LAW 604 ARIZONA STATE UNIVERSITY LECTURE NOTE Criminal Procedure Outline Fall 2019.pdf

Criminal Procedure Outline: Fall 2019

Introduction

1. Participants:

1. Police (interested in stopping crime, public safety, personal safety)

i. Subject to broken windows theory

ii. Fallacy: police try to stop losses by rigid enforcement, which leads to

inequality/discrimination

2. Defendants (interested in not going to jail, getting a minimal sentence, getting

acquitted, fairness)

i. conditions of the jail/prison they end up in is significant (hard to be an

incarcerated sex offender)

3. Victims ( interests are idiosyncratic, often interested in getting justice)

i. Not always a physical person (can be a community as with drug offenses)

ii. Tension w/ regard to how much say victims get

4. Prosecutors (decide whether to charge then pursue until conviction)

i. Have an immense amount of discretion

ii. Sometimes incentivized by conviction rates

5. Defense Counsel (interested in fairness, payment, keeping job, resolving cases

quickly)

6. Jury (interested in fairness, quick resolution of case)

i. Finders of fact in criminal trials

7. Magistrate Judges (interested in efficiency, overseeing police, not getting

overturned)

i. Handle misdemeanor sentences/trials, 1 advisements, search warrants, bail,

suppression of evidence

ii. Appointed (8-year terms)

8. Trail Judges ( interested in winning reelection, not getting overturned)

i. Proceed over trials, accept guilty pleas

ii. Federal judges are appointed by the President and serve for life

9. Appellate Justices ( interested in fairness, not getting overturned)

i. Review decisions of lower courts for legal errors

ii. Federal justices are appointed by the President and serve for life

10.Correctional System (interested in money, containment)

i. Private entities are incentivized to make money for their shareholders

ii. Sometimes healthy prisoners are kept for as long a time as possible for as

inexpensively as possible (deportable population)

11.Media (interested in exposing the truth, ratings)

i. Brings attention to cases and corruption

ii. With media presence in a courtroom or surrounding a case, everyone

behaves better

iii. However, more difficult to get a fair trial if too publicized

iv. Confidence in justice system erodes when a judge rules against public opinion

12.Public (interested in safety and security, fairness, justice, equality, efficiency)

2. Stages

1. Crime > Pre-arrest investigation > Arrest > Complaint > First Appearance >

Preliminary Hearing or Grand Jury > Arraignment/Set Trial Date > Plea Bargaining >

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Pretrial Motions > Trial > Sentencing > Appeals > Collateral Challenges (Habeas

Corpus)

3. Purpose of Procedural Rules

1. Goals of Criminal Procedure: correct result and fair process

2. Challenges in having a fair criminal justice system: racism, resources, balancing

victims’ rights and defendants’ rights historical approach to procedures

3. Criminal procedure did not exist until the 1960s when the federal government

constitutionalized it

4. Powell v. Alabama (1932) (applies 6 A to the states for capital cases; Ct will step

in for DP violations):

i. F: black men convicted of raping two white women; judge assigned “all

members of the bar” as representation for the D, but no one specifically.

Forced confession. D sentenced to death.

ii. R: under DP, Ds in capital cases possess the right to counsel at trial and in

the time leading up to trial

iii. P: decision to limit holding to only capital cases = “miner’s canary” for the

time

4. Bill of Rights

1. Drafted by wealthy white people with influence who were concerned about limiting

the power of their neighbors

2. Need a state actor in order for the BoR to apply

3. Duncan v. Louisiana (1968) (incorporates jury trial to the states):

i. F: D wanted trial but LA only granted jury trial to capital cases

ii. R: The 14 Amendment guarantees a right of jury trial in all criminal cases

which, were they to be tried in federal court, would come within the 6

Amendment’s guarantee.

5. Incorporation

1. Options:

i. 14th Amendment incorporates all of the BoR (absolute incorporation)

1. When practicing in a state, cite the 14 in addition to the 4

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ii. None of the BoR is incorporated

iii. Selective incorporation

2. What’s NOT incorporated:

i. 3rd A: Right not to quarter Soldiers

ii. 5th A: no right to grand jury

iii. 7th A: No right to jury in civil cases

iv. 8th A: No rule against excessive fines??

3. No uniformity among states w/ regard to 12 person juries or unanimous verdicts

6. Retroactivity

1. New constitutional rights are NOT retroactive

i. A SC decision recognizing a new criminal procedure right applies to that case,

to any cases pending at that time (not those pending on habeas corpus) and

to future cases

2. Exceptions:

i. Narrows government’s power to punish (e.g. Lawrence v. Texas)

ii. “Watershed” rule of procedure that implicated fundamental fairness (Gideon

v. Wainwright)

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Right to Counsel

1. Principle of Legality

a. Betts v. Brady (1942):

i. R: Court refused to find that the 14 A incorporated the 6 A right to

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counsel to the states; resulted in a case-by-case analysis of whether the

lack of counsel denied the D DP at trial (flood of cases)

b. Gideon v. Wainwright (1963) (applies 6 A right to counsel to states for all

prosecutions):

i. F: D charged with felony; asked for representation but was denied under FL

at the time; represented himself pro se but ultimately was convicted

ii. R: The 6 A right to counsel is guaranteed for all (not just capital)

defendants, even in state court (overruled Betts v. Brady and expanded

Powell v. Alabama)

2. When the Right to Counsel Applies

a. Applies at all “critical stages” of a criminal prosecution after the filing of formal

charges

b. Applies to first-tier discretionary appeals (not second-tier ones or SCOTUS petitions

for review, parole or revocation hearings, or in civil matters)

c. Argersinger v. Hamlin (1972):

i. F: D charged w/ a misdemeanor offense which included a possible sentence

of imprisonment

ii. R: A suspect has a 6 A right to counsel, which extends to all offenses that

carry a possible imprisonment sentence

Searches and Seizures

1. What Is a Search?

a. Framework:

i. Was there governmental action?

ii. Was there a physical trespass?

iii. Katz 2 prong test?

b. General Approach of the 4 th A: “The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and seizures shall not be

violates, and no Warrants shall issue, but upon probable cause…”

i. Searches only need to be “reasonable” and if there is a warrant, it must be

based on PC

ii. Presumption that searches must have a warrant to be reasonable, but there

are exceptions…

iii. Covers only government action: UPS and FedEx and cell phone carriers can

search your things because they are private actors

iv. Only applies to searches inside the U.S.; does not apply to searches outside

of the U.S., even if conducted by American law enforcement (U.S. v. Verdugo-

Urguidez)

c. Olmstead v. U.S. (1928) (old adherence to trespass theory for searches):

i. R: SC held that wiretapping was not a search b/c the wires were tapped

outside the suspect’s property, and thus were not a physical trespass (must

be a physical intrusion)

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d. Katz v. U.S. (1967) (stands for reasonable expectation of privacy):

i. F: Katz indicted for transmitting wagering info. across state lines (bookie)

ii. R: 4 A protects people (privacy) and not places; gov’t’s eavesdropping

intruded on D’s reasonable expectation of privacy and was thus an

unconstitutional search and seizure

iii. *Harlan Concurrence*: person should have a subjective expectation of

privacy, and that expectation should be reasonable (objective)

1. Gives test we use today

2. 1st prong is a little squishy

iv. Context: Roe decided around the same time (growing privacy concerns)

e. U.S. v. Jones (2012) (returns to trespass theory to supplement Katz REP test):

i. F: gov’t installed a GPS tracking device on D’s vehicle and tracked D’s

movements for 28 days without a valid warrant.

ii. R: The gov’t’s use of a GPS device to track a person’s car on public streets is

a search

1. SC does not use REP test; instead says that 4 A covers trespass

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on “persons, houses, papers, and effects” (majority, Scalia)

2. Katz standard survives, but trespass theory added as an alternative

way of finding “search”

3. Concurrence (Sotomayor): Embraces mosaic (extensive monitoring)

theory; reconsider disclosure to third parties doctrine

4. Concurrence (Alito, Ginsburg, Breyer, Kagan): Should not return to

trespass analysis; focus on REP and long-term monitoring

iii. Policy (open question): Does GPS monitoring w/o physical trespass also

constitute a search?

f. Open Fields and Curtilage

i. Oliver v. U.S. (1948) (open field is not curtilage):

1. F: police investigated a farm that had a “no trespassing” sign.

Eventually found a marijuana field.

2. R: The 4 A applies if police search a person’s home or the “curtilage”

immediately adjacent to the home, but not if the police are searching

in an open field.

a. No legitimate expectation of privacy in an open field

ii. U.S. v. Dunn (1987) (curtilage factors; barn is not curtilage):

1. F: Police searched barn to confirm suspicions that D was manufacturing

drugs there.

2. R: A warrantless search of a barn located a considerable distance from

a home that is not surrounded by a fence, not used for residential

purposes, and in plain sight is not prohibited under the 4 A

iii. Open field v. curtilage? (fact specific analysis)

1. How close to home?

2. Within an enclosure surrounding the home?

3. Nature of use?

4. Steps taken to protect area from observation by passers-by?

g. Aerial Surveillance (police can be where the public have a right to be)

i. California v. Ciraolo (1986) (no REP from 1,000 ft):

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1. F: police flew plane over a yard at 1000 ft (within the legal navigable

airspace) to see over D’s 10 ft fence. D was growing marijuana.

2. R: There is no reasonable expectation of privacy from aerial

observation

ii. Florida v. Riley (1989) (No REP from 400 ft):

1. F: police flew helicopter at 400 ft and could see marijuana growing in

D’s greenhouse

2. R: an officer’s naked eye observation of the interior of a partially

covered greenhouse in a residential backyard from the vantage point

of a helicopter 400 feet above did not constitute a search requiring a

warrant (greenhouse had openings in its ceiling)

3. Concurrence (O’Connor): only consideration should be whether there

was a REP; should we expect public/police to be there? Does the gov’t

have a right to be standing in the place where they are using the new

technology?

iii. Policy: Drones?

1. Maybe different b/c no naked-eye observation

2. But also more easily accessible to the public than helicopters

h. Thermal Imaging and New Technology

i. Kyllo v. U.S. (2001) (thermal imaging unreasonable):

1. F: Police used thermal-imaging device to scan home; found heat

emanating from garage consistent w/ a marijuana grow

2. R: Where the gov’t uses a device that is not in general public use, to

explore the details of the home that would not be known without

physical intrusion, the surveillance is a ‘search’ and is presumptively

unreasonable.

ii. New tech factors for determining REP:

1. Involve the home?

2. Show intimate activities?

3. In general public use?

i. Trash

i. California v. Greenwood (1988) (no REP for garbage on street):

1. F: Police searched garbage bags D had left at the curb for pickup

2. R: Garbage placed at the curbside is unprotected by the 4 A

a. Garbage readily accessible to members of the public

b. Implication: shred or burn your trash

j. Public Areas

i. Observation of public behavior

ii. Does public have access?

iii. When is there at REP?

k. Electronic Tracking Devices

i. U.S. v. Knotts (1983) (No search when following TO location):

1. F: Police installed radio transmitter on container of chloroform that was

transferred to D’s cabin. Police got a warrant to search the cabin and

found a drug lab.

2. R: No REP extends to the visual observation of D’s automobile arriving

on his premises after leaving a public highway, not to movements of

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objects such as the drum of chloroform outside the cabin in the open

fields

ii. U.S. v. Karo (1984) (Search when following INSIDE location):

l. Consensual Electronic Surveillance

i. In person or by telephone/recording; not a search (No REP)

ii. Implications of U.S. v. White?

m. Financial Records

i. California Bankers Association v. Shultz (1974):

1. No REP; government requesting documents from bank is not a search

n. Pen Registers

i. Smith v. Maryland (1979) (no REP for pen registers):

1. F: robber threatened V and drove by her house and called her

repeatedly; police requested a pen register (records the numbers

dialed) and recorded calls from D’s home, which linked D to V.

2. R: 4 does not apply to information voluntarily given to third parties, so

the telephone numbers that are regularly and voluntarily provided to

telephone companies are not protected by the 4 A.

o. Carnivore and Computers

i. Pen registers for computers

ii. Pen collections vs. full collections

p. Electronic Pagers/ Messages on Phone Machines and Cell Phones

i. Number appears on device: not protected

ii. Activation of beeper to search for calls: may be protected

iii. Checking cell phones: may be another exception

iv. Carpenter v. U.S. (2018):

1. F: Police used cell-site records to track/locate D

2. R: the acquisition of the cell-site records was a search and is protected.

The state does not have unrestricted access to a wireless carrier’s

data-base of physical location information

a. Just b/c info is in possession of a third party does not give the

govt license to the info

b. Justices here uncomfortable with precedent Katz

q. Dog Sniffs

i. U.S. v. Place (1983) (bag sniffs not a search):

1. R: a dog sniff of closed luggage is not a search

ii. Illinois v. Caballes (2004) (sniffing car not a search or extended seizure):

1. F: during a routine traffic stop, a drug-detection dog alerted police to

marijuana in D’s trunk

2. R: dog sniff during a traffic stop is not a search

iii. Rodriguez v. United States (2015) (stop exceeding time needed to handle

matter = unreasonable):

1. F: police pulled D over for traffic violation. Police asked D if he could

walk dog around car and D refused. Police did anyways and dog

eventually alerted. Police found meth.

2. R: A police stop exceeding the time needed to handle the matter for

which the stop was made violates the 4 A.

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iv. Florida v. Jardines (2013) (sniffs of the outside of a home constitute

searches):

1. F: dog brought onto porch and alerted to marijuana

2. R: Bringing a drug-sniffing dog onto someone’s property is a search

within the meaning of the 4 A.

a. Court uses trespass theory again

v. Florida v. Harris (2013) (dog alert may be enough to show PC; flexible

standard):

1. F: police stopped car for expired registration; dog alerted; police

searched car and found drugs that dog was not even trained to identify

2. R: there are no special burdens on prosecutors and police officers in

showing the reliability of a drug sniffing dog as the basis for PC for a

vi. Bomb dogs: not used for PC b/c could be smelling something legal (fireworks,

fertilizer, etc.)

vii. Dog certification: SC held that a dog w/o up to date certification still can

conduct viable search

r. Bags in Transit

i. Bond v. U.S. (2000) (physical manipulation of a bag on a public bus violates

the 4th)

s. Field Tests

i. U.S. v. Jacobsen (field testing of packages for contraband is not a search)

1. F: private mail carrier observed white powder in package; contacted

DEA; DEA tested substance and found it to be cocaine

2. Field testing (1984): not a search

a. No REP; no trespass

b. Test only determines whether substance is contraband and no

REP in contraband

3. Urine testing (1989): is a search

t. Private Employer Searches

i. U.S. v. Sims

1. R: Private employer’s activities are NOT searches unless conducted at

behest of government; searches by private security guards do not

trigger 4 A.

u. Foreign Searches

i. Surveillance conducted in foreign countries, but used as evidence in

American Prosecution, is NOT a search

ii. U.S. agencies abroad have to abide by the 4 Amendment

2. The Requirement for Probable Cause

a. What is Probable Cause?

i. Required to obtain a warrant; PC is a reasonable balance between BARB and

“hunch” and a reasonable burden on law enforcement/reasonable privacy

intrusion

ii. TOC test

iii. “when the facts and circumstances before the officer are such to warrant a

man of prudence and caution in believing that the offense had been

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committed”; “when a reasonable person has a sense that something is true”;

“fair probability”

iv. less than reasonable doubt and a preponderance of the evidence, but more

than reasonable suspicion

b. Evolution of the Probable Cause Standard:

i. Mere Allegations: need to be more than “reason to suspect”

ii. Aguilar-Spinelli (old test): Required showing of informant credibility and

source of information

1. Changed because was being used too formalistically

iii. Illinois v. Gates (1983) (establishes TOC to get PC for warrant to issue):

1. F: anonymous letter implicated a couple in an elaborate drug scheme

2. R: a warrant application satisfies the 4 A PC requirement so long as it

establishes a substantial basis for concluding that a search will uncover

evidence of wrongdoing

c. Probable Cause Considerations:

i. Totality of the Circumstances Considerations:

1. Source of information

2. Amount of detail

3. Verified predictions

4. Corroboration (police or others)

5. Officer’s opinions (experience)

6. Nature of information

a. What about this scenario implicates illegal activity as opposed to

something legal

ii. Staleness

1. PC should be relatively fresh

2. Can extend if evidence of ongoing criminal activity

iii. Multiple Suspects

1. Maryland v. Pringle (2003) (may have PC w/ multiple suspects;

collective possession can lead to collective arrest):

a. F: Police stopped car for speeding; three occupants in the car;

owner agreed to search; police found drugs; no one claimed so

officer arrested all three

b. R: the presence of drugs in a car gives rise to PC to arrest any

occupant of the car who had knowledge about the drugs and

exercised dominion and control over them

2. Does not authorize everyone in the vicinity

3. Break down each factor and each arrestee

iv. Objective or Subjective Standard?

1. Whren v. U.S. (1996) (PC = objective standard; doesn’t matter if

traffic stop was pretext):

a. F: Police stopped car for legit traffic violation after becoming

suspicion of a drug deal occurring in the car

b. R: When PC of illegal conduct exists, an officer’s true motive for

searching or detaining a person does not negate the

constitutionality of the search or seizure

2. Devenpeck v. Alford (2004) (upholds objective standard):

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a. F: Police stopped D for impersonating an officer and then

arrested D b/c the officer thought it was illegal to record an

officer w/o his consent

b. R: the intent of the officer in making arrest doesn’t matter so

long as there is PC for other offenses; Doesn’t matter if police

search or arrest for the wrong offense so long as there is PC for

arrest on another offense

v. Reasonable Mistake of Law

1. Hein v. North Carolina (2014) (MoL won’t kill a search/seizure if

reasonable):

a. F: Police stopped car for only having one working brake light and

found drugs; turns out that only having one brake light was legal

(initial stop unjustified)

b. R: a traffic stop is not objectively unreasonable where an officer

reasonably, but incorrectly, believes that a traffic law has been

violated

d. Probable Cause for Arrest:

i. Same standard of PC for searches and arrests (seizures)

ii. Not exact science

iii. “fair probability”

iv. Collective knowledge okay

v. Hearsay okay

1. An out of court statement offered to prove the truth of the matter

being decided; at a certain point the chain of hearsay becomes too

attenuated

3. The Warrant Requirement

a. 4 th A Warrant Requirements:

i. Warrant must be based upon (1) probable cause and “supported by (2) oath

or affirmation, and (3) particularly describing the place to be searched, and

the persons or (4) things to be seized.”

1. Probable Cause

2. Under oath

3. Description of place to be searched

4. Description of items to be seized

ii. Thomas argument: Ct need only look at each search as being reasonable or

unreasonable; swiss cheese approach- when you make too many exceptions,

exceptions undermine purpose of rule

iii. Fed. R. Crim. P. 41(e)(2)(A)

1. Warrant issued by magistrate; designate magistrate for return

(neutral/detached party)

2. Identify person or property to be searched

3. Identify person or property to be seized

4. Warrant generally good for 14 days

5. Should be served during “daytime” (6 a.m.- 10 p.m.)

6. Special Masters

a. Statutorily required

b. Lawyer’s and doctor’s offices

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c. More 6 A issue than 4 A issue

th th

iv. There must be a reasonable probability that the item you’re looking for might

be located in the area you’re searching (can’t look in a water bottle for a

handgun)

1. Warrants for drug searches are generally expansive b/c drugs are easy

to hide

v. Andreson v. Maryland (1976) (catch-all language doesn’t make warrant

overbroad):

1. F: D suspected for fraud; police got warrant to search D’s offices w/

phrase “together with other fruits, instrumentalities and evidence of

crime at this time unknown”

2. R: The addition of a catchall phrase to a list of items to be searched for

and seized in a warrant does not violate the 4 A’s specificity

requirement so long as it is limited by the language of the warrant to

items relating to a specific crime

a. Must use common sense and read in context

vi. Groh v. Ramirez (2004) (no mention of items to be seized is a 4 violation):

1. F: warrant to search ranch for weapons did not name and describe the

items to be seized with specificity

2. R: A warrant that does not specifically describe the person or property

to be searched or seized or incorporate supporting documents with

those descriptions is invalid under the 4 A

a. description must be on face of warrant; can incorporate by

reference

vii. What can be seized?

1. “fruits and instrumentalities” of a crime

2. Other “evidence” of a crime

viii. Computer Searches

1. What is “reasonable particularity” for items on computers?

2. Can you rummage through all of the computer files to find the right

files?

a. Child porn may be saved in “Cindy’s birthday” file folder

ix. Zurcher v. Stanford Daily (1978) (Police can search non-suspect’s

residence):

1. R: police can search anywhere to find evidence of a crime

2. 4th A has no special 1 A rule; statute passed for protection

b. Anticipatory Warrants

i. Based on an affidavit for a search warrant that states that the search will only

occur if certain events take place

ii. U.S. v. Grubbs (2006) (anticipatory warrants okay):

1. R: anticipatory warrants okay; still must show PC that specified items

will be at location

2. R: the facts in an affidavit supporting a search warrant must be

sufficiently close in time to the issuance of the warrant and the

subsequent search conducted so that PC can be said to exist as of the

time of the search and not simply as of some time in the past

c. Treatment During Warrant Execution

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i. Michigan v. Summers (1981):

1. R: police can detain persons present at time of search

ii. Muehler v. Mena (2005) (police may detain during search):

1. F: police obtained warrant to search house related to gang activity;

detained the house occupants at gunpoint for 2-3 hours while search

was completed

2. R: police may handcuff, detain, and interrogate the occupant(s) of a

home for the duration of a lawful search

iii. U.S. v. Bailey (2013):

1. R: only persons w/in the “immediate vicinity” of the search may be

detained

2. Factors:

a. Lawful limits of property

b. w/in sight?

c. Ease of reentry?

d. Knock and Announce

i. Reasons for and against K & A:

1. For: barging in might get the police shot

2. Against: flight, destruction of evidence

ii. Wilson v. Arkansas (1995) (4 requires K & A)

1. F: Police executed a warrant and announced while they were entering

the home; found D flushing drugs down the toilet

2. R: the knock and announce rule is part of the reasonableness test

required to assess whether a search was valid under the 4

iii. Richards v. Wisconsin (1997) (no per-se exceptions to K & A):

1. F: police obtained warrant to search D’s hotel, but hid their identity

when executing the warrant; ended up kicking down the door

2. R: police entering a home must knock and announce their identity and

purpose before attempting forcible entry, unless exigent circumstances

exist and to do so would undermine law enforcement interest

iv. U.S. v. Banks (2004): (police need only wait until suspicion of evidence

disposal to enter)

1. F: police obtained a search warrant to search D’s apt based on PC of

the presence of cocaine. Police knocked, waited 15-20 seconds, and

then barged in

2. R: Exigent circumstances exist for forced entry after enough time has

passed to make it reasonable to suspect imminent loss of evidence

a. Police must wait only until it becomes reasonable to suspect

imminent loss of the evidence (15-20 sec okay for drugs b/c

easily disposable)

v. Hudson v. Michigan (2006): No exclusionary rule

1. R: the exclusionary rule does not apply to violations of the K & A rule

e. Unforeseen Circumstances or Mistakes

i. Maryland v. Garrison (1987) (honest police mistakes are tolerated):

1. F: Police reasonably thought that there was only one apartment on the

third floor of a suspect’s building when there was actually two; police

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searched both and found drugs in D’s apartment (D wasn’t initial

suspect)

2. R: A search made under an otherwise valid warrant containing a

mistake does not violate the 4 if the police acted reasonably

ii. L.A. County v. Rettele (2007) (naked sleepers search was reasonable):

1. F: police got a warrant and searched wrong house; occupants were

sleeping naked and police ordered them out of bed and held at

gunpoint for a few minutes

2. R: A search conducted reasonably and pursuant to a valid search

warrant does not violate the 4 A. (warrant was reasonable and

manner of execution was reasonable)

f. Media Ride-Alongs

i. Wilson v. Layne:

1. R: media rise-alongs violate 4 A.

2. Can have private parties help with search

g. Use of Force

i. Battering rams allowed

ii. Stun grenades allowed

iii. Any force that is reasonable

h. Exceptions to the Warrant Requirement

i. Exigent Circumstances

1. Hot Pursuit

a. Warden v. Hayden (1967) (search in hot pursuit is okay;

usually for felons):

i. F: Police followed suspected robber to his house and found

him hiding there when they were let in by D’s wife; also

found gun and ammunition

ii. R: If in hot pursuit, police can search without warrant for

suspect or evidence; only items seized with evidential

value may be admitted in trial

b. Payton v. New York (1980) (must be actual “hot” pursuit)

i. F: police had PC that D was guilty of murder; went to his

house to arrest him and broke in; D wasn’t home but

police found shell casing in plain view

ii. R: Absent exigent circumstances, the police may not enter

a person’s home to make a routine arrest w/o a warrant

c. Takeaways:

i. Probable Cause: required for hot pursuit- can’t just run

after w/ RS

ii. Violent vs. Nonviolent: better excuse for hot pursuit

exception if violent crime involved, but courts are usually

generous if public safety concerns are present (e.g. very

extreme DUI)

iii. Houses: usually need a warrant to search a house, unless

there is an exception especially at night (Payton v. N.Y)

iv. Duration of Hot Pursuit Exception: usually lasts until D is

found; would likely need warrant after that

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2. Safety (preventing injury)

a. Brigham City Utah v. Stuart (2006) (Ex circs apply when

threat to safety of others)

i. F: police observed party occurring inside house and a fight

broke out; police entered and arrested Ds for disorderly

conduct

ii. R: Police may enter a home w/o a warrant if there is an

objectively reasonable basis for believing an occupant is

injured or in immediate danger (officer’s actual motivation

is irrelevant).

b. Michigan v. Fisher (2009):

i. F: berserk neighbor smashed a truck and had blood on

hood

ii. R: Reaffirmed ; applies objective standard; Brigham City

police must reasonably believe injury or immediate threat

of serious injury

c. Takeaway: screaming by itself, or punching a wall may be

enough to trigger

3. Preventing Destruction of Evidence

a. Kentucky v. King (2011) (ex circ okay even if police reasonably

caused it):

i. F: police mistakenly went to the wrong apt and smelt

cocaine; after K&A, police heard people shuffling around

inside and kicked down the door

ii. R: the exigent circumstances exception applies to an

officer-created exigency if the exigency was not caused by

the officer’s unreasonable or unconstitutional conduct

iii. Gives police a lot of agency/flexibility

4. Limits on Exigent Circumstances

a. Missouri v. McNeely (2013) (TOC case by case for DUIs BAC

tests)

i. F: D stopped for drunk driving and refused BAC test; at

hospital, D refused and police ordered hospital to take

involuntary BAC test

ii. R: In drunk driving investigations, the natural dissipation

of alcohol in the bloodstream does not constitute and

exigency that in every case is sufficient to justify

conducting an involuntary blood test w/o a warrant

1. Compare w/ Schmerber v. CA, where emergency

existed

2. Since Schmerber, states have adopted much more

rapid procedures for obtaining warrants, and

therefore, the delay involved in transporting a

driver to a hospital no longer poses a significant

risk to the timely collection of BAC evidence

pursuant to a search warrant

Criminal Procedure Outline: Fall 2019

iii. Dissents: exigent circumstances if not enough time before

blood draw (Roberts); always an exigency b/c BAC

dissipates (Thomas)

b. Welsh v. Wisconsin (1984)

i. F: man drove erratically, pulled over and walked home;

police followed him home and arrested him after finding

him in bed

ii. R: Hot pursuit must be immediately after crime, pursuit

must be continuous, offense must be more than minor

iii. R: exigent circumstances exception does not allow

warrantless entry into a home to make an arrest for a

minor offense

ii. Plain View

1. Coolidge v. New Hampshire (1971)

a. R: Police may seize contraband or evidence of crime that is in

plain view

b. R: Under the plain-view doctrine, police may not conduct a

warrantless search of an automobile if they expected in advance

to find evidence and failed to secure a warrant

i. Invasion of privacy must have been authorized on some

other grounds first before plain view doctrine is applicable

ii. (car was not in the vicinity of the arrest, and the search

did not occur until later on, car was not on the highway

pursuant to the automobile exception)

2. Horton v. California (no strict inadvertence requirement)

a. R: plain view exception permitted even if evidence found is not

really inadvertent (accidentally), and even if evidence could

have been mentioned in a warrant

i. Scope of search not expanded

b. Plain view standard: officers lawfully present, contraband nature

apparent, no strict “inadvertence” requirement

3. Arizona v. Hicks (beware of “clumsy” police)

a. R: Police cannot manipulate objects to see evidentiary value;

object must be in “plain view”

4. Minnesota v. Dickerson (1993) (gives plain touch exception):

a. F: officer conducted pat down on D and felt object in his pocket

he “suspected” to be drugs; officer removed objects and found

drugs

b. R: a police officer performing a pat down search for weapons

may not seize other contraband detected during the search if

the identity of that contraband is not immediately apparent

(fondling/manipulation not okay)

i. Contraband nature must be immediately apparent

ii. Cannot manipulate object

iii. Example of how the war on drugs has destroyed the 4

Amendment

5. What is “Plain View” in a computer search?

Criminal Procedure Outline: Fall 2019

a. Metaphors: file akin to a drawer in a house?

6. First: Are the police officers lawfully admitted (are they where they’re

supposed to be)?

iii. The Automobile Exception

1. If PC that contraband in car, police can search the entire vehicle where

contraband could be hiding (including trunk and containers)

a. Crime doesn’t have to have been committed in the car

b. Reasons for rule: Ds can easily destroy evidence, cars can move

in and out of the jurisdiction easily, lowered expectation of

privacy since on open road, people generally don’t live in their

cars (justifies treating differently than houses)

c. Traffic stops: automobile exception usually doesn’t apply b/c

police already have the evidence they need to prove the traffic

violation

2. Carroll v. U.S. (1925)

a. R: must have PC to believe contraband or evidence of crime in

automobile

i. Includes search of entire vehicle (including the trunk)

3. California v. Carney (1985) (exception covers motor homes)

a. F: DEA received tip that D was selling drugs out of his mobile

home; home was relatively large and parked on a public street;

windows were covered by shades; police watched man leave

who said he had just given D sex for drugs; police searched

mobile home

b. R: A vehicle that can be quickly moved and that has a reduced

expectation of privacy due to its use as a motor vehicle may be

searched w/o a warrant provided probable cause exists

4. Chambers v. Maroney (exception covers autos no longer mobile)

5. Exception covers parked cars (except Coolidge)

6. Wyoming v. Houghton (exception also covers searching passenger’s

property)

7. Searches of containers in automobiles

a. California v. Acevedo (1991)

i. F: police had PC to believe package contained marijuana;

D put package in car and drove away; police stopped

driver and found package of drugs in trunk

ii. R: the 4 A permits warrantless searches of containers in

automobiles, provided the police have PC that the

container has contraband

b. Can’t search other containers in the car unless they are tied to

the initial one

iv. Searches Incident to Arrest

1. Rationale:

a. Protects officer safety

b. Safeguards evidence

2. Allows search of person and “grab area”

Criminal Procedure Outline: Fall 2019

a. Person, containers on person, per se rule no matter what kind of

crime (Robinson)

b. Grab area determined at time of arrest, NOT at time of search

c. Can be stretched, however:

i. Can follow D into other rooms

ii. Timing is flexible

3. Search incident to arrest in home

a. Only grab area where they locate D

b. Need not show actual threat of danger or destruction of

evidence (Robinson)

c. Must be lawful arrest

4. Chimel v. California (1969) (search of grab area only permissible)

a. F: D was arrested at home and police searched his entire home

and found more incriminating evidence (of coin robbery)

b. R: incident to a lawful arrest, a warrantless search of the area in

possession and control of the person (grab area) under arrest is

permissible

5. Riley v. California (2014) (no warrantless cell phone searches)

a. F: police searched D’s phone incident to his lawful arrest and

found evidence of shooting

b. R: Police may not, w/o a warrant, search digital information on a

cell phone seized from an individual who has been arrested

6. U.S. v. Robinson (1973):

a. R: search incident to arrest exception applies even to arrests for

expiration of driver’s licenses; can search person and grab area

7. Knowles v. Iowa (1998) (no search after issuance of citation only;

need arrest)

a. Can remove from car for detention period

8. Whren (pretext stops are okay if there is PC to arrest)

a. Focus on objective facts, not officer’s subjective state of mind

9. Searches incident to arrest involving automobiles

a. New York v. Belton (1981) (more difficult to get in trunk in

1981 than 2019)

i. R: per se rule allowing search of passenger compartment

and any containers (not trunk)

1. Could be w/in reach of arrestee

b. Hatchbacks

i. Pretty much entire area of car is considered “passenger

compartment”

ii. Still based on grab theory

c. Thorton v. U.S. (2004) (car grab area may be searched if D

arrested outside car)

i. R: Belton rule applies to “recent occupants” of cars

ii. Scalia concurrence: reevaluate theory of these searches…

d. Arizona v. Gant (changes Belton/Thorton rules: 2 ways to

search car upon arrest)

Criminal Procedure Outline: Fall 2019

i. F: police searched D’s car after he was cuffed and put in

police car

ii. R: A police search of the passenger compartment of a car

is permitted if the arrestee is unsecured and w/in reach of

the car ( theory), OR there is reason to believe Chimel

evidence of the crime of arrest will be found in car (Scalia

theory)

iii. Grey area: even if D is handcuffed, police could argue that

D could break away and access something in the grey

area

1. If handcuffed and 4 cops are around, harder

argument

v. Inventory Searches

1. If the property is lawfully in the possession of the police they may

inventory the contents to protect the owner’s property while it is in

police possession

a. Not technically a search for evidence

b. Caretaking function; focus is on civil liability

c. Okay if routine

d. Must be pursuant to policy (doesn’t to be written; need have

someone to testify that it’s a SOP)

2. South Dakota v. Opperman (1976) (establishes inventory search of

automobile)

a. F: D parked illegally and was ticketed and got towed; police

conducted an inventory search and found drugs in the car

b. R: Police may conduct an inventory search of a vehicle lawfully

in police possession

3. Illinois v. Lafayette (1983) (inventory searches of person okay if

routine)

a. F: D searched during booking at jail and police found drugs

b. R: Police may perform an inventory search of the personal

effects of an arrested person at booking

vi. Protective Sweeps

1. When the police arrest a person, they may conduct a protective sweep

of the premises of they have reasonable suspicion that a person might

be there who poses a threat to them. The sweep may extend only to a

cursory inspection of those places where a person may be found.

2. Can occur after the D is arrested (unlike hot pursuit), to find other

people or booby traps

3. Maryland v. Buie (1990) (establishes protective sweeps)

a. F: police performed protective sweep of Buie’s house to find him;

Buie eventually came out and was arrested; during sweep,

police found incriminating evidence in the basement

b. R: Incident to an arrest, the police may conduct a protective

sweep based on RS that other people who pose a threat are in

the building, provided the search is limited to those areas where

a person is hiding

Criminal Procedure Outline: Fall 2019

vii. Consent Searches

1. Police can search if they ask and the D gives consent?

a. No suspicion required

b. Consent is NOT the same as “waiver” of a constitutional right

c. Consent can be withdrawn if police don’t have PC

d. If voluntary, consent searches are “reasonable”

2. Consent must be voluntary; but person doesn’t not have to be

informed of ability to refuse; refusal cannot be used against D to get

PC for a warrant (self-incrim from 5th A)

3. Considerations:

a. Why do people consent?

b. What is the standard for consent? (TOC)

i. Told right to refuse (not Req’d)

ii. Time of day

iii. Location; In custody?

iv. Show gun?

v. Tone of voice?

vi. Held incommunicado?

vii. How invasive of a search?

viii. Age and gender of suspect

ix. Impairment? Intoxicated? Intelligent?

x. Language barrier?

xi. Number of requests?

xii. Prior arrests and knowledge

xiii. Reluctance of suspect

c. How prove voluntary consent?

d. Who has the authority to consent?

i. Suspect can consent

ii. 3rd Party Consent

1. Actual authority

2. Apparent authority

e. Scope of search

i. Reasonableness test

ii. Generally, burden on citizen to limit scope of search

iii. Difficult to withdraw consent once officers are in middle of

f. “Testilying”

i. Credibility decisions are key to consent (and other

exceptions)

ii. Why do police lie? (often to protect each other)

iii. How to get them to tell the truth?

4. Schneckloth v. Bustamonte (1973) (TOC to determine whether

consent was voluntary)

a. F: police officer made routine traffic stop; driver consented to

vehicle search; police found drugs

Criminal Procedure Outline: Fall 2019

b. R: the court must look at the totality of the circumstances in

order to determine whether consent to a warrantless search

absent probable cause was freely and voluntarily given

i. Knowledge of right to refuse just one factor, not required

ii. Different from “waiver”

5. United States v. Drayton (2002) (consent voluntarily given if no

coercion and ppl feel free to leave)

a. F: Police on bus; not showing weapons; not inherently coercive;

no coercive tone of voice

b. R: The police may request consent to search a person, even if

they have no basis for suspecting that individual of illegal

activity, and the citizen is not subject to a 4 A seizure if a

reasonable person would feel free to leave

6. Georgia v. Randolph (2006) (no co-occ. consent when objecting co-

occupant present)

a. F: wife called cops and gave consent to search house over

husband’s objection; police searched anyways

b. R: the police may not enter a home w/o a warrant to search for

evidence where they obtain consent from an occupant but a co-

occupant is present and objects to the search

7. Fernandez v. California (2014) (co-occupant consent if objecting co-

occupant removed)

a. F: law officers came to house investigating an assault and

robbery; there they heard a fight; woman answered door, but D

refused search; police arrested D and then returned to the house

later and did search pursuant to woman’s consent

b. R: one occupant’s consent to search is effective under the 4 A

as long as no other occupant who objects to the search is

physically present

viii. Administrative Searches (special need search) (health and safety need)

1. Camara v. Municipal Ct. (1967) (admin searches need only admin

warrants)

a. F: law enforcement wanted to make routine apartment

inspection, but D refused

b. R: under the 4 , to conduct a safety inspection, law enforcement

need only an administrative warrant; police do not need

traditional PC to get an administrative warrant (safety

searches/administrative searches are fine)

2. New York v. Burger (1987) (administrative searches of businesses)

a. F: police wanted to inspect junkyard; D objected to inspection

b. R: a business in a closely regulated industry may be searched

w/o a warrant so long as the searches are necessary, there is a

substantial governmental interest, and the authorizing statute

serves the functions of a warrant

i. Closely regulated business (gun shops, health care, child

care, abortion)

ii. No PC needed

Criminal Procedure Outline: Fall 2019

iii. Statutory scheme takes place of warrants if

1. Substantial gov’t interest

2. Inspections necessary

3. Adequate scheme (provides notice and limits

discretion)

ix. Border Crossing (special need search)

1. Suspicionless searches okay for items entering the U.S. (permanent

and expanded borders; physical borders, fixed checkpoints, airports w/

customs)

a. Protects borders

b. Right of a sovereign nation

c. Traditional right of government to search

2. Routine vs. non-routine searches:

a. Non-routine when too long of a delay (but not unreasonable to

be held for hours), particularly intrusive (usually body),

destruction of property

b. Property searches: no individualized suspicion required unless

the search reaches a certain threshold of

offensiveness/destructiveness

c. If not routine, still need only RS

3. Forensic Searches:

a. 9th Cir: RS is not needed for customs officials to search laptop at

border

b. 5th Cir: forensic searches are fine at the border

4. U.S. v. Flores-Montano (2004) (routine secondary searches

permitted w/o suspicion)

a. F: D was attempting to cross border; vehicle was taken to

secondary inspection station; law enforcement found marijuana

b. R: Reasonable suspicion is not required for the routine search of

the gas tank of a vehicle attempting to enter the U.S.

c. Search can include:

i. Removing gas tank

ii. Removing door panels (Hernandez)

iii. Slashing the spare tire (Cortez-Rocha)

5. U.S. v. Ramsey (1977) (international mail searches w/o PC are

constitutional)

a. F: Ds selling drugs through mail; customs inspector suspected

drugs in envelopes and searched

b. R: mail entering the country is subject to search w/o PC or

warrant

6. U.S. v. Montoya-Hernandez (1985) (RS okay for drug smuggling

body searches)

a. F: D flew into LA from Columbia; acted “weird” getting off plain;

strip search found her stomach was firm; rectal exam eventually

found drugs

Criminal Procedure Outline: Fall 2019

b. R: A person entering the country may be subjected to more

intrusive searches than routine border searches, if there is RS

that drugs are being smuggled in that person’s alimentary canal

i. Non routine search, extremely intrusive

ii. X-ray, body cavity searches, strip searches

7. U.S. v. Cotterman (2013) (laptop computer search at border)

a. R: to conduct a forensic search of electronic storage devices at

the border, the govt must have a RS of criminal activity

x. Checkpoints and Roadblocks (special need search)

1. Michigan Dept. of State Police v. Sitz (1990) (DUI checkpoints

okay for safety interests)

a. F: law enforcement established drunk driving checkpoint system;

D sued before checkpoint went into effect

b. R: under 4 , the police can establish checkpoints if the state

interest outweighs the intrusion into people’s privacy interests

and the checkpoint is proven to be an effective means of

achieving the state’s goal

i. No suspicion required

ii. Must be for safety, not discovering criminal activity

iii. Must be reasonable

2. City of Indianapolis v. Edmond (2000) (checkpoint for crime is

unconst’l)

a. F: city set up vehicle checkpoint to search for illegal drugs

b. R: a suspicionless roadside checkpoint established for the

purpose deterring general criminal activity is unlawful under the

4th A

i. Unconst’l if primary purpose is law enforcement, not

safety

3. Illinois v. Lidster (2004) (witness checkpoints okay)

a. F: police set up checkpoint to find out more about hit and run

suspect

b. R: a roadside vehicle checkpoint is not unlawful if the primary

purpose of the stop is to ask vehicle occupants for information

about crimes possibly committed by others

xi. School (special need search)

1. Random drug testing: No suspicion required

2. Search of backpacks (individualized searches): RS

3. Strip searches: PC or RS of dangerous drug

4. Student drivers be able to be searched on school grounds might

5. TLO v. New Jersey (1985) (reduced 4 A rights for students)

a. R: school officials can search a students’ purse based on RS; no

warrant or PC necessary (individualized search)

i. Greater gov’t need to protect students vs. less privacy for

students

6. Redding v. Safford School DIst. (2009) (strip searches too intrusive)

Criminal Procedure Outline: Fall 2019

a. F: girl required to remove bra and underwear as part of a school

search for suspected painkiller drug distribution; nothing was

found

b. R: a school-related strip search of an adolescent, conducted

without PC is unconst’l

i. RS is enough for search of backpack, but not strip search

xii. Government Employment (special need search)

1. City of Ontario v. Quon (2010) (no suspicion required for gov’t

employee searches)

a. F: police dept. distributed pagers to officers; Quon exceeded

monthly charges and was audited; dept. determined that Quon

was using his pager for non-work-related stuff

b. R: A gov’t employer’s intrusion on an employee’s REP does not

violate the 4 A if it was for non-investigatory, work-related

purposes and reasonable under the circumstances

(administrative special need)

xiii. Drug Testing (special need search)

1. Testing permissible for employees in dangerous and sensitive positions

a. Railroad employees; no RS needed (Skinner v. Railway Execs.

Ass’n)

b. Customs workers dealing w/ drugs and firearms; no RS needed

(Nat’l Treasury Employees Union v. Von Raab)

c. Suspicionless testing not permissible for politicians (Chandler

v. Miller)

2. School Random Drug Tests:

a. Veronia School Dist. v. Action (1995) (drug testing of student

athletes okay)

i. F: School district implemented drug testing policy to

protect H&S of student athletes (drug usage made sport-

related injuries more likely)

ii. R: Students participating in athletic programs may be

drug tested w/o a warrant or Suspicion

b. Bd. Of Edu v. Earls (2002) (drug testing of students in

extracurriculars okay)

i. F: School board instituted drug testing policy for all

students participating in extracurricular activities

ii. R: Students who participate in extracurricular activities

may be subjected to drug testing w/o warrant or

individualized suspicion

3. Hospital Drug Tests

a. Ferguson v. City of Charleston (2001) (testing of pregnant

women unconst’l)

i. F: public hospital instituted policy to drug test pregnant

women to identify those using drugs illegally

ii. R: a state hospital may not drug test pregnant women w/o

a warrant or IC for law enforcement purposes (“primary

Criminal Procedure Outline: Fall 2019

purpose” was law enforcement; not considered “special

need”)

xiv. Jails and Prisons

1. Florence v. Board of Freeholders (2013) (strip searches in jail okay)

a. F: law enforcement officers strip searched arrestees committed

to correctional facilities of even those w/ minor offenses;

Florence sued

b. R: A strip search in jail for those who commit minor offenses

does not require reasonable suspicion (lower EP in jail)

xv. DNA Tests Upon Arrest

1. Maryland v. King (2013) (DNA testing after arrest okay)

a. F: King arrested for assault; at booking, police took DNA which

linked King to unsolved rape

b. R: when officers make an arrest for a serious offense that is

supported by PC and bring the suspect to the station, taking and

analyzing DNA is a legitimate police-booking procedure that is

reasonable under the 4 A.

c. Balance:

i. Intrusion on right of privacy:

1. Arrestees not yet convicted, but PC finding

2. Limited use of information

ii. Govt’s need for search:

1. Established suspect’s identity

2. Solves other cases?

xvi. Searches of Those on Probation and Parole

1. Those on probation and parole often consent to searches as a condition

of their release

a. Diminished expectation of privacy and strong gov’t interest in

preventing recidivism

2. U.S. v. Knights (2001) (police need RS to search probationers)

a. F: Knights was on probation and was ordered to allow police to

search his person or property at any time; police found evidence

of bomb making and vandalism

b. R: A probationer’s home may be searched if there is RS of

criminal activity

3. Samson v. California (2006) (no suspicion needed to search parolee)

a. F: Police stopped and searched parolee and found drugs

b. R: the suspicionless search of a parolee does not violate the 4 A

i. But police need to suspect is on paroleknow

ii. Reasoning: parole is an extension of jail

xvii. Community Caretaking

1. Searches w/o warrants okay for purposes of community caretaking

a. “Not designed to uncover evidence of criminal activity”

b. Community safety, locating risk,

c. People v. Ray: house in shambles?, injuries?

Criminal Procedure Outline: Fall 2019

4. Seizures and Arrests: (4th applies to seizures of person or property; arrests must be

based on PC; stops can be based on RS; arrests and stops count as seizures; illegal arrest

or stop results in exclusion of evidence)

a. Is a Warrant Needed for an Arrest?

i. U.S. v. Watson (1976) (Public arrests do not require a warrant)

1. F: reliable informant alerted law enforcement that D had stolen credit

cards; D said that the police could “go ahead” and search his car, even

though police didn’t have warrant; police found to cards and arrested D

2. R: A warrant is not required for an arrest as long as there is PC that the

individual committed any felony or a misdo witnessed by the police

ii. House arrests

1. R: require warrant or exception (e.g. hot pursuit)

iii. How much force can be used for an arrest?

1. Reasonableness standard (as much as needed)

a. Depends on the circumstances of the case (Graham v. Connor)

b. Cannot use deadly force if no threat from felon (Tennessee v.

Garner)

iv. Alternative to Arrest:

1. Police can issue a summons to appear: usually for people government

wants to cooperate without angering them by arresting them

b. When is a Person Seized?

i. U.S. v. Mendenhall (1980) (consensual encounter is not a seizure; TOC to

determine)

1. F: D exited plain and was approached by two DEA agents; agents said

that D was behaving in a way consistent with those who typically

transport drugs illegally; D eventually complied to go with agents; D

agreed to search of her bag and her person; agents found drugs on her

2. R: A 4 A “seizure” occurs when a reasonable person, considering the

totality of the circumstances would believe that he is not free to leave

police custody

a. Subjective and objective test

b. Need not be told that individual has a right to leave

ii. Bus sweeps:

1. Police search of luggage on bus; test is whether a person would feel

free to decline the officers’ requests or otherwise terminate the

encounter (Florida v. Bostick U.S. v Drayton and )

iii. Automobile Passengers:

1. Passengers are seized when they are riding in a car stopped by police

officers (Brendlin v. California) (separate from standing to object to

search of car as a whole)

2. Need PC to search persons of passengers; if PC to stop car under auto

exception, then police have PC to search passengers’ property inside

the car

iv. Police Chases:

1. California v. Hodari (1991) (police chases are not seizures)

a. F: youths ran away from police officers and one threw a packet

of cocaine

Criminal Procedure Outline: Fall 2019

b. R: A 4 A seizure occurs where the police exercise physical force

over a subject or where a subject submits to an officer’s show of

authority

c. R: police may inspect items cast off by their owners w/o any 4

A consequences so long as the items were truly abandoned, i.e.

owner must have manifested an intention to give up all claim to

the object (no abandonment if stashed)

i. Police chase was not a seizure; Ds not yet restrained

ii. Consequence: if D tosses, not an illegal search b/c not

seized

c. For What Crimes May a Person be Arrested?

i. Atwater v. City of Lago Vista (2001) (arrest okay for even no-jail offense)

1. F: woman pulled over for not wearing a seatbelt and not belting her

children; officer arrested her (even though both offenses were misdos)

2. R: the 4 does not prohibit a warrantless arrest for a minor offense. An

officer w/ PC to believe any crime has been committed in his presence

may arrest the suspect

a. Subjective intent of officer is irrelevant

b. *And once there is a lawful arrest, police can conduct a full

search incident to arrest*

c. Court just drew a bright line here b/c very difficult for police to

know what a misdo/felony is (easier for them to apply an

objective standard)

ii. Virginia v. Moore (2008): A police search based on PC does not violate the

4th A even when the search is conducted subsequent to an arrest that is not

authorized by state law

1. When an individual commits a crime in the presence of police, arrest is

constitutionally reasonable and is unchanged by any heightened

restrictions afforded under state law; when there is PC for a const’l

arrest, subsequent search is also justified.

2. Only need PC for offense; states can add their own exclusionary rules

5. Stop and Frisk (if a person is stopped, police can frisk only if there is RS that person is

armed and dangerous)

a. The Authority to Stop and Frisk

i. Terry v. Ohio (1968) (4 allows stop and frisks)

1. F: officer observed two men outside a store; they walked around the

store numerous times and police found this suspicious; officer stopped

and patted down the men; found guns

2. R: when an officer observes unusual conduct that reasonably leads him

to assume that criminal activity is afoot and that the people he is

interacting with are armed, the officer may conduct a limited search for

weapons (exception to PC requirement)

a. RS not PC: “specific and articulable facts” more than a hunch

b. Only pat down for weapons allowed (need suspicion of danger)

c. Purpose of stop is to ensure officer safety; if no threat, can’t

keep D

3. Implications:

Criminal Procedure Outline: Fall 2019

a. Deference to law enforcement

b. Allows for abuses (racial profiling; broken window approach)

c. Wide scope to articulate RS post-hoc

d. How do police decide who to stop?

b. The Distinction Between Stops and Arrests

i. Arrests need PC; stops need only RS (not a bright line between the two)

ii. Stop (“Detention”):

1. Short period (roughly 20-30 minutes)

2. At the scene

3. Quick pat-down

a. Police may seize any evidence that is apparent to their

experienced “plain touch/feel,” but they may not manipulate the

lining of a person’s clothes to look for evidence (Minnesota v.

Dickerson)

4. Police can D to empty pockets; D can refuseask

5. Brief questions: can request ID (Hiibel)

a. Hiibel v. Judicial Ct. of Nevada (2004)

i. F: D refused to identify himself to police; D was arrested

ii. R: an arrest for failure to provide identification does not

violate the 4 A so long as the request was reasonably

related to the circumstances justifying the stop (forcing

someone to id themselves is not a 5 violation)

1. Limited intrusion of suspect; reasonably related to

purpose of Terry stop

6. “frisk” of car (Michigan v. Long)

a. Police may conduct a cursory frisk of a car if there is reason to

believe that there is a weapon in the car and that the person

may gain access to that weapon

7. Fingerprinting, if done only in the field as part of a brief encounter

(Davis v. Miss.)

8. Handcuffing on scene probably okay

9. Detaining suspects for 30-40 mins (no hard and fast time limit though)

(U.S. v. Sharpe)

10.Protective sweep of house

iii. Arrest (“Custody”):

1. Length of time: sustained interrogation= arrest (Dunaway v. NY)

2. Taking from public area of airport to small private room (Florida v.

Royer)

3. Taking to police station for fingerprinting (Hayes v. Florida)

4. Told under “arrest”

5. Full search for evidence

6. Search of areas outside of D’s access (Michigan v. Long)

c. What is Sufficient for Reasonable Suspicion?

i. General Principles

1. Totality of the Circumstances:

a. Suspicious activity

b. Common sense inferences

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c. Officer’s experience

d. Anonymous tips (if predictive)

e. Flight of suspect

f. Profiling

g. Driving behavior

h. Location of suspect

i. Suspect’s clothing

2. U.S. v. Arvizu (2002) (TOC for RS)

a. F: agent became suspicious that D was smuggling drugs based

on a variety of factors (driver’s effort to avoid checkpoints,

elevation of back passengers’ knees, location in area populated

by smugglers; minivans typically used for smuggling)

b. R: An officer w/ RS of criminal activity based upon the totality of

the circumstances (many facts, which themselves are not

evidence of any crime, but taken together create RS) may stop a

car

c. Dangerous standard b/c everything can be “unusual”

ii. Based on Informants’ Tips

1. Alabama v. White (1990) (Gates-lite; standard for anonymous tips is

TOC)

a. F: police received anonymous tip that D would be leaving her apt

with a briefcase of cocaine; tip was almost right except that

police found marijuana instead

b. R: to get RS from an informant’s tip, the totality of the

circumstances must be analyzed, with attention given to the

veracity, reliability and basis of knowledge of an informant

i. Standard less than for PC, however (less info/less

reliability required)

2. Florida v. J.L. (2000) (tips need corroboration to create RS)

a. F: anonymous tip said that man matching D’s description had

gun at bus stop; Police stopped and frisked D and found gun

b. R: an anonymous tip that a person may be carrying a gun does

not justify a stop and frisk unless there is additional

corroboration to ensure that the tip has sufficient indicia of

reliability to create RS justifying the stop

i. Court rejects “firearm exception”

ii. Less info from informant here than in ; tip didn’t Alabama

predict future conduct

iii. Cases only concern times when something has been

found; make tipsters seem very accurate; anonymous tips

can be used as excuses for all stops and seizures

iii. Based on Avoidance of Police/Flight

1. Illinois v. Wardlow (2000) (flight can create RS)

a. F: D saw police and the began to run away; police caught him

and then frisked him; found gun

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b. R: police may stop and frisk a citizen on the street if that citizen

sees police and runs in the opposite direction; such conduct is

sufficient to create RS

iv. Based on Profiles

1. U.S. v. Sokolow (1989) (TOC permitted to est. RS; profiling is part of

TOC)

a. F: police had profiled a drug smuggler; D met the profile’s

description (name, clothes, age, time and travel itinerary)

b. R: the fact that an individual fits the profile of a drug smuggler

gives rise to RS justifying a Terry stop

6. Electronic Surveillance

a. Is Electronic Surveillance a Search?

i. Wiretapping

1. Different from consensual monitoring (neither party aware that gov’t is

listening)

2. Governed by statute (Title III)

3. National Security Surveillance (FISA)

b. Statutory Requirements (from Title III)

i. Omnibus Crime Control and Safe Streets Act of 1968

1. Need wiretap order

2. PC

3. Must have tried traditional investigative techniques

4. Minimization

5. 30 day limit

6. Must report to the court

7. Has its own exclusionary rule

ii. Electronic Communications Privacy Act of 1964

iii. Digital Telephone Act of 1994

c. Statutory Requirements (from FISA)

i. FISA Warrants:

1. “A significant purpose is foreign intelligence gathering”

2. Includes roving wiretaps

ii. Presidential orders for wiretaps

1. No PC; no court supervision

d. Warrantless Eavesdropping

i. U.S. v. U.S. District Court for the E. Dist. of Michigan (1972)

1. R: the President must have prior judicial approval to engage in

electronic eavesdropping for domestic security purposes

a. Did not address whether the President has the power to

authorize warrantless wiretapping directed at foreign threats to

national security

7. The Exclusionary Rule (material obtained in violation of the Constitution cannot be

introduced at trial against a D)

a. Where Does the Exclusionary Rule Stand Today? (controversial, judicially created

rule)

i. Hudson v. Michigan (2006) (exclusionary rule doesn’t apply if police violate

K &A)

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1. Exclusionary rule generates substantial social costs, it is not much of a

deterrent, and it is no longer needed because of improved police

professionalism

ii. Arguments in favor

1. Deters police misconduct

2. Maintains judicial integrity

3. No other approaches work as well

4. Part of the American tradition

iii. Arguments against

1. Isn’t much of a deterrent

2. No clear stats on deterrent effect

3. Social cost; allows guilty to go free b/c “constable blunders”

4. Rule benefits scofflaws

5. Other alternative to punishing police

6. Is unnecessary

iv. Remedies for constitutional violation:

1. Sue police

2. Disciplinary action against police

3. Criminal action against police

4. Do nothing

5. Exclusionary rule

v. Exclusionary Rule today:

1. States can have exclusionary rules

2. Feds set minimum exclusionary rule applicable to states

3. FRCP violations do not trigger exclusionary rule

4. International law violations do not trigger exclusionary rule

5. Rule also does not apply to grand jury, civil proceedings, sentencing,

parole and probation revocation, forfeiture, or K&A violations

b. Origins

i. Weeks v. United States (1914) (adopts federal exclusionary rule)

1. F: letters and envelops taken from D’s home w/o a warrant were used

against him in gambling case

2. R: The U.S. and federal officials are prohibited from executing

unreasonable searches and seizures upon people

3. Judicially created remedy

ii. Wolf v. Colorado (1949): SC refused to apply the exclusionary rule to the

states

iii. Mapp v. Ohio (1961) (exclusionary rule applied to the states):

1. F: Police entered Mapp’s home b/c they suspected she was hiding a

person related to a bombing; no consent or warrant to enter home;

police found books and photos of “obscene material”

2. R: evidence obtained through an unreasonable search and seizure in

violation of the 4 A is inadmissible in state criminal proceedings

a. Trying to stop “silver platter” syndrome (AUSA giving evidence

to state attnys to use in convictions)

3. Reaction:

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a. Police thought Mapp would have a dramatic and traumatic effect

on law enforcement

b. Vastly increased number of warrant applications

c. When Does it Apply?

i. Herring v. United States (2009) (clerical mistake by police doesn’t trigger

exclusionary rule)

1. F: miscommunication regarding whether D had active warrant; police

found drugs and gun on D but turns out D didn’t have active warrant

out

2. R: the exclusionary rule applies only to deliberate or reckless 4 A

violations or systemic govt’l problems; not negligent violations by

police personnel

a. Weighs cost of exclusionary rule against deterrent effect (no

deterrence w/ good faith conduct, yet exclusion incentivizes

caution)

3. EXAM: argue that evidence shouldn’t be admitted b/c it was obtained

recklessly or deliberately; alternatively, that it should come in b/c it

was obtained negligently

ii. Davis v. U.S. (2011) (rule doesn’t apply when police follow existing law;)

1. F: Police handcuffed driver and passenger and searched compartment,

which was legal at the time under ; during appeal, however, Belton Az.

v. Gant made such a search illegal

2. R: the exclusionary rule does not apply when the police follow the law

as it existed as of the time of the search, even though the law was

changed while the case was pending on appeal

d. Who Can Raise the Exclusionary Rule? (standing)

i. Jones v. U.S. (1960): SC said that anyone legitimately on the premises

where a search occurred may challenge the search, when its fruits are

proposed to be used against him

ii. Rakas v. Illinois (1978) (exclusionary rule applies only if D’s stuff was

searched; if had REP)

1. F: police searched car and found evidence of robbery; two men in car

arrested, but neither were driving the car nor owned the car nor the

evidence

2. R: A passenger in a car has no REP on the car or the items found in it

and thus may not challenge the search of the car or seizure of the

items found in it

3. If passenger’s items were searched, passenger CAN raise exclusionary

rule

iii. Rawlings v. Kentucky (1980): a man could not raise the exclusionary rule

when contraband belonging to him was found inside a woman’s purse when

he and the woman were visiting premises being searched (can’t raise rule by

claiming drugs are yours)

1. No legitimate expectation of privacy in contraband

2. R: burden rests on he who claims a 4 A violation to prove, by a

preponderance of the evidence, that he has standing to raise the claim

iv. Standing to challenge searches of homes:

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1. Minnesota v. Olson (1990): overnight guest could challenge a search

2. Minnesota v. Carter (1998): commercial visitor had no legitimate

expectation of privacy and therefore could not challenge search

3. Consider factors (relationship, activity, context, habitualness,

frequency, duration, whether the person is storing stuff there to

determine if social guest and REP; if D can’t point to anything legal or

homelike that they’re doing in the home, prob no REP)

v. Standing for passengers

1. Brendlin v. California (2007) (passengers are seized and can

challenge stop)

a. F: police stopped car to check driver’s permit; police suspected

passenger was a parole violator; searched and arrested him

after finding drugs

b. R: The passenger of a vehicle in a traffic stop is seized and may

challenge the validity of the stop; passenger can contest search

of himself after illegal seizure of car

e. Exceptions to the Exclusionary Rule

i. Independent Source (evidence still admissible if it is also obtained through a

source independent of the police misconduct and untainted by the illegal

actions of the police)

1. Segura v. U.S. (1984): legitimate warrant was independent source for

search and seizure

2. Murray v. U.S. (1988) (search must be truly independent)

a. F: agents entered warehouse full of weed illegally; then got

warrant to search the warehouse but didn’t use any info

gathered upon first entry to obtain warrant

b. R: the independent-source doctrine does not apply if police

officers were subjectively motivated to obtain a search warrant

by what they learned during an original warrantless search of

the premises, even if the warrant application does not rely on

information gained during the original search

i. Must be doubtful that the lawful search was related to

const’l violation

ii. Exclusion of such evidence wouldn’t deter misconduct b/c

police wouldn’t anticipate separate investigation leading

to the same evidence

ii. Inevitable Discovery (evidence admissible if police can prove they would

have inevitably discovered the evidence w/o a 4 A violation)

1. Nix v. Williams (1984) (police inevitably would have found v’s body)

a. F: D abducted girl outside of a YMCA; D illegally questioned

during transport and told police where body was; comprehensive

search parties were ongoing at the time

b. R: evidence obtained in violation of the Const may be admitted if

police would have inevitably discovered it

i. Social costs of the exclusionary rule outweigh any benefits

to deterrence

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iii. Inadequate Causal Connection: Attenuation of the Taint (if the link between

the police misconduct and the evidence is too attenuated, then the evidence

is admissible)

1. Wong Son (1963): later confession not attenuated enough

2. Brown v. Illinois (1975) (statements must be independent of initial

taint)

a. F: police illegally arrested and interrogated D; D made

incriminating statements during interrogation

b. R: incriminating statements made following an unlawful arrest

are only admissible if the statements, in light of all relevant facts

and circumstances, are “sufficiently an act of free will and purge

the primary taint”

3. Utah v. Strieff (2016) (admissible b/c taint too attenuated)

a. F: officer illegally stopped and questioned D; then found out D

had outstanding warrant; searched D and found drugs; arrested

b. R: unconstitutionally seized evidence is still admissible if there is

attenuation in the chain between police misconduct and the

seizure

i. Evidence seized as part of search incident to arrest and

arrest warrant was valid even though stop was not

c. To argue chain was sufficiently attenuated, argue:

i. No flagrant misconduct by police

ii. No coercive atmosphere

iii. Statements a spontaneous result of discovery

4. Factors for determining whether taint has dissipated:

a. Miranda warnings

b. Temporal proximity of arrest to confession

c. Intervening events

d. Flagrancy of misconduct

e. Voluntariness of statement

f. Where statement given

g. D’s actions in returning to provide statement (Wong Sun)

iv. The Good Faith Exception (the exclusionary rule does not apply if police

reasonably rely on an invalid warrant to conduct a search or seizure)

1. U.S. v. Leon (1984)

a. F: police got invalid warrant to search three residences for drugs

b. R: the exclusionary rule does not apply if police reasonably rely

on an invalid warrant to conduct a search or seizure

v. The Exception for violations of the K&A Requirement (costs of the

exclusionary rule in this setting outweigh its deterrent benefits, see Hudson

v. Michigan)

f. Impeachment

i. Exclusionary rule only bars prosecution from using illegally obtained evidence

in prosecution’s case-in-chief

ii. Illegally obtained evidence may be used for impeachment (also indictment)

g. Suppression Hearings:

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i. Suppression of evidence decided by judge through motion before trial

ii. If there was a warrant:

1. Burden on D to show that officers who prepared the warrant engaged

in deliberate falsification or reckless disregard for the truth (Franks v.

Delaware)

2. and that there is not enough evidence w/o the struck evidence

3. Presumption of validity w/ respect to affidavit supporting search

warrant

iii. If there was not a warrant:

1. Burden on govt

iv. Hearings occur outside the jury and normal rules of evidence do not apply

(judge can hear hearsay)

Police Interrogation and the Privilege Against Self-Incrimination

1. Due Process and the Requirement of Voluntariness

a. Confessions Prior to Miranda :

i. 14th A DPC: was the misconduct so shocking that it violated fundamental

fairness?

1. Factors considered: length, food, physical force (created framework

police could work around

2. Widespread perception that there was misconduct in police stations

b. Due Process: TOC Approach for Voluntariness: (voluntariness applies to in and out of

custody confes)

i. Was D’s will overborne?

1. Use of physical force (Brown v. Mississippi)

a. F: confessions induced by severe beatings at the hands of police

b. R: Confessions gained involuntarily are inadmissible as violating

DP of law

2. Lengthy interrogations; deprivation of needs ( ; Ashcroft Payne)

a. Longer than a school/work day?

b. 36 hrs no sleep; 24 hrs no food; involuntary

3. Threats of Force (Arizona v. Fulimante)

a. F: paid FBI informant coerced D into confessing (told D had to

tell him the “whole truth” before he could protect D from the

threats of other inmates)

b. R: a confession is involuntary if there is a threat of force against

the D (mental or physical)

4. Psychological Pressure (Spano v. N.Y)

a. F: Police interrogator was old friend of D and played on D’s

sympathies; explained he would lose his job if he could not get D

to confess

b. R: A confession is involuntary when authorities exert

psychological pressure on a D, take advantage of his fatigue,

and falsely arouse sympathy from him

5. But deception is allowed

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a. Police cannot deceive suspects by promising that they will not

be prosecuted if they confess, or that if they don't confess, they

will face substantial punishment

b. But, okay if police lie to a suspect by telling him that his

accomplice has already confessed

c. Not deception if the police act as a friend and empathize with

the suspect

6. And there must be (police coercion Colorado v. Connelly)

a. F: D had history of mental illness and confessed in interrogation;

later said that the voices compelled him to confess

b. R: a confession is to be deemed involuntary, regardless of the

defendant's mental condition, only if it is the product of police

misconduct

ii. Problems w/ Voluntariness as only test:

1. “Case-by-case” method

2. Not enough guidance for lower courts

3. Police needed more guidance

4. Custodial interrogation inherently coercive

5. Inconsistency in courts’ decisions

6. Judges frustrated with law enforcement

7. Resulted in a shift from DPC to 5 A.

c. Miranda: The Need for a Prophylactic Rule:

i. Inherently coercive atmosphere of custodial interrogations

ii. Need something more given police tactics

iii. Looked at what FBI and some states had adopted

iv. Focused on the role of lawyer in dissipating coercion

d. Miranda v. Arizona (1966) ( warnings as absolute prerequisite)Miranda

i. F: D confessed after interrogated while in custody; was not advised of right to

counsel; D suffered mental illness

ii. R: the prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.

1. Prior to any questioning while in custody, a person must be informed of

the right to remain silent, and that anything said can be used as

evidence of guilt. The arrestee must also be notified of the right to an

attorney, and that if the arrestee can’t pay for an attorney, one will be

provided for free. Any waiver of these rights must be voluntary. If a

person refuses to be questioned at any point, law enforcement cannot

continue the questioning. The fact that a person answers some

questions doesn’t mean the person waives the right to consult with an

attorney or to stop the interrogation at a later point.

iii. Only when in “custodial interrogation”

e. Was Miranda the Right Decision?

i. Criticisms:

1. Judicial activism: Const. does not require warnings

2. Justices acting like legislatures

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3. DP is enough protection

4. There is nothing wrong with confessions

5. Procedure won’t work; officers will just lie

6. Ineffective also b/c criminals hardly ever invoke

7. Will create more litigation about details of Miranda right

8. Criminals will run free

ii. Positives:

1. Easy-to-understand rule

2. helps police by giving them a safe harbor if they get a confession

3. Need some way to protect 5 A right (prophylactic rule)

4. Public education

5. Will cut down on court’s work with a clear rule

6. Should have standard higher than just “voluntariness

7. Embracing broader view of 5 A

f. Congressional Reaction (1968)

i. Passed 18 U.S.C. § 3501, which was an attempt to overrule Miranda

ii. “A confession shall be admissible in evidence if it is given voluntarily”;

warnings are just a factor to be considered in the voluntariness inquiry

iii. Dickerson v. United States (2000)

1. F: D confessed w/o being Mirandized, but D’s statements admitted via §

3501

2. R: Congress cannot legislatively supersede a decision by the United

States Supreme Court that interprets and applies the Constitution.

3. Dissent (Scalia): Miranda is not constitutionally based; rulemaking by

the court is antidemocratic

g. Alternatives to Miranda (none have been found to be sufficient and Dickerson

suggests they won’t be)

i. Damages suits

ii. Videotaped confessions

iii. Objective witnesses to confessions (station lawyers/ombudsmen)

iv. Broaden DP standard

h. When Does Miranda Apply ?

i. Chavez v. Martinez (2003) (Miranda only applies for evidence introduced in

a criminal trial)

1. Held that there cannot be civil suits for violations; 5 A only

Miranda th

applies when there is a criminal case; not just questioning

2. i.e. violation doesn’t actually occur until an un-Mirandized statement is

introduced into evidence in a criminal case

3. confessions can be used for impeachment, indictment, sentencing, just

not in case in chief at trial

ii. Custody requirement (objective standard; would a reasonable person feel free

to leave?)

1. Factors (not a bright line; TOC):

a. private room? Is door blocked/locked? How many officers? Do

officers have guns? Have police taken any of D’s property? D

initiating questioning? Atmosphere of questioning? Experience of

suspect? Age of suspect? Placed under arrest?

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b. “Objectivity” of test is a bit of a misnomer; have to look at

subjective factors of D (culture/experience; e.g. reasonable

immigrant in the D’s position)

c. Ds should always ask “hey am I free to go?”

2. Orozco v. Texas (1969) (can be in custody in own home)

a. R: a person who has been arrested is in custody and Miranda

warnings must be given, even if the questioning is done in a

person's home

3. Oregon v. Mathiason (1977)

a. F: D voluntarily arrived at police station for questioning and then

confessed

b. R: a person who is free to leave is not in custody and no Miranda

warnings are required

4. Beckwith v. U.S. (interview w/ IRS agent NOT custodial)

a. R: IRS agent not required to give Miranda warnings when

interviewing a tax payer who’s not in custody

5. Minnesota v. Murphy (meeting w/ probation officer NOT custodial)

a. R: statements made in a meeting with a probation officer were

not uttered in a custodial context and no Miranda warnings were

required

6. J.D.B. v. North Carolina (2011):

a. F: 13-year-old was taken out of class and an officer questioned

him in a closed conference room; D not told he was free to leave

or that he didn’t have to answer questions; D confessed to break

ins

b. R: The age of a child is relevant to whether the child is in

custody under Miranda

7. Berkemer v. McCarty (1984) (traffic stops are not custodial)

a. F: officer stopped D and suspected D of driving while intoxicated;

D confessed to using intoxicants; D later Mirandized when

brought to the station

b. R: While a person in custody who is suspected of a misdo traffic

offense must be read his warnings, a motorist Miranda

temporarily restrained on the side of the road after being pulled

over by an officer is not in custody

i. Traffic stop is less coercive/intimidating; more akin to a

Terry stop to public

ii. Might depend on how long the stop is (hours may weigh

for custody)

8. Howes v. Fields (2012) (inmates not always in custody)

a. Custody does not per se include questioning prison inmates on

unrelated crimes

b. Depends on all factors, including whether the inmate is told he is

free to go back to general prison population

iii. Interrogation Requirement

1. Rhode Island v. Innis (1980) (interrogation= express questions and

elicited responses)

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a. F: D arrested, Mirandized, and invoked right to counsel; in police

car, officers expressed concern that a handicapped student

would find gun; D confessed and showed where gun was

b. R: Under Miranda, an interrogation refers to any words or actions

on the part of the police that the police should know are

reasonably likely to elicit an incriminating response from the

suspect

2. Arizona v. Mauro (1987):

a. No interrogation when police allowed D to speak with wife on the

phone in the presence of officers

b. No Miranda rights if non-police person speaks to D; not coercive

atmosphere; police can use ploys

3. Illinois v. Perkins (1990) (no Miranda required for informants and

incarcerated Ds)

a. F: D confessed to murder to a jail informant

b. R: an undercover officer does not have to provide Miranda

warnings to an incarcerated person before engaging in

questioning that could induce incriminating responses (stealth

officer does not create police-dominated environment)

c. Contrast w/ Fulimante, which was about voluntariness and

threats of force; here, is about coercion and setting is not

inherently coercive

iv. What is Required of the Police?

1. Exact language is not required for valid Miranda Warnings

a. California v. Prysock Duckworth v. Eagan (1981) and (1989)

i. F: Warnings didn’t follow same formulation set forth in

Miranda

ii. R: Miranda warnings do not have to conform to the exact

formulation set of in Miranda, as long as the suspect is

fully informed of his rights

2. Fifth Amendment Limits on In-Custodial Interrogation

a. Consequences of Miranda Violation

i. A confession obtained in violation of Miranda requirements as well as a

confession deemed involuntary must be excluded from evidence

ii. Most difficult: the extent to which police can use the information they gain

from questioning in violation of Miranda

1. Fruits of the poisonous tree doctrine does not apply

iii. Michigan v. Tucker (1974)

1. F: Police learned of key witness during improper questioning and

prosecutor wanted to use witness at trial

2. R: Exclusionary rule does not bar witnesses found as the result of a

non-Mirandized statement

a. Ct. said that the witness evidence was admissible b/c the official

action was pursued in good faith and the deterrence purpose of

the exclusionary rule wasn’t applicable

iv. Oregon v. Elstad (1985):

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1. F: D made initial confession w/o being Mirandized; then admitted again

after Mirandized; Prosecutor wanted to admit statements after Miranda

2. R: subsequent statements may be admissible if there are proper

Miranda warnings after a violation

v. Missouri v. Seibert (2004) (second confession not admissible if still tainted;

no two step interrog)

1. F: woman burned down trailer w/ son inside; police deliberately didn’t

read her Miranda in order to get a confession

2. R: A second confession after a Miranda waiver is admissible only if

there was a long enough break following the initial confession w/o a

Miranda waiver to give a reasonable suspect the belief that he or she

had a right not to speak to the officers

3. R: A confession made after a Miranda-violative confession will be

inadmissible but only if the officers were acting in bad faith and the

second set of incriminating statements proceeded directly from the

first.

a. Differences from :Elstad

i. Deliberate attempt to not Mirandize in Seibert

ii. Seibert involved murder; stakes higher than burglary in

Elstad

iii. Less time between confessions in (but difficult to Seibert

draw lines)

b. Different Justices’ approaches:

i. Souter: One continuous rolling interrogation

ii. Breyer: Use “good faith” test

iii. Kennedy: if deliberate bypass of Miranda, second

statement inadmissible unless curative steps

c. Missouri two-step: first get information, then read Miranda and

get the confession signed

vi. U.S. v. Patane (2004)

1. F: police seized gun before Mirandizing D

2. R: suppression of physical evidence found as a result of a suspect’s

voluntary but unwarned statements is not required

a. Fruit of the poisonous tree doctrine does not apply to physical

evidence

b. Waiver of Miranda Rights

i. North Carolina v. Butler (1979) (implied waivers are allowed)

1. F: D charged w/ robbery; D refused to sign Miranda waiver, but said “I

will talk to you but I’m not signing any form”

2. R: A suspect need not make an express statement waiving his right to

counsel

ii. Fare v. Michael C. (1979) (TOC to determine whether there was a waiver)

1. Whether there is a waiver is to be determined from the TOC, including:

a. Age, experience, education, background, intelligence, capacity

to understand the warnings, rights, and consequences

iii. Moran v. Burbine (1986) (Suspect need not be told that counsel was

waiting)

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1. F: D waived Miranda rights even though an attorney had been hired for

him and was seeking to consult with him

2. R: Events outside of suspect’s presence and unknown to suspect do

not make waiver involuntary; such events “have no bearing on the

capacity to comprehend and knowingly relinquish a constitutional

right”

iv. Spring v. Colorado (1987) (no need to advise suspect of nature of charges)

1. R: waiver still valid even if D not told nature of crimes for which D is

under suspicion

v. Berghuis v. Thompkins (2010) (right to remain silent must be expressly

invoked)

1. F: D refused to sign waiver and sat silent for 3 hours; then started

speaking

2. R: where a D does not invoke his right to remain silent after fully

understanding his Miranda rights, he implicitly waives his Miranda

rights by making a voluntary statement to police

vi. Note: outcome of a case may change if we view Miranda as a bright line

procedure vs an effort to inform D of D’s rights

vii. Salinas v. Texas (2013) (pre-custodial silence can be used against D if he

does not invoke 5th)

1. F: D was not in custody and was not Mirandized but was questioned;

remained silent when asked an incriminating question (but demeanor

was incriminating)

2. R: A witness’s silence in response to a law enforcement official’s

question is not sufficient to invoke the witness’s right against self-

incrimination, even when the official believes the answer may

incriminate the witness.

viii. Waiver after a D’s invocation of Miranda rights:

1. Right to remain silent:

a. Rights must be “scrupulously honored”

b. BUT, assertion of rights is not forever

c. Can re-interrogate if separate warnings and D voluntarily waives

d. Michigan v. Mosely (1975) (D can be re-questioned after

invoking right to remain silent)

i. F: D initially invoked right to remain silent during initial

interrogation; later, D was re-Mirandized and waived right

to remain silent

ii. R: Miranda does not bar police from subsequently

questioning a suspect who previously invoked his right to

remain silent, as long as the suspect’s right to end

questioning has been scrupulously honored.

1. Factors showing waiver was knowing and voluntary:

a. 2-hour break

b. Fresh warning

c. Different subject of interrogation

d. Different identity of officers

2. Right to counsel (5 th ):

Criminal Procedure Outline: Fall 2019

a. More worried about police pressure

b. D has already expressed need for lawyer to even playing field

c. Tougher standard to reinitiate questioning

d. Edwards v. Arizona (1981) (Once right to counsel invoked, no

more police-initiated contact)

i. F: D initially invoked right to counsel; the next day,

officers came to D’s cell and questioned him again; this

time D made incriminating statements

ii. R: Once a suspect has received his Miranda warnings and

has invoked his right to counsel, the police may not

further interrogate the suspect until the suspect has been

given access to counsel, unless D initiates further

communication with the police

1. Holds true even if invoked for a different offense

e. Minnick v. Mississippi (1990) (right to attny doesn’t end when

D consults attny)

i. F: D invoked right to counsel; spoke with counsel a few

times; then didn’t waive but made incriminating

statements

ii. R: Once a suspect has requested an attorney, police may

not conduct an interrogation w/o counsel present

iii. Dissent (Scalia): too much effort to prevent confessions;

“virtuous for wrongdoer to admit his offense”

f. Maryland v. Shatzer (2010) (questioning can be reinitiated

after 14 day break)

i. F: D invoked right to counsel, but then investigation was

dropped for 2.5 years; D was then interviewed in prison

and made incriminating statements

ii. R: Police can re-initiate interrogation after invocation of a

5th A right of counsel if 14-day break in custody

1. Sending D back into general jail population

constitutes a “break” in custody

g. Davis v. U.S. (1994) (D must unambiguously request counsel)

i. F: D said that he “might” want to consult an attny; but

then said that he was not asking for a lawyer

ii. R: police are only required to stop a custodial

interrogation if the suspect has unambiguously requested

an attorney; a suspect must clearly indicate that he wants

to consult an attorney in such a way that a reasonable

police officer in the situation would believe the suspect

was invoking his right to counsel.

c. Exceptions to Miranda

i. Impeachment

1. Harris v. New York (1971) (un-Mirandized statements can be used to

impeach Ds)

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a. F: D testified at trial and prosecutor tried to impeach D’s

testimony by asking questioned about unwarned statements

Harris made following an arrest

b. R: statements made by a suspect who has not received the

Miranda warnings may be admitted at trial for impeachment

purposes

i. Prevents Ds from using Miranda as a sword instead of just

a shield; a Miranda violation shouldn’t allow a D to

commit perjury

ii. BUT only if the confession/statements were made

VOLUNTARILY

iii. Involuntary statements may not be used, period. Even if

reliable, corroborated, and even if D may get away w/

perjury.

ii. Public Safety Exception

1. N.Y. v. Quarles (1984)

a. F: Woman pointed police to man who raped her at gunpoint;

police asked man where gun was and her told them; man was

then Mirandized

b. R: statements obtained by police from suspects during

emergency situations could be used against a D even if Miranda

warnings were not properly administered.

i. Threat of immediate danger is an objective standard

ii. Very narrow and infrequently used case

2. Terrorism?

a. Should Miranda be suspended for terrorism cases?

i. Might meet “public safety” or “exigent circumstances”

exception?

ii. But some statements may be excluded as being

involuntary

iii. Booking Statements

1. In booking, police can ask a person questions that are needed for the

booking process (such as name, address, DOB, weight, height) and

answers are admissible w/o Miranda

2. Pennsylvania v. Muniz (1990)

a. F: D made slurred statements during booking

b. R: Routine bookings are not considered interrogation; privilege

only applies if a D is compelled to make statements; physical

evidence or observation of physical characteristics are non-

testimonial

3. The Sixth Amendment Right to Counsel During Police Interrogations

a. Offense-Specific Right

i. Note: Miranda prohibits any interrogation w/o warning

ii. 6th A prohibits questioning on formally charged offense

1. Right to counsel “in all criminal prosecutions”

2. Right does not trigger until formal charges are brought (filing of

indictment, preliminary hearing, arraignment)

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3. In addition to 5 A rights

b. Massiah v. United States (1964) (police cannot deliberately elicit statements

from indicted D)

i. F: D was indicted but released on bail; Co-D initiated a convo. w/ D while

carrying a radio recorder; D made incriminating statements

ii. R: 6 A right prohibits police or informant from “deliberately eliciting”

incriminating statements

1. A person who has been indicted on criminal charges has as much of a

constitutional right to have an attorney present during police

interrogations as he does during the trial itself

c. Escobedo v. Illinois (1964) (tried to use 6 to protect Ds in interrogations;

obsolete now)

i. F: D arrested on suspicion of murder, but had not yet been charged; during

questioning, D requested a lawyer, and his mother had retained one for him,

but the police refused to let him meet with the lawyer. Police got

incriminating statements from D

ii. R: court extended the 6th A right to counsel to those who were questioned by

the police but had not yet been formally charged

1. Holding here sort of became obsolete afterwards: Miranda decided two

years later, which gave right to counsel in in-custodial interrogations-

thus making it unnecessary to rely on the 6th A or Escobedo for in-

custody interrogations

d. Brewer v. Williams (1977) (Christian Burial Speech not allowed)

i. F: D arraigned and consulted lawyer; given Christian burial speech during

drive from Davenport to Grinnell; D showed police where body was

ii. R: the 6 A prohibits officers from “deliberately eliciting” information in

absence of counsel once formal charges have been filed

e. Miranda Rights vs. Rights Massiah

i. Miranda Rights:

1. Only for “custodial interrogations”

2. Applies before and after charges

3. Based upon 5 Amendment

ii. Massiah Rights:

1. Custody irrelevant

2. 6th A right automatically applies after formal charges

3. Prohibits “deliberately eliciting” statements without counsel

f. McNeil v. Wisconsin (1991) (police can elicit re: different offense)

i. F: D formally charged w armed robbery and invoked right to counsel; police

later questioned D about a murder and robbery in another part of the state

and D confessed

ii. R: Invoking one’s 6 A right to counsel for an offense where formal charges

have been brought does not automatically invoke one’s rights for other

offenses where charges have not yet been formally brought

g. Texas v. Cobb (2001) (police can elicit re: different offense, even if from same

facts)

i. F: D confessed to a burglary and then later confessed to murder arising out of

the same facts

Criminal Procedure Outline: Fall 2019

ii. R: A D’s 6 A right to counsel is offense-specific and does not attach to the

investigation of unrelated offenses arising out of the same set of facts that

led to the original charge

1. Burglary and murder require proof of different facts and are two

distinct offenses under the Blockburger test

h. Waivers and 6 th A Right to Counsel

i. Michigan v. Jackson (1986) ( , but held D can’t waive if gov’t Overruled

initiates post-invocation)

1. R: held that once 6 A right to counsel has been invoked, there is not a

valid waiver if it was made in response to govt-initiated interrogation

(adopted Edwards rule)

ii. Montejo v. Louisiana (2009) (D can voluntarily waive 6 A right after its

operative)

1. F: Counsel was appointed to D at a 72-hour hearing; later, while in a

police officer car, D wrote inculpatory apology letter to V’s widow

2. R: Police may seek a knowing and voluntary waiver of a defendant's

right to have counsel present during interactions with the police, even

after the defendant's Sixth Amendment rights have attached and

become operative.

3. R: Different rules apply for Miranda vs. 6 A invocation of the right to

counsel; if the Miranda right is invoked, Edwards kicks in and the police

cannot initiate further questioning. But if a charged suspect invokes 6

A right to counsel , the outside the context of a custodial interrogation

police can still approach him and seek a knowing and voluntary waiver.

a. Not the same type of “invocation” as in Edwards

b. Miranda waiver can cover both 5 A and 6 A waiver

th th

c. Prosecutor can’t talk to D w/o counsel there, but this doesn’t

apply to police

i. Prosecutor can’t tell police to go talk to D

iii. Standards for determining whether there has been a valid waiver are the

same as in 5 A cases

i. Informants

i. U.S. v. Henry (1980) (informant cannot initiate convo or ask questions)

1. F: Paid informant testified to incriminating convo he had w/ D

2. R: Statements made by an accused in custody to a covert government

informant may not be admitted at trial without violating the Sixth

Amendment right to counsel

ii. Kuhlman v. Wilson (1986) (Informants can “keep their ears open”)

1. F: Informant placed near d in jail and listened for names of others

involved in crime; D made incriminating statements and told police

2. R: The 6 does not require suppression of statements made by a

prisoner to a covert police informant if the informant only listened

passively and did not deliberately elicit those statements

iii. Note: informant information may not be reliable, as informants have an

incentive to give police valuable evidence (they may get a better plea deal)

j. Kansas v. Ventris (2009) (impeachment OK for 6 violations)

Criminal Procedure Outline: Fall 2019

i. R: held that statements obtained in violation of the 6 A right to counsel may

be used for impeachment purposes

4. The Privileges Against Self-Incrimination in Other Contexts

a. Requirements for the Privilege Against Incrimination to Apply:

i. Only individuals may assert it

1. Corporations not entitled to the privilege

2. Only exists to protect the privacy and dignity of individuals

3. Also, “the greater portion of evidence of wrongdoing by an

organization is usually found in the official records and documents of

that organization. Were the cloak of the privilege to be thrown around

these impersonal records and documents, effective enforcement of

many federal and state laws would be impossible"

ii. Privilege only applies to that which is testimonial

1. A person cannot be required to give testimony that would

incriminating, but this does not prevent a person from giving physical

evidence that would be incriminating such as:

a. Fingerprints

b. Photos

c. DNA

d. hair

e. Participation in a line up

2. Schmerber v. California (1966) (BAC is not testimonial)

a. F: D was arrested and at hospital, but refused to give blood

sample; Police compelled one anyway; showed an incriminating

BAC

b. R: The admission of evidence gathered by forcing a suspect to

submit to a blood test does not violate the 5 A privilege against

self-incrimination.

iii. There must be compulsion

1. Voluntary statements to the police do not violate the privilege, even if

they are highly incriminating

2. Jury cannot draw an adverse inference from the Ds invocation of the

privilege at trial ( ); juries are instructed that they cannot draw Griffin

an adverse inference from the failure of a D to testify

3. Also, no adverse inference can be drawn from a D's failure to testify in

sentencing proceedings (Mitchell)

4. BUT fact that a person faces a hard choice has not been deemed

sufficient to cross the line and constitute compulsion

a. McKune v. Lile (2002)

i. R: it does not violate the privilege against self

incrimination to require a prisoner seeing admission to a

sex-offender rehabilitation program to "admit having

committed the crime for which he is being treated and

other past offenses."

ii. Potential loss of benefit does not amount to compulsion

iii. Torture or adverse inferences is a compulsion

iv. There must be the possibility of incrimination

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1. Ullman v. U.S. (1956) (potential civil liability/social stigma not subject

to 6 A protections)

a. R: the fact that a statement could lead to civil liability and even

social stigma was not enough to trigger the privilege unless

there also was the possibility of criminal liability

2. Hibbel v. 6 Judicial District Court of Nevada

th (2004)

a. Identity may be testimonial, but disclosure of identity (in this

case) presented no reasonable danger of incrimination, so is not

subject to the privilege against self-incrimination

3. Probation: if req. of probation is that D must answer probation officers

questions…

a. If officer asks if D robbed a bank, D is entitled to 5 A protection

b/c response would be incriminating

b. If officer asks if D got drunk, D is not entitled to 5 A protections

b/c response is not incriminating (just a probation violation)

b. Government Required Production

i. SC has held that a person can be forced to produce documents, even

documents containing highly incriminating information, unless the very act of

production would be incriminating

ii. Required production of a preexisting document does not violate the privilege

against self-incrimination b/c it is not demanding testimony from a person

iii. Fisher v. U.S. (1976)

1. F: IRS agents were investigating taxpayers for possible violations of

income tax laws. The taxpayers (Ds) gave tax documents to their

respective attorneys. The attorneys were served summons ordering

them to produce those documents.

2. R: Compelling an individual’s attorney to produce documents does not

violate the individual’s Fifth Amendment privilege against self-

incrimination.

iv. Rationale of Fisher applies to anything a person might be required to produce

1. Baltimore City Department of Social Services v. Bouknight

(1990): Ct. ordered parent to produce a child

v. Cannot protect 3 party’s rights (D can’t invoke self-incrimination on behalf of

a third party

vi. Documents

1. No 5 A right in document itself (

th Fisher)

2. 5th A right to production

3. Immunity can override lack of 5 A right in documents

a. U.S. v. Hubbell (2000) (docs can be testimonial; if compelled D

gets immunity)

i. F: D produced 13,120 pages of documents under promise

immunity “to the extent allowed by law”

ii. R: The 5 A protects a witness from being compelled to

disclose the existence of incriminating documents that

the government is unable to describe with reasonable

particularity because the act of producing those

documents is testimonial.

Criminal Procedure Outline: Fall 2019

iii. If the government grants a witness immunity to overcome

his 5 A privilege against self-incrimination and compel

production of documents, evidence derived from those

documents cannot be used in a later criminal prosecution

against that witness.

c. Government Required Testimony and Immunity

i. If a person is granted immunity and is promised that the statements will not

be used for criminal prosecutions, there is no danger of self-incrimination

ii. Two types of Immunity

1. Transactional Immunity (think: immunity for crime itself)

a. Promises the person that he or she will not be prosecuted for

offenses related to the compelled testimony (protection against

future prosecution)

2. Use and derivative use immunity (think: immunity for statements;

more common- free talks)

a. Promises the person that the government will not use the

statements gained under immunity, or anything derived from

those statements, in a criminal prosecution

b. Kastigar v. U.S. (1972) (D can’t refuse to testify if given U&DU

immunity)

i. R: government may compel testimony from a witness who

has invoked the 5 A right to silence by giving that

witness immunity from use of both the compelled

testimony and any evidence derived from that testimony

in a subsequent criminal proceeding.

iii. If a person makes statements after a promise of immunity, the statements

can only be used in a perjury prosecution

Identification Procedure

1. Problems with Eyewitness Testimony

a. Eyewitness misidentification is the single greatest cause of wrongful convictions in

this country

i. Largely for stranger on stranger crimes (minority of crimes)

ii. 60% of exonerations involve bad eyewitness testimony

b. Recollections are highly susceptible to distortion by post-event information as well

as social cues

c. Ability to recognize faces varies throughout the community (independent of

intelligence, SES, etc.)

i. cross-racial identification is worse

ii. average person is only right about 80% of the time

d. Jurors routinely overestimate the accuracy of eyewitness identification

e. Jurors place the greatest weight on eyewitness confidence in assessing

identifications

f. Mechanisms

i. Lineups: witness shown groups of people

ii. Show ups: witness shown just one person

Criminal Procedure Outline: Fall 2019

iii. Photo spreads: police as witness to look through a series of photos to see if

they can identify the person who they say committed the crime

g. Key dangers: police suggestiveness, misinformation effect

h. Constitutional Protections:

i. Right to counsel for lineups that occur after indictments

1. No recognized right to counsel for lineups that occur before

indictments or for photo identification procedures

ii. Unnecessarily suggestive identification procedures by police that lead to

unreliable identifications violate DP

i. Practical Protections:

i. Prosecutors and Defense should consider asking witness’s facial recognition

skills to be tested

ii. Defense will likely put on expert anyway to testify to the

likelihood/prevalence of false recall

iii. Police should wear bodycam and audio record identifications as a further

protection

iv. Use participants in lineups that look alike (same race, age, body type)

v. Never put multiple suspects in the same lineup

vi. Double blind lineups

vii. Use a script

viii. Don’t use 6 packs (photo): leads to forced choice dilemma (Vs feel pressured

to choose one)

1. Remedy: show pictures one at a time and have Vs say yes/no to each

pic

j. Note: lineups/show ups/photo spreads do not implicate the 5 Amendment right

against self-incrimination b/c physical features and even voice are not considered

testimonial

2. The Right to Counsel (6 A)

a. U.S. v. Wade (1967) (right to counsel in lineup post-indictment)

i. F: D arrested; Court appointed counsel; police did not notify Wade’s attorney

prior to conducting the lineup

ii. R: A post-indictment witness identification of a criminal suspect, conducted

without notice to and in the absence of the suspect's counsel, violates the

Sixth Amendment right to the assistance of counsel.

1. Reasons why attorney is needed: can pay attention and make note of

suggestive techniques by the police (D is behind the glass so not

paying attention to these)

2. Post-indictment witness identification is a critical juncture in the

criminal process

3. State’s arg: doesn’t matter how suggestive the lineup is, it won’t be

admitted into evidence

4. Counter: but it could have tainted the witness’s identification

(misinformation effect)

b. Gilbert v. California (1967) (must show no taint to admit illegal lineup

identification)

Criminal Procedure Outline: Fall 2019

i. Violates constitution to admit in-court identifications w/o first determining

that they were not tainted by the illegal lineup and were of independent

origin

c. Kirby v. Illinois (1972) (Begins to rollback Wade; no right to counsel in pre-

indictment lineups)

i. F: show up of two Ds occurred prior to their indictment

ii. R: right to counsel only applies to post-indictment lineups; there is no right to

counsel in lineups before indictments

1. Ct refuses to extend the 6 A’s protections to events that occur before

the initiation of formal proceedings

2. Any disadvantage suffered by the D can be cured by ordinary trial

techniques (cross exam)

iii. Dissent (Brennan):

1. Same concerns are present pre-indictment for police suggestibility as

are present post-indictment

d. U.S. v. Ash (1973) (no right to counsel in photo lineups)

i. F: police conducted a photo lineup containing D’s photo before D was formally

charged

ii. R: Under the Sixth Amendment, police may conduct a post-indictment photo

lineup outside the presence of counsel.

1. Not a “critical stage in the criminal process

2. Any disadvantage suffered by the D can be cured by ordinary trial

techniques (cross exam)

3. Risks discussed in Wade are not present in photo lineups (less risk of

unfair suggestion)

a. Fewer opportunities for suggestibility and more neutral (though

debatable)

b. Everyone knows what the witness was viewing

c. Larger database available (can access more photos that look like

iii. Dissent (Brennan):

1. The risk of misidentification due to witness error associated with a

traditional lineup is as great or greater with a photo lineup may be

unfairly suggestive due to the photos used, the manner of

presentation, or the conscious or unconscious acts by the police

2. Cross- examining witnesses at trial may not reveal the more subtle and

dangerous types of influence exerted

3. D isn’t even present at photo line-up; even greater risk of

misidentification

iv. Note: Ct. more concerned w/ deliberate manipulation than inadvertent

manipulation at this point

3. Due Process Protection for Identification Procedures

a. Stovall v. Denno (1967) (suggestive lineups still okay if necessary according to the

TOC)

i. F: D suspected of stabbing; one of the Vs was in the hospital; police brought

D into V’s hospital room for identification (he was the only suspect brought in,

was the only African American in the room, and was handcuffed at the time)

Criminal Procedure Outline: Fall 2019

ii. R: Wade and Gilbert do not apply retroactively, that unnecessarily suggestive

identification procedures violate DP, but that the identification procedure in

the case was necessary under the circumstances (TOC must be examined to

determine if necessary)

1. Severity of crime and fact that V could have been dying necessitated

the less than ideal procedure

b. Foster v. California (1969) (only case that SC has found impermissibly suggestive)

i. F: D and two other Ds were charged with robbing a bank; witness initially

could not positively identify D; asked to speak w/ D but was still unsure; in

second lineup, D was the only man present in both lineups and then witness

identified him

ii. R: Lineup procedures deemed highly suggestive and likely to produce an

irreparable misidentification, in light of the totality of the circumstances,

violate the Due Process Clause.

c. Simmons v. U.S. (1968)

i. F: D and two other Ds were suspected of armed robbery; witnesses shown at

least six pictures of Ds; witnesses later identified D in court

ii. R: A lineup will only be held to violate the Due Process Clause if, on the facts

of the case, the procedure was so unfairly suggestive that it made an

irreparable misidentification highly likely.

1. Justified here b/c Ds had committed a serious felony and had not been

apprehended

2. Likelihood of misidentification was small due to the freshness of the

robbery

3. TOC applied

d. Neil v. Biggers (1972) (reliability factors provided)

i. F: D suspected of rape; witness claimed to have seen the assailant and

described his age, size, skin, and voice; V made no identification after several

lineups; D brought to show up and spoke the words the assailant had said to

the V

ii. R: Under the Due Process Clause, identification evidence may be admitted

even if the procedure was suggestive so long as the identification is reliable.

1. Factors to consider in determining reliability:

a. The opportunity of the witness to view the criminal at the time

of the crime (V had spent considerable time w/ D)

b. The witness' degree of attention (presumed to have been

heightened in traumatic encounters; unsure if science backs this

today)

c. The accuracy of the witness' prior description of the criminal

d. The level of certainty demonstrated by the witness at the

confrontation (V was very certain)

e. The length of time between the crime and the confrontation

(hare, a few months- deemed to be Okay)

e. Manson v. Brathwaite (1977) (shift from suggestiveness to reliability)

i. F: undercover narcotics officer went to man’s apt and bought drugs from the

man through a small gap in the door (took at most a few minutes); at the

Criminal Procedure Outline: Fall 2019

station, another officer put a picture of D on undercover officer’s desk; that

officer identified D as the man he bought drugs from

ii. R: Where a defendant claims that his right to due process of law has been

violated because of the manner in which he was forced to confront a witness,

the court must look to the reliability of the identification to determine

whether it is admissible.

1. Emphasis less on the suggestive nature and more on the reliability of

the witness

2. Here, police officers are trained in observation (debatable if they’re

better than the average person in facial recognition)

3. Suggestiveness still applicable if egregious

iii. Dissent (Brennan):

1. Ct is wrong to adopt TOC approach over per se rule

2. Suggests that violations of DP are permissible so long as state has a

strong enough case against the D

f. Perry v. New Hampshire (2012)

i. F: D broke into cars in an apt building parking lot; Police arrived on scene and

caught D with stereos in his hands; made him stay in lot; tenants of the apt

building said they saw a man breaking into the cars and when asked to

describe the man, they pointed to D standing in the parking lot

ii. R: A suggestive identification procedure does not violate due process if the

police are not involved in creating the suggestive circumstances.

1. Here, suggestive nature just a result of the way the case worked out;

no police misconduct

2. A bit of backtracking: inquiry not just about reliability of witness, also

about state conduct

3. Tracks other cases in criminal procedure jurisprudence; state must be

the bad actor

LAW 604 ARIZONA STATE UNIVERSITY LECTURE NOTE Criminal Procedure Outline Fall 2019.pdf

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