Criminal Procedure Outline
BACKGROUND
I. Amendments
a. 4th: The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
b. 5th: No person shall…be compelled in any criminal case to be a witness against
himself.
c. 6th: In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial impartial jury, by an of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the for his Assistance of Counsel
defense.
d. 8th: shall not be required, nor excessive fines imposed, nor Excessive bail cruel
and unusual punishments inflicted.
e. 14th: Nor shall any State deprive any person of life, liberty, or property, without
due process of law.
II. The Importance of Precedent
a. Ramos v. Louisiana 2020: the 6th amendment, as incorporated against the states,
requires that a jury find a criminal defendant guilty by a unanimous verdict
III. Competing Interests: Privacy rights of individuals, government’s interest in safety and
deterring crime, efficiency, fairness, accuracy, reliability, judicial restraint, legitimacy
IV. Burdens of Proof
a. Guess < hunch < reasonable suspicion < probable cause < preponderance of the
evidence < clear and convincing evidence < beyond a reasonable doubt
V. Retroactivity
a. Generally, criminal procedure decisions do not apply retroactively
b. Two exceptions
i. Where the activity is beyond the reach of criminal law
1. Lawrence v. Texas – tried to criminalize homosexual activity
ii. Where the holding is a watershed rule of criminal procedure
1. Gideon v. Wainwright which established that defendants have a
right to counsel in any trial where the sentence potentially includes
imprisonment
VI. History
a. Entick v. Carrington (DO NOT CITE AS LEGAL AUTHORITY)
i. Stands for the proposition that the home is sacred and the disfavor of
general warrants executed by the British
VII. The Impact of Procedure on Outcome
a. Powell v. Alabama 1932
i. Facts: Racially charged trial of nine black boys for an alleged rape.
ii. Holding: There is a right to counsel for defendants in all capital cases
because it is fundamental to due process .
b. Patterson v. Burge 2004
i. Facts: Egregious police misconduct led to conviction of the innocent.
ii. Holding: The City settled with the defendant – illustrates the
importance of procedural rules and safeguards
VIII. Civil Actions for Constitutional Violations
a. 42 U.S.C. 1983 (“1983 Action”) provides civil damages for constitutional
violations against state and local officials (not federal officials)
b. Qualified immunity – affirmative defense protecting state or local officials sued in
their individual capacity when they reasonably believed (objective) their conduct
was constitutional
c. “Bivens Action”– violation of one’s fourth amendment rights by federal officers
can give rise to a federal cause of action for damages
IX. Right to Counsel
a. Case Development
i. Powell v. Alabama 1932 – right to counsel in capital case AND applied to
the states
ii. Johnson v. Zerbst 1938 – extended to all federal criminal cases
iii. Betts v. Brady 1942 – refused to extend to all state criminal cases
iv. Gideon v. Wainwright 1963– established that an indigent defendant in a
felony criminal trial has a right to appointed counsel
v. Scott v. Illinois 1979 – any possible imprisonment = right to counsel
b. Adequate Representation
i. People v. Marsden 1970
1. An indigent defendant does not have absolute right to choose
counsel
2. Defendant is entitled to new counsel if the attorney is not
providing adequate representation OR defendant and counsel
have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result
3. “Marsden” hearing is private with only defendant and counsel
ii. Strickland v. Washington 1984 – ineffective assistance of counsel
(“Strickland Standard”)
1. Retrospectively: duty, breach of duty, causation, and harm
a. Harm/prejudice – outcome would be different
2. Prospectively: duty and breach of duty
iii. McCoy v. Louisiana 2018 – D has a constitutional right to maintain his
innocence at trial
1. Facts: Counsel conceded guilt of his despite client feverishly
objecting.
2. Holding: Client has right to decide direction of his case
(whether to plead guilty, whether to waive the right to a jury
trial, whether to testify on one’s own behalf, whether to forgo
an appeal, whether to assert one’s innocence). Counsel has
authority over case management (what arguments to pursue,
what evidentiary objections to raise, and what agreements to
conclude regarding the admission of evidence).
iv. Florida v. Nixon 2004 – D’s silence was not enough of an objection,
explicit consent is not required
c. Waiver of Right to Counsel
i. Feretta v. California 1975 – right to self-representation is not absolute.
1. Defendant must knowingly, voluntarily, and intelligently make
an unequivocal and timely request after having been apprised
of its dangers
2. Court may deny a request that is equivocal, made in passing
anger or frustration, or intended to delay or disrupt the
proceedings.
d. Mental Competence of Defendant
i. Indiana v. Edwards 2008 – A defendant may be mentally incompetent
to waive counsel, yet competent to stand trial.
X. Incorporation
a. History
i. Baron 1833– held that the Bill of Rights did not apply to the states
b. Mechanism
ii. 14th amendment applies to state and local gov so argued it incorporated :
BoR because it is part of ensuring due process of law
iii. Test for incorporation: whether the right is among those fundamental
principles of liberty and justice which lie at the base of all our civil
and political institutions – Hebert v. Louisiana 1926
c. Development
i. Fiske 1927 – speech, press, religion
ii. Powell 1932 – right to counsel
iii. In re Oliver 1948 – right to public trial
iv. Mapp v. Ohio 1961: Incorporates the 4th amendment against the
states, establishes the exclusionary rule, and sets normative
expectations for search and seizure
v. Gideon v. Wainwright 1963 – right to counsel
vi. Malloy 1964: protection against self-incrimination
vii. Pointer 1965: confrontation clause
viii. Washington v. Texas 1967 -- right to compulsory process for obtaining
witnesses
ix. Klopfer 1967 –speedy trial
x. Duncan v. Louisiana 1968: right to a jury trial
xi. Timbs 2019: excessive fines
xii. Ramos 2020: unanimous verdict in jury trial
d. Debate
i. Total incorporation
ii. Selective incorporation
e. Modern Day almost all of the Bill of Rights are incorporated
i. What is : quartering troops, grand jury, and jury in civil not incorporated
cases
XI. Search
a. Introduction
i. Search: police activity that implicates the 4th amendment
ii. Actors: must be LE or an agent for LE, not private individuals
iii. 4th amend stops at the border -- US v. Verdugo-Urquidez
iv. Based upon standards – facts and circumstances objective
v. If no information is obtained, there is no search
b. History
i. Olmstead 1928 -- e lectronic eavesdropping without physical trespass is
not a search (since overturned)
ii. Sotomayor’s mosaic theory – from pervasive surveillance, the gov can
learn about familial, political, professional, religious, and sexual
associations
c. Modern Standard
i. Katz 1967
1. Facts: FBI tapped into a public phone booth. Purpose is to exclude
the uninvited ear.
2. Holding:
a. What a person knowingly exposes to the public , even in
his own home or office, is not protected by 4th amend
b. But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally
protected
c. 4th amendment protects a person’s subejective
expectation of privacy (subjective) that society is willing
to recognize as reasonable (objective)
ii. Jones 2012
1. Facts: GPS attached to vehicle and monitored movement for 28
days.
2. Holding: Physical trespass to gather information is sufficient to
constitute a search.
d. Open Fields
i. Hester 1924 – 4th amend protection is not extended to open fields
ii. Oliver 1984– entry into field of marijuana a mile from D’s home was not a
search because it is an open field
1. No reasonable expectation of privacy
iii. Curtilage – land immediately adjacent to the home/dwelling which is
intimately tied to activities of the home is given the protection of the home
iv. Dunn 1987
1. Facts: Entry into property to look into barn located approximately
50 yards from a fence surrounding a ranch house
2. Holding: The curtilage is land immediately adjacent to the
home/dwelling which is intimately tied to activities of the home
is given the protection of the home
a. Reasonable expectation of privacy
e. Aerial Surveillance
i. California v. Ciraolo 1986
1. Facts: flew over home in a private plane within navigable airspace
(1000 feet) and took a photo of D’s backyard with standard camera
2. Holding: LE is not required to shield their eyes from what is
observable from a public vantage point where he has a right to
be and which renders the activities clearly visible.
ii. Florida v. Riley 1989
1. Facts: LE used a helicopter (400 feet) to observe marijuana within
the greenhouse on D’s property.
2. Holding: This is a permitted aerial observation particularly
because they were flying at a lawful height.
f. Thermal Imaging
i. Kyllo v. United States 2001
1. Facts: LE used thermal imaging detector to observe heat emanating
from a home to indicate marijuana being grown.
2. Holding: obtaining by sense enhancing technology any
information regarding the interior of the home that could not
have been obtained otherwise without physical intrusion into a
constitutionally protected area constitutes a search at least
where the technology in question is not in general public use.
g. Trash
i. California v. Greenwood 1988
1. Facts: LE searched trash placed on the curb to be collected.
2. Holding: there is no reasonable expectation of privacy over the
trash you place on the curb that is exposed to the public and
conveyed to a third party.
a. No reasonable expectation of privacy
(Note – CA does not suppress evidence obtained in
violation of state constitution (Kriveda)
h. Conveyed to Third Parties
i. Smith v. Maryland 1979
1. Facts: Police contacted his phone company and installed a pen
register to record numbers dialed from his home phone
2. Holding: A person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.
a. No reasonable expectation of privacy
ii. United States v. Miller – no expectation of privacy of bank records
because you give them over to a third party (bank)
i. Beeper cases
i. United States v. Knotts 1983
1. Facts: Beeper was placed in drum of chloroform and traced to D’s
cabin.
2. Holding: Surveillance by beeper is equivalent to following an
automobile on public streets. D voluntarily conveyed his travels to
anyone in public.
ii. United States v. Karo -- if info obtained by beeper could not be obtained
by visual surveillance, would constitute a search
j. Dogs
i. United States v. Place 1983 – the sniff of a narcotics-seeking dog is not a
search
1. Only sniffs for drugs, no reasonable expectation of privacy in illicit
contraband
ii. Illinois v. Caballes 2005
1. Facts: During a 10-minute police stop, while an officer was writing
a ticket, another officer walked around the car with a narcotics
sniffing dog.
2. Holding: A lawful stop only becomes unlawful if the stop is
prolonged beyond the time reasonable required to complete
traffic matters
a. Don’t need suspicion to use dog
iii. Rodriguez v. United States 2015
1. Facts: After completing a traffic stop, the officer waited for another
officer to arrive with a drug-sniffing dog to check the car (+7-8
minutes).
2. Holding: a stop exceeding the time needed to handle the matter
for which the stop was made violates the constitution’s shield
against unreasonable seizures.
iv. Florida v. Jardines 2013***this case is very limited to its facts***
1. Facts: Officer brought a narcotics-sniffing dog onto the porch of a
home which alerted the officer to marijuana in the home.
2. Holding: This is a search there is no license/invitation to bring
a trained police dog to explore the area around the home in
hopes of discovering incriminating evidence.
a. Physical intrusion into property to gather evidence
v. Florida v. Harris 2013
1. Facts: discovered meth paraphernalia in car due to narcotics-
sniffing dog, issue of reliable of dog
2. Holding: probable case is dependent on whether all the facts
surrounding a dog’s alert viewed through the lens of common
sense would make a reasonably prudent person think that a
search would reveal contraband
k. Recent Cases
i. Byrd v. United States 2018 ***STANDING***
1. Facts: LE searched the car without the driver’s consent because he
was not the authorized driver on the rental agreement.
2. Holding: Person must have a cognizable 4th amend interest in
the place searched before seeking relief for an unconstitutional
search
a. someone in otherwise lawful possession of a rental car
has a reasonable expectation of privacy in it even if the
rental agreement does not list him or her as an
authorized driver.
ii. Carpenter v. United States 2018
1. Facts: LE use cell site location information to track D’s past
movements and connect him with a series of robberies.
2. Holding: This violated his legitimate expectation of privacy
because of the significantly pervasive surveillance conduct for
a long time, despite the information being conveyed to a third
party.
a. Think mosaic theory, there is a reasonable expectation of
privacy
XII. The Probable Cause Requirement
a. Definition of Probable Cause
i. If the apparent facts set out in the affidavit are such that a reasonably
discreet and prudent person would be led to believe that there was a
commission of the offense charged
ii. Test is objective – reasonable person
b. What is probable cause needed for?
i. Search warrants
1. Based upon PC that a crime occurred
2. PC to believe items to be seized are subject to seizure, PC to
believe items will be found at location to be searched, and PC to
believe items will be found there and at the time the warrant is
executed
3. Particularly describing the place to be searched and persons or
things to be seized
ii. Arrest warrants
1. PC to believe crime was committed and PC to believe arrestee
committed that crime
c. History (informants)
i. Aguilar-Spinelli test – two prongs
1. Basis of knowledge
2. Veracity of the information or credibility of the informant
ii. Concerns of credibility and reliability
d. Modern test totality of the circumstances (common sense, not hyper-
technical)
Objective – whether a reasonable officer could have found probable cause under
the circumstances (Whren)
i. Illinois v. Gates 1983
1. Facts: to obtain a search warrant, police relied on an anonymous
letter, surveillance by DEA, and his travels aligned with the tip.
2. Holding: Whether, given all of the circumstances set forth in
the affidavit, there is a fair probability that contraband or
evidence of a crime will be found in a particular place
a. Corroboration of the anonymous tip was key
b. Informant’s veracity, reliability, and basis of knowledge are
relevant considerations under PC
e. More on Informants
i. Considerations: whether the informant explains how he/she knows the
information; whether the information given is accurate; has it been
corroborated; whether the informant has given reliable information in the
past; factual rather than conclusory allegations
ii. Corroboration: specific details that only an insider could know,
accurately predict future conduct, and police corroboration through
investigation
f. Propinquity (particularity requirement)
i. Maryland v. Pringle 2003
1. Facts: Cash and cocaine was found in a car and LE arrested all
three occupants
2. Holding: Probable cause is a reasonable ground for belief of
guilt and the belief of guilt must be particularized with respect
to the person to be searched or seized.
a. A person’s mere propinquity does not give rise to PC to
search that person.
g. Objective Test
i. Whren v. United States 1996
1. Facts: temporary detention of a motorist who police have probable
cause to believe has committed a traffic violation
2. Holding: Objective test– whether a reasonable officer could
have found probable cause under the circumstances
a. Subjective intentions of the officer are irrelevant
b. Pretextual stops are allowed
h. Mistake
i. Heien v. North Carolina 2014
1. Facts: Officer pulled someone over because a brake light was out.
Court determined the law only required one working brake light.
2. Holding: A search or seizure may be permissible even if the
justification includes a reasonable factual mistake.
a. The mistake must be objectively reasonable
XIII. The Warrant Requirement
a. Search warrant based upon probable cause: a court order , supported by oath or
affirmation, and particularly describing the place to be searched and the persons
or things to be seized
i. Interposes a neutral magistrate as a check on the executive branch
ii. Particularity requirement – whether the office with a search warrant can
with reasonable effort ascertain and identify the and place intended
whether the warrant imposes a meaningful restriction on objects to be
seized, to enable the executing officer to sort seizable from non-seizable
iii. LE submits an affidavit to obtain a warrant that sets out the facts tending
to establish the grounds for probable cause
b. Anticipatory Warrants: probable cause does not currently exist, but will at a
certain time in the future
i. Requirements: siezeable items will be located on the premises at the
particular time of the triggering event AND there is probable cause to
believe the triggering event will occur
c. Warrantless searches are presumptively unreasonable
i. Burden on gov to prove reasonableness
d. Particularity Requirement
i. Andreson v. Maryland 1976
1. Facts: Alleged fraud by seller of property. Judge issued warrant
based on probable cause to search for documents relating to the
conveyance. 2 offices were searched.
2. Holding: This warrant was sufficiently specific as it only
allowed seizure of items related to the crime of false pretenses.
e. Mistake in Warrant
i. Groh v. Ramirez 2014
1. Facts: affidavit in support of warrant had specificity, but the
warrant did not
2. Holding: The warrant lacked specificity because it did not
incorporate the affidavit by reference and the affidavit did not
accompany the warrant, therefore was unreasonable under the
4th.
f. Being Present at the Residence Being Searched
i. Michigan v. Summers 1981 – those present at search of residence may be
detained while the search is being conducted
ii. Muehler v. Mena 2005
1. Holding: Mena’s detention for the duration of the search was
permissible because she was an occupant of the premises to be
searched. Officers may use reasonable force to effectuate
detention. Search was not unduly prolonged by the
questioning, police questioning is not a seizure
g. Knock and Announce Requirement
i. Wilson v. Arkansas 1995
1. Holding: Knock and announce requirement is part of the
reasonableness inquiry of the 4th amend. There may be
circumstances that justify an exception such as a fleeing felon
or destruction of evidence.
ii. Richards v. Wisconsin 1997
1. Holding: This court declines to make a categorical exception to
the knock and announce requirement for felony drug cases and
instead maintains a case-by-case analysis.
iii. Hudson v. Michigan 2006 – exclusionary rule does not apply to
evidence gained after police violate the knock and announce rule
h. Mistake in Execution
i. Maryland v. Garrison 1987
1. Facts: Police believed there was only one apartment on the third
floor, but there was actually two, and police entered both. Officers
discontinued their search when they realized their mistake.
2. Holding: the test is whether the officer’s failure to realize the
overbreadth of the warrant was objectively understandable
and reasonable based on the information available to them at
the time they acted.
a. About whether they knew or should have known
ii. Los Angeles County v. Rettele 2007
1. Facts: LE obtained a warrant to search a house, had not realized
the suspects had moved out 3 months earlier, found two individuals
of different race unclothes, searched the house.
2. Holding: The warrants were properly based on probable cause
(not certainty), was possible for the suspects to also be present,
and the officers relied on the available information they had at
the time as to where the suspected resided.
XIV. Exceptions to the Warrant Requirement (balancing between effective LE and privacy
interests)
a. Exigent Circumstances
i. Hot pursuit – exception where police enter a home in hot pursuit of a
suspected felon
1. Warden v. Hayden 1967
a. Facts: Armed robber was followed by some cab drivers.
Officer entered home and conducted a search without a
warrant.
b. Holding: Pursuit of a suspected felon is a valid
exception to the warrant requirement.
i. Subsequent contemporaneous search of the home
was deemed okay too
2. Payton v. New York 1980
a. Holding: no exception to make a routine felony arrest
3. Lange v. California 2021
a. Holding: The pursuit of a fleeing misdemeanor subject
does not categorically qualify as an exigency.
i. a case-by-case analysis based on the totality of the
circumstances
ii. reasons for finding an exigency include destruction
of evidence, escape, and imminent violence
ii. Safety -- reasonable basis to believe that an occupant of the home would
be endangered
1. Brigham v. Stuart 2006
a. Facts: 3am police call, hear shouting, saw an altercation in
the home
b. Holding: Police may enter without a warrant if they
have a reasonable basis to believe an occupant is
seriously injured or imminently threatened with injury.
i. Objective, not subjective intentions of officer
iii. Destruction of Evidence
1. Kentucky v. King 2011
a. Facts: The police knocked and announced, heard moving
around, and believed evidence was about to be destroyed.
b. Holding: Where police conduct creating the exigency is
reasonable (not a violation of threat to violate the 4th),
warrantless entry to prevent destruction of evidence is
reasonable.
iv. Limits
1. Welsh v. Wisconsin 1984: warrantless arrest was not permissible to
arrest a person for a non-jailable traffic offense
v. DUI
1. Note: breath tests are usually conducted at the police station, not
roadside
2. Missouri v. McNeely 2013
a. Facts: Driver refused BAC test. He was arrested and taken
to the hospital for a blood test without his consent.
b. Holding: No per se exception for non-consensual blood
test in all DUI cases. Must be a case by case analysis
under the totality of the circumstances
3. Birchfield v. North Carolina 2016
a. Holding: Blood test requires a warrant, but a breath
test can be conducted as a search incident to a lawful
arrest for DUI.
i. Difference in level of intrusion
4. Mitchell v. Wisconsin 2019
a. Facts: Blood draw from an unconscious person who was
suspected of DUI.
a. Holding: When police have probable cause to believe a
person has committed a DUI offense and his
unconsciousness requires him to be taken to the hospital
before a reasonable opportunity to administer a breath
test, they may almost always order a warrantless blood
test without violating the 4th amend.
b. Plain View – police must be lawfully present
i. Coolidge v. New Hampshire 1971 – articulates plain view exception to the
warrant requirement
ii. Horton v. California 1990 – is a characteristic of most inadvertence
legitimate plan view seizures, it is not a necessary condition
iii. Arizona v. Hicks 1987 – must be that the item immediately apparent
seized is illegal
iv. Minnesota v. Dickerson 1993
1. Facts: Officers conducted a pat down search and found a small
amount of cocaine on him.
2. Holding: The plain view doctrine permits the discovery of
contraband by all of the senses including touch during an
otherwise lawful search.
a. Here, not justified because the lump was not immediately
apparent to be incriminating
c. The Automobile Exception – cars may be searched without a warrant if there is
probable cause (Carroll v US )
i. Justifications: car can be moved quickly out of the jurisdiction, is subject
to pervasive regulation, and lesser expectation of privacy
ii. California v. Carney 1985
1. Facts: Search of a motorhome based on probable cause that it was
being used to exchange sex with a minor for drugs.
2. Holding: This motor home falls within the vehicle exception
because it is readily mobile and subject to extensive regulation
and inspection.
a. Factors: location, whether the vehicle is readily mobile,
whether elevated on blocks, whether the vehicle is licensed,
whether it is connected to utilities, and whether it has
convenient access to a public road.
iii. Chambers v. Maloney 1970 – even if automobile had been taken to the
police station and thus was not movable, the exception still applies
iv. Searches of containers in automobiles
1. California v. Acevedo 1991
a. Facts: D left automobile with a paper bag that LE suspected
contained drugs. D put it in trunk of his car. Officers
searched his trunk and the bag.
b. Holding: A lawful search of an automobile extends to
the containers within the vehicle.
2. Wyoming v. Houghton 1997-- If probable cause to believe there is
contraband in the car, can search all containers including personal
bags
v. Passengers
1. United States v. Di Re 1948 – passengers could not be searched
without probable cause simply because the automobile was
lawfully stopped by police
vi. Collins v. Virginia 2018
1. Facts: search of motorcycle within the curtilage
2. Holding: The automobile exception does not permit an officer
without a warrant to enter a home or its curtilage in order to
search a vehicle therein.
d. Search Incident to Lawful Arrest
i. Person
1. United States v. Robinson – may search incident to a person
arrest, but there must actually be an arrest
a. Can search the person for any weapons or evidence on their
person AND the area into which an arrestee might reach to
grab a weapon or evidence (area within his immediate
control)
ii. Place/Home
1. Chimel v. California 1969
a. Facts: Officers had an arrest warrant, waited for him to
come home, arrested him, then searched his home without a
warrant or consent as a search incident to arrest
b. Holding: It is reasonable to search his person and areas
within his immediate control upon arrest (i.e. weapon or
destruction of evidence), but it is not reasonable to
search his entire home.
iii. Car
1. Knowles v. Iowa 1998
a. Facts: D was stopped for speeding and given a citation.
Officer searched the entire car and found drugs.
b. Holding: There was no threat to officer safety and no
need to further discover and preserve evidence related
to speeding, therefore, cannot search car incident to
citation.
2. New York v. Belton 1981 – when police pull over a car and order
the occupants out of the car, police may search containers in
passenger compartment within reach of arrestee (anything but the
trunk)
3. Thornton v. United States 2004 – applies Belton even if arrestee
was already in the squad car when search was conducted
4. Arizona v. Gant 2009
a. Holdings:
i. Police may only search vehicle incident to arrest
when arrestee is unsecured and within reaching
distance of the passenger compartment at time of
search.
ii. Search of automobile incident to arrest is
justified when it is reasonable to believe evidence
relevant to the crime of arrest might be found in
the vehicle.
iv. Cell Phone
1. Riley v. California 2014
a. Facts: Officer obtained D’s phone incident to arrest and it
was examined for its contents and incriminating
information at the police station.
b. Holding: Must obtain a warrant to search the data
within a cell phone.
c. Relevant concerns: not a weapon, destructive of evidence
(remote wiping), great amount of info on a person
b. Inventory Searches: If property is lawfully in the presence of police, they may
inventory the contents to protect the owner’s property while in the possession of
the police.
v. South Dakota v. Opperman 1976
1. Holding: inventories pursuant to standard police procedures
are reasonable where the process is aimed at securing or
protecting the car or its contents.
vi. Illinois v. Lafayette 1983
1. Holding: It is reasonable for police, as part of the routine
procedure incident to incarcerating an arrested person to
search any container or article in his possession in accordance
with established inventory procedures.
e. Protective Sweeps
ii. Maryland v. Buie -- When police arrest a person, they may conduct a
protective sweep of the premises if they have reasonable suspicion that a
person might be there who poses a threat to them
1. Limited to a cursory inspection of those places a person may be
made and only as long as necessary to dispense a chance of danger
ii. Requirements: in home legally, valid LE purpose, reasonable suspicion
someone could be hiding who is a danger, cursory (where a person could
be), and no longer than necessary.
f. Consent – if consent is given, no violation of 4th
i. Schneckloth v. Bustamonte 1973
1. Facts: Stop of vehicle with 6 men. Officer asked if he could search,
said “sure, go ahead” and opened trunk for police.
2. Holding: consent to a search must be voluntarily given, not the
result of duress or coercion, and is a question of fact to be
determined by the totality of the circumstances.
a. No need to demonstrate they had knowledge of the right
to refuse
b. Consent, not waiver (requires knowingly, intelligently, and
voluntarily)
ii. Ohio v. Robinette 1996 – a person lawfully stopped by the police, but free
to leave, does not need to be informed by the police of his or her ability to
leave
iii. United States v. Drayton 2002 – (greyhound bus) test for consent is
whether it is voluntary under the totality of the circumstances
iv. United States v. Matlock 1974 – one occupant of a residence may give
consent if the other is not present
v. Georgia v. Randolph 2006
1. Facts: One occupant consents to a search but another occupant is
present and expressly refuses to consent
2. Holding: A physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search
unreasonable and invalid as to him.
vi. Fernandez v. California 2014
1. Facts: the objecting party is now absent when the other party
consents to a search
2. Holding: A party must be physically present for their refusal to
search to trump a co-occupants consent to search.
a. The removal of the person must be objectively reasonable
g. Special Needs Searches – Checkpoint Cases
i. Where the special needs of the government beyond the normal need for
law enforcement justify an exception to the warrant requirement
ii. Delaware v. Prouse 1979– random stops of drivers are not permitted
iii. Michigan Department of State Police v. Sitz 1990
1. Facts: DUI checkpoints
2. Holding: these stops are reasonable under the 4th amend given
the state interest to prevent drunk driving, the extent to which
these checkpoints reasonable advance that interest, and the
slight intrusion of motorists.
iv. City of Indianapolis v. Edmond 2000
1. Facts: checkpoint for interdiction of illegal narcotics
2. Holding: because the primary purpose of the checkpoints is
general crime control, the checkpoints violate the 4th amend
v. Illinois v. Lidster 2004 – no violation of the 4th for a checkpoint where LE
was attempting to gather info from the citizenry about a recent crime
h. DNA
i. Maryland v. King 2013
1. Facts: as part of routine booking procedure, took D’s DNA
2. Holding: DNA identification of arrestees is a reasonable search
that can be considered part of a routine booking procedure.
3. Gov interests: identity, classification (type of person they are
detaining), bail decisions, whether he should be released on bail,
and may free the wrongfully imprisoned
4. Arrestee – minimal intrusion and diminished expectation of
privacy
5. Dominant view is no limits as to its use for solving other crimes
i. Probation and Parole Searches
i. United States v. Knights 2001
1. Facts: as condition of probation, D was to submit to searches of his
person and property
2. Holding: When an officer has reasonable suspicion that a
probationer subject to a search condition is engaged in
criminal activity, there is enough likelihood that criminal
conduct is occurring that an intrusion on the probationer’s
significantly diminished privacy interest is reasonable
ii. Samson v. California 2006
1. Facts: CA law provides that every individual eligible for release on
parole shall agree to be subject to search or seizure
2. Holding: the 4th amend does not prohibit a police officer from
conducting a suspicion less search of a parolee
a. Parole is more akin to prison than probation
b. While it can be suspicion less, it cannot be arbitrary or
harassing
c. Searching officer must have knowledge of the search
condition prior
XV. Seizures and Arrests
a. Standards
i. Arrest = probable cause to believe a crime has been committed by this
person
ii. Temporary detention = reasonable suspicion that there is criminality afoot
iii. Consensual encounter = nothing is required
iv. Seizure of property: when the gov intentionally and meaningfully
interferes with a possessory interest in property
b. Warrant – no required so long as there is probable cause
i. United States v. Watson 1976
1. Facts: D was arrested because thought to possess stolen credit
cards
2. Holding: LE may arrest without a warrant for a misdemeanor
or felony committed in his presence and for a felony not
committed in his presence if there was probable cause.
c. When is a person seized?
i. United States v. Mendenhall 1980
1. Facts: D voluntarily accompanied LE to an office and said “go
ahead” when asked if they could search her purse.
2. Holding: A person has been seized within the meaning of the
4th amend only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.
objective test
a. A seizure occurs when an officer, by means of physical
force or show of authority, has in some way restrained
the liberty of a citizen
b. Factors: threatening presence of several officers, display of
weapon, some physical touching of the citizen, use of
language or tone indicating compliance might be compelled
ii. Brendlin v. California 2007 – passengers in a car are seized when a car is
stopped pursuant to a traffic stop and has standing
iii. California v. Hodari D .1991
1. Facts: kids took flight after seeing police car, one dropped cocaine
while running
2. Holding: A defendant is not seized until there is physical force
applied or he submits to authority
a. The cocaine was abandoned before seizure
iv. Torres v. Madrid 2021
1. Facts: Officers shot at fleeing suspect 13 times, shot her in the back
twice
2. Holding: the application of physical force to a body of a person
with intent to restrain is a seizure, even if the force does not
succeed in subduing the person and the person does not submit
a. Seizure, absent submission, only lasts as long as the
application of force
d. When can a warrantless arrest happen?
i. Atwater v. City of Lago Vista 2001
1. Facts: D arrested for violating seatbelt law.
2. Holding: if an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in
his presence, he may, without violating the 4th amend, make a
warrantless arrest
3. Probable cause applies to ALL arrests
ii. Virginia v. Moore 2008 –
1. Facts: State law only allowed citation for driving with a suspended
license.
2. Holding: a state law prohibiting arrest is irrelevant so long as
there is probable cause to believe the person has committed a
crime, they can make an arrest
XVI. Stop and Frisk = seizure
a. Authority for Police Action
i. Terry v. Ohio 1968
1. Facts: defendants casing a joint
2. Holdings: An officer must be able to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.
objective standard
a. A temporary detention is justified where an officer has a
reasonable suspicion that criminality is afoot.
Must be justified at its inception and reasonably related in
scope to the circumstances which justify the interference in
the first place
b. A frisk is justified where there is reasonable suspicion
that the individual is armed and dangerous.
ii. Michigan v. Long 1983 – the court said the police may conduct a cursory
frisk of a car (only passenger compartment) if there is reason to believe
that the person is dangerous and may gain access to a weapon
b. Arrest v. Temporary Detention
i. Dunaway v. New York 1979 – sustained interrogation at police station =
arrest
ii. Florida v. Royer 1983 – taking suspect from public area to a small room =
arrest
1. Holding: An investigation stop must be temporary and last no
longer than necessary to effectuate the purpose of the stop
iii. Hayes v. Florida – to station for fingerprinting = arrest
iv. Davis v. Mississippi – fingerprinted and questioned regarding rape = arrest
v. US v . Place – detaining luggage for 90 minutes = arrest
vi. US v . Sharpe – detain for 30-40 minutes, only a temporary detention
c. Identification
i. Need reasonable suspicion that they have committed a crime to require ID
(Hiibel)
ii. Need individualized suspicion of each passenger to require ID (Landeros)
iii. Hiibel v. Sixth Judicial District Court of Nevada 2004
1. Facts: D was arrested for refusing to identify himself during a
Terry stop.
2. Holding: an officer may arrest an individual for refusing to
identity himself if the request for identification was reasonably
related in scope to the circumstances which justified the stop
d. Reasonable suspicion
i. United States v. Arvizu 2002
1. Facts: Following a van, stopped for a sequence of unusual
behavior, found marijuana
2. Holding: To determine if there is reasonable suspicion, must
look to the totality of the circumstances to determine if the
officer has a particularized and objective basis for suspecting
legal wrongdoing
a. NOT divide and conquer
ii. Alabama v. White 1990
1. Holding: the anonymous tip had been sufficiently corroborated
to furnish reasonable suspicion that respondent was engaged in
criminal activity and that the investigative stop therefore did
not violated the 4th amend
iii. Florida v. J.L. 2000
1. Facts: Anonymous caller said that a young black male standing at a
bus stop and wearing a plaid shirt had a gun
2. Holding: Absent corroborating evidence indicating the
reliability of a tip, the tip alone does not constitute reasonable
suspicion.
iv. Navarette v. California 2014
1. Facts: 911 caller reported that a vehicle had run her off the road
2. Holding: the stop complied with the 4th amend because, under
the totality of the circumstances, the officer had reasonable
suspicion that the driver was intoxicated
a. Eyewitness ID is reliable
v. Illinois v. Wardlow 2000
1. Facts: officer stopped D in a heavy narcotics area, carrying a bag,
and fleeing upon site of LE
2. Holding: There was reasonable suspicion because of
unprovoked flight, high crime area, and nervous/evasive
behavior.
vi. United States v. Sokolow 1989
1. Facts: stopped D based on fitting a drug courier profile
2. Holding: Taken all together under the totality of
circumstances, there is reasonable suspicion here to justify the
stop
XVII. The Exclusionary Rule
a. Exclusionary rule: the material obtained in violation of the constitution cannot be
introduced at trial against a criminal defendant
b. Weighing deterrence benefits against the social cost of letting the guilty go free
c. Application
i. Hudson v. Michigan 2006 (J. Scalia)
1. Holding: The exclusionary rule does not apply when police do
not follow the knock and announce requirement when
executing a search warrant.
ii. Weeks v. United States 1914 – applies the exclusionary rule to the federal
government
iii. Mapp v. Ohio 1961 – applies the exclusionary rule to the states
d. Standing to raise the exclusionary rule if they have a reasonable expectation
of privacy
i. Rakas v. Illinois 1978
1. Facts: Search of automobile led to discovery of guns. Ds were
passengers. Neither D is the owner of the automobile or the gun
seized.
2. Holding: The proponent of a motion to suppress has the
burden of establishing that his own 4th amend rights were
violated by the challenged search or seizure
a. D’s claim fails because they have no interest or expectation
of privacy in the automobile.
ii. Minnesota v. Carter 1998
1. Facts: Officer looked through the blinds and saw D and the
apartment lessees bagging cocaine
2. Holding: D had no legitimate expectation of privacy in the
home, therefore he has no standing to bring a motion to
suppress.
iii. Minnesota v. Olson 1990 – court found overnight guest to have the
legitimate expectation of privacy ( ) that the 4th protects standing
iv. Brendlin v. California 2007
1. Facts: officer stopped car without reasonable suspicion or probable
cause
2. Holding: A passenger of a vehicle is also seized during a traffic
stop, so they may challenge the constitutionality of the stop.
e. Exceptions to the exclusionary rule
i. Good faith
1. US v. Leon 1984
a. Facts: LE relied on a search warrant that lacked probable
cause.
b. Holding: when an officer’s reliance on a magistrate’s
determination of probable cause is in good faith and
objectively reasonable, the exclusionary rule does not
apply
2. Herring v. United States 2009
a. Facts: officer conducted a search incident to arrest based on
an arrest warrant that was due to a negligent bookkeeping
error
b. Holding: The exclusionary rule applies only to
deliberate or reckless violations of the 4th amend or
those that are the result of systemic government
policies. The exclusionary rule does not apply to
negligent or good faith violations of the 4th amend.
i. This was an isolated incident of negligence
3. Davis v. United States 2011
a. Facts: search of automobile incident to arrest before Gant
was decided
b. Holding: searches conducted in objectively reasonable
reliance on binding appellate precedent are not subject
to the exclusionary rule
ii. Independent Source – evidence obtained in violation of the 4th is
admissible if is it also obtained through an independent source of the
police misconduct
1. Segura v. United States 1984 –
a. Facts : Agents unlawfully entered D’s apartment and
remained there until a search warrant was obtained.
b. Holding: The evidence found during the execution of
the valid search warrant was admissible because it was
discovered pursuant to an independent source (the
search warrant
2. Murray v. US 1988
a. Fact: LE obtained a search warrant without relying on the
observations of the illegal entry.
a. Holding: put the police in the same, not a worse,
position that they would have been in if no police
misconduct had occurred
iii. Inevitable discovery -- If the police can demonstrate that they inevitably
would have discovered the evidence without a violation of the 4th amend,
the exclusionary rule does not apply
1. Nix v. Williams 1984
a. Facts: LE appealed to D to tell them where the little girl’s
body was while they had a search team looking.
b. Holding: If the prosecution can establish by a
preponderance of the evidence that the information
ultimately or inevitably would have been discovered by
lawful means, then the evidence should be received
iv. Attenuation – inadequate causal connection
1. Wong Sun v. United States 1963
a. Facts: D was arrested and made incriminating statement.
Then released and later questioned after receiving Miranda
warning.
b. Holding: The statements to the police at the time of D’s
arrest had to be excluded as the fruits of his unlawful
arrest. But his later confession was admissible because
the connection with the earlier illegal police activity
became so attenuated as to dissipate the taint.
2. Brown v. Illinois 1975
a. Facts: D was questioned, then read Miranda warnings, then
questioned again
a. Holding: To break the causal connection between the
illegality and the confession, the prosecution must show
an act of free will by the defendant unaffected by the
initial illegality that is not satisfied by the reading of
Miranda warnings alone.
b. Factors: Miranda warnings, temporal proximity of the
arrest and confession, the presence of intervening
circumstances, the purpose and flagrancy of the official
misconduct
3. Utah v. Strieff 2016
a. Facts: Officer stopped deal without reasonable suspicion,
then discovered he had an arrest warrant and made an
arrest.
b. Holding: the officer’s discovery of the arrest warrant
attenuated the connection between the unlawful stop
and the evidence seized incident to arrest
XVIII. Police Interrogation
a. Confessions and Voluntariness
i. To be admissible, a confession must first be voluntary – determined by
the totality of the circumstances
ii. Brown v. Mississippi – a confession obtained from physical coercion or
threat of physical force is not voluntary
iii. Arizona v. Fulminante 1991
1. Holding: The fear of physical violence (a credible threat) made
the confession coerced/involuntary and inadmissible.
iv. Spano v. New York 1959
1. Holding: Psychological pressures constitute the confession
coerced.
v. Colorado v. Connelly 1986
1. Holding: Coercive police activity is a necessary predicate to the
finding that a confession is not voluntary
vi. Objectives: deter police from techniques that produce an unreliable
confession, deter police from uncivilized conduct, deter police from less
misconduct, deter police from inquisitorial techniques, and deter police
from overbearing the will of the suspect
b. Miranda
i. Miranda v. Arizona 1966
1. Holding: 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.
2. Miranda Rights: right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed.
3. Waiver: voluntarily, knowingly, and intelligently (burden on gov
to prove)
ii. Dickerson v. United States 2000
1. Holding: Miranda is a constitutional decision of this court and
may not be overruled by an Act of Congress
iii. What is custody?
1. Factors: location, indicia of arrest, length of detention, ratio of
officers to suspect, demeanor, invitation v. command,
confrontational tone, evidence of guilt, physical surroundings,
degree of pressure
2. Orozco v. Texas 1969 – in custody when arrested, no matter the
location
3. Oregon v. Mathiason 1977
a. Facts: D voluntarily met up with an office to discuss a
crime.
b. Holding: Custodial interrogation means questioning
initiated by LE officers after a person had been taken
into custody or otherwise deprived of his freedom of
action in any significant way
i. D was not in custody, free to leave
4. J.D.B. v. North Carolina 2011
a. Facts: Student was pulled out of class to be questioned by
police.
b. Holding: So long as the child’s age was known to the
officer at the time of the interview or would have been
objectively apparent to any reasonable officer, a child’s
age properly informs the objective Miranda custody
analysis.
i. Objective – whether the person thought they
could terminate the interrogation and leave
5. Berkemer v. McCarty 1984
a. Facts: driver pulled over, not free to leave, arrested for
DUI, questioned without Miranda warnings.
b. Holdings
i. A person subjected to custodial interrogation is
entitled to the benefit of procedural safeguards
enunciated in Miranda regardless of the nature
or severity of the offense of which he is suspected
or for which he was arrested
ii. The noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily
detained pursuant to such stops are not in
custody for the purposes of Miranda
iv. What is an interrogation?
1. Rhode Island v. Innis 1980
a. Facts: Despite D invoking his Miranda rights, officers
struck up a conversation with each other on the way to the
station.
b. Holding: subject to either express questioning or its
functional equivalent meaning any words or actions on
the part of LE that the police should know are
reasonably likely to elicit an incriminating response
from the suspect
i. Focus is the perception of the suspect
ii. Here, not an interrogation
2. Illinois v. Perkins 1990 Perkins
a. Facts: D make incriminating statements to an undercover
agent in jail.
b. Holding: Miranda warnings are not required when the
suspect is unaware that he is speaking to a LE officer
and gives a voluntary statement
v. What police actions are sufficient to meet the requirements of
Miranda?
1. California v. Prysock 1981
a. Holding: Miranda does not require a precise
formulation of the warnings given to the criminal
defendant. The officer just needs to fully convey to D his
rights as required by Miranda, which happened here.
2. Duckworth v. Egan 1989
a. Holding: The inquiry is whether the warnings
reasonably convey to a suspect his rights as required by
Miranda
vi. What is sufficient to constitute a waiver of Miranda rights?
1. Waiver: voluntary, knowingly, and intelligently
a. Voluntary – free of coercion
b. Knowingly – full awareness of nature of right being
abandoned and the consequences of abandoning it
2. North Carolina v. Butler 1979
a. Facts: D said he understood his rights but refused to sign
the form.
b. Holding: An individual’s voluntary and knowingly
waiver can be inferred from the actions and words of
the person interrogated.
i. No requirement of an express waiver
3. Berghuis v. Thompkins 2010
a. Holding: A suspect who has received and understood his
Miranda warnings and has not invoked his Miranda
rights, waives the right to remain silent by making an
uncoerced statement to the police
i. Have to invoke your right to remain silent!
vii. Invocation of Rights
1. Davis v. United States – suspect must do so unambiguously
2. Can invoke right to remain silent OR right to speak to an
attorney
viii. Consequences of Violating Miranda
generally inadmissible
1. Michigan v. Tucker 1974 – police questioned D in violation of
Miranda and learned of a key witness, could use the witness at trial
2. Oregon v. Elstad 1985
a. Holding: a simple failure to administer the warnings,
unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s
ability to exercise his free will, so taints the
investigatory process that a subsequent voluntary and
informed waiver is ineffective for some indeterminate
period.
3. Missouri v. Siebert 2004
a. Holding: Subsequent statements must be excluded even
if Miranda warnings were given before the statements
were repeated if the Miranda warnings are delivered
mid-interrogation and could not have been effective in
accomplishing their objective given the facts of the case.
i. The warnings were inserted mid-interrogation
deliberatively to deceive
4. United States v. Patane 2004
a. Tangible evidence (physical fruits) could be introduced
even if it resulted from violations of Miranda
b. With an involuntary statement, all fruits including physical
evidence are excluded
ix. Exceptions to Miranda
1. Harris v. New York 1971 – impeachment
a. Holding: statements may be used to impeach D if he
chooses to testify at trial
2. New York v. Quarles 1984 – emergencies
a. Facts: LE asked D where gun was in store
b. Holding: the statements obtained by police from
suspects during emergency situations could be used
against a criminal defendant even if Miranda warnings
were not properly administered
3. Pennsylvania v. Muniz 1990 – Booking
a. Holding: Police can ask questions that are needed in the
booking process, but asking D when his 6th birthday
was is not permitted
