Criminal Procedure Outline

Kai N. Livramento

I. Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” When is the Fourth Amendment implicated? When a public actor intrudes into an area deemed on in which the citizen may reasonably expect privacy.

A. Introduction i) “The right of the people”
(a) Term of art: intended to refer only to a class of persons “who are part of a national community or who have otherwise developed sufficient connection with this country to be considered a part of that community.”1 (b) Illegal aliens: living in the United States would be covered. (c) Travelers: unclear but it appears that a temporary connection would afford protection. (a) Interpretations: 1. Warrant Preference – the prophylactic interposition of a neutral magistrate between the police officer and the citizen prior to the search is the main protection afforded by the Fourth Amendment. 2. Reasonableness – the reasonableness of a search does not turn on whether a warrant was obtained (or whether there was a recognized excuse for not seeking one), but rather on the contextual circumstances justifying the search and the manner in which it was conducted. (b) Historically: 1. The most consistent interpretation of the amendment is to read the Reasonableness Clause as the dominant clause 2. The concern was with the British general warrant. (c) Presently: 1. The Supreme Court reads the Warrant Clause as the dominant clause with exceptions; followed by the Reasonableness Clause. 2. Searches and seizures are presumed to be unreasonable unless carried out pursuant to a warrant. (a) The minimum showing necessary to support a warrant application; not used to demarcate reasonableness generally in search and seizure situations. (b) The Supreme Court has allowed for arrest without a warrant on the street so long as there was probable cause. (a) The Fourth Amendment applies only to governmental conduct. (b) Determining whether a private party is acting as an “instrument of the state:” 1. The degree of government engagement, knowledge, and or acquiescence with regard to the private actor’s conduct; and

ii) Reasonable Clause and the Warrant Clause

iii)Probable Cause

iv) State Action Requirement


United States v. Verdugo-Urquidez (1990)


• Police officer directs an airline or hotel employee to open a traveler’s suitcase • Railroads complying with federal regulations mandating drug screening of employees 2. The purpose underlying the private party’s action • Was he pursuing a governmental interest – discovery of criminal activity or evidence thereof • Was he acting to promote his own personal or business objectives which makes the action private in nature • Law enforcement recipient of the items subjects them to additional examination; further examination must be substantial ∼ Sealed container filled with film canisters (pornographic) was turned over to FBI agents, who viewed them on a projector: triggers ∼ Plastic bags turned over to federal drug agents, who reopened it and subjected the powder to a field test for cocaine: did not trigger v) Remedies (a) The amendment establishes a right, but does not mention the consequences of a violation of that right. (b) Even with the exclusionary rule the question still remains as to whether this is constitutionally mandated.

B. What Constitutes a “Search” and “Seizure”: Reasonable Expectation of

i) Katz v. United States
(a) Reasonable Expectation Test2,3 1. The citizen must have manifested an actual subjective expectation of privacy 2. That expectation is one that society (through the Court) accepts as objectively reasonable (b) Question: Does electronically listening and recording words from a public telephone booth constitute a search and seizure? 1. Fourth Amendment “protects people, not places” and its reach cannot turn solely upon whether a physical intrusion occurred. 2. Applicability derives from the concept of privacy: “The Government’s activities in electronically listening to and recording words violated the privacy upon which Katz justifiably relied while using the telephone booth and thus constituted search and seizure within the meaning of the Fourth Amendment.”

ii) Application of Katz
(a) Subjective manifestation – individuals must take affirmative steps to protect their privacy interest; otherwise, a police inspection will not constitute a search 1. Abandonment • Does not trigger the Fourth Amendment
2 3

Justice Harlan’s concurrence Reasonable Expectation of Privacy v. Reasonableness under the Circumstances Argument: If the Katz test is retained, “technology will lead to no privacy, and police practice will incorporate that technology to create a reality of no privacy.” In contrast, a reasonableness test “is a flexible one that allows courts to continue to protect privacy as we transition into a world which no intrusion is technologically inconvenient.”


4 . Individuals. United States v. not the neighboring open fields. a visual inspection of that property from outside the curtilage does not constitute a search. Fourth Amendment constraints do not apply • Financial Records7 – an individual who imparts financial information to a bank in the usual course of business has no reasonable expectation of privacy • Pen Registers8 – an individual who automatically conveys the numbers he dials to the telephone company for billing purposes has no reasonable expectation of privacy9 • Electronic Pagers – ∼ United States v. then that person has no legitimate expectation in denying equivalent access to police 1. 6 United States v. Miller (1976) 8 Smith v. § 3121 et seq. and Under Cover Agents • Consensual Electronic Surveillance6 – misplaced reliance on the loyalty of others is not entitled to constitutional protection. 18 U. Note: Even if property is within the curtilage. or (2) a court order is obtained. Informants.C. White (1971) 7 California Bankers Ass’n v. 4 5 Hester v. when on party to the conversation “invites” the government in. including having a moving sale and not paying rent for six weeks = abandoned ∼ Leaving mail behind in a post office box and not paying for a year = abandoned ∼ A citizen who attempts to protect his private property from inspection after throwing a bag on a car to respond to a police officer’s inquiry = not abandoned • Found when a person denies ownership of a container in the face of police inquiry • Often considered as a question of whether the defendant has “standing” to assert a Fourth Amendment issue (b) Open Fields Doctrine – police entry into open fields (unprotected area) is not protected45 1. Maryland (1979) 9 Congress has imposed statutory limitations on the use of pen registers with the Electronic Communications Privacy Act of 1986. Shultz (1974). “Probable cause” is not needed because it is not a search. Meriwether: pager was seized in the “on” position and the agent recorded the next forty telephone numbers received by the pager. The statute prohibits the use of pen registers unless: (1) the “provider” gives consent. United States (1924): The Court distinguished open fields from constitutionally protected areas like houses. United States (1984): only the curtilage. United States v. warrants the Fourth Amendment protections that attach to the home 2.• Need not be explicit ∼ Leaving an apartment and not returning.S. Dunn (1987): factors of cartilage • The proximity of the area claimed to be curtilage to the home • Whether the area is included within an enclosure surrounding the home • The nature of the uses to which the area is put • The steps taken by the resident to protect the area from observation by people passing by (c) Access by Members of the Public – if an aspect of a person’s life is subject to scrutiny by other members of society. Oliver v.

and evidence of crime found inside is not a search.S. The Fourth Amendment does not protect appellee when a third party expends the effort and expenses to solve the jigsaw puzzle created by shredding. United States (1986): taking of aerial from navigable airspace is not a search ∼ Low Flying Helicopter – Florida v. and therefore assumed the risk that his message would be received by whomever happened to be in possession of the pager at the time. ∼ Public exposure of the trash forfeits any reasonable expectation of privacy in the bags ∼ Once the trash is conveyed to third-party collectors. 5 .” • Public Areas – ∼ Homeless person’s effects: Yes. ∼ Person’s characteristics: External = no search (voice.° ° ° ° ° ° ° ° ° ° Defendant had. Riley (1989): No search occurred because a member of the public could have similarly positioned himself in an aircraft and made the same observations Flight had been within legal parameters. a homeless person has a reasonable expectation of privacy in the contents of a duffel bag and cardboard box kept on public property. fingerprints) Internal = search (blood type) • Aerial Surveillance – ∼ Airplane: Fenced-in backyard – California v. No. the homeowner assumes the risk that they will turn bags over to police • Shredded paper – “there is no constitutional protection from police scrutiny as to information received from a failed attempt at secrecy. wind. a homeless person does not have a reasonable expectation of privacy in belongings stored on private property. Distinguishable because the possessor of a pager has control over the electronically stored information and a reasonable expectation of privacy like that of a personal phone book (still held the search valid because it was reasonable in the context of a valid arrest) 2. U. or threat of injury. and did not reveal any intimate details connected with the use of defendant’s home. Chan: officer “activated” the pager’s memory and retrieved two telephone numbers. Chief Justice Rehnquist appears to have had enough with the strong hand activities of law enforcement at the peak of the war on drugs. Ciraolo (1986): the mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. dust. did not interfere with the normal use of the greenhouse by way of undue noise. • Manipulation of Bags in Public Transit – Bond v. Physical Setting and Vantage Point • Trash – California v. Greenwood (1988): trash collector may turn one’s garbage over to the police at their request. Industrial plant complex – Dow Chemical Co v. disclosed information to another member of the public. in making the call. ∼ United States v. (2000)10 10 Note: Great case for defense attorneys. handwriting.

He does not expect that other passengers or bus employees will. Conducting a dog sniff would not change the character of a traffic stop that is lawful. the process of collecting urine is intrusive and embarrassing. Investigation that Can Only Reveal Illegal Activity • Canine Sniffs ∼ Closed luggage: not a search11 ∼ People and places: circuit split12 ∼ Routine traffic stop: not a search13 • Chemical Testing for Drugs: not a search14 • Urine Testing for Drugs: search15 4. Taborda (2d Cir. ° When a bus passenger places a bag in an overhead bin. unless the dog sniff itself infringed constitutionally protected interest in privacy.∼ Holding: an agent’s physical manipulation of his luggage far exceeded the casual contact he could have expected from other passengers ∼ Application to Katz test: ° Bond sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. 1980) 17 United States v. 1982) 18 United States v. Caballes (2005): A seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. he expects that other passengers or bus employees may move it for one reason or another. Railway Labor Executives’ Ass’n (1989): drug testing of urine samples could uncover information about epilepsy. 12 People: Terry may be implicated.” • Electronic Beepers (GPS): ∼ United States v. Mankani (2d Cir. ∼ United States v. Use of Technology to Enhance Inspection • Thermal Detection Devices: Kyllo v. 3. United States (2001) ∼ Emphasized the sanctity of the home and drew a “firm line at the entrance to the house” ∼ “Device that is not in general public use. Jacobsen (1984): A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. 1984) 6 . the surveillance is a ‘search’ and presumptively unreasonable without a warrant. pregnancy or the use of prescription drugs. feel the bag in an exploratory manner. • Other Sensory Enhancement Devices ∼ Telescope: not allowed when looking into a home16 ∼ Binoculars: allowed in places where a suspect might otherwise have exposed himself to public view17 ∼ Pre-existing hole in the wall: allowed because the transitory nature of a hotel diminished the expectation of privacy18 11 United States v. 14 United States v. Knotts: no search because the movements of the car could have been observed by the naked eye. to explore details of the home that would previously have been unknowable without physical intrusion. Lace (2d Cir. Places: home or public place 13 Illinois v. as a matter of course. 16 United States v. Karo: search because the police continued to monitor a beeper installed in a container after it was taken into a home where information revealed could not have been obtained through unaided surveillance. 15 Skinner v. Limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. Place (1983): A canine sniff by a well-trained narcotics detection dog does not require opening the luggage.

Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. v. If the defendant succeeds at making this showing • Full evidentiary hearing • Preponderance of the evidence that the affidavit contained a knowing or reckless falsehood • If he establishes this ∼ Judge excises the false statements from the affidavit and determines whether the remainder makes out probable cause to search ∼ If it does not. allowed. Cannot accompany the police as they executed a warrant 2. C.∼ Flashing a flashlight through a darkened car: no search19 ∼ Aerial photographs that are subsequently magnified: see Dow Chemical Co. Challenge to the probable cause element: • Inadequate on its face – “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable” • Truthfulness of the facts set out – ∼ Defendant must make a substantial preliminary showing that the affidavit contains False statement Made by the affiant police officer Either knowingly and intentionally or with reckless disregard for the truth ∼ Defendant must demonstrate that the false statement was necessary to the finding of probable cause If there was sufficient information even without the false statement. The Warrant Clause i) Purpose of the Warrant Clause: (a) Interpose a disinterested magistrate between the police and the individual they seek to search or seize20 (b) Confine the scope of intrusion to the areas and items specified ° ° ° ° (a) Neutral and detached magistrate 1. which often is not grasped by zealous officers. Brown (1983) Johnson v. United States (1948): “The point of the Fourth Amendment. then the search conducted pursuant to the warrant was unlawful (c) Oath or affirmation (affidavit) (d) Particularity requirement 19 ii) Warrant Requirements: Texas v. is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.” 20 7 . 2. 3. places or things before using its power to disturb them. Cannot have a financial interest in the issuance of the warrant 3. the misrepresentation is treated as harmless error. United States. Must have the training and experience necessary to meaningfully assess the probable cause showing (b) Probable cause 1. The government must be able to demonstrate a factually-based interest in people.

Watson (1976): If an officer has probable cause to believe that a person has committed a felony. Plain View Doctrine – • The items must be in plain view while the officers are within the confines of the originally authorized search • The items must be immediately apparent as contraband or evidence of crime. no corroboration is required. Particularity – The place searched and the items seized be specifically and accurately described in the warrant 2. even if there is sufficient time to seek an arrest warrant and no practical impediment to doing so. and not requiring any further search or analysis D.the-circumstances” approach that looks at the overall reliability of a tip and in which a deficiency in one of the prongs may be compensated for by a strong showing as to the other. Probable cause required focuses on facts and circumstances that connect the suspect to specific criminal activity 3. iv) Introduction to Arrests (a) Arrest Warrant requirements: 1. Credibility of the informant • Informant implicates themselves in criminal activity • Independent corroboration by the police of specific facts • Police officer may know the informant 2. Issued by a neutral and detached magistrate 2. Credibility of the informant 3. Basis of the informant’s knowledge • Detailed information • Supplied by the informant from which it may reasonably be inferred that she is speaking from personal knowledge and not mere rumor or conjecture (b) Gates “Totality of the Circumstances” Test: rejects the rigid two-prong test 1. A felony22 21 This change was prompted by the Court’s concern that rigorous application of the Aquilar/Spinelli approach would prevent the police from relying on anonymous tips. the mistake is deemed to have been objectively reasonable 3.1. he can arrest the suspect in public without a warrant. Probable Cause – The Standard for Search and Arrest i) Police officer’s observations: credibility is usually presumed ii) Informants and Anonymous Tips: (a) Aquilar/Spinelli Two-Prong Test 1. Suspect must be particularly identified in the warrant either by name or with sufficiently specific description (b) Warrantless Arrest requirements: probable cause to believe that the person has committed – 1. It substituted a “totality-of. 22 United States v. Is there a “fair probability that contraband or evidence of a crime will be found in a particular place”?21 2. Basis of knowledge iii)Accomplices: the confession of a co-participant is itself sufficient to establish probable cause. Good Faith Exception – If not correctly described. or by some other indicia of reliability. 8 .

Summons 1.° ° ° ° 2. or • May damage property unless immediately arrested 3. A misdemeanor and the officer has probable cause to believe that the person: • Will not be apprehended unless immediately arrested. Rule: discretion to proceed by arrest or summons when custodial arrest is authorized. McLaughlin (1991) 9 . Note: while an officer may use non-deadly force. you can inventory their possessions and get around the search requirements • Ensures the person comes to court • Question of whether the person poses an immediate danger to themselves or society. A custodial arrest is always reasonable if the officer has probable cause of criminal violation. Garner (1985) 25 Graham v. (d) Use of excessive force 1. Pugh (1975) 27 County of Riverside v. Exceptions: • It is necessary to prevent the escape and • The officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others 3.23 2. the manner in which the force is asserted might be unreasonable (e) Protections against erroneous warrantless arrests 1. A misdemeanor or petty misdemeanor in the officer’s presence (c) Arrests v. Why proceed with an arrest v. Connor (1989) 26 Gernstein v. Rule: deadly force may not be used to prevent the escape of a felon24 2. or • May cause injury to himself or others unless immediately arrested. Fourth Amendment standards of reasonableness apply:25 • Severity of the crime at issue • Whether the suspect poses an immediate threat to the safety of the officers or others • Whether the suspect is actively resisting arrest or attempting to evade arrest by flight 4. 3. “Prompt” post-arrest assessment26 2. Burden-shifting test:27 • Defendant’s burden – within 48 hours ∼ Unreasonably delayed For the purpose of gathering additional evidence to justify the arrest Motivated by ill will against the arrested individual Delay for delay’s sake ∼ Courts have a “substantial degree” of flexibility in deciding reasonableness Unavoidable delays in transportation 23 24 Atwater v. City of Lago Vista (2001) Tennessee v. summons? • Make sure you correctly identify the person • If arrested. How “prompt” is prompt: 48 hours. prompt does not equal immediate 3.

Olson (1990) 32 Minnesota v. Doorway of the subject’s home – public place28 3. Homeless persons – split 5. Watson (5th Cir. Temporary visitors – public place32 • Rule: an arrest warrant is not required under Payton for temporary visitors and brief visitors for business (legal or illegal) purposes • The Court has taken a literal interpretation of the Fourth Amendment’s words in “their” house. 2001) 30 Steagald v. United States (1981) 31 Minnesota v. Common hallway – split (too broad or “humble surroundings” of the home) 2. Third party home – depends30 • Rule: a search warrant must be obtained to look for a suspect in the home of a third party. Overnight guest – home31 • Rule: an arrest warrant is required under Payton to arrest a person who was an overnight guest in the home of a third party • A person’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to accept as reasonable. absent exigent circumstances or consent. Carter (1998) 10 . vi) Material Witnesses 28 29 United States v. (b) Is the location considered “home” or a public place? 1. • An arrest warrant does not sufficiently protect the privacy interest of a third party homeowner. Would the magistrate have concluded so before the time was up but before the suspect was before the magistrate? v) Arrests in the home: Payton Rule (a) Rule: an arrest warrant is required to enter and effect a nonexigent arrest of the subject in his own home. where there is reason to believe the suspect is within.° ° Handling late-night bookings where no magistrate is available Obtaining the presence of the arresting officer who may be busy processing other suspects • Government’s burden – after 48 hours ∼ Bona fide emergency or other extraordinary circumstances ∼ Not because it may take longer to consolidate pretrial proceedings ∼ Not because it is the weekend • Note: Always question whether probable cause existed before the end of the 48 hours. Porch – public place29 4. Hotels and motels – home. Santana (1976) United States v.” 8. this is not the case with the arrestee • Note: does not apply when the arrestee lives in the home of the third party home owner. Payton extends when the arrestee has rightful possession of the room 6. 7.

L.S. Officer must be prepared to articulate the specific facts giving rise to reasonable suspicion that criminal activity is about to happen 2. considerations of the modes and patterns of operation of certain kinds of lawbreakers (b) Raise a suspicion that the particular individual being stopped is engaged in wrongdoing (c) Probabilities (a) Requirements: 1. although allowance must be made in applying them for the lesser showing required to meet that standard.(a) 18 U. A subpoena is impracticable to secure their presence (b) Cannot be arrested because of: 1. Initial pat-down of the suspect’s clothing to determine whether there is a weapon ii) Reasonable Suspicion Test: United States v. Cortez (1981) iii)Terry Doctrine: Stop and Frisk 33 34 United States v. more than a hunch (b) Look to officer’s unique experience and training33 (c) May be based upon information received from an informant.A. The testimony is material in a criminal proceeding 2. Inability to comply with any condition of release if testimony can be secured by deposition 2. information from police reports.C. White (1990): Under the Gates “totality of the circumstances” approach to probable cause. J. Reasonable Suspicion – The Standard for Stop and Frisk i) Reasonable Suspicion (a) Reason to believe that a crime is about to be committed. an informant’s veracity and basis of knowledge remain “highly relevant” in determining the value of the report of an informant. Totality of the circumstances 2. § 3144 allows for the arrest of material witnesses where: 1. These factors are also relevant in the reasonable suspicion context. Further detention is not necessary to prevent a failure of justice vii) Enemy Combatants (a) Government may detain “enemy combatants” without a showing of probable cause to a civilian court (b) Prisoners of war and therefore outside the jurisdiction of a civilian court – at best there is only a limited. but need not carry all of the indicia of reliability required in probable cause analysis34 (d) May be based upon an anonymous telephone tip as long as the police are able to corroborate certain of its predicative details35 (e) Unprovoked flight from police in a high-crime area (a) Officer must have a particularized suspicion 1. Arvizu (2002): Border patrol officer and the minivan with the strange acting “family” Alabama v. (2000): An anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm 11 . 35 Florida v. deferential review at some point on whether the “enemy combatant” status is justified E. Objective basis – observations. Reasonable suspicion that the suspect may be armed and dangerous (b) Scope of protective search is restricted to what is necessary to discover weapons 1.

Use of language or tone of voice indicating that compliance with the officer’s request might be compelled (a) Airport Stops 1. Officer’s state of mind – irrelevant. without reasonable and objective grounds • Simple refusal without more is not enough to meet this standard 3. Display of a weapon by an officer 3. County of Inyo(1989) Florida v.”36 (c) Examples of circumstances that might indicate a stop: 1. Threatening presence of several officers 2. in the absence of probable cause and exigent circumstances • State’s burden to prove consent was obtained.2. Totality of the circumstances 2. and • The consent was freely and voluntarily given • Mere submission to a claim of lawful authority is insufficient showing of consent 2.37 2. Encounter 36 37 Brower v. Consent is required without a search warrant. Mendenhall (1980) • Inside of the physical airport • Officers sat on either side of the person in a terminal • Notifies him that they are cops looking for drugs • Asked consent to search • Informed of right to refuse and leave v) Stop v. Some physical touching of the person of the citizen 4. Followed by reach into pockets or other hidden areas if and only if the pat-down reveals the likely presence of a weapon iv) What Constitutes a “Stop” or a Seizure of the Person? (a) Mendenhall “Free to Leave” Test: 1. even momentarily. If no detention then no stop/seizure within the meaning of the Fourth Amendment 4. a stop only exists where there is a “governmental termination of freedom of movement through means intentionally applied. Reasonable person would have believed that he was not free to leave (b) Rule regarding stops: 1. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Encounter: United States v. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time 3. Person approached by police need not answer any questions and can walk away • Cannot be detained. Seizure – • Outside of the physical airport • Officer approaches individual at his car after the person placed his bags in the car • Notifies him that a tip said the bags have drugs in it • Officer asks permission to search the luggage 4. Royer (1983) 12 .

Demand for identification – Hiibel v. to believe that a dangerous person such as Buie’s associate might be hiding in the premises.” 38 Police arrested Buie at his home. Court of Nevada (2004) 2. United States v. Sixth Judicial Dist. Not coercive or have the effect of custody: because they were at work. the officers had reasonable suspicion. The officer flashed a light into the car and saw a hunting knife. Florida v. Long was out of the car and appeared to be under the influence. (d) Factory Sweeps: INS v. look in closets and other spaces in the immediate vicinity in which someone might hide (police safety) ∼ May also make a limited protective sweep of other portions of the premises if and only if they have reasonable suspicion that persons posing a danger are present there ° Limited in scope to a cursory inspection of those spaces where a person might be found ° May last no longer than is necessary to dispel the suspicion 3. without any additional justification. Delgado (1984) 1. Bostick (1991) – police may approach bus passengers at random to ask questions and to request their consent to searches. He refused to produce a license and registration and began to walk toward the passenger compartment of the car. 2. or show of force. and conducted a protective sweep of the premises. Blocking exits: the presence of agents was only there to make sure everyone was questioned. Buie (1990)38 • Protective sweep = quick and limited search of a premises. and no blocked exits. By the time the cops approached his car. Hodari D (1991) 1. provided a reasonable (innocent) person would understand that he or she is free to refuse. Protective areas beyond the person – Michigan v. the suspect “will be permitted to reenter his automobile and he will then have access to any weapons inside. incident to an arrest and conducted to protect the safety of police officers or others • Conducted for safety purposes only (where someone could hide) not to prevent destruction of evidence ∼ May. At the time of the sweep. Drayton (2002) – police do not have to advise the passenger of his right to refuse consent because there were no threats. 13 . 39 Police officers observed Long driving erratically before he swerved into a ditch.(b) Street Encounters: California v. intimidation. No seizure if officers have not placed any physical restraint upon him (c) Bus Sweeps 1. Relied heavily on Terry and Long and held that the reasonable suspicion standard was an appropriate balance between the arrestee’s remaining privacy interest in the home and the officer’s interest in safety. No seizure occurs where the police have not yet caught the subject 2. Protective sweeps in the home – Maryland v. He then conducted a protective search of the passenger side of the car finally finding marijuana. Long (1983)39 • Because a stop is only a temporary intrusion. the employees weren’t going to leave in the foreseeable future vi) Expansion of the Terry Doctrine (a) Acceptable under Terry Doctrine: 1. Police questioning: by itself is unlikely to result in violation even where not told of their right not to refuse 2. but not probable cause. 3.

Other people in area during search – Ybarra v. Movement to the crime scene for purposes of identification 5. Handcuffing 3. Standard – common sense and ordinary human experience must govern over rigid criteria (United States v. as the Supreme Court did in Michigan v. Investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time 3. Search for evidence – Minnesota v. Stop after a stop • Allowed where reasonable suspicion arises to justify another stop • Allowed after consent (c) Interrogation beyond the confines of Terry: Arrest 1. search for evidence is not permitted 2. State’s burden 4. a suspect who is about to be released and permitted to proceed on his way would upon reentry into his vehicle. Arrest (a) General principles: 1. 1990)41 – upheld a search of a locked glove compartment when the officers had reasonable suspicion of drug activity (b) Unacceptable under Terry Doctrine: 1.• Compare: People v. that having been stopped and questioned without incident. Sharpe (1985) (b) The following will not automatically indicate an arrest: 1. Forced transportation to police station for questioning: • Dunaway v. Drawing a weapon 2. He felt a small hard object that he determined was not a weapon but continued to squeeze and prod finally concluding it was drugs. Long. Torres (1989)40 – rejected Long as a matter of state constitutional law. • Compare: United States v. 41 “Since weapons and violence are frequently associated with drug transactions. 14 . 43 Court refused to uphold the frisk of a patron of a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to a valid search warrant. New York (1979) – police cannot detain a suspect and transport him to the stationhouse for questioning without 40 “It is unrealistic to assume. the officers reasonably believed that the individuals with whom they were dealing were armed and dangerous. Illinois (1979)43 • Mere presence during the execution of a search is not enough to provide a reasonable belief that an individual poses a risk of harm to the officers • Require additional specific facts to indicate he was armed and dangerous vii) Stop v.” 42 Police officer suspecting drug activity and conducted a lawful stop and pat down. reach for a concealed weapon and threaten the departing police officer’s safety. Brown (8th Cir. Preliminary investigation of the suspect’s identity 6. Questioning concerning the suspicious circumstances giving rise to the stop 7. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop 2. Fingerprinting – brief detention in the field for the purpose of fingerprinting 4. Dickerson (1993)42 • Frisks are only for protective purposes • Once it has been determined there are no weapons the frisk must end.

in an effort to match prints found around a window entered by a rape suspect. that fingerprinting is extremely reliable. Hot pursuit doctrine – Warden v. While fingerprinting is less serious an intrusion on liberty than other searches. But in this case. Warrantless Searches and Seizures i) Exceptions that Require Probable Cause (a) The Emergency Exception – Exigent Circumstances 1. they may conduct a warrantless search for the suspect and any weapons to which he may have access • Police must have probable cause to believe the suspect has just committed a crime and ∼ Police don’t have to see the crime or the perpetrator’s flight 44 “Detention for custodial interrogation – regardless of its label – intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. taking into account the amount of time necessary to obtain a warrant (are telephonic warrants available) • The reasonableness of the belief that the contraband was about to be destroyed or removed • The possibility of danger to the police or general public who are watching the location • Common behavioral characteristics of persons involved in the particular criminal activity • Any indication that the suspects were aware the police are in pursuit • Whether the emergency arose from action of the police 3. Mississippi (1969)– subjected to two fingerprinting sessions and interrogation45 • Hayes v. Prerequisites: • The circumstances presented the police with a sufficiently compelling urgency. Hayden (1967) • Rule: ∼ When police are in immediate and continuous pursuit of a suspect fleeing the scene of a crime. 2. they are permitted to chase him into a building or home without a warrant to effect an arrest ∼ While inside. Fingerprinting “plus”: • Davis v. Texas (2003) – confirmed that a forced transportation and interrogation of a suspect constitutes an arrest for which probable cause is required.” 45 Invalidated a round-up of 25 Black youths for questioning and fingerprinting.probable cause. Consideration of the following factors: • The degree of urgency. making resort to the warrant process both impracticable and risky and • The police had justification amounting to probable cause to believe that items relating to crime would be found (in the search) or that the suspect had committed a crime (in the case of an arrest) 2. Florida (1985)– forced transportation to be fingerprinted46 F. it violated the Fourth Amendment. 46 Police investigating a rape only had reasonable suspicion but not probable cause to believe that Hayes was the perpetrator. 15 . that repeated fingerprinting is not a real danger because it would not be necessary. even if the detention is not deemed to be an arrest under state law44 • Kaupp v. and that it can be done at a convenient time and does not offer opportunities for harassment.

63 (b) Search Incident to Arrest 1. Stuart (2006): The role of a peace officer includes preventing violence and restoring order. Police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. an officer is not like a boxing referee. Kentucky (1980): “Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person. not simply rendering first aid to casualties. Risk of Destruction of Evidence49 – • Police may secure the premises to prevent person from entering while they await a warrant (“reasonable seizure”) • Police may seek a telephonic warrant if available 6. knew informant had first hand knowledge and opportunity to observe. we do not believe it particularly important that the search of petitioner’s person. 49 Illinois v. Seriousness of the underlying offense – no offense is too major or too minor but that there must be a factual showing of exigency50. McArthur (2001): Police had probable cause to believe that McArthur had hidden marijuana in his home (from his wife . to obtain the warrant. 50 Mincey v. informant’s report reflected her knowledge and opportunity). Wisconsin (1984): While withholding decision on whether the Fourth Amendment imposes “an absolute ban on warrantless home arrests for certain minor to assess reliability.” 48 Brigham City v. Robinson (1973): increased the license to search the immediate area by authorizing seizure and opening of containers53 47 Welsh v. the Courts will not invalidate the search52 2. Broadening the scope of Chimel and rejection of case-by-case review in favor of categorical rules: • United States v. acting with diligence. “Home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed. 52 Rawlings v. Police and Public Safety48 – Police may enter a home without a warrant when they have an objectively reasonable basis for believe that an occupant is seriously injured or imminently threatened with such injury 5.” the Court held that the gravity of the offense for which the suspect is sought is an important factor to consider in applying the emergency exception. Police had a legitimate concern with destruction of evidence. 16 . Arizona (1978): attempt for a murder scene exception (failed) 51 Once the subject is securely in custody and the immediate exigencies of the arrest disappear. so too does the excuse for circumventing the warrant process.” 53 Held that a cigarette pack found on the arrestee’s person could be removed and opened by the officer at the time of the arrest. Requirements: • Prerequisite: underlying arrests must be lawful ∼ Based on probable cause to believe the suspect has committed a crime ∼ Valid arrest warrant in the case of an arrest in a private building • General rule: arrest must precede the search • Scope: Chimel v. California dual justification – ∼ Limited to the person of the arrestee (including pockets) ∼ The “grab area” from which he could reach weapons or evidence • Contemporaneous: search must occur at the time of the arrest51 ∼ However.∼ Probable cause from reliable sources • He is in the particular dwelling • Not applicable when: ∼ Pursuit turns cold ∼ Minor crime47 ∼ Person being pursued has to know that they are being pursued 4. poised to stop a bout only if it becomes one-sided. where it is too close to call. we do not believe it particularly important that the search preceded the arrest rather than vice versa. Police imposed the restraint for a limited period of time – no longer than reasonably necessary for the police.

• New York v. Belton (1981):Entire interior of the passenger compartment (including containers therein) of automobiles, even if subjects have already been removed from the vehicle and cannot actually reach into it54 • Thornton v. United States (2004): Even if arrestee is approached outside of the car, police may still search the passenger compartment of the automobile 3. Withdrawal (not overrule) from Belton: Arizona v. Gant (2009) • The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; or • It is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle (okay under Belton and Thornton) 4. No arrest = no vehicle search: Where an officer opts to issue a traffic citation to a suspect in lieu of an arrest may not search the vehicle55 (c) Automobile Search and the Movable Container Doctrine 1. The Carroll Doctrine: police may search an automobile without a warrant so long as they have probable cause to believe it contains evidence of criminal activity56 • Note: The right to search and the validity of the seizure is not dependent on the right to arrest; distinguishable from a search of an automobile incident to the arrest of the driver 2. Expansion of the Carroll Doctrine: • Car that had been stopped on the road but was search subsequently at the police station after it had been seized and its occupants taken into custody.57 • In light of White58 and Thomas59, lower courts have interpreted Coolidge60 to mean that a warrant is required only if the officers had a clear opportunity to obtain a warrant before seizing the car ∼ Chambers is based on the rationale that due to its mobility, a car can be seized pending a warrant; and a warrantless search is permitted because the search of a car is no more intrusive than would be the seizure of the car pending a warrant ∼ But if the original seizure itself could have been preceded by a warrant, then the premise of Chambers is missing and the automobile exception ought not to apply 3. Rationale – California v. Carney (1985):
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Permitted the pockets of a jacket found on the rear seat to be opened while the arrestees stood outside and away from the car. Knowles v. Iowa (1998): In the absence of an arrest, neither rationale of Chimel – protection of the officer or prevention of the destruction of evidence – applies. 56 Carroll v. United States (1925): Prohibition era case 57 Chambers v. Maroney (1970): The Court reasoned that because the police had probable cause to believe the car contained evidence of a recent robbery, and thus could have lawfully searched it on the road (under Carroll), it was constitutionally permissible to conduct the delayed search as well. 58 Texas v. White (1975): Held that police had probable cause to search the automobile at the scene immediately after arresting White for attempting to pass fraudulent checks at a bank drive-through window. Such probable cause remained even when the car was towed to the station and constitutionally searched there without a warrant. 59 Michigan v. Thomas: Held that once the inventory search of the glove compartment revealed contraband, a warrantless search was constitutionally expanded to include the air vents without any showing of exigent circumstances. 60 Coolidge v. New Hampshire (1971): Held that the Carroll Doctrine was inapplicable because there were no exigent circumstances justifying dispensing with the warrant requirement because the initial intrusion was unjustified without a warrant, the police had already acquired a warrant, albeit defective, knew for weeks where the car would be, and arrested him at home and his car towed so he had no access to it so as to destroy evidence.


• Ready mobility • Diminished expectation of privacy ∼ Continuing governmental regulation of cars ∼ Control of driving by way of traffic laws 4. Motor homes • Supreme Court would not distinguish between automobiles worthy or unworthy of the warrant exception, but noted that it “did not pass on the application of the vehicle to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence.” • Some relevant factors: ∼ Location ∼ Whether the vehicle is licensed ∼ Whether it is connected to utilities ∼ Whether it has convenient access to a public road 5. Movable Containers • General rule: mobility justified seizure upon probable cause, but that a warrant was required to search the container, unless emergency circumstances rendered a seizure insufficient to protect the state interest61 ∼ Movable containers v. Automobiles: ° Luggage contents are not open to public view ° Luggage is not subject to regular inspections and official scrutiny on a continuing basis ° Luggage is intended as a repository of personal effects • In the car: ∼ Distinction between probable cause to search the car and probable cause to search only a container in the car ° Arkansas v. Sanders (1979) – warrant is required to search a suitcase that had been placed in the trunk of a taxi ° United States v. Ross (1982) – had a warrant to search the entire car for drugs, therefore could search everything in it because “contraband goods rarely are strewn across the trunk or floor of a car” (undermines Sanders) ∼ Adoption of a categorical rule – California v. Acevedo (1991) ° Police may search an automobile and any containers within it when they have probable cause to believe contraband or evidence of crime is present anywhere inside ° Limit on scope of permissible search: i. Derives from the size and shape of the items sought ii. Police may search only where such items may be hidden iii. Does not matter that the container in question is known to the officer to be the property of a passenger not suspected of criminal activity

United States v. Chadwick (1977)


• Delayed search of containers – Court would not foreclose the possibility that an owner of a vehicle or its contents might attempt to prove that delay in completion of a vehicle search was unreasonable because it adversely affected a privacy or possessory interest62 • Search of passenger’s property ∼ Rule: permissible where there is probable cause to believe that drugs were in the car in which the purse was located ∼ Policy: ° Balancing of the relative interests weigh decidedly in favor of allowing searches of passenger’s belongings because of the reduced expectation of privacy in and the mobility of autos ° Passengers in cars more likely engaged in a common enterprise with the driver and have the same interest in concealing the fruits or the evidence of their wrongdoing ° Passengers’ proximity enables them to hide contraband in each other’s belongings as readily as in other containers in the car

ii) Exceptions that Require Reasonable Suspicion
(a) Stop and Frisk (b) Roadblocks, Checkpoints and Suspicion-less Seizures 1. “Special needs” exceptions – balancing test • Governmental purpose: importance of the administrative objective to the public interest • Privacy concerns – ∼ Scope and degree of intrusion ∼ Degree of discretion allowed to official ∼ Degree of expectation of privacy (regulated v. non-regulated business) 2. The primary purpose cannot be to investigate evidence of a crime • Delaware v. Prouse (1979)63 – highway traffic stops for the purpose of checking license and registration • City of Indianapolis v. Edmond (2001)64 – highway traffic stop for the purpose of interdicting illegal drugs ∼ Note: In United States v. Davis (D.C. Cir. 2001), the court upheld a checkpoint whose primary purpose was to remedy the traffic problems caused by drug dealing. The community had complained that drug dealers and buyers in cars were speeding, committing illegal u-turns and causing traffic congestion. 3. Acceptable primary purposes: • United States v. Martinez-Fuerte (1976)65 – regulating the flow of illegal aliens (national security interest)
62 63

United States v. Johns (1985) Other problems with the program was the ad hoc nature and unconstrained discretion 64 Other problems with the program (unlike checking for DUI) is that checking for drugs is not necessary to prevent the type of immediate, vehicle-bound threat to life and limb. 65 Program is also acceptable because it is (1) minimally intrusive; (2) effects all motorists; (3) motorists are not surprised by a fixed checkpoint; (4) limited discretion; (5) policy decision with politically accountable and related to the allocation of limited enforcement resources


• Michigan Department of State Police v. Biswell (1972) 20 . What is a “pervasively regulated business”? • History of regulation in the industry • Hazardous nature of the enterprise 66 Program is also acceptable because of its (1) connection between the imperative highway safety and law enforcement practice. Insistence on procedures serves three purposes: • Ensures evenhanded treatment of all subjects • Precludes (or at least discourages) use of the inventory as a pretext for an investigatory search • Ensures that the intrusion is limited in scope to the extent necessary to carry out the caretaking function (b) Administrative searches – 1. 482 U. Bertine (1987): The Court upheld an inventory conducted pursuant to criteria that allowed the officer to choose between impounding the vehicle or parking it locked in a public place (and thus not searching it all). (2) effects all motorists. Probable cause not required: Unrelated to criminal activity 3. Burger. Lidster (2004)67 – temporary checkpoint to obtain information from motorists about a crime committed the week before at the same location ∼ Distinguishable from Edmond because the law enforcement purpose here was not to determine whether the motorists themselves were implicated in crime. Requirements: Conducted according to standardized procedures or established protocol • Standard practice must be that of the department and not simply the routine followed by the individual officer • Discretion of the officer must be constrained by standard criteria and be exercised on the basis of something other than suspicion of criminal activity69 4. Note: The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or administrative scheme suspect. Sitz (1990)66 – temporary checkpoints for DUI • Illinois v. ∼ Individualized suspicion has little role to play in this context 4.68 iii)Administrative and Inventory Searches (a) Inventory searches 1. 70 United States v. but instead to seek their help in solving the earlier crime. 691 (1987) 69 Colorado v.S. Gun Dealers example70 • Authorized warrantless inspections of gun dealers because illegal weapons can be quickly removed • Pervasively regulated businesses engender lesser privacy expectations among their owners. 68 New York v. who have implicitly consented to strict governmental monitoring 2. (4) policy decision 67 This is the first time the court permitted suspicion-less stops for the investigation of past crimes. Nature of inventory searches – • Serve a “caretaking” function and “are not designed to uncover evidence of criminal activity” • Protect the owner’s property while it is in custody • Protect the police against claims of lost or stolen property • Protect the public from potential danger 2. (3) minimally intrusive and inconvenient.

1978): Passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. 72 Schneckloth v. 1996) 21 . Standard: whether a reasonable person in the subject’s position would have felt free to decline the officer’s request. she referred to the premises as “our apartment” and opened the door with a key and let them in. thereby waiving his rights. but the officer could be justified in 71 United States v.iv) Warrantless Intrusion Requiring No Justification: Consent (a) Voluntary Consent 1. 4. emotional state) ∼ Note: not attitude. Matlock (1974): A girlfriend who shared defendant’s bedroom could consent to its search. 1990) 75 United States v. but rather on mutual use of the property by persons generally having joint access or control for most purposes. who had. Bustamonte (1973) 73 Bumper v. This reasoning was necessary to protect the exercise of a constitutional right. Prescott (9th Cir. • Reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right • Assumption of risk that one may permit the common area to be searched 2. intelligence. 76 Illinois v. 77 United States v. regardless of what the consent says ∼ A reasonable officer would usually think that the consenter does not have authority. because it is inherently unverifiable and unquantifiable • Knowledge of the right to refuse (by itself is not determinative) 3. level of education. Apparent authority76 – is based on the reasonable belief of the officers that the third party had authority to consent • Three categories of situations77 ∼ An officer would never be justified in believing that the consenter has authority. Factors:72 • Fact-specific • Totality of the circumstances • Police tactics used to secure the consent • Custodial status (not dispositive) • Particular vulnerabilities of the subject (age. Jenkins (6th Cir. North Carolina(1968) 74 United States v. unknown to the officer. Actual authority75 – • Does not rest on the law of property. When speaking to the officers who were seeking consent. moved out of his apartment a month before the search and retained a key without permission. Gonzalez-Basulto (5th Cir. Rodriguez (1990): The third party was Rodriquez’s female friend. Burden of proof: • Government73 • A weak showing by the government on several of the factors substantially increases the likelihood that consent will be found involuntary74 (b) Third Party Consent 1. Rule: A search based upon voluntary consent is reasonable even in the absence of a warrant or any articulable suspicion • A person cannot be penalized for exercising the right to refuse to permit a search71 2.

1975) In re Scott K. But the officer’s right to continue with a consent search can be terminated by the defendant – or by a third party if the officer is relying on third party consent 3. Consent cannot be revoked retroactively after the officer has found incriminating information 2. Permits an officer to make a warrantless seizure of incriminating items that he/she comes upon while otherwise engaged in a lawful arrest. Refusal by the other – a physically present cooccupant’s stated refusal to permit entry renders a warrantless search unreasonable and invalid as to that person80 (c) Scope of Consent 1. The owner says “yes” and the police find evidence of drugs in bags that were in the car.thinking otherwise if the consenter provides additional information indicating common authority ∼ A reasonable officer would usually assume that a person in the position of the consenter does have authority over the space 3. even a minor’s bedroom78 ∼ Consent will not be valid if it is clear that part of the premises is exclusively reserved for a child79 ∼ Minors have authority to permit the search of a resident. Randolph (2006) 81 Florida v. Defendant claimed that the police exceeded the scope of consent because he only agreed to search the car. 22 . It is up to the citizen to clarify any restrictions or ambiguities (d) Withdrawing Consent 1. Jimeno (1991): Consented to a search of a car. Family Members – • Minors ∼ Parents generally have control over entire premises to consent to the search of the entire house.where you would reasonably find evidence of the illegal items 2. entry or search 2. Does not permit a search 3. Acceptance by one. except again as to exclusive zones where they have no right of access • Spouses ∼ Spouses are generally presumed to have authority to consent to the search of a premises jointly occupied by both spouses ∼ Courts have rejected a per se rule 4. (1979) 80 Georgia v. Peterson (4th Cir. Determined by a standard of objective reasonableness81 . Only allows a seizure of something already discovered (b) Requirements for lawful plain view seizure: 1. The item is observed while the officer is confining her activities to the permissible scope of that intrusion (lawful right of access to the object itself) 78 79 United States v. The officer’s original intrusion is lawful 2. Withdrawal of consent cannot be used to create probable cause or reasonable suspicion to continue searching v) The Plain View & Plain Touch Doctrine (a) Plain View Doctrine 1.

California (1990) eliminated the prior requirement that the discovery of the item in plain view be “inadvertent”. Problems with the decision in state affairs: • “Silver platter method” – federal officials would allow state/local police to obtain evidence illegally and then deliver it to the feds ∼ Abolished by Elkins v. 23 . Explicitly rejected the notion that the rule should apply to violations by state or local police 3. the object may be seized even though it is not a weapon vi) Pretextual Stops: Whren v.3. Armstrong (1996) The exclusionary rule is not constitutionally required. Remedies i) Background of the Exclusionary Rule83 (a) Federal Courts – Weeks v. Dickerson (1993)– when a police officer who is conducting a lawful pat down search for weapons feels something that plainly is contraband. Evidentiary rule not a constitutional rule – an exercise of the Court’s supervisory power over the federal courts 4. Of fact – does not automatically negate the validity of a stop (objectively reasonable basis for believing the vehicle was not in conformity with the law) 2. United States (1996) (a) Rule: ulterior motives do not invalidate police conduct otherwise justified on the basis of probable cause (b) Equal protection issues82: 1. It is immediately apparent that the item is contraband or evidence of crime. United States (1914) 1. 2. Of law – a stop or arrest will be deemed unreasonable G. • Note: Arizona v. without the necessity for any further examination or search • Note: Horton v. United States (1960) – the purpose of the exclusionary rule “is to deter – to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it. Limited to cases where the illegal search was conducted by federal officers and the evidence was sought to be admitted in a federal criminal proceeding. In order to file selective-prosecution claims 2. Demonstrate that the prosecutorial policy had – • Discriminatory effect (similarly situated individuals of a different race were not prosecuted) and • Discriminatory purpose (c) Mistakes: 1. in part because the violation of a Fourth Amendment right occurs at the time of the original police intrusion. Themes: • Exclusionary rule is the only effective means of protecting Fourth Amendment rights 82 83 United States v. Hicks (1987) held that probable cause is necessary to justify a search that precedes a plain view seizure (c) Minnesota v.” 5.

Whether exclusion will occur in state court is a matter of state law. McDade Amendment) 2. • Exceptions: ∼ State standards are effectively incorporated into federal law ∼ State ethical standards do not necessarily apply to federal authorities (i. Violations of state law • General rule: A violation of state law that is not itself a violation of the Fourth Amendment will not result in exclusion of evidence in federal court. the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. Explicitly overruled Wolf v. Violation of federal law and federal rules of criminal procedure • General rule: The courts have been reluctant to impose exclusion as a judicial remedy for a violation of a federal statute or regulation. Dissent: • Procedural symmetry and administrative convenience is insufficient • Really not concerned with remedy but with fairness in judicial procedure (c) Evidence seized illegally but constitutionally 1. not remedies) 24 . Justices unanimously agreed that he prohibition against unreasonable searches and seizures applied to the States. Ohio (1961) 1.e. 3. it is enforceable against them by the same sanction of exclusion as is used against the Federal Government • Judicial integrity • Deterrence 4. or otherwise not returnable • Directed to the use of the evidence not the actual return • Better to occur pre-trial • If at trial it has to be made when the evidence is offered 84 The Court held that a prosecution in a State court for a State crime. someone else’s property.• The interest in judicial integrity requires that the courts not sanction illegal searches by admitting the fruits of illegality into evidence (b) State Courts – Mapp v. Now the remedy is constitutionally required. Reasoning for overturning Wolf: • 6 members of the majority were no longer on the bench • Validity of the facts were no longer controlling • Trend among the states moved towards accepting the exclusionary rule • Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth. the courts ordinarily have not imposed exclusion as a remedy ii) Procedural Triggers for the Exclusionary Rule (a) Court documents 1. Colorado (1949)84 2. Motion to return evidence 2. But they disagreed as to whether the exclusionary rule was a constitutionally protected remedy (rights are fundamental. Motion to suppress evidence – even if the evidence seized is contraband. or a FRCP • Where Congress has not provided expressly for exclusion (see the wiretapping statute).

Delaware (1978) hearing 1. There is no independent lawful means that led. Attenuation: Whether the chain become too long or otherwise attenuated so it can be said that the taint has dissipated? 25 . the government may not use his testimony against him on the question of guilt or innocence • Impeachment ∼ Simmons left this question open ∼ Lower courts have held that Simmons does not prevent the use of suppression hearing testimony for impeachment purposes ∼ If the defendant calls a witness to testify at the suppression hearing. or would have led. (b) Questions to ask: 1. Impeachable party • Officer-affiant • Not the governmental informant 6. Simmons v. the government is not precluded by Simmons from using that testimony against the defendant iii)Constitutional Triggers for the Exclusionary Rule (a) The suppression remedy is triggered only where: 1. The connection between the secondary evidence and the original violation is close and unattentuated. police to the evidence. The government has the privilege to protect the identity of informants • But the judge can require the government to reveal the informant’s identity if that is necessary “to decide whether the officer is a believable witness” 2. Presumption – affidavit supporting the warrant is valid 3. and 2. Burden – defendant • Show deliberate falsehood or reckless disregard for the truth • Offer of proof • Specifically point out the portion of the warrant affidavit that is claimed to be false ∼ Not conclusory statements ∼ Not supported by the mere desire to cross-examine • Insufficient evidence ∼ Allegations of negligence or innocent mistake ∼ Misstatement 5. United States: When a defendant testifies on the question of “standing” at a suppression hearing. If the requirements are met: • But there remains sufficient content in the warrant affidavit to support a finding of probable cause = no hearing • And the remaining content in the warrant affidavit does not support a finding of probable cause = hearing (but doesn’t mean the defendant will prevail) (c) Suppression hearing 1. Purpose – challenge the truthfulness of the warrant application (go back to Gates if an informant or attack the actual truthfulness of the cop) 2. Standard – preponderance of the evidence 4.(b) Attacking the warrant – Franks v.

were held to attenuate the taint of an unconstitutional arrest.’” 87 United States v. the Court concluded that the taint had dissipated. Harris. protection of the privacy of the home.” 26 . the more attenuated the connection. the effect of the exclusionary rule would be substantially diluted. the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live witness testimony than other kinds of evidence. Witnesses can. was fully accomplished by suppressing the statement made in the home. ∼ The Court did not apply the exclusionary rule to the statement made at the police station because the purpose of the Payton warrant requirement. And. Ceccolini (1978). a ‘cure-all. the more likely attenuation will be found. Illinois (1975): “If Miranda warnings. evaluated properly. 86 Brown v.85 where four months elapsed between the initial illegality and the interview of the live witness. • Occurrence of intervening events ∼ The more links in the chain between the illegality and the secondary evidence. Illinois where the police lacked probable cause to arrest in the first place causing everything to be suppressed. it is an important factor in weighing against application of the exclusionary rule86 • Underlying constitutional protection ∼ In New York v. ∼ Distinguishable from Brown v. ∼ In United States v. Any incentives to avoid Fourth Amendment violations would be eviscerated by making the warnings. Ceccolini: “Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. are likely to be viewed as breaking the connection • Confessions ∼ Look to the number of days that have passed between the arrest and the confession ∼ Voluntary confession may break the chain of causation ∼ Whether the suspect received proper Miranda warnings prior to the confession ° Note: warnings are not per se sufficient to purge the taint of a prior illegal arrest. who testified against the shop owner at his trial. in effect. suppression requires a closer link to the initial illegality than is the case with physical evidence ∼ The Court is not willing to “permanently disable” a cooperative witness from testifying.• Time frame ∼ The longer the period. Illegal arrests would be encouraged by the knowledge that evidence derived there from could well be made admissible at trial by the simple expedient of giving Miranda warnings. regardless of how wanton and purposeful the Fourth Amendment violation. Independent source: Whether the police secured the evidence through an independent source • Live witnesses ∼ Where live witness testimony is available.87 85 An unlawful discovery of betting slips in an envelope on a flower shop cash register led police months later to a witness. New York). ∼ Events representing an individual’s free will (see Wong Sun’s decision to make a statement or a suspect’s consent to a search). come forward and offer evidence entirely of their own volition. 2. the police were armed with probable cause but without an arrest warrant (required by Payton v. by themselves. arrested the suspect in his home. and often do.

∼ But. iv) Limitations to the Exclusionary Rule (a) Standing 1. the police illegally entered a warehouse without a warrant and observed bales believed to be marijuana.88. • Rule – there must be a basis in fact. the police relied solely on information they would later contend they had prior to the illegal entry – they did not include the bales of marijuana. the Court held allowed the evidence in because the body would have been discovered shortly anyway by a search party of volunteers operating in the area. readily verifiable. and then only to B. ∼ In their affidavit in support of the warrant. if the witness was questioned immediately following the illegal search. the initial illegality was a violation of the suspect’s Sixth Amendment rights leading to the discovery of a dead body. Who is a victim? • Automatic standing and property law: Jones v. for the conclusion that discovery would have (not could have) occurred. United States (1988). 89 • The doctrine prevents A from complaining about an infringement of B’s rights. General Rule: only those who are actual victims of the alleged violation have standing to challenge it. but they should not be deprived of evidence. or would have inevitably secured notwithstanding the illegality. United States90 88 Rakas v.” 89 FRCP 41(e): A party moving to suppress evidence must be a “person aggrieved. Inevitable discovery: Whether the police would have inevitably secured the evidence through another means? • Even if the evidence in question is found to have been the fruit of the poisonous tree. 3. 27 . • Only if the evidence were offered against B would the exclusionary remedy be available. (c) Deterrence rationale – offending officers should not be placed in a better position as a result of an illegality. 3. and the witness was only discovered as a result of the illegal activity … this will be suppressed. that they actually secured through an independent source. Analysis: • Was the illegal activity a Fourth Amendment violation? • Was the individual’s personal Fourth Amendment rights violated? • Has there been attenuation or was it a direct fruit of illegality? 2. suppression can be avoided if the prosecution establishes that the evidence would have ultimately been discovered anyway by lawful means. or put in a worse position. Illinois (1978): “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’s rights infringed. • In Nix v.” 90 Jones was staying at the apartment searched. the officer’s question was prompted by the illegal activity. • Physical evidence ∼ In Murray v. They did not disturb the bales and left to seek a warrant. Despite the straight line of causation from the constitutional violation to the secondary evidence. Williams.

93 Overruled Jones v. Salvucci93 ∼ Possession of a seized good should not be used as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched ∼ Issue of fairness 4. ∼ Automatic standing – any defendant charged with a possessory offense because in order to establish standing to challenge the search. 92 Rakas rejected the “target theory” because the Court believed that there will be enough deterrence since the person’s whose rights were violated could have the evidence suppressed against them and it will be too hard to administer.∼ Property law – Anyone “legitimately on the premises” where the search occurs. remove and photographed hundreds of documents to use against the defendant. Illinois91 ∼ Abandons the language “legitimately on the premises” – replaced by an expectation of privacy analysis adopted in Katz ∼ New test:92 ° Was this a Fourth Amendment violation ° Was the individual’s personal Fourth Amendment rights violated. Payner (1980)–stolen bank documents has no standing ∼ Police stole a bank official’s briefcase. even if not owners or lessees of the property. Take-away – lacking a possessory interest in or a close connection to the place searched. 91 The Court concluded that the search of the car did not violate the rights of the passengers. 28 . holding that an incriminatory admission at a suppression hearing could not be used against him at trial. United States. Arguments for the “target theory” – gives huge incentive for police to violate because they know it can not be suppressed. defendants will not be permitted to purse claims of unconstitutional search and seizure • Rawlings v. the accused had to admit the contraband was his and thus incriminate himself. The Court emphasized that the places searched – the glove compartment and under the seat – were areas in which mere passengers (in contrast with the car’s owner) would not normally have a legitimate expectation of privacy. Ohio). in which he had hidden drugs. civil suits aren’t cheap and unlikely for people to pursue this avenue (see Mapp v. United States (1968). whether this particular defendant’s reasonable expectation of privacy was intruded upon? • Rejecting the automatic standing prong: United States v. and thus had no expectation of privacy. who asserted neither a property interest in the place searched nor in the items seized. ° Known companion for a short time ° Had not sought or received access to the purse ° Had no right to exclude others from access to the purse ° By placing the drugs in the purse he failed to take normal precautions to maintain his privacy ° Defendant admitted he had no subjective expectation that the purse would be free from governmental intrusion • United States v. Kentucky (1980) – drugs in a purse has no standing ∼ Defendant challenged a search of his female companion’s purse. • Katz analysis and rejecting the property prong: Rakas v. and his rights were not implicated. ∼ The Court concluded that he had no reasonable expectation of privacy in the place searched (the purse). The Court had previously resolved the possession defendant’s dilemma in Simmons v.

The judge said he would modify it but failed to do so and the warrant listed narcotics as the target of the search. so the only standard application form the officers could locate was for a narcotics search. • Massachusetts v. therefore do not have to decide whether the police officer’s observation constituted a “search” (b) “Good Faith” Exception 1. It was Sunday. 29 .∼ The Court held that supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court (includes Rakas and Rawlings) • Minnesota v. Carter (1998) – presence in the home of another ∼ Distinguished from Olson ° Purely commercial nature of the transaction – sole purpose of packaging cocaine in exchange for some of the product ° Relatively short period of time on the premises – only two hours ° Lack of any previous connection between the defendant and the home owner – had never been to the apartment before ° Just “simply permitted on the premises” ∼ No reasonable expectation of privacy. Leon (1984)– valid on its face ∼ Background: warrant found to have been issued without an adequate showing of probable cause but appeared to valid on its face. • Minnesota v. Sheppard (1984) – erroneously filled out by judge ∼ Background: officers conducting a homicide investigation applied for a warrant to search for evidence connecting the defendant to the murder of his girlfriend. namely. interference with the truth-finding function of the trial and the freeing of guilty parties. ∼ Holding: the police officers were deemed to have objectively reasonably relied upon it in their execution of the search ∼ Reasoning: the minimal possibility of deterrence of violations in the future is outweighed by the substantial costs of suppressing the evidence. Search warrants • United States v. not judges and magistrates who are neutral judicial officers with no stake in the outcome of particular criminal prosecutions. ° Note: The exclusionary remedy is directed against police officers. Olson (1990) – temporary overnight quest has standing ∼ Overnight guest did not have a key and was never alone in the home ∼ The Court held that society recognizes a guest’s expectation of privacy in the host’s home in such a situation.

° No reasonable officer could believe that a warrant that did not comply with that requirement was valid. who was placed under arrest and searched. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. ∼ Holding: The Court found no basis to believe that suppression would have a significant effect on court employees who were not engaged in law enforcement. Warrantless searches • Illinois v. and thus refused to apply the rule. Ramirez (2004) – description left blank ∼ Background: applied for a search warrant to search a ranch for illegal weapons but the warrant omitted the exact items sought (although he correctly listed the items on the application itself). • Arizona v. • Herring v. ∼ Holding: The approach used in Leon is equally applicable in the present case. ∼ Holding: The conduct of the police wasn’t deliberate. 3. the Court refused to apply the exclusionary rule to the negligent conduct because it would have little deterrent effect. by word and by action. Krull (1987)– pursuant to a statute ∼ Background: officer conducted a warrantless search pursuant to a statute that was later declared unconstitutional. Evans (1995)– erroneous hit during traffic stop ∼ Background: during a routine traffic stop the patrol car’s computer erroneously (through a court employee’s clerical error) alerted to an outstanding arrest warrant for the driver. ∼ Holding: such a warrant was so facially invalid that reliance on it could not be regarded as reasonable ∼ Reasoning: ° Failed to meet the Fourth Amendment requirement that a warrant particularly describe the persons or things to be seized.∼ Holding: “We refuse to rule that an officer is required to disbelieve a judge who has just advised him. It turns out that the warrant had been recalled and the information was negligently given. that the warrant he possess authorizes him to conduct the search he has requirements. 2.” • Groh v. United States (2009)– another police department’s mistake ∼ Background: the police acted pursuant to information from another police department that there was an outstanding warrant. Does not apply in the following cases: • Where the police misled (either deliberately or in reckless disregard of the truth) the magistrate in their application for the warrant. • Where the warrant was so obviously invalid (either because probable cause is lacking or it fails to particularize the place to be 30 .

where his answers might incriminate him in future criminal proceedings. nor be deprived of life. when in actual service in time of War or public danger. formal or informal. or otherwise infamous crime. nor shall private property be taken for public use without just compensation. 94 i) Development of broad interpretation 94 Lefkowitz v. without due process of law. liberty. or property. But people lie all the time and jurors know that – there is no presumption of innocence. Introduction i) Elements (a) Compulsion to (b) Testify in such a way that (c) In a criminal case (now or later) (d) The testimony could be used against her (a) Protects an innocent defendant that is bad at testifying but a jury will still think you are guilty if you don’t testify (b) Jurors can believe innocent defendants because they know you don’t have to testify 1. civil or criminal. Turley (1973) 31 . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.searched or the things to be seized) that no officer could reasonably rely on it. nor shall be compelled in any criminal case to be a witness against himself. If you can force someone to talk you can make sure that you’ve got the right person (c) Deters perjury (d) Unreliability of coerced statements but maybe it is reliable (e) Creates a fair balance between the individual and the state ii) Justifications iii)The Cruel Trilemma: (a) Testify truthfully – if guilty will incriminate himself and to prison (b) Testify falsely – spiritual damnation and goes to prison for perjury (c) Refuse to testify – goes to prison for contempt B. 2. II. unless on a presentment or indictment of a grand jury except in cases arising in the land or naval forces. or in the Militia.” A. Scope of the Privilege Broad interpretation: “Not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding. Fifth Amendment “No person shall be held to answer for a capital. • Where the magistrate abandoned his neutral and detached posture.

Balsys (1998): Balsys asserted the Fifth Amendment privilege on the ground that his testimony could be used against him in a criminal prosecution in either Israel or Lithuania. Hitchcock (1892)– grand jury investigation 1. Subpoenaing of business records was equivalent to compelling a person to be a witness against himself (b) Counselman v.(a) Boyd v. state’s decision to limit proceedings under the Act to persons charged with criminal acts did not turn a civil proceeding into a criminal one. Martinez (2003): Martinez brought a 1983 action for violation of his Fifth Amendment rights. 97 Allen v. institutionalizing is still for treatment. Martinez made some inculpatory statements but Martinez was never charged with a crime. in compelling incrimination testimony. whenever the testimony sought from a party or witness might later be used in a criminal prosecution against that person (c) Note: these decisions are binding to the states as well as the federal government through the Fourteenth Amendment ii) Rule: (a) Privilege against compelled self-incrimination is available 1. L.unless it can be shown that the domestic government. not increase. Suits for forfeiture was quasi-criminal in nature 2. Compulsion i) Use of contempt power (a) Classic form of compulsion (b) Imposes substantial punishment on the witness who is exercising the right remain silent 95 Forfeiture proceeding. due process did not require recognition of the privilege. Illinois (1986): Held that proceedings under the Illinois Sexually Dangerous Persons Act were not criminal for selfincrimination purposes. Ward (1980): A statute imposing a “civil penalty” upon persons discharging hazardous material into navigable waters was not “quasi-criminal” so as to invalidate a reporting requirement imposed upon polluters. presence of some safeguards doesn’t turn it into a criminal case. The trial court had ordered appellants to produce an invoice under the authority of a statute providing that failure to comply with such an order was tantamount to a confession of guilt. is simply acting as a surrogate or stalking horse for another country (c) Also the Fifth Amendment does not protect against statements compelled during interrogation that are never admitted in a criminal cases99 C. and the statements were never used against him in a criminal proceeding. First look to statutory construction. the reliability of the fact-finding.O. because the privilege would decrease. In Boyd the forfeiture provision was listed along with fine and imprisonment as possible punishments for customs fraud. and 2. pursuant to a statute authorizing the government to appropriate any goods about which an owner had made false statements with intent to evade tax collection. The interrogation session occurred while Martinez was in the hospital being treated for bullet wounds. suggesting that they involved penalties that had no correlation with the damages sustained by society or the costs of enforcing the law. The Court distinguished Boyd and several other forfeiture cases. United States (1886) – quasi-criminal95 1. Whenever the compelled testimony might be used against the witness in a later criminal proceeding (b) But the actual use of compelled testimony other than in a criminal case does not itself implicate the Fifth Amendment 1. 98 United States v.” 3. Whenever the proceeding in which the testimony is sought can itself be characterized as a criminal case. Privilege is available in any proceeding. 99 Chavez v. 32 . 96 United States v. Issue of whether a grand jury witness could claim privilege 2. For example: • Probation revocation proceedings • Where legislation defines a civil penalty96 • Detention for “treatment”97 • Foreign prosecution98 . A grand jury investigation of a criminal matter was a “criminal case.

In the prison context. Lile (2002): Courts must decide whether the consequences of an inmate’s choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not. Turley (1973): Contracts were required to waive immunity or to testify concerning state contracts. 102 Spevack v. Klein (1967): Forbids disbarment of a lawyer for invoking the privilege during a bar investigation. 104 Griffin v. the question is whether the response of prison administrators to correctional and rehabilitative necessities are so out of the ordinary that one could sensibly say they rise to the level of unconstitutional compulsion. 2. the status quo could be argued as pleading out (b) Examples of benefits: 1. existing contracts could be canceled and future contracts could be denied for five years. by either the judge or the prosecutor.(c) Presents the witness with a cruel trilemma ii) State-imposed sanctions (a) Custodial interrogations100 (b) Threat of substantial economic sanctions 1. where any statements could be used against the lawyer in a subsequent criminal prosecution. For example: • Can invoke the Fifth during a bar investigation and won’t be disbarred • But if you invoke during the character fitness interview. which is tantamount to compulsion and therefore violates the Fifth Amendment. But only where the statements could be used in a criminal prosecution101 2. Compulsion to testify – volunteering/pressure is not the same as compulsion (a) Griffin Rule: The fact that a defendant does not take the stand cannot be used as against him – adverse comment104 iii)Benefit-Penalty Distinction: iv) Invocation of the privilege 100 101 Miranda v. such as a loss of public employment or disbarment • There is a problem with the “status quo” standard because so few people actually go to trial. you can be refused license because the license is a privilege 2. Sexual rehabilitation program as an incentive for sex offenders’ parole103 (c) Status quo analysis 1. Reduction in sentence (saves plea bargaining) 2. Pressure to testify v. Providing a benefit is not compulsion • A defendant facing a particular sentence. Government may otherwise fire employees who refuse to answer questions concerning the performance of their duties so long as the answers could not be used against them in a criminal prosecution (c) Threat of disbarment102 (a) Benefit v. California (1965): The Court held that adverse comment to the jury. Arizona (1966) Lefkowitz v. Penalty 1. Clemency hearings that required an interview and possibility of incrimination 3. 103 McKune v. 33 . on the defendant’s election not to testify constitutes punishment for the invocation of silence. Penalty cases have all involved some kind of loss or reduction from the status quo. with the option of obtaining a lower sentence if he or she waives privilege is not presented with the same “negative” sanction as presented in the penalty cases.

∼ Can consider accepting of responsibility. it is not really an admission of guilt or wrongdoing. Palmigiano (1976) • Rule: Inferences against parties to civil actions may be used when they refuse to testify in response to probative evidence offered against them • Reasoning: ∼ In ordinary civil cases. At the sentencing hearing. United States (1998): lied to government investigators during the course of a criminal investigation. Robinson (1988) dealt with the prosecutor pointing out in his closing argument that the defendant had the opportunity to testify106 (b) Adverse inferences 1. 107 Mitchell pled guilty to federal charges of conspiring to distribute five or more kilos of cocaine and distributing cocaine. United States(1999)107 • Rule: A defendant can not be subject to an adverse inference upon invoking the right to remain silent at a sentence proceeding (because sentencing is still part of a criminal case) • Only applies to the underlying facts of the crime that formed the basis of sentencing ∼ Sentencing judge can consider many factors other than the facts underlying the conviction. But she reserved the right to contest at sentencing the drug quantity attributable to her under the conspiracy count. 34 . California (1965) • Lakeside v. 106 The prosecutor was responding to defense counsel’s closing argument that the defendant had not been permitted to explain his side of the story. Non-parties • Rule: Courts have held that the rules of evidence prevent calling a witness who will invoke his privilege on the stand • Reasoning: When a witness invokes the privilege in response to a question. Distinguishable from Griffin v. 108 Brogan v. Sentencing: Mitchell v. and it may provide an invitation to baseless questions from inquiring counsel who knows that the “answers” will be an invocation of the privilege v) Exculpatory No Doctrine108 (a) Definition: Simple denial of guilt should not come within the statute (b) Rationale: Simple denials of guilt to government investigators should not be criminalized because to do so would violate the “spirit” of the Fifth Amendment (c) Holding: Rejected the doctrine 105 The instruction was designed to dispel the compulsion that might otherwise exist due to the negative inferences that could be drawn from the defendant’s failure to testify. Oregon (1978) dealt with the instruction to the jury against the defendant’s wishes105 • United States v. lack of remorse 2. the party confronted with the invocation of the privilege by the opposing sides has no capacity to avoid it. by offering immunity from prosecution. three codefendants testified against her which was enough to have her sentence enhanced. Civil cases: Baxter v. ∼ Accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed ∼ The stakes are high in criminal cases 3. The sentencing court followed the testified to amount and noted specifically that Mitchell’s failure to testify at sentencing was a factor in persuading the court to rely on the codefendant’s testimony.1.

Not a corporation even one owned and operated by a single individual112 E. He was forced to stand in a line-up with several other prisoners. What is Protected i) Rule: The privilege only protects a person when that person is being compelled to be a “witness” against himself. and the report of this analysis was admitted in evidence at the trial. Withdrawal of blood and use of the analysis in question in this case did not involve compulsion. a blood sample was withdrawn from his body by a physician at the hospital. • Reasoning – “lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through ‘the cruel. 112 Braswell v.’” 2. or to make a particular gesture114 (b) Testimonial evidence and the cruel trilemma: Pennsylvania v. simple expedient o compelling it from his own mouth. 35 . 114 United States v. corporations and other collective entities are treated differently from individuals. United States (1976) United States v. United States (1974): Three partner law firm with employees is an established institutional identity independent of its individual partners. Muniz (1990)115 109 110 Fisher v. belonging only to the person who is himself incriminated by his own testimony ii) Who is a “person” (a) Natural individuals 1. At the direction of a police officer. each of whom wore strips of tape on their faces. 113 Drunk driver had been arrested a hospital while receiving treatment for injuries suffered in an accident involving the auto he was driving. Not a partnership111 2. each man was required to utter the words allegedly spoken by the robber. to assume a stance. To Whom Does the Privilege Belong i) Rule: The privilege against self-incrimination is personal. California (1966)113 1. In addition. Doe (1984) 111 Bellis v. but to swear falsely D. Not an attorney concerned that his testimony would incriminate his client109 (b) Sole proprietorship – not considered an entity distinct from the individual110 1.(d) Reasoning: Proper invocation of the privilege against compulsory selfincrimination allows a witness to remain silent. to walk. There is no protection against compulsion to submit: • Fingerprinting • Photographing • Measurements • To write or speak for identification • To appear in court • Police line-up: To stand. as had the actual robber. Wade (1967): The defendant was arrested for robbing a bank. The chemical analysis of this sample revealed a BAC that indicated intoxication. ii) Does not protect against all forms of compelled self-incrimination (a) Non-testimonial evidence: Schmerber v. United States (1988): The Court has long recognized that for purposes of the Fifth Amendment.

Holding (1) – evidence of the slurred nature of his speech was not testimonial under Schmerber and its progeny. Holding (2) – the answer to the sixth birthday question was testimonial and therefore the use of it as evidence trial was in error • Reasoning – The Fifth Amendment applies when facts about a person’s physical condition are obtained through testimonial evidence. and appeared to know the difference between right and wrong. Holding – a person’s compelled signature on a bank consent form. South Dakota. then he confessed. Adverse inferences can be drawn against the person who refuses to supply non-testimonial evidence118. directing the release of bank records – assuming such records existed – was not testimonial because there was no assertion of fact that the records did or did not exist. Smith (1981) – a defendant who is to be interviewed by a government psychiatrist who will testify at sentencing (in this case the death penalty was involved) has a right to be warned that what he says may be used against him in the sentencing proceeding. his oral response (e. “I’m drunk”) would be testimonial even though the fact proven would concern Schmerber’s physical condition. United States (1988) 1. He was questioned by Detective Holsberry. police officers place him under arrest and transported him to a booking center. In response to these questions. while compulsion. stumbled over his answers. He refused. 2. 4. Issue in dispute – whether the evidence compelled from Muniz (manner of speech and the content of his answers) was protected by the Fifth Amendment 3. he answered that he had finished 9th grade and could read and write. (d) Psychological evaluations: 1. • Reasoning – the slurred speech was held to be physical evidence. 36 . 116 For example.. therefore. because its relevance was divorced from the content of the words themselves. 119 115 Muniz was pulled over for suspicion of drunk driving. 2. Estelle v. The state courts suppressed evidence of the refusal on self-incrimination grounds and the Supreme Court reversed. Dugger (11th Cir. and no cruel trilemma is presented. is permissible because the suspect has no constitutional right to refuse production of non-testimonial evidence 2. had the power to administer a test to a defendant without his consent. and in doing so the state could condition its agreement to refrain from doing what it lawfully could do by providing that defendant’s refusal would result in certain disadvantages being imposed upon him. and said that he did not know the date of his sixth birthday. Holsberry testified as to his observations of Jones at the time. if police had compelled Schmerber to answer questions about the alcohol in his blood. Jones v. he first denied involvement in the crime.1. saying he was too drunk to pass the test.g. the state could agree to respect the defendant’s refusal to take the test. but he did not testify to the content of the statements. Sanity was the central issue at trial. 1988)117 – the court distinguished Estelle as a case where the doctor based his conclusion on the details of the story that defendant told him. Assumption – defendant had been custodially interrogated. the communication must be an express or implied assertion of fact that can be true or false: otherwise there is no risk of perjury. Holsberry stated that Jones appeared to be ration and well-oriented at the time of questioning. There they asked Muniz the date of his sixth birthday. Contempt. Rule – to be testimonial. whereas the defendant’s testimony in Jones merely related “demeanor evidence. 118 South Dakota v. 117 Jones was arrested for sexually assaulting two women. After he failed sobriety tests. 119 Schmerber authorized a state to force a person to take such a test. The officers did not Mirandize him and Muniz responded with slurred speech.” (e) Drawing an adverse inference as to non-testimonial evidence: 1. without Miranda warnings. Neville (1983): Neville was stopped for drunken driving and was asked to submit to a blood-alcohol test. without warnings 2.116 (c) Express or implied assertions of fact: Doe v.

it is sometimes the case that the act of production is insufficient to authenticate the records • However. complete. Incriminating acts of production • When the compelled testimonial act of production could incriminate the person responding to the subpoena (existence. control and authenticity is a forgone conclusion • United States v. that a document did not exist then producing the document would be incriminating • While admission of authenticity is potentially incriminating. 121 First prosecution was terminated with a plea bargain which involved the defendant promising to provide the Independent Counsel with “full. accurate. under oath. He 37 . that fact is incriminating independent of the content of the records ∼ But if a person had previously testified. did not violate the Fifth Amendment ∼ Fisher and Andresen mean that the portion of Boyd holding that a person may rely on the privilege to resist a formal governmental demand for private papers in existence when the demand is made no longer will be followed. A second prosecution resulted from the Independent Counsel’s attempt to determine whether respondent had violated that promise. seized pursuant to a valid warrant. control. Fisher v.iii)Documents existing before compulsion: 1. and truthful information” about matters relating to the Whitewater investigation. Hubbell (2000)121 120 A subpoena served on a taxpayer requiring him to produce an accountant’s work papers in his possession without doubt involves substantial compulsion. Maryland (1976) that the use at trial of the defendant’s business records. Doe (1984) • Applied Fisher and held that the owner of several sole proprietorships properly invoked his privilege against selfincrimination in response to grand jury subpoenas for business documents and records • Reasoning: ∼ Privilege did not protect the content of records prepared voluntarily by Doe. the Fifth Amendment will not apply if existence. and authenticity). United State v. United States (1976)120 • Holding – privilege cannot be asserted to prevent the government from obtaining evidence from third parties • Reasoning – the incriminated person has not been compelled to do anything when the evidence is gathered from third parties ∼ The same rationale served as a basis for the holding in Andresen v. because the government did not compel the owner to make incriminating records ∼ Privilege may be invoked when the act of producing documents involves “testimonial self-incrimination” 3. ∼ Fisher suggests that in some circumstances a person may properly refuse to respond to a subpoena: if the production itself is communicative and that communication could tend to incriminate the party producing the documents 2. only then does the Fifth Amendment apply • A simple admission of the mere existence of documents is rarely incriminating ∼ But if a corporation has a second set of books and records.

the more likely compliance with the subpoena would be testimonial. The mother was held in contempt of the order for failing to produce the infant. obtained a further order declaring the child to be in need of assistance under Maryland law. • The court stated that this case was controlled by Curcio. more general. just as it would have someone else produced the documents.124 5. 38 . except through individual agents of the entity • Reasoning: ∼ The custodian of corporate or entity records holds those documents in a representative rather than a personal capacity ∼ Recognizing a privilege on the part of records custodians would have a detrimental impact on the government’s efforts to prosecute white collar crime. and the answer could have personally incriminated the defendant. The Dept. Bouknight (1990)125 – production of a child in response to a court order produced the documents pursuant to a court order and this led the Counsel with information that led his second prosecution 122 Braswell formed two corporations in which he was the sole shareholder. because the government was demanding oral testimony as to the location of records. of Social Services v. but it can be told that the corporation produced the records.” ∼ The compelled act of production of personal documents was incriminating. ∼ Not cured by a grant of use immunity 4.∼ Problem – very broad subpoena ° In re Grand Jury Subpoena (9th Cir. 6. stating that a corporate agent assumes the risk of producing documents as part of the job. 2004) held that the “broader. the Dept. the corporation’s act of production may be used as evidence against the custodian. The jury cannot be told that the individual defendant produced the records as a corporate agent. Baltimore City Dept. of Social Services obtained a court order removing a child from his mother’s control. • Distinguished from Curcio v. 125 Suspecting child abuse. The Curcio Court held that the collective entity rule did not require “the giving of oral testimony by the custodian” where that testimony could incriminate him personally. because it provided the government information about a trail of documentation of which it had not been aware. United States (1988)122 – production of corporate documents • A business entity itself cannot be compelled to produce incriminating evidence. Braswell v. Braswell invoked his personal privilege against selfincrimination on the ground that the act of production might be incriminating. A grand jury issued a subpoena to him – in his capacity as agent – to produce the books and records of the two companies. reasonably infer that he had possession of the documents or knowledge of their contents. if the defendant held a prominent position within the corporation that produced the records. the jury may. United States (1957)123. 123 Curcio was served with a subpoena to testify in his capacity as a secretary-treasurer of a local union. but not the risk of being compelled to give incriminating oral testimony • However. Curcio refused to answer any questions as to the whereabouts of the books and records of the union. 1996) – difference between a corporate agent’s compelled oral testimony and compelled document production • The corporate agent claimed not to possess the subpoenaed documents and refused to testify as to their location. 124 Also. Grand Jury Subpoena (11th Cir. and subjective the language of the subpoena.

The California Supreme Court upheld the statute. • Reasoning – the state has legitimate administrative functions that would be impaired by a strict application of the Fifth Amendment. and as a practical matter in most cases. Holding: disclosure of his name incrimination 126 the circumstances in the case possibly have such tendency127 to Nevada. 6th Judicial District Court of compelled self-identification 1. 39 . and that the answers cannot incriminate (b) Hibel v. Procedural Aspects of Self-Incrimination Claims i) Determining the risk of incrimination (a) Test: 1. it is self-executing. United States (1948) – compelled production of defendant’s customary business records. Humboldt County (2004) – presented no reasonable danger of The Court overturned conviction for failing to register and to pay an occupational tax for engaging in the business of accepting wagers and for failing to register a sawed-off shotgun. it can punish those who keep false records.• Could not invoke privilege because Bouknight assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime ∼ Relied on the collective entity rule • Reasoning – by acccepted care of the child subject to the custodial order’s conditions. Shapiro v. it can punish those who do not keep the records. which were required to be kept under the Emergency Price Control Act. 127 The threshold for “tendency” to incriminate is not high. and self-reporting was indispensable to fulfillment of its purposes F. rather than to a highly selective group inherently suspect of criminal activities. from a careful consideration of all 3. but inserted a use restriction on the information provided because disclosure created “substantial hazards of self-incrimination. did not implicate the Fifth Amendment 3. that the witness is mistaken 4. because any citizen could simply refuse to comply with the recordkeeping requirement by claiming that keeping the records would tend to incriminate them. Rule: Act of production will be unprotected by the Fifth Amendment if the government requires the documents to be kept for a legitimate administrative purpose that is not focuses solely on those inherently suspect of criminal activity126 • The government may require records to be kept. California v. perfectly clear 2.” • Holding – the statutory scheme was essentially regulatory and noncriminal. and it can punish those who truthfully admit criminal activity in the compelled records. 2. Bouknight accepted the consequent obligations of production (b) Required records 1. it was directed to the motoring public at large. Byers (1971) – compelled reporting of an accident • Statute at issue – hit and run statute that requires someone to stop at the scene of an accident and leave their name and address.

2.”131 128 Reiner was charged with involuntary manslaughter in connection with the death of his infant son. Prosecutor’s burden of showing no use by the witnesses of the immunized testimony could be met y “canning the testimony beforehand.. A person who receives immunity • Has no right to refuse to testify and may be punished (e. Reasoning: refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him. what it required was use and “derivative use” or “use-fruits” immunity • Reasoning: rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify and that it leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. then testified as a prosecution witness that she had nothing to do with the infant’s death or with other injuries to the infant’s brother. it found that the babysitter faced a risk of self-incrimination even though she denied wrongdoing.g.” (c) Ohio v. Reasoning – truthful responses of an innocent witness. He blamed it on the babysitter. The court held that Kastinger is violated “whenever the prosecution puts on a witness whose testimony is shaped. United States (1957) 130 As compared transactional immunity which is a broad guarantee against future prosecution that signifies that no transaction about which a witness testifies can be the subject of a future prosecution against the witness. or for lying. • Not subject to the cruel trilemma of punishment for truth. She was granted immunity. or that it would furnish a link in the chain of evidence needed to prosecute him 3. Dissent: the Nevada law imposes a narrow duty to speak upon a specific class of individuals – those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed. and therefore the grant of immunity was not unlawful 2. Holding – reinstated the conviction. The babysitter refused to testify. claiming a Fifth Amendment privilege. as well as those of a wrongdoer. Cir. regardless of how or by whom he was exposed to that compelled testimony.C. Hitchcock (1892) did not require transactional immunity. directly or indirectly. United States (1972) • Explained that Counselman v. by imprisonment for contempt) for so refusing. Proving that Immunized Testimony was not Used • “Wall of Silence” – between the prosecutors exposed to the testimony and the prosecutors who bring the case against the witness (b) Tainted witnesses 1.” 40 . silence and falsity because there is no punishment for telling the truth when immunized 2. 129 Grunewald v. by compelled testimony. 1990): North had been granted immunity by Congress to testify about his role in the IranContra scandal. North (D. Reiner was convicted but the state court reversed on the ground that the babysitter should not have been granted immunity. 3. may provide the government with incriminating evidence from the speaker’s own mouth129 ii) Immunity (a) Use and derivative use immunity130 (federal immunity statute) 1. just as wise prosecutors meet their burden of showing independent investigation by canning the results of the investigation before the defendant gives immunized testimony. Reiner (2001)128 – denial of guilt 1. Kastigar v. 131 United States v. is committing or is about to commit a crime. Many of the Independent Counsel’s witnesses had seen North’s testimony on their own.

Gallo (2d Cir. Fifth Amendment Limitations of Confessions iii)Waiver of the privilege i) Escobedo v. who was present at the station and attempting to see his client. 2. Defendant did not waive privilege just by admitting to “some of” the proffered conduct did not pose a threat to the integrity of fact-finding proceedings 2. even though he had previously been granted use immunity in related criminal proceedings • Reasoning – the prior grant of immunity was not sufficient protection to assure a defendant that nothing that he said at the deposition could be used against him in later criminal proceedings • To protect both the witness and the government. The suspect made inculpatory statements which were admitted at trial. Minnesota v. 41 . On direct. privilege will be deemed waived and the answer can be used as evidence. Illinois (1964)134 – Sixth Amendment Right to Counsel 132 United States v. false statements. and these were used against him at trial. On cross. 133 United States v. Impeachment. the witness is subject only to the extent necessary to fairly test the statements made upon direct and inferences that might be drawn from such statements (b) Waiver of the privilege at a guilty plea hearing – Mitchell v. the Court held that a new immunity grant would be required before the witness could be forced to answer (a) Determining the scope of a waiver 1.133 4. Murphy (1984) – the Court reiterated its view that generally a person who is asked to answer questions must invoke his privilege against self-incrimination or lose its protection G.2. even for impeachment purposes • An immunized witness has not right to lie. If a person does answer the government’s questions. United States (1999) 1. or obstruction of justice. Independent Source. Perjury – • An immunized witness is coerced and cannot be used as evidence against the witness in a subsequent case against the witness. Inevitable Discovery132 – Kastinger is not violated where the affidavit upon which the wiretap authorization was based contained sufficient information to support a wiretap even without the immunized testimony 3. The purpose of the plea hearing was simply to ensure that petitioner understood the charges and that there was a factual basis for the government’s case (c) Failure to Invoke the Privilege as a Waiver 1. 1998): Gallo’s immunized grand jury testimony was used along with other information to obtain a wiretap on another person’s phone. and that evidence of lying under a grant of immunity could be used in a subsequent prosecution for perjury. Apfelbaum (1980) 134 A suspect in a murder investigation who was interrogated at the police station despite repeated requests to consult his attorney. Subsequent Statements – a witness can claim privilege at a deposition in a civil case. Conversations were intercepted that incriminated Gallo. the witness ordinarily can control what she says but once the witness takes the stand he waives the privilege as to any subject matter within the scope of the direct 2.

Noted the advantage of “concrete constitutional guidelines” for law enforcement and the courts to follow iv) Dickerson v. Arizona (1966) – Fifth Amendment Right to Silence (a) The Supreme Court adopted a comprehensive scheme designed to limit the abuses of incommunicado interrogation and minimize its inherent coercion. Implications of not remaining silent – that anything he says can be used against him in court 3. the Court began to shift to the Fifth Amendment. (c) Therefore. Knowingly and intelligently 2. (c) If police do obtain a statement. Right to have an attorney present during questioning 4. Afforded police clear guidelines on the acceptable manner of questioning an accused 3. (b) 7-2 majority reaffirmed Miranda and its constitutional basis therefore Congress had no power to overrule Miranda 1.(a) Holding – a suspect who has become the focus of an accusatory interrogation is entitled to the “guiding hand of counsel” during that process. Congress 135 Challenging a confession under the voluntariness standard requires a showing that (1) the police subjected the suspect to coercive conduct. Rigidity of the Miranda rules and the way in which they are to applied 2. Right to have an attorney appointed at state expense if he cannot afford to retain one.” “interrogation. (b) Only applies to situations where an investigation had already focused on the suspect. Right to remain silent 2. Miranda mandated warnings prior to interrogation of a suspect held in custody: 1. United States (2000) – Miranda v.” and “waiver. Waived his privilege against self-incrimination 3. thus inducing an involuntary statement 42 . Williams (1993) – Miranda and Habeas Corpus Review (a) Holding – permits state prisoners to challenge their convictions on the ground that they rested on statements obtained in violation of Miranda (b) Reasoning – distinguished Miranda violations from those involving search and seizure because the formed compromise the truth-seeking function of the trial (a) Congress purported to “overrule” Miranda in the Crime Control Act of 1968. Miranda requires that that prosecutor meet a heavy burden to demonstrate that the defendant: 1. which is not temporally limited to criminal prosecutions… ii) Miranda v. (2) the conduct was sufficient to overcome the will of the suspect (given her particular vulnerabilities and the conditions of the interrogation. and where he requests counsel prior to interrogation. which imposes the voluntariness standard135 as the exclusive method of weighing admissibility of confession in federal prosecutions. (b) Relied on the Fifth Amendment privilege against compelled selfincrimination. iii)Withrow v. Waived his right to retained or appointed counsel (d) Innovation of the decision 1. Allowed courts to avoid intractable factual determinations that the former totality of the circumstances approach (e) Problems: not as bright line an approach since there has been considerable litigation over the definition of the key elements of “custody.

He was told that he could not telephone an attorney until he and the police officer reached the police station. Unused Statements (a) Narrow view of Miranda: there is no violation unless the government seeks to introduce the statement at a criminal trial (b) Focuses on the not “compelled to be a witness against himself in a criminal case” (a) Use of Voluntary Statements for Impeachment 1. therefore the statements were admissible to impeach the defendant. Arizona (1978) 136 137 Harris made incriminating statements at the time of his arrest for the sale of heroin. Hass (1975)137 – properly Mirandized • Holding – Hass was controlled by Harris. 43 . New York (1971)136 – not properly Mirandized • Holding – voluntary statements (even if not properly Mirandized) could be used to impeach the defendant’s testimony at trial ∼ Can prevent the statements form coming into evidence during the prosecution’s case-in-chief ∼ Cannot prevent the prosecutor from confronting him with these admissions on cross-examination when he chose to testify • In practice – the judge will instruct the jury that they are to consider the prior statement only in weighing the credibility of defendant’s trial testimony. Result of Harris and Hass for the defendant after a defective Miranda: • May not want to take the stand. Thereafter.2. the defendant made inculpatory statements before he was given an opportunity to call a lawyer. Oregon v. it was prophylactic so it can be used to impeach the witness 2.” (c) But the Court has seemed to imply that it is a prophylactic rule because it has limited the reach of Miranda… v) Chavez v. who had taken the stand and offered direct testimony in conflict with the incriminating information with knowledge that the inculpatory statements had been ruled inadmissible as substantive evidence • Despite the deliberate nature of the Miranda violation 3. contrary to instructions • If he does take the stand. Martinez (2003) – Miranda v. because if he does the jury may learn about the confession ∼ Even though juries will be told that the confession can be used for impeachment purposes only ∼ But the Court has recognized that juries are likely to be swayed by confessions and to use them improperly. Harris v. the chance of conviction increases appreciably vi) Exceptions to the Miranda Rule of Exclusion (b) Use of Involuntary Statements for Impeachment – Mincey v. but had not received complete warnings. and not for the truth of the matters asserted • Significance – Miranda was not constitutional. Hass was given his full Miranda warnings and had said that he would like to call a lawyer. Miranda has become “embedded in routine police practice to the point where the warnings have become part of the national culture.

Weir (1982)141 • Holding: impeachment with post-arrest silence is constitutionally permissible • Reasoning: an arrest by itself does not implicitly induce a suspect to remain silent and there are no affirmative assurances in the Miranda warnings (d) Suppression of the Fruits of a Statement in Violation of Miranda 1. On cross-examination and in closing argument. 139 “While it is true that the Miranda warnings contain no express assurance that silence will carry no penalty. Background: • Possible fruits of a Miranda-defective confession are – ∼ Investigative leads pursued as a result of the confession ∼ Physical evidence ∼ Second confession by the suspect • Pre Dickerson v. impeachment by use of that post-arrest silence does not violate the due process clause of the 14th amendment • Reasoning: Doyle is inapplicable because no governmental action induced Jenkins to remain silent before arrest. Anderson (1980)140 • Holding: where the failure to speak occurs before the person is arrested. then the scope of the exclusion is more robust – the prosecution won’t even be able to use it to impeach (c) Use of Prior Silence for Impeachment: 1. Importance: Due Process Clause operates to prohibit the use of involuntary confessions for any purposes. 139 • Holding: after Miranda warnings are given. It would be “fundamentally unfair and a deprivation of due process” – because the warnings advise the suspect that he has the right to remain silent. 2. the prosecution elicited (over objection) on cross-examination that he had not protested his innocence at the time of arrest. 44 . the prosecutor emphasized that Jenkins’ two-week waiting period was inconsistent with someone who is claiming self-defense. 140 Jenkins stabbed and killed Redding. his silence may simply represent an exercise of those rights and should not carry a penalty. 3. United States the Court severely limited the exclusionary impact of Miranda on the fruits of confessions because – 138 Arrestee remained silent after receiving Miranda warnings. as opposed to merely Miranda-defective. Ohio (1976)138 • Evidentiary rules: a defendant can be impeached with prior silence if a reasonable person would have spoken at the time about the matter later testified to. it cannot be admitted even for impeachment purposes. it is a constitutional right. 3.” There is an implicit contract/promise to not have silence used against you. the Due Process Clause prohibits the government from using the defendant’s silence against him. Post-arrest + pre-Miranda silence – Fletcher v. The fundamental unfairness present in Doyle is not present in this case. Jenkins was not apprehended until he turned himself in two weeks after the killing. • But: when Miranda warnings explicitly say “you have a right to remain silent. Note: Defense may want to make both arguments. If you win on the due process clause. and at his trial for murder he contended that the killing was in self-defense. When Doyle later testified at his trial on narcotics offenses that he had been framed by a police informant. Post-arrest silence + post-Miranda silence – Doyle v. 141 Weir testified at trial that he acted in self-defense. anything you say cannot be used against. Pre-arrest silence – Jenkins v. Distinguished Harris and Hass – if a confession is involuntary.1. and the prosecutor asked why he did not offer this explanation when he was arrested. such assurance is implicit to any person who receives the warnings. 2.

Seibert (2004) ∼ Defective Miranda: police deliberately fail to provide Miranda warnings as part of a “question-first” strategy designed to elicit and incriminating statement from an unknowing suspect. Leads to witnesses – Michigan v. Before he was interrogated he was advised of his right to remain silent and his right to counsel. was the tainted fruit of the first statement. the Tucker moved to exclude Henderson’s expected testimony because the defendant’s Miranda-defective statement had led them to Henderson. 2. and only then provide him with the warnings before they obtain a second statement repeating the confession ∼ Distinguishable from Elstad and therefore the second statement must be suppressed. Before the trial. Elstad (1985)143 ∼ Defective Miranda: result of a spontaneous and uncoordinated interrogation ∼ The first (Miranda defective) statement was excluded from evidence. United States. but the second statement (even though it derives from the fruit of the first) was admissible ∼ Reasoning: ° Miranda remedy sweeps more broadly than the Fifth Amendment protection against compelled selfincrimination ° Miranda represents a prophylactic rule and not a constitutional right • Missouri v. • But.Exclusion of the fruit of a poisonous tree is only justified if a constitutional right is violated ∼ A violation of Miranda is not by itself a violation of the Fifth Amendment • Post Dickerson v. Tucker (1974)142 • Failure to give the full Miranda warnings required exclusion of the defendant’s confession but not of the witness’s testimony (the fruit of the confession). Leads to a second confession • Oregon v. indicated he understood them. when Miranda warnings are inserted in the midst of coordinated and continuing interrogation. ∼ Reasoning: the delayed warnings coming after the cat is out of the bag are an affront to Miranda’s core purpose of avoiding the risk of a coerced confession144 142 ∼ Tucker was arrested for rape. and made a detailed statement describing his involvement in the crime. 144 “Upon hearing warnings only in the aftermath of interrogation and just after making a confession. The police then went to talk to Henderson. but was not told that he had the right to appointed counsel if he was indigent. if the confession is involuntary (coerced) under due process. let alone persist in so believing once the police began to lead him over the same ground again…. they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. which was not in compliance. a suspect would hardly think he had a genuine right to remain silent.Thus. although obtained in compliance with Miranda. 143 Police obtained an oral admission from an 18-year old burglary suspect while he was in custody at home and without advising him of his rights. Tucker told the police that he was with his friend Henderson at the time the crime was committed. then not only will the statement be excluded but all the fruit will be excluded as well because the fruits doctrine applies to due process violations 3.” 45 . Elstad argued that the second statement. One hour later at the station house Elstad received Miranda warnings. But Henderson gave information tending to incriminate Tucker. this analysis is no longer followed because the Court specifically held that the “fruits” exception to Miranda retained validity even though the Miranda safeguards are constitutionally based.

Dissent: • Unnecessarily blurs the edges of the clear line established by Miranda and its requirements more difficult to understand • Miranda never prohibited police from asking questions to protect the public or themselves147. Note: This is still good law post-Dickerson as indicated in United States v. Patane 145 Suspect was arrested for violation of a restraining order and questioned without being given full Miranda warnings. he may engage in noncoercive questioning without complying with Miranda’s dictates • Applicability of the exception does not depend upon the actual motivation of the police. 5. but merely protects use of a self-incriminatory statement at criminal trial ∼ Non-testimonial physical evidence does not implicate that protection (e) Public Safety Exception – New York v. 146 Incriminating statement was obtained when police pursued a rape suspect believed armed with a gun into a supermarket and captured him. it simply required that in the absence of warnings. Quarles (1984)146 1. but the Supreme Court disagreed. the officer questioned him about the location of the missing gun. The lower courts suppressed the gun as fruit of a Miranda violation. Leads to physical evidence – United States v. Upon frisking him and finding an empty shoulder holster. and the supermarket was empty. and was charged with a firearms offense.” Both the statement and the gun were suppressed at trial. Martinez ∼ Miranda is not a code of police conduct. He revealed the location of an illegal gun. the New York Court of Appeals had concluded that the missing gun did not pose an imminent threat to public safety because the suspect had been overpowered by police. No warnings were given. 2. overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon. but rather on the objective facts of the case • Immediate public danger (but that may not even be true in light of Patane) 4. Reasoning: • Cost/benefit analysis (commonly used to cut back on Warren Court precedent) – “The need for answers to questions in a situation posing a significant threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination • Does not apply to an involuntary or coerced statement 3. 147 Indeed. Quarles responded: “The gun is over there. this is the opinion that all the five justices agreed but don’t lose sight of the plurality’s opinion 4. Take away: • Where the police officer’s questions are reasonably prompted by a concern for safety. the exclusionary rule does not bar the physical fruits of a Miranda-defective confession • Reasoning: ∼ Relied on Chavez v. 46 . Holding: under the circumstances involved in this case (armed rapist on the loose). no accomplices were thought to be nearby. the answers to those questions could not be used as evidence at trial.∼ Kennedy’s concurrence: look to whether the Miranda was given in good (Elstad) or bad faith (in this case). Patane (2004)145 • Even after Dickerson.

McCarty (1984) (a) Custody = Under Arrest 1. were invited in. and unless probable cause arises in a short. Terry stops are typically of brief duration. Where a Miranda-violation statement does not fall within either of the above. it cannot itself be used at all at trial. because the officer can ask only a moderate number of questions to determine identity and to try to obtain information confirming or dispelling the officer’s suspicion. One of the officers testified that he said that the defendant was under arrest and not free to leave his bedroom • Beckwith v. waiver.” Covers both felonies and misdemeanors – Berkemer v. the detainee must be released. questioning is limited. right to counsel) may not be admitted against the suspect at trial. Venue: • The venue in which the interrogation occurs is not determinative.148 • Orozco v. A statement obtained in violation of Miranda (warnings.(f) What is left of Miranda? 1. and not as substantive evidence of guilt during DA’s case in chief 3. • Evidence derived from the statement (either physical or testimonial) will be admissible as long as the statement was not coerced vii) Components of Miranda Miranda requires the warnings and other protective measures whenever there is “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. 47 . ∼ Warnings are not required in routine encounters between motorists and police. the determinative question is whether a reasonable person (see below). When the statement was voluntary. Terry stops are comparatively nonthreatening and hence unlike custodial situations required to trigger Miranda. and either: • The interrogation falls within the Quarles public safety exception. was informed that he was not under arrest. except 2. and 148 Berkemer v. the detainee is not obliged to respond. and one need not be in a police station to be “in custody” ∼ Miranda warnings are not required where the suspect comes to the station voluntarily (accompanied by the police or not). Texas (1969) – held that the defendant was in custody when four armed policemen entered his bedroom at 4am and tried to elicit incriminating information from him. or • The response is used solely to impeach defendant’s testimony at trial. United States (1976) – held that the defendant was not in custody for purposes of receiving Miranda warnings where two IRS agents arrived at his house at 8pm. given the totality of the circumstances. have felt at liberty to terminate the interrogation and leave. McCarty (1984): Terry stops are not custodial for Miranda purposes. and had not been restricted in his freedom to depart ∼ Where there is no formal arrest. Threshold question: whether there is either a formal arrest or “restraint on freedom of movement of the degree associated with a formal arrest’ 2.

5. • Oregon v. 150 Police notified Alvarado’s parents that they wished to speak with him on anything he knew about a robbery and murder. Murphy (1984) – held that the privilege against selfincrimination was not violated when a probation officer called Murphy to her office and questioned him about the rape and murder of a teenage girl – he had previously admitted to it to a counselor. Behler (1983) – extended Mathiason to find that the suspect was not in custody when he agreed to accompany police officers down to the station for questioning. Personal characteristics are irrelevant: Yarborough v. the police would have difficulty in determining when Miranda applies. He was told that he was not under arrest and was released after confessing. Alvarado argued that he was in custody in large part because of his youth and inexperience in the criminal justice system. if undisclosed. When the questioning began. If not in custody. Objective test: Stansbury v. and the failure to give him his Miranda warnings was unconstitutional • Note: subsequent cases have refused to read Mathis as a per se rule that prisoners are always in custody for Miranda purposes 149 An officer interrogated Stansbury about a murder. 3. United States (1968)151 • Although the defendant was in jail for reasons unrelated to the tax investigation. But after Stansbury gave incriminating information in response to a few questions. Prisoners in custody: Mathis v. Alvarado confessed after about two hours of interrogation. There was no indication that the officer’s initial lack of suspicion had been imparted to Stansbury. the inherently coercive atmosphere that triggers the need for Miranda warnings is not present. the officer gave Stansbury Miranda warnings. Alvarado’s parents brought him to the station. Mathiason voluntarily arrived at the station. thinking that Stansbury was a potential witness. • California v.sat with the defendant at his dining room table to discuss their investigation of his federal income tax returns. • Minnesota v. Mathiason (1977) – held that an individual questioned at a police station voluntarily is not necessarily in custody. it became clear to the officer that the defendant was the perpetrator. The lower court held that Stansbury was not in custody until the officer’s suspicions shifted to him as a result of the initial questioning. was informed that he was not under arrest. California (1994)149 • It is well settled that a police officer’s subjective view that the individual under questioning is a suspect. he was still in custody. At that point. Alvarado (2004)150 • Held that a suspect’s youth was irrelevant in determining whether he is in custody • Relied on Stansbury for the proposition that custody under Miranda is determined by an objective test. If youth and experience in particular were relevant. The Supreme Court reversed. and left the station without hindrance after he confessed. They waited in the lobby while Alvarado was questioned without Miranda warnings. the officer believed that another man was the prime suspect. The issue was whether the initial statements had been obtained in violation of Miranda. does not bear upon the question whether the individual is in custody for purpose of Miranda • An officer’s view only bears if they were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave 4. 151 Defendant was interrogated while in jail by IRS agents about his alleged tax evasion 48 .

153 United States v. the inmate incriminated himself. the guard’s action added no further restraint on Garcia’s freedom to depart.” ∼ For example in Garcia v. an inmate set fire to his cell.152 6. When taken out of his cell and questioned by a guard as to why he did it.154 ∼ Test: words or actions by the police that could reasonably be likely to elicit an incriminating response (subjective intentions of the police are irrelevant 152 “Because Garcia was the only person in the cell during the fire and failing to remove him would have endangered his safety. Innis (1980) – expanded the concept of interrogation to include police conduct that. 1993) 154 The Court concluded that the officers could not reasonably have expected their conversation to elicit an incriminating statement. In fact. The Court found nothing in the record to suggest that they were aware Innis was peculiarly susceptible to an appeal to conscience concerning the safety of handicapped children. Brown (8th Cir.∼ The question is viewed as whether prison officials’ conduct would cause “a reasonable person to believe his freedom of movement had been further diminished. 1994). The court held that Miranda did not apply. or that the suspect was not considered under arrest • Whether the suspect possessed unrestrained freedom of movement during questioning • Whether the suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to questions • Whether strong arm tactics or deceptive stratagems were employed during questioning • Whether the atmosphere of the questioning was police dominated • Whether the suspect was placed under arrest at the termination of the questioning (b) Interrogation 1. What is interrogation? • Encompasses conduct ∼ Deliberately designed to evoke a confession. removing Garcia from his cell provided him with greater freedom of movement and significantly reduced those preexisting restrictions. 49 . Factors to look at:153 • Whether the suspect was informed at the time of questioning that he questioning was voluntary. while not formal questioning. ∼ Broader definition: 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 ∼ Narrow application: no interrogation was found where two officers transporting the suspect (who had requested counsel) to the police station in a cruiser engaged in a conversation about a missing shotgun believed to have been used by him in a recent robbery-murder. Singletary (11th Cir. is its functional equivalent. and ∼ The officers should reasonably have foreseen would elicit such a response • Foreseeability of response ∼ Particular susceptibilities of the suspect ∼ Knowledge the officers had of these at the time • Rhode Island v. that the suspected was free to leave or requires the officers to do so.

Bin Laden (S.D. • United States v. 50 . Arizona (1981) – the Court found that Edwards had been interrogated when officers played for him a recorded statement of Edwards’ associate that implicated Edwards in the crime. Muniz (1990)156: admitted as evidence of drunkenness. Whether there could be a proper administrative purpose for the question ii. because they fell within a routine booking question exception which exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services. The conversation occurred in the presence of an officer and a tape recorder. N. even though in response to custodial interrogation. ° Note: would not apply if such questions were designed to elicit incriminatory admissions ° Scope of determining the booking questions exception (objective) i.Y. 156 Stopped for suspicion of drunk driving. When is it not an interrogation? • Examples: ∼ Statements volunteered with no such questioning ∼ Police are not required to interrupt a person who is about to blurt out a confession and inform him of his right to silence and an attorney ∼ Limited follow up questions to clarify a volunteered statement (“Who did you kill?” as a follow up to “I killed him”) ∼ Officers’ indirect statements (not at the suspect) because they are less likely to produce incriminating responses • Arizona v. brought to a booking center and asked identifying questions which he stumbled over and gave incorrect responses to.• Edwards v. Mauro (1987)155 – dealt with the perception of the suspect that he is being subjected to psychological pressures ∼ Perception of the suspect – the Court doubted that a suspect allowed to speak with his spouse would feel he was being coerced to incriminate himself ∼ Police conduct – the Court held that the suspect was not subjected to compelling influences or psychological ploys and the Court found the permission to talk with his wife reasonable under the circumstances • Questions attendant to custody ∼ Booking questions – Pennsylvania v. 2001) – where the defendant is interrogated by American law enforcement abroad to be tried in criminal court (distinguished from enemy combatants). Whether the officer would need to know the information for booking purposes ∼ Custodial procedures and tests – probably not considered interrogation even though the defendant may make incriminating statements during the explanation process 155 Police permitted Mauro and his wife (at her request) to talk together in the police station where he was being held. Both were suspects in the murder of their child. Whether the question is asked by an officer who routinely books suspects iii. and resulted in incriminating statements that Mauro sought to suppress. Miranda still applies 2.

because such explanations cannot be considered to call for an incriminating response • Undercover activity – Illinois v. the ploy worked ∼ The Court held that Miranda protections did not apply because the suspect did not perceive that he was being questioned and thus did not feel coercive pressures that trigger the protections (c) Substance and adequacy of the warnings 1. the Miranda dictates are not satisfied 3.” • Holding: these warnings together were insufficient and Connell’s confession should have been excluded 51 . 1989) – insufficient Miranda • Warnings received: ∼ Oral warning: “you must make your own arrangements to obtain a lawyer. and this will be at no expense to the Government. Connell (9th Cir. United States v. modified the warnings form to “if an when you got to court” • The Court held that the warnings conveyed the substance of the right required by Miranda • Reasoning: Miranda does not require each police station to have a station house lawyer present at all times to advise suspects. Eagen (1989) – issue with the pragmatic reality that police were not able to immediately provide a lawyer to advise suspects taken into custody at all times of the day and night. ∼ What is required is that police reasonably convey to the suspect his rights to remain silent and to counsel • But if the reference to the right to counsel is linked to some future point in time after the interrogation. it requires simply that the suspect be advised of his right to counsel and that he cannot be questioned unless and until he validly waives that right 4. California v. one may be appointed to represent you” ∼ Written warning: “arrangements will be made for you to obtain one in accordance with the law.” and that “if you cannot afford to pay for a lawyer. Perkins (1990) ∼ Agent posed as a fellow prisoner and placed in suspect’s cell in order to elicit an incriminating statement. 2. The Miranda Court in 1966 indicated some flexibility when it explained it was not establishing a “constitutional straightjacket” and suggested that there might be “potential alternatives” or “fully effective equivalents” to its chosen prophylactic measures. Prysock (1981) – issue of deviation from the original warnings • Background: state appellate court reversed the juvenile defendant’s murder conviction because the police officer did not explicitly advise him that he was entitled to the services of a free lawyer prior to questioning. Duckworth v. and made some additional comments that arguably could have been interpreted as meaning that such a lawyer would not be available until the defendant appeared in court • Holding: ∼ “No talismanic incantation” of precise language is necessary to satisfy Miranda.

coupled with an understanding of his rights and a course of conduct indicating waiver may be sufficient • Totality-of-the-circumstances – the Court directed trial judges to look at the particular facts and circumstances surrounding the case. Duckworth (7th Cir. 1996) the court held that a defendant’s subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver. such cooperation. conveying to the person in custody the requirements of the law is the whole purpose of the warning.. although the suspect freely signed a Miranda waiver form.” 1. North Carolina v. when coupled with his acknowledgment of his Miranda rights. but only if. under all the circumstances. 158 In United States v. 52 . Frankson (4th Cir. Second. the due process challenge to an involuntary confession survives Miranda as an independent avenue of attack. 1998) – the question of the voluntariness of waiver of Miranda rights is separate and differs from the determination of the voluntariness of a confession. Once it is clear that a defendant has made a knowing and voluntary waiver of his or her Miranda rights. knowingly. H. Smith v. he was subsequently coerced into confessing • An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.158 • Defendant’s silence. the issue then becomes whether the confession itself was voluntary. experience.• Reasoning: the oral warning was misleading because it appeared that the right to appointed counsel was subject to government discretion. In fact. and intelligently. the rights are waived “voluntarily. including the background. (b) Knowing and Intelligent 1. but rather must affirmatively 157 While Miranda sought to eliminate the ad hoc approach of the due process voluntariness analysis and substitute bright-line standards. • But a valid waiver will not be presumed simply from silence of the accused after warnings are given or simply from the fact that a confession was obtained. First. constituted a valid waiver. the doctrine of waiver evolved into its own totality-of-the-circumstances approach. It found the written warning to be ambiguous because Connell is not expected to know what the requirements of the law are. that goal has not been fully achieved. The prosecution may not rely on the any presumption that the warnings were understood by the suspect. Wavier of Miranda Rights157 i) Waiver and the Role of Counsel (a) The Miranda Court stated the accused may waive the rights to silence and counsel. • A confession may be suppressed because. and conduct of the accused. 2. It must be shown that: • The suspect understood that he had the right not to talk to the police or to talk only with counsel present • That he appreciated the consequences of foregoing these rights and speaking to the police 2. Butler (1979) – showed the Court’s openness to implied waivers • A waiver may be found even in the absence of an explicit statement if the suspect’s words and actions implicitly constitute a decision to forgo his rights. Even though the defendant never “formally” waived his Miranda rights.

∼ Note: The Court left open the possibility that “on facts more egregious than those presented here police deception might rise to the level of a due process violation. Louisiana (1980). The focus of the interrogation ultimately changed. for we have never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. The Court held that the information withheld by the police might go to the “wisdom” of the waiver but not to its “essentially voluntary and knowing nature. that he answered affirmatively when asked by the officer whether he understood the rights just read to him. Lewis (9th Cir. 1988) relied on Barrett to uphold a waiver when the defendant told the police to “ask your questions and I will answer those I see fit. ∼ Because the defendant never asked for counsel in Burbine. Barrett (1987) the defendant refused to make a written statement but would talk to the police instead. the Court held that the police did not have to tell the suspect that an attorney was trying to see him at the police station nor did this undercut the validity of a written waiver. His presence at the police station was irrelevant.demonstrate such understanding by showing. to which Spring then confessed.Colorado v. the Court established that a suspect need not be aware in advance of all the possible subjects of the interrogation in order to make a valid Miranda waiver. Connelly (1986) 159 Tague v. for example. 1997) did not find a waiver and excluded admissions concerning smuggling after a defendant was arrested on suspicion of an immigration violation and smuggling. The Court has taken a narrow view of what must be disclosed to the suspect prior to a knowing and intelligent waiver: • In Moran v. Burbine (1986).” Thus. Spring (1987).162 (c) Voluntary .” 53 . The officer could not remember whether he asked the suspect if he understood them or whether he made an effort to determine if the suspect “was literate or otherwise capable of understanding his rights.” 161 “The fact that some might find the defendant’s decision illogical is irrelevant. 160 “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.160 ∼ It is the suspect who has the right to counsel under Miranda and that right does not come into effect until the suspect invokes the right. a valid waiver could not be found simply by the fact that the warnings are given and the suspect confesses.” ∼ The court in United States v. The Court held that the police could properly take the opportunity opened by the defendant’s ambiguous actions to obtain an oral confession. he said “I though this was just about my citizenship. but when they turned the questioning to smuggling. We have never read the Constitution to require that police supply a suspect with a flow of information to help him calibrate his self interest in deciding whether to speak or stand by his rights.159 3. to an unsolved homicide in Colorado.” • In Connecticut v. ∼ The fact that the police acted deliberately to deprive the suspect of information concerning counsel’s attempt to reach him did not affect the validity of the waiver. 162 The defendant was arrested by federal agents on firearms charge and signed a written waiver form after being advised of his rights. counsel had no independent rights to assert. the Court held that a waiver of Miranda rights was not proven by an officer’s testimony that he read a suspect his rights from a card and the suspect then confessed.161 ∼ The court in Bruni v. Soliz (9th Cir.” • In Colorado v. however. He agreed to talking about his citizenship.

not on “free choice” in any broader sense of the word. Mosley said that he did not want to discuss the robberies. Mosley signed a waiver form. The Court equated this with the due process standards – “The sole concern of the Fifth Amendment is governmental coercion. The court concluded that “Kelly’s termination of the voluntary encounter posed no independent barrier to later questioning.1. 164 Note: Mosely’s requirement of “scrupulous honor” applies only if the defendant’s invocation of the right to silence occurs in the context of custodial interrogation. and a different detective question Mosley about a murder that was not related to the robberies.” • Not concerned with moral and psychological pressures to confess emanating from sources other than official coercion • Voluntariness of a waiver depends on the absence of police overreaching. cajoling) by the police has been significantly discounted and is treated by the courts as only one factor among the totality of circumstances determining validity of a waiver. United States (1994). the suspect was consenting to continued interrogation. Proving a waiver is involuntary requires that it resulted: • From police coercion that overcame the suspect’s will. that he wishes to remain silent. The Court rejected the concept a permanent termination and held instead that interrogation could resume as long as the right to cut off questioning was “scrupulously honored. mental state. experience and intelligence) ∼ Note: In recent years. ii) Waiver After Invocation of Miranda Rights The Miranda Court mandated that “if the individual indicates in any manner.”164 • In Davis v. given Miranda warnings. and told that he could remain silent. which was admitted at his murder trial. the court in United States v. tricked.” Subsequent decisions have read this right to terminate questioning more narrowly. rather. • If the suspect was subjected to compulsion (intimidation or threats) then the impact of those tactics will be examined in light of the totality of the circumstances surrounding the interrogation (including the suspect’s age. in which he was convicted. the waiver will be found voluntary regardless of the defendant’s peculiar vulnerabilities or internal compulsions to talk (such as Connelly’s psychosis in which the “voice of God” told him to confess) 2. and made an incriminating statement. • The Court said that police are not obligated to clarify the suspect’s intent. Mosley (1975)163 1. and then confessed when the officers interrogated him later. deceptive activity (threatened. the interrogation must cease. For example. the defendant argued that his confession had to be excluded under Mosely because he had previously invoked his right to silence when spoke to police officer in an initial interview. and the detective refrained from questioning him further. at any time prior to or during questioning. the Court held that police questioning a suspect can continue the interrogation when the suspect has made an ambiguous or equivocal invocation of the Miranda right to counsel.” 54 . they could assume in the absence of a clear invocation. 163 The defendant was arrested in connection with certain robberies. (a) Invocation of the Right to Silence: Michigan v. The court noted that the defendant was not in custody during the initial interview and had no Miranda rights to invoke. Kelly (8th Cir. ∼ Otherwise. Approximately two hours later Miranda warnings were given again. 2003).

• The suspect himself initiated the further communication. it must be demonstrated: • That his right to silence.” 55 . This is shown by the facts of Innis. Innis invoked his right to counsel. but he refused. unless he initiates the conversation. and voluntary waiver subsequently occurred 4. but the Court found it unnecessary to reach the question of waiver. and voluntary waiver subsequently occurred ∼ Where it is shown that the police failed to cease interrogation immediately. If the prosecution seeks to introduce a statement from a suspect who had initially invoked his rights to counsel. intelligent. and therefore so is Edwards. So if the suspect invokes his right to counsel. the following morning. what Edwards holds is that police may not interrogate him while in custody unless the suspect initiates the conversation and then knowingly and voluntarily waives his Miranda rights. the Court ruled that Edwards’ statement was inadmissible.2. Miranda itself is inapplicable to a resulting confession. or ∼ Engaged in repeated efforts to get the suspect to change his mind. the suspect is released from custody.167 ∼ Lower courts have held that Edwards protections will not apply if. Innis. The detectives informed Edwards of his rights and then played a taped statement of an alleged accomplice who implicated him in the crime. What constitutes invocation of the right to counsel? 165 The questioning of Edwards (who had initially waived his rights) was terminated when he asserted his right to counsel. Subsequent decisions have modified this rule. because the offices never interrogated him. 167 Minnick v. Arizona (1981)165 1. Mississippi (1990) – “The need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning. They had contact with him but they did not interrogate him. This prohibition against the resumption of questioning until counsel arrives is premised on the view that invocation of the right to counsel shows the suspect is unwilling to decide on his own whether to submit to interrogation. 2.166 3. (b) Invocation of the Right to Counsel: Edwards v. then interrogation must cease until an attorney is present. but also to have counsel present during any questioning if the defendant so desires. and • That a knowing. had been scrupulously honored. it must be demonstrated that: • Counsel was made available to him. Permits police to resume interrogation even in the absence of counsel if the suspect himself initiates further communication with the police. after invoking the right to counsel. intelligent. and • A knowing. once invoked. But if police-renewed contact does not rise to the level of custodial interrogation. The Miranda Court held that if (upon being administered the warnings) the suspect indicates he wants the assistance of counsel. ∼ The accused is entitled to have his attorney present with him during questioning. 166 Relationship between Edwards and Innis: Edwards holds that a suspect cannot waive the right to counsel after invoking it. He then indicated a willingness to talk and later made an incriminating statement. If the prosecution seeks to introduce a statement obtained from a suspect who had initially invoked. or ∼ Providing the opportunity to consult with counsel outside the interrogation room is not sufficient. A guard then told Edwards the he had to talk with the detectives and took him to meet them. The Court concluded that the playing of the tape (accomplice’s statement) constituted the functional equivalent of questioning under Rhode Island v. two other detectives sought to talk to him. He was taken to a jail cell where. his resulting statement will be inadmissible.

it has to be your free will. • “Maybe I should talk to a lawyer” – Davis v. United States (1994) – No ∼ The Court held that a suspect must clearly and unequivocally invoke the right to counsel in order to trigger the protections of Edwards.• “I’d like to speak to a lawyer before answering questions” – Yes • “Uh. you know.” ∼ Seems to set a liberal tone erring on the side of treating such statements as invocations. thus foreclosing interrogation. “whether a contemplated re-interrogation concerns the same or a different offense. The two then conversed about where he would be taken and what he would be charged with. Bradshaw (1983)168 ∼ The Court (plurality) held that Miranda/Edwards doctrine had not been violated. while still in custody. all questioning must cease. 169 Defendant was arrested for burglary and exercised his right to counsel after receiving the warning.” ∼ Further. An incriminating statement was obtained. following new warnings.” Bradshaw replied that he understood. The next day. Three days later. and the officer then suggested that he take a lie detector test. I’d like to do that” – Smith v. What constitutes initiation of further communications by the suspect? • “I’ve changed my mind and want to talk about the crime now without a lawyer” – Yes • “Well. This officer was not aware that defendant had previously invoked his right to counsel. or whether the same or different law enforcement authorities are involved in the 168 The officer responded: “You do not have to talk to me. yeah. ∼ Police are not obligated (although it is “good police practice”) to clarify ambiguous requests but may press on with their interrogation. Such an invocation prevents police-initiated interrogation on any crime. • Unrelated crimes – Arizona v. ∼ The Court concluded that “to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel. Roberson (1988) 169 ∼ Invocation of the right to counsel under Edwards is not offense-specific. any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. and cautioned against using the suspect’s subsequently expressed doubts to undercut his initial request for counsel. Bradshaw took the test and subsequently made incriminating statements. Illinois (1984) – Yes ∼ The Court found that “with the possible exception of the word ‘uh’ the defendant’s statement in this case was neither indecisive nor ambiguous. which he agreed to. what is going to happen to me now?” – Oregon v. ∼ Questions related to routine incidents of custodial relationship would generally not constitute “initiation” ∼ They found that Bradshaw’s question to the jailer “evinced a willingness and desire for generalized discussion about the investigation” permitted interrogation to resume. You have requested an attorney and I don’t want you talking to me unless you so desire because anything you say – because – since you have requested an attorney. he was again Mirandized and questioned by a different officer about a different burglary. 5. 56 .” ∼ The Court concluded that “where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous.

Due process standard. Unbeknownst to Massiah. the Sixth Amendment does not require a finding of coercion 2. to have compulsory process for obtaining witnesses in his favor.” iii)Fifth or Sixth Amendment Right to Counsel – McNeil v. The fact that we have allowed the Miranda right to counsel.second investigation.” 172 Massiah v. Colson was cooperating with federal agents.” A. 2. The right to the assistance of counsel at trial would be rendered meaningless if the prosecution could obtain incriminating statements from an un-counseled defendant prior to trial. Wisconsin (1991) (a) An accused who is arraigned and asks for counsel is invoking the Sixth Amendment. which district shall have been previously ascertained by law. neither custody nor interrogation in any traditional sense is a prerequisite (c) What is required: 170 “Most rights must be asserted when the government seeks to take the action they protect against. with similar future effect. therefore police can initiate questioning on crimes other than the crime with which the defendant was charged.Sixth Amendment “In all criminal prosecutions. and were released on bail. the accused shall enjoy the right to a speedy and public trial. 57 . the same need to determine whether the suspect has requested counsel exists. government efforts to “deliberately elicit’ statements from him in the absence of his attorney (whether done openly or surreptitiously) violate the Sixth Amendment. by an impartial jury of the State and district where in the crime shall have been committed. 1994): “To require that the Government first act to compel an individual to incriminate herself before that individual can assert her right to remain silent is merely to recognize that the privilege against self-incrimination acts as a shield against state action rather than as a sword. pled not guilty. An invocation of the Fifth Amendment right to counsel protects against police-initiated interrogation with respect to any crime. United States (1964): A drug prosecution in which the defendant’s incriminating statements made to his co-defendant Colson were admitted into evidence at trial. This occurred after both men had been indicted. An invocation of the Sixth Amendment rights is “offense-specific”. 1. Miranda. The Right to Counsel: The Massiah Rule (April 26: 783 – 801) i) The Massiah Doctrine172 (a) Once adversary judicial proceedings have commenced against an individual. Reaffirmed by Brewer v. Redman (3d Cir. 2. once asserted. to be confronted with the witnesses against him. (c) Note: Lower courts have followed the footnote170 in the majority opinion in McNeil and have held that the Miranda right to counsel cannot be invoked in advance of police interrogation. right to counsel (b) There is a difference in the protections provided: 1.” 171 Alston v. who recorded it. and to be informed of the nature and cause of the accusation. The police department’s failure to honor that request cannot be justified by the lack of diligence of a particular officer. and to have the Assistance of Counsel for his defense. retained counsel. Williams (1977) – Christian burial speech (b) Unlike the: 1. to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation. rather than the Miranda.171 III. and that the shield may only be imposed when state action actually threatens.

Mauro refused to find that the police conduct constituted the functional equivalent of interrogation (b) Use of undercover officers and state agents 1. 2. Snitches – United States v. • Holding: The Court suppressed the statements. beyond merely listening. (a) Triggering events – adversary judicial criminal proceeding: 1. 1. While the test for interrogation under Miranda is broader: • Whether the police engaged in conduct that they could reasonably foresee would elicit an incriminating response from the suspect. That the government deliberately elicited incriminating statements from the accused in the absence of counsel (or a waiver of counsel) 2. a paid informant. he was told to report incriminating statements to them. • Both Rhode Island v. the defendant must show that the police took some action. ∼ Back to Fellers v. ii) The “Deliberately Elicit” Standard – Fellers v. the Court has not treated the concepts as interchangeable.did she intend to elicit the confession? • The determinative factor in both Massiah and Williams appeared to be the deliberate nature of the police effort to secure a confession. The Listening Post – Kuhlman v. Henry (1980) • Background: the FBI arranged to have Nichols. concluding that the government had intentionally set up a situation likely to induce Henry to make incriminating statements and thus violated his Sixth Amendment right to counsel. Although the agents instructed Nichols not to question Henry about the crime. as opposed to Henry’s broader language of setting up a situation likely to induce a statement. placed as Henry’s cellmate. • Reasoning: ∼ Nichols was not a “passive listener” but rather had “stimulated” conversations with the defendant designed to produce incriminating admissions. United States. United States (2004) (a) Although “deliberate elicitation” seems to bear a close resemblance to the “functional equivalent of interrogation” under Miranda. 2. That this occurred after the initiation of judicial proceedings. the Court emphasized the deliberate character of the government’s conduct. the point at which the right to counsel if triggered. Information iii)Initiation of Judicial Proceedings 58 . Indictment 2. The emphasis in the Sixth Amendment context is on the deliberate or intentional nature of the officer’s effort to gain incriminating evidence • Looks to the officer’s state of mind.1. Wilson (1986) • Background: The snitch did nothing to stimulate the conversation in which the suspect made incriminating statements • Holding: The Court held that to show a violation. that was deliberately designed to elicit incriminating remarks. even if not designed to achieve that result. which he did. Innis and Arizona v.

were not subject to exclusion. (b) When is a valid Miranda waiver not sufficient: 1. surreptitious conversation between an undercover police officer and an indicted is prohibited. Perkins – once an accused is indicted. The accused did not initiate the contact. understood. The statements related both to the charges that were already pending against Moulton. Burbine – permitted a waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning 2. There is no public safety exception – Maine v. A showing that the defendant had been advised of. Arraignment 4. but he signed a waiver form. Knowingly and voluntarily waives his right (c) Note: lower courts have held that the protections of Edward are not applicable in the Sixth Amendment context unless the accused unequivocally invokes his right to counsel. Jackson (1986)174 173 “To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative. Background: Prosecution obtained incriminating statements from the defendant by recording a meeting between him and a codefendant who was cooperating with the government.3. 2. Remember Moran v. Remember Illinois v. 3. 2. 59 . Waiver of the Sixth Amendment Right to Counsel (April 28: 801-811) i) Similar to Miranda waiver requirements (a) “Knowing. intelligent. and to a plan to kill prosecution witnesses expected to testify in the upcoming trial. Patterson left open whether an indicted suspect is entitled to a warning that he has been indicted before a waiver of the Sixth Amendment right to counsel can be found – but the lower courts have held that an “indictment warning” is not required. and voluntarily waived his Miranda rights suffice to establish a waiver under the Sixth Amendment as well – at least where he has not yet retained counsel.175 (b) An accused can only waive their rights after invoking if 1. Later he was interrogated by police officers about the crime for which he had been charged. B. ii) Waiving After Invoking – Michigan v. legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. The accused initiates the later conversation (intelligent) 2. 175 Reasoning: The reasons for prohibiting the interrogation of an uncounseled prisoner are even stronger after he has been formally charged with an offense than before. and voluntary” Standard – Patterson v. Preliminary hearing 5. Holding: The Court ordered that the admissions concerning the pending charges be suppressed but those incriminating remarks concerning crimes not yet charged but brought subsequently (the plan to kill a witness). Moulton173 – but the government may elicit and use incriminating statements regarding future crimes which may involve threats to third parties and the public (a) When an accused invokes his Sixth Amendment right to counsel. Illinois (1988) 1. Even if the prosecutor is not yet aware of the defendant’s court appearance (b) Not-triggering event – Maine v.” 174 The accused formally requested counsel at arraignment. and confessed. the standards for Edwards govern the waiver of Sixth Amendment rights. Moulton (1985): 1.

he does not thereby invoke a Miranda/Roberson right to counsel as to unrelated crimes. Wisconsin (1991) 1. Reasoning: • Bad policy – “most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes. (a) If Miranda is not applicable because the statement did not result from custodial interrogation (or because the public safety or impeachment exceptions apply). even though they have never expressed any unwillingness to be questioned.176 2. Therefore¸ Michigan v. and (b) The Sixth Amendment is not applicable because there was no “deliberate elicitation” after initiation of adversary proceedings. Definition of an “offense” is not limited to the four corners of a charging instrument.iii)Waiver as to Crimes Unrelated to the Crime Charged (a) McNeil v.” • When a suspect invokes his Sixth Amendment right to counsel at an initial appearance. Blockburger Test: Whether the two offenses require proof of a fact which the other does not. Cobb (2001) 1. the test to be applied to determine whether there are two offenses or only one. United States (1932): “Where the same act or transaction constitutes a violation of two distinct statutory provisions. Jackson applied Edwards to Sixth Amendment invocations. (c) Admission of the statement into evidence may nonetheless be challenged on the grounds that it was the product of police coercion (either physical or mental). Offense-specific (different from Miranda) 2.” 60 . but McNeil did not apply the Roberson extension of Edwards to such invocations 3. iv) Analyzing any interrogation or confession problem 176 Blockburger v. (b) Texas v. is whether each provision requires proof of a fact which the other does not.

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