveal that which is not already revealed to the public (where the car is going on the highway)(US v. 1. an aerial camera. the viewing of otherwise protected areas may not implicate the 4th. a “search” has likely taken place. if you’re flying over. US v. 1. but this is a special need kind of situation. Nature of the uses iv. Other limitations 1. Curtilage (US v. You need a subjective expectation of privacy. Even in curtilage. Eletronic tracking does not. i. Knotts).. Open fields do NOT trigger the 4th (Oliver v. c. that society accepts as objectively reasonable. photographic or video recording. and field tests for narcotics. 1. He doesn’t like doing this very often. Whether or not the place was in the enclosure around the home iii. . weed growing in someone’s window) 3. Vantage point:if you’re in a place where the public has lawful access (air or ground). 2.2 i. does not trigger the fourth. 2. But if you have to intrude. If you’re using devices to look into the home. Disclosures to third parties: Misplaced confidence in third party. Setting: Home is the pinnacle. your purse at school.Categories of intrusions that are less than full searches: Then you can have a justification for less than probable cause. even if it’s fenced in and has a “no trespassing”sign). Thomas – dog). But NOT prison. likely a search (Kyllo. office. you’re probably ok (e. This does extend to other places.

Katz v United States: Moving from property law contexts to concepts that have to do with people. 3. where in White. You don’t have to open the container.3. drug dog alerted at the trunk. What was missing here was a warrant. same as above. EE 7.. Garbage. The informant was wire-tapped. United States v Place. United States v Dunn: Curtilage. Was that particular defendant’s reasonable expectation of privacy intruded upon? 1. Pulled over for speeding. 6. Dissent: Dogs are not infallible d. So the discussion of the dog (see dissent) was Dicta! Wasn’t even briefed! Anyway. They didn’t get a warrant by a neutral magistrate. but the seizure was unreasonable. But in this case they only took 10 min.2. about dogs. NO LEGITIMATE EXPECATION OF PRIVACY. Scope of the search is limited to the justification: so if it was 40 min. Cases 1. etc. Misplaced confidence in third party. hidden from public view. United States v White. Restraint was exercised by police themselves.1 i. 4 factors. United States v Miller: No expectation of privacy in your bank business. 8. 3. 5. the informant was wire-tapped! How the hell is this different from Katz!?) No expectation of privacy in your bank business No expectation of privacy in your garbage ii. Not a search. Standing 192-222. no expectation of privacy . Oliver v United States: Probably a trespass. White. So if you have neither a property interest in the place searched nor in the items seized. 4. Expectation of privacy analysis. Grew the weed away from the fence. Hoffa v United States. It’s sui generis (of it’s own kind) – only identifies drugs. not a search. 6th A doesn’t kick in because it’s a separate offense. This is an open field not associated with the intimate activities of the home. (Hoffa v US. US v. 4th Amendment. not places. 7. Brennan (dissenting): the CA Supreme Court under Art I S 13 is saying that banking business it not entirely volitional. California v Greenwood. which they didn’t get. Harlan’s dissent: Orwellian Big Brother. No expectation of privacy. Dogs detecting. Dissent: The mere possibility of someone going through your garbage… shouldn’t negate the expectation of privacy. even if they’re bugged (not the case in Mass). The Fourth Amendment protects people. you can argue that it was an illegal seizure (TLO. not a judicial officer. Place). So the sniff wasn’t a violation. 2. and at least it’s reliable. 9. Illinois v Caballes. LEGITIMATE EXPECATION OF PRIVACY. The holding of the luggage was unreasonable.

if you have no reasonable expectation of privacy in the place searched. No expectation of privacy in the bag… and also the drugs!? Yup. sole purpose of packaging cocaine. (Rakas v. 3. you seize the passenger). California) 2. They subsume (199) the notion of standing into 4th Amendment doctrine under the expectation of privacy. However. only spending a few hours there for a business transaction. Kentucky) Relevant facts: 1. Female companion’s purse – No! (Rawlings v. (Minnesota v. Rakas v Illinois. Rawlings v Kentucky: Dumping drugs in another person’s bag. (Rawlings v. BUT. you could still have it. (Jones v. Examples: 1. under the seat of a car. 3. Mere passengers of a car do not have an expectation of privacy in the glove compartment. Never sought nor received access to the purse before 3. But. no standing! (Minnesota v. Illinois) 1. Passengers sitting in the backseat of a car are charged with armed robbery and are seeking to suppress this sawed off shotgun and the shells.2. Basically the same analysis. analytically the standing issue should be rsolved first and independently from the substantive issue of the illegality. Precipitous nature of Rawlings’s placing the drugs in the purse 5. if you could say that the stop was illegal and the passenger was illegally seized (once you seize the vehicle. Even if you don’t have a key. as a guest. Jones v United States: Rule 41(e). Carter) 4. ii. you have standing. So if you have a key to an apartment and kept some of your stuff there. Kentucky) iii. then you would have standing! (Brendlin v. Even if you claim ownership (it still is a factor). United States. So standing seems limited to people who either own or have some other close connection to the place searched. Cases 1. 1. a person aggrieved by an unlawful search or seizure. No right to exclude others from access to the purpose 4. Olsen) 3. Dissent: Fourth Amendment… effects can be drugs! . Admission that he had no subjective expectation. 2. They give standing if he was “legitimately” on the premises. visà-vis Rakas) 2. your rights are not implicated. the Court wants to disregard distinctions like guests and invitees. Only knowing the companion for a few days 2. In this case.

you can arrest all the passengers of the car. 5.1 and intro i. if they act without a warrant. 1. Probable Cause: facts and circumstances within the police officer’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (in the case of an arrest) or that specific items related to criminal activity will be found at the particular place (in the case of a search). you can search or arrest even for a minor traffic offense! iii. cops make the initial evaluation but it is reviewable in court. . Brendlin v California: He’s complaining about the illegal stop of the car. 2. There is probable cause to believe the triggering condition will occur. Officer’s own observations. the offense does not have to be serious. if you can make a reasonable inference that any or all have knowledge of and control over the contraband. 7. So his argument is that his statement is a fruit of the arrest. Substantive Fourth Amendment a. he makes a confession. For example. 1. 4. and arrests. we need two things (US v. 1. More than just a hunch. Also for anticipatory warrants. An overnight guest in somebody else’s house. Probable Cause 223-272. The question is. not just conclusory speculations. 3. How specific does it have to be? Not very specific. officer’s own personal observations. 6. but less than proof beyond a reasonable doubt. AND 2. 4. Finally. seizures. When police get a warrant = magistrate makes this determination. You need an arrest warrant to arrest somebody in their house. Can include reasonably trustworthy hearsay. does he have standing. EE ch. Warrants can go stale because the probable cause must include a likelihood that the items sought are presently at the place to be searched. Grubbs) 1.VI. Requires specific and concrete facts. 4. As a result of the arrest. pretty good. Probable cause = measure of justification that applies to full-scale intrusions: searches. what flowed was the search of the car. is that his tree? 5. That gives him standing! Seizure: when a reasonable person does not think he/she is free to leave. ii. Minnesota v Olson: Police broke into the house and arrested him. Source of the information. If a triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates: Anonymous letter. independent corroboration can have the effect of helping to meet these prongs. Either way. E. you can use independent corroboration by police sufficient to “permit the suspicions engendered by the informer’s tip to ripen into a judgment that a crime was probably being committed.” i. and determining whether there is probable cause. You’ve got to show that the person is “reliable” and “credible” (veracity) and how this person knows. Solomon) 3.2. Illinois v. if you have a lot of detail yu can have a godo basis for establishing that the informant knows what he/she knows. Always analyze the warrant. Could be demonstrated where the informant implicates herself in criminal activity (more reliable) 2. Aguilar v Texas: Looking at the affidavit. Credibility of the information. that reliability of the source must be weighed together with the accuracy of the inferences drawn. The letter may never satisfy the veracity prong. Spinelli v United States: Sometimes. Third party.g. 1. Can be satisfied by information that can lead to the reasonable inference that the informant is speaking from personal knowledge. But the corroboration has to be more than merely innocent details (United States v. Ulterior motives is irreleveant. a two prong test! 2. Anticipatory warrants: . Also. Basis of the knowledge. The Court: the prongs are too technical and it should be a totality of the circumstances analysis. i. In cases of anonymous tips we ask whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place” in a totality test that considers two major factors: 1. 3. Anonymous Tips: 1. Cases 1. Loosen up about the two prongs! 2. a narcotics detective stops a car for a traffic violation but his actual motivation is to search for drugs. Police saw: innocent activity and stuff that was inconsistent with the tip. the legality of the search is determined solely by the existence of probable cause fo the stop (Whren v. i. 3. “Credible person” is a conclusory statement. United States) iv..

for example. What’s interesting is the two clause aspect of the 4th Amendment. Search warrants more frequently. Atwater v City of Lago Vista: Even if the crime is very minor. Search Warrant Preference. Virginia v. 2. The prime purposes it to get somebody neutral to draw the inferences rather than a police officer. he may arrest the offender.4 computer searches i.” (US v Leon). EE S5. EE S5. S11. Moore: Under the 4th Amendment. 2. Remember the good faith exception. Cars 1. Three elements: . Administrative warrants are also no so frequent. except for very few. they are not going to go into that because it’s too subjective a standard. magistrate. General: 1. Arrest Warrants. In a car it’s more likely to be a common enterprise…Different from a bar. even if state law prohibits the arrest. arrest warrants are used very rarely. . Also. 461-497. A warrant. 4. In this country. MD v. Justice Brennan in TLO (115). 3.6S5. Search Warrant 1. allows for a search or an arrest. . Otherwise if there is an objectively reasonable basis for the officer’s mistaken belief. the arrest was not made in an “extraordinary manner. if the officer has probable cause to believe that the crime was committed in his presence.) Gets an objective person. 428-461. The real reason why these guys were stopped. (Or there are administrative warrants. Pringle: When you get probable cause it doesn’t have to be exactly specific. cops can search a car with probable cause DESPITE the state’s laws. delineated reasons. the evidence does not get excluded. plainclothes cops.7. 4. reads them together: warrantless searches are per se unreasonable. that the executing officer cannot reasonably presume it to be valid. note.1. ii. to issue.1-S5.5. Whren v United States: Vice squad. where the exclusionary remedy only applies where the search warrant is “so facially deficient . 3. 3. US v Grubbs: When you say you have probable cause to believe certain items will be at a certain place. b. unusually harmful to her privacy or physical interests…” so no constitutional rights were violated. if you can make a reasonable inference that the occupants had knowledge of and exercised dominion and control over contraband.

it can be kind of general: “together with other fruits. For things like drugs. Also. the Attorney General could issue search warrants. but don’t have the compelling justification needed for a warrantless emergency search? You can detain the person while you go get a search warrant as long as it’s reasonable. (Zurcher v. Connelly v Goergia. Or threat of physical violence or escape (US v. (Illinois v. Need probable cause supported by oath or affirmation. But. iii. Inc. and check the date of execution! ii. New York. Arrest warrants probably not. if cops anticipate that incriminating evidence may be destroyed. for every warrant issued. such as books or membership lists. As a lawyer. But it’s flexible (US v. Michigan) 2. MD) is good enough. Always ask. . They can go stale. Magistrate must be neutral and detatched! Lo-Ji Sales.” (Andersen v. (US v Watson) 1. Banks. Other cases. who signed the warrant? Affidavit can’t be lie. iii. the magistrate got $10 (a pecuniary interest) 2. Anyway. for items that implicate First Amendment rights. always check the date on the search warrant. in which 15 to 20 second wait was reasonable to force their way in without a response because of the possibility of destruction of evidence) ii. if you violate the evidence doesn’t get excluded (Hudson v. i.Must be issued by a neutral and detached magistrate. v.… not good. who signed the affidavit. McArthur). As long as you have probable cause and it’s in a public place. you don’t need a warrant. Execution of search warrants 1. Stanford Daily) 2. Used to be you need to knock on the door and announce identity. The warrant must describe with particularity the place to be searched and the items or persons to be seized. Bates) iii. you need more particularity and specificity. Coolidge v NH. instrumentalities and evidence of crime at this *time+ unknown. usually in the form of an affidavit. Knock and announce rule i. Arrest Warrants: same requirements. Reasonable = limited and tailored efforts to reasonable secure law enforcement needs while protecting privacy interests. 1. 3.

But if you want to arrest a suspect in the home of a third party. kind of like the voluntariness standard. (Illinois v. But if you’re in the home. 2. it’s a factor to consider. you could go anywhere with an arrest warrant. you can search the area in the immediate control of the arrestee. Apparent authority? i. Also different from Miranda. otherwise. (Georgia v. United States) c. Warrant Exceptions i. you can also do a search: 1. If you have an arrest warrant. Can’t just legally be allowed to enter. You don’t need to have knowledge. i. unless there’s exigent circumstances. you don’t need actual authority. If one occupant consents but the other expressly denies. The Fourth Amendment rights don’t really protect the truth-finding process at trial.7 1. (Maryland v. Two reasons: 1) lets remove any weapons that can hurt the police. Beyond that room. Justification for a search incident to an arrest. (Schneckloth v. Randolph) 2. Scope of the search . Rodriguez) The rule is whether the officers have reason to believe that the person had authority to consent. Buie) 3. you’ve got to get a search warrant to search that home for the suspect to protect the interests of the third party.2. For the Supremes. EE S6. (Steagald v. Consent 498-526. it is unreasonable to go in and search. you need a search warrant (see below) 4. Apparent authority (not actual authority) 2. If you have an arrest warrant. If you want to search for the suspect in a third party’s home. you need some sort of mutual use of the premises (see Stoner v. you need specific facts to support the belief that there might be somebody else. Not a consent. (Payton v New York) 3. Some wrinkles 1. get a warrant. We ask: 1. You can do a “protective sweet” of the premises when police make an arrest in a home (including areas in the immediate vicinity). Was the consent voluntary? Do a totality test. Bustamonte) 2. California) 3. and 2) prevent the destruction of any evidence relating to the arrest.

while searching those areas where the suspect or weapons might be hidden. Item has to be visible within the proper scope 3. In the home. EE S6. not an arrest yet! Officer feels a lump. Vantage point has to be lawful (you have a right to be there) 2. the excuse evaporates. Can’t feel anything else! In dicta. It has to be immediately apparent that it’s evidence of a crime / contraband 2. Pat down search – looking for weapons. 3. 2. Hot pursuit of a fleeing suspect. likelihood that the suspect is armed. Exigent 585-593.8 Plain View (Seizure) 1. Minnesota v Dickerson: Police may seize contraband detected through the sense of touch during a protective pat-down. In the home: 1. Cases . there’s some thing as plain feel. Jimeno) (objectively reasonable to think that if you’re consenting to a drug search. plain smell. The police had justification amounting to probable cause to believe that items relating to crime would be found (for a search) or that the suspect committed a crime (for an arrest) 2. Plain touch. Plain View 526-534. When a motorist consents to a search. 3. occupant is seriously injured or in imminent danger 2. Once inside you can probably search for the suspect and seize evidence and weapons found in plain view. Pat down search. The circumstances presented the police with a sufficient compelling urgency. you’re consenting the cops to search wherever drugs may be found) ii. whatever. you can go into a house. ok. But once the pursuit turns cold. the scope of het search may extend to anywhere in the vehicle where narcotics may be hidden (closed containers!) (Florida v. Arizona v Hicks: You need probable cause before you use the plain view doctrine.i. making resort to the warrant process both impracticable and risky. you can’t just go in for a minor offense. Urgency: gravity of the crime. EE S6. The plain view doctrine has been expanded some to include some of these other aspects. Elements 1. Elements 1. iii. 3.2 1. AND i.

Time:Search much occur at the time of the arrest. Even if the cop approaches the person outside of the car. i. Genearlly. the level of the crime doesn’t really factor in. cars. 534-544. Wisconsin: Warrantless entry into a dwelling may not be permissible even under exigent circumstances where the suspect is sought for a minor crime. that there be a valid arrest warrant 3.3 1. Search Incident. Space: Limited to the person of the arreste and the “grabable space” from which one could reach weapons or evidence 1.. Cars and Search Incident 1. based on probable cause to believe the subject has committed a crime. Robinson.4 and S6. even if subjects have already been removed from the vehicle and cannot actually reach into it (NY v. EE S6. Basic pre-reqs 1.9 1. cops can still search the interior (Thornton v United States) 1. (Maybe if there was a hot pursuit. Cars. cars (think. Entire interior of the passenger compartment = within the proper scope of a contemporaneous search incident to the arrest.) 2. Belton) i. (US v. Scope: i. once the subject is securely in custody and the immediate exigencies of the arrest disappear. Robinson). . The underlying arrest be lawful. ok…) 2. Chadwick) ii. so too does the excuse 5. 544-585. EE S6. but must occur contemporaneously (US v. Brigham City. An automatic standardized approach. In a threat to injury type situation.Welsh v. we’re talking about REASONABLENESS here (the touchstone of the 4th Amendment) iv. categorical rules) v. AND in the case of an arrest in a private building. no matter what. Includes containers (US v. You can search for weapons and evidence. Utah v. arrest must precede the search (on one occasion the Court sanctioned a search-arrest when there was probable cause already) 4. Court: More like a bright line test.e. 2. Auto. Stuart: Exigent circumstances justifying warrantless entry into a home exist where police reasonably believe an occupant is seriously injured or in imminent danger.

What’s the big deal! You’re seizing the car. PC to believe a van has illegal immigrants does not allow them to open the glove) 3. Inventory of Car (Scope Dependent upon Regulation) – Administrative Regulation 3. United States: Does away with the warrant requirement because cars aremobile. iii. ii. that search may extend to any part of the car and any packages. Ross: If there is probable cause to search a stopped vehicle. .. luggage. or ii.Gant: A search incident to a lawful arrest can be effected only when either: i. Occupants Out of Car – Reasonable Suspicion to Stop v. The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. It is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle” 2. US v. Cases i. Interior of Car Limited to Weapons Search – Reasonable Suspicion and Fear for Safety iv. Chambers v. 2. (e. Entire car including containers – Probable cause to search 1. The scope is pretty broad. Maroney: The car is brought to the police lot. California v. (United States v. Interior of Car including containers – Probable Cause to Arrest Occupant (with Gant limitations) iii. the warrantless search of the entire car as well as containers. Applies to mobile homes (maaaybe different if tied down) and boats. Carroll v. or other containers that might contain the object of the search. Cars are subject to warrantless search when they are stopped on the road and police have probable cause to believe seizable items are present 4. Levels of searches and justifications i. Warrant exception for search of a car 1. Ross. Acevedo) ii. Automobile exception – because of the mobile nature of the vehicle (Chadwick) and the diminished expectation of privacy. limited only by the size and nature of the items for which there is probable cause to search.g.

Acevedo: Police may search a car and any containers within it when they have probable cause to believe contraband or evidence of a crime is present anywhere inside – only limit is that they can search where such items may be hidden. Flight. Virginia v. did not check luggage. What if it involves a drunk driver on the highway and there’s no corroboration? We don’t know (cert denied. 3. 11..) 2. traveled under an assumed name. pockets. Arvizu. What is a stop? If there’s no stop. Probable cause can be obtained by a reasonable administrative standard (i. i. Can be info from an informant. no justification! 1. etc. J. Due regard is given to the officer’s experiences nad training (US v. Terry stop: You need reasonable suspicion that criminal activity may have been afoot. EE S4. traveled to or from a narcotics source city. Harria.4 ex 1. high crime area.e. a reasonable person would have believed that he was not free to leave. but Scalia and Roberts would do the balancing) 4.) ii. If the gov’t can show a health/safety reason. and appeared nervous.” Circumstances: .iv. Reasonableness and Balancing a. 4.5 i. but you don’t need as much as probable cause (can be an anonymous tip corroborated by police as to certain details) (Alabama v. VII. Further. and S6. etc. making this search once a year. it’s a totality milkshake. Reasonable suspicion: Totality of the circumstances 1.2. Scope is limited by exigencies that justify its limitation: only to what is necessary to discover weapons (pat down. Wardlow) 3.3. But an anonymous tip cannot itself be enough to justify a stop and frisk (Florida v. not a strict calcuation) 2. stayed only a brief time. Administrative search: you need an administrative warrant. Lesser Seizures 272-348. that will be enough.L. because the additional step of patting down or frisking constitutes a further intrusion. White) iii. it requires additional justification: reasonable suspicion that the suspect may be armed and dangerous. (Camara) ii. 1.). 10. In an airline: paid cash for the ticket. A stop (seizure) if “in view of all the circumstances surrounding the incident. can be considered (Illinois v. California v. 4. 6. This reasonable is determined by balancing gov’t interest with level of intrusion. anyway.

(3) degree of expectation of privacy (PRIVACY CONCERNS) 1. Balancing: Importance of the administrative objective to the public interest (gov’t purpose) VERSUS (1) Scope and degree of intrusion. or blocked exits. show of force. Level of Justification: ensure evenhandedness and avoid arbitrary or selective enforcement. Administrative 349-426.5 and S6. Arizona v. the guy in a bus was free to withhold consent… really!?) Even if you’re not advised of right to refuse consent. EE S4. if there is no threat. arson investigations of fire scenes. etc.g.. athletes and others have a lesser expectation of privacy. But think. and obtaining urine was not intrusive. Gant! b. They can ask your name. etc.) 3. (US v. no seizure (US v. V. Johnson): i. Mendenhall) 2. you can ask all the occupants out of the car. ID. Car. fixed sobriety checkpoints to look for signs of intoxication in motorists passing through. 2. Long. Neutral standardized criteria and procedures that seek to prevent the adimistrative search from being used as a pretext for an investigative foray ii. school drug testing. use of language or tone.6 i. Arizona v. Once they’re out of the car and you have reason to believe that they are armed and dangerous. Drayton) 4. Mims. No seizure when cop is just chasing you (CA v. little police discretion (Camara) 1. E. Once they stop you. Penn. two step (Michigan v. the act of asking someone out of the car is a de minimus part of the stop. routine inventory searches of impounded automobiles . etc. Other applications: highly regulated business establishments. Do you need justification to do this? No. (Hillbel) 2. Once a car is stopped. Do you have the right to stop (you need something) 1.threatening presence of several officers. intimidation. you can pat them down & search the vehicle where the weapon may be. Bus passenger not necessarily seized when confronted by officers doing a drug sweep (FL v. iii. (2) degree of discretion allowed to official. display of a weapon by an officer.. physical touching. Bostick. what can they do? (Scope) 1. ii. Hodari D.. fixed checkpoints hear the border to stop vehicles and briefly question the occupants to detect illegal aliens.

Some form of individualized suspicion. (Samson v. “Special Needs. But sometimes. 3. must be demonstrated in these cases. preventing injury or violence in a home. California) iv. Chandler v. 1. relate to ordinary crime control. it can be fine (NY v Burger. striking down a traffic checkpoint program designed to interdict illegal narcotics i.” So something like a . and Griffin v. where a probation officer searched the home of a probationer (probationer has no privacy interst) the appropriate standard of justification was reasonable suspicion.” So the concept of noncriminal searches should be measured by laxer standards than probable cause extends into other areas! 1. make the warrant and probable cause requirement impracticable. suspicionless searches of parolees by cops is OK as a mandatory condition of release consented to by the parolee.and personal effects of arrestees. Ortega: Where the search of a gov’t employee’s office was conducted by agency personnel as part of an investigation of work-related misconduct. City of Indianapolis v. 1. but you need more to go into her bra! 2. looking through auto junkyard statute was OK) 2. But. striking down a statute of a state hospital’s policy of testing pregnant women for cocaine use 2. Wisconsin. ii. (NJ v. but for some emergency. O’Connor v. carving it away! Hospitals and Roadways. Edmon. TLO) 2. “Of course. ther are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise. Ferguson v. Lidster. Another narrowing of this category = Illinois v. the line between criminal and noncriminal is not clear. where drug testing for public office candidates was struck down. Examples: 1. NJ v. iii. and mandatory drug testing of security and safety workers. you can put of a highway checkpoint to obtain info from motorists about a crime – not implicating the motorists but just getting help to do their job. Miller. Also. no safety issues at hand. City of Charleston. But see. but not probable cause. TLO: students have a lesser legitimate privacy expectation as opposed to the school’s needs to have a safe environment. beyond the normal need for law enforcement. When an administrative scheme comes into close contact with the criminal investigation.

3. So as this demonstrates. police officer’s discretion is minimal until they have greater justification. etc. Final Class Review in which Prof.tailored roadblock to thwart an imminent terrorist attack would be different. Evans). because of the cost to het grand jury system versus the limited deterrence effect. they want deliberate recklessness or gross negligence. a state’s use of highway sobriety checkpoint does not violate the 4th and 14th Amendments. United States where the Court refused to apply the exclusionary rule in negligent mistake by the police. Further. 3. you are limiting the thrust of the E-rule. Two principle ways. then the exclusionary rule will apply. Sheppard as well. contraband or incriminating evidence discovered may be admitted in a criminal prosecution. Minimal intrusion. Lastly. Michigan. Think MA v. Another cutback is by creating exceptions to the fruit of the poisonous tree doctrine. Leon. Sitz. So where the deterrence rationale outweighs substantial social costs. INS hearings. (214-215 in the EE). This good faith has expanded beyond the notion of getting a warrant. If they acted according to a statute (IL v. Bloom went over everything Limits on the exclusionary rule. But still. we won’t apply the E rule to grand jury proceedings. So the good faith exception has greatly limited the thrust of the exclusionary rule in criminal proceedings. whent here was no way a reasonable police officer could rely on that warrant. the Court really wasn’t going to apply an exclusionary remedy to a no-knock violation because there are other valuable remedies there. parole revocation hearings. A few exceptions to Leon. The balancing approach: the benefits of the rule (now deterrence) versus the costs (reliable evidence will be taken from the factfinder). This balancing rule was used by the courts to create the good faith exception: US v. When there might be a direct causation between the illegality and the evidence found. no exclusionary rule. if there are exceptions of that. . we saw Herring v. Hudson v. The Curt in Herring said in order for the exclusionary rule to apply. Michigan v. Krull) or a clerical error (Arizona v. When the police go throught the effort of getting a warrant there won’t be any exclusion because the police have done everything that they could. Also this balancing.

Open fields (US v. At least under the 4th Amendment. 4th Amendment. If you talk to your friend and your friend is wired. Quarles. remember NY v. basically. Charts on 192. Also. Bank business? Numbers that you dial? Nope. where the cops deliberately didn’t give Miranda. We saw attenuation of the taint. We also talked about expectation of privacy with Terry. Ventras. A parolee has no expectation of privacy according to the SC in California with regard to being arrested. We talked about dogs. Independent source: Think Murray. in 2009. it’s a different story. It was a 6th A violation case. Hudson. We talked about enhancement devices. measuring the heat coming out of a home. A continuation of the prison situation. FL v. evidence of the no-knock violation would not be excluded. Fellers. Oliver) versus curtilage. Patane and Elstad. no exp of privacy. Inevitable discovery. you don’t have to give Miranda warnings in exigent (?) circumstances. We talked about 3rd parties. we looked at the fruits doctrine for Miranda. 8th Circuit said no. Where a violation of the 6th requires a fruits analysis or not. and said where suppression would not serve the constitutional guarantee. You need a gov’t actor and some sort of seizure. but it just takes care of the statement but doesn’t go any further. So. But if it was the home. There’s got to be an expectation of privacy tat society is prepared to recognize as reasonable. when does a stop implicate the 4th? . which is a little different. We also talked about areas. the 6th A violation which led to statements could be used for impeachment purposes. If you throw trash out onto the sidewalk. 6th A context. Doesn’t have to be a cop. don’t forget. there’s no expectation of privacy. Miranda was a prophylactic (but see Dickerson). Threshold There’s got to be some gov’t actor. we won’t apply fruits if it’s just a Miranda violation! But think of Seibert. Kansas v. like in Kyllo. especially. whichw as sent back down to the circuit. We don’t know. Riley (flying over curtilage).First of all. a restriction of the exclusionary rule. Court looked at attenuation.

going to a home just to package cocaine (nope). doesn’t really go stale. Do you need a warrant (arrest. you need reasonable suspicion. you need probable cause. person riding in a car illegally stopped could have standing based on the seizure. less than a full scale search. the scope of the search is limited to the justification (think. If there is standing. Finally. you can arrest someone even if it’s not authorized by the state.Hodari – a chase where the party is still running doesn’t really implicate the 4th. search. the warrant piece. Particularity requirement. and gov’t actor. Rodriguez). CA. Justification fort he gov’t 2. gov’t interest v. and expectation of privacy. Moore. 1. automobile. If there’s an informant involved. you can’t go in). When you’re thinking about probable cause. Virginia v. It’s very difficult to define probable cause. Brendlin v. we want some sense as to why the informant is reliable and how they knew. Then you can search them! We also looked at the justification for a Terry type search/stop/frisk. intrusion). the justification piece. Then consider 3 things. once the cops get probable cause. They’re looser about it in Gates. Rakas. Whereas in an arrest warrant. Florida (bus situation. randolf (going to a house and there are two parties. but they still want something in the totality-of-the-circumstances analysis. The intrusion is something less than an arrest. Then the 4th is applicable. But even in Gates. so the Court came up with (using a blanancing test. we don’t’ care about the cop’s motivation. think about staleness! Search warrants can go stale. even if they have other reasons for doing a search (Whren). we talked about standing. Powell in the Rakas decision as well. and the Court loosened up on the definition in Gates. Mentioned by J. with expectation of privacy. especially Terry) Assuming the 4th is applicable. 3rd party (IL v. How easy it is for a cop to stop a car! Also. poor Gail Atwater. administrative) 3. . they talked about we want facts and not just conclusions. is it a seizure if the person doesn’t feel free to leave) Finally. Sometimes you can establish these by lots of detail or by independent corroboration. for a full scale arrest or a full-scale criminal search. can all be avoided if you can get consent. Consent: Schnekloth case (car). and the overnight guests (Rawlings). and one consents but the other doesn’t. It’s gotta be a situation where the suspect doesn’t feel free to leave. Also. Think about consent! Then the justification piece.

chasing a drunk driver… exigency is not based upon preserving evidence!). but for a RR or a school setting (special needs setting). the Courts have avowed preference for search warrants. JL. CA v. Auto exceptions. So in that context. like TLO (there was actual suspicion). Also. But the scope is limited to the justification. neutral magistrate. then Arizona v. Chimel. If you run away in a high crime area. In the administrative context. but if you’re going to frisk them that’s something less than a full-scale search incident to an arrest. Stuard. Florida v. but seeing a fight throught he window IS an emergency exception. you don’t really need a warrant. But Brigham City v. you would need a search warrant . steagald. In the Terry context. For the warrant. Skinner. that can be reasonable suspicion. Anonymous tips. Terry and also the administrative search. some special needs situation beyond the normal needs of law enforcement (like maintaining discipline in the school). . To do the pat down you need a fear of safety. the emergency exception (Welsh. Also. you need reasonable suspicion. Arrest warrants / search warrants. Arrest warrants are enerally not needed unless you’re in a home. Robinson. scope of intrusion. The objective was other than solving a crime. Gant (very important!). you can look through the whole house. But still lots of exceptions to the search warrant requirements. The Court moved from a standardized approach to a particular approach. Including. Kids waving in Arvizu near the border to the customs officers. to protect a 3rd party’s home. some justification is required. but oftentimes (think RR accident. Also. Acevedo (searching a container in an automobile). Also in this context. you COULD still get ID info. members of clubs in Earls). Final justification piece is the balancing approach: need to search v. think execution. we talked about Chambers. Thornton). Then in looking at search warrants. etc. We’ve got to think about the particularity requirement. plain feel doctrine (Dickerson). you’re required to get an administrative warrant. you don’t really need search warrants because it’s not so practical. Redding (greater justification would be required). the Earls case where they were testing students without justification. you can bring in a dog. Zits. search incident to an arrest. they allow for a “protective sweep” so you can search around the room. Jack and Jill. If you have further justification. can’t be totally anonymous to be reasonable suspicion. the drunk driving roadblocks. also with regard to cars (Belton.Sure you can stop them. But we see a lot of exceptions to search warrants. Totality of the circumstances was developed. You need some sort of predictive information. part of the search incident to an arrest. engineer.

or a waiver by the preponderance of the evidence. If somebody DOES talk. Mississippi. then Miranda is requied. burden by a preponderance of the evidence (CO v. FL v. Don’t foget Seibert. you don’t have to give it exactly. Interrogation Innis: any words to elicit a response. by a preponderance. If you’re looking for 50” tv’s you can’t look into vanity drawers. Yarborough. Look at the suspect. because they said we’ll protect you from possible violence. Totality. Custody: was it a police dominated atmosphere (Berkemer. Fulminante is also important for thinking about harmless error as well! Remember. yea person was deprived of freedom but not police dominated atmosphere). So if there’s a violation of 5th/due process. Scope – justification. if you have the right to be wehre you are. But don’t move anything! Still. do you not do a fruits. you can seize it. Connoley). Plain View seizures. remember the scope. just stick to what the warrant authorizes you to do. you’ve got to think about waiver. look at the police: was the suspect’s will overborn? In Fulminante. ONLY if it’s a MIRANDA or a 6th A with regards to a statement. that’s enough.No knock violation – evidence doesn’t get excluded. Miranda You need custody + interrogation. Both because it’s unreliable and we don’t want the cops to be doing that). then you can do a fruits analysis. in determining whether a person would feel deprived. you can seize something that you have probable cause to think something is stolen or contraband. But if there’s a custodial interrogation. Waiver = KIV. Powell. Voice of God – Court wanted to see some sort of police coercion. a violation of 5th and Due Process. the potential physical harm = violation. . which goes off on ineffectual warning (Souter). ehhh. Interrogation Three standards on p 322 Voluntary standard: CO v. so anything obtained like that will be thrown out. Also. we won’t take into account a person’s age (appreciate the habeas corpus action). there was a violation. Conley (first we looked at Brown v.

you need initiation and KIV waiver. Only a KIV waiver. etc. but doesn’t matter. In Barret. CO v. how long does the request for an attorney last? Well 14 days after normalcy (going back to jail can be normalcy). LA. Keep in mind that the 6th A is offense specific. Finally Eyewitness ID in two contexts. criminal proceedings by indictment. no longer will they require an Edwards type initiation. Not everything is DE.NC v. having counsel in a lineup is very important. Shatzer. If you’ve requested counsel. and only giving Miranda warnings is enough. you don’t even have to tell them why or the charges! Stuff happening outsideo f the room. . Say you want to be silent / want lawyer. the waiver can be implicit. doesn’t go to the waiver requirement. Was he exercizing his right to be silent? You’ve got to assert your right to silence and attorney (Davis. Brewer. and how you define offense is very narrow. you need an initiation by the suspect. There has to be some sort of action by the police official / inmate. If you request an attorney. the request for an attorney must be unambiguous. but I’ll say it orally). Waiver: Montejo v. 6th Amendment. Silence: Berkowitz. 6th A. it doesn’t have to be that intelligent (I’m not going to say anything in writing. We looked at Massiah. TX v. listening post and nothing more. The court is involved AND there’s something called deliberate elicitation. Also. Cobb. Spring. guy was silent for 3 hours.) unambiguously. probably didn’t understand that oral is the same. court appearance. or some sort of court involvement. with regards to the Edwards case. Butler. Police have to have a clear idea you’re asserting your right. With regards to waiver. then the 6th kicks in. If it’s asserted Scrupulously honored = different facts. and we talked about the initiation of adversarial judicial. doesn’t implicate the 6th. AND if you’ve asserted your right. You don’t need much! “What’s going to happen to me now?” = initiation.

Also. Manson v. Ash. Stovall. police could do a show-up situation when there was an emergency situation going on. In that case. We just care whether the suspect had enough time to look at the suspect athte time of the incident. which didn’t care about he functions. But. you can easily duplicate that. 6th A Wade analysis is different from 6th A Massiah analysis for purposes of the fruits analysis. .Then we saw IL v. Then we looked at due process requirement. goes to in-court identification. Kirby. Braithwaite. we don’t care about the emergency piece. all it was about was did the person go to court? US v. there IS a fruits analysis for the 6th A violation. it wasn’t necessary for counsel to be present for indictment for a photo array. there was a hospital room.