CRIMINAL PROCEDURE OUTLINE
Introduction
I. Order of events for criminal procedure
a. Probable cause is the standard for arrest, warrant not needed
b. Should be read Miranda rights
c. Individual is processed
d. Opportunity for bail release
e. Compliant is filed
f. Plea bargaining
g. Pretrial motions
h. Opening statements
i. Trial
j. Closing statements
k. Jury instruction
l. Jury deliberation
m. Unanimous decision
II. Criminal justice system should be:
a. Accurate
b. Fair
c. Efficient
d. Balanced between liberty and security
e. Democratic
Fourth Amendment
I. In general
a. Fourth amendment provides that people should be free from unreasonable searches and
seizures
i. Search – governmental intrusion into an area where a person has a reasonable
and justifiable expectation of privacy
ii. Seizure – exercise of control by the government over a person or thing
iii. Reasonableness – depends on the circumstances
b. First clause protects against reasonable search and seizure
c. Second clause describes what you need to get a warrant
d. What is a search?
i. Katz v. US
1. The fourth amendment protects people, not places
2. Two-prong test
a. Person exhibited an actual subjective expectation of privacy
b. Expectation is one that society is prepared to recognize as
reasonable
e. Fourth amendment rights are personal rights which cannot be vicariously asserted
f. Smith v. Maryland
i. Don’t have a reasonable expectation of privacy in the context of phone numbers
that you call
g. Dogs
i. History – bloodhounds have been used forever
ii. Under Katz doctrine – no reasonable expectation for dog sniffs
II. Arrests and other detentions
a. Governmental detentions of persons are seizures of the person and must be reasonable to
comply with the fourth amendment
b. What constitutes a seizure of the person?
i. A seizure occurs when, under the totality of the circumstance, a reasonable
person would feel that he was not free to decline the officer’s requests or
otherwise terminate the encounter
1. Pursuit of a suspect is not a seizure in and of itself
a. Physical application of force or a submission to the officer’s
show of force necessary, not enough that the officer merely
orders the person to stop (California v. Hodari)
c. Arrests
i. Probable cause requirement
1. An arrest must be based on probable clause. Probable cause to arrest is
present when, at the time of arrest, the officer has knowledge reasonably
facts and circumstances sufficient to warrant a reasonable prudent person
to believe that the suspect has committed or is committing a crime for
which arrest is authorized by law.
2. Probable cause is based on the totality of the circumstances
3. Mistaken offense
a. An arrest is not invalid merely because the grounds stated for the
arrest at the time it was made are erroneous, as long as the
officers had other grounds on which there was probable cause for
the arrest
ii. Warrant generally not required
1. Police generally do not need a warrant before arresting a person in a
public place, even if they had time to get one
2. Exception – home arrests require warrants
a. Police must have an arrest warrant for a nonemergency arrest of
an individual in their own home
i. Officers can enter the home only if there is reason to
believe the suspect is in it
b. Warrantless searches of homes are presumed unreasonable
i. The burden is on the government to demonstrate
sufficient exigent circumstances to overcome this
presumption
c. Homes of third parties
i. Absent exigent circumstances, the police executing an
arrest warrant may not search for the subject of the
warrant in the home of a third party without first
obtaining a separate search warrant for the home
ii. Arrestee will not be able to have found evidence
suppressed unless he can establish a legitimate
expectation of privacy in the home
3. Invalid arrest
a. By itself an unlawful arrest has no impact on prosecution
b. If the police improperly arrest someone, they may detain him if
they have probable cause to do so
c. Invalid arrest is not a defense to the offense charged
iii. Other detentions
1. Stop and frisk
a. Police have the authority to briefly detain a person for
investigative purposes even if they lack probable cause to arrest
b. Police must have a reasonable suspicion of articulable facts of
criminal activity or involvement in a completed crime
c. If the police have reasonable suspicion to believe the detainee is
armed and dangerous, they can conduct a frisk to ensure that the
detainee has no weapons
d. Reasonable suspicion defined
i. Something more than vague suspicion
1. Not enough that detainee was in crime filled
area (Brown v. Texas)
ii. Full probable cause not required
iii. Whether the standard is met is judged under the totality
of the circumstances
e. Source of suspicion
i. Reasonable suspicion can derive from the officer’s
common sense and outside experiences
ii. Reasonable suspicion need not arise from a police
officer’s personal knowledge
1. Can be based on report from informant
a. Where the source of suspicion of
criminal activity is an informant’s tip,
the tip must be accompanied by indicia
of reliability, including predictive
information, sufficient to make the
officer’s suspicion reasonable
f. Duration and scope
i. Investigatory stops are usually brief but are not subject
to a specific time limit
ii. For a stop to be valid, the police must act in a diligent
and reasonable manner in confirming or dispelling their
suspicions
1. United States v. Sharpe - 20-minute stop deemed
reasonable where officers investigated their
suspicions diligently and the suspect’s evasive
conduct prolonged the encounter
iii. If police have reasonable suspicion to make a Terry stop,
they may require identification from the detained person
g. Development of probable cause
i. If during a Terry stop the officer develops probable
cause, the detention becomes an arrest, and the officer
can proceed on that basis
ii. Officer can conduct a full search incident to that arrest
h. If an officer approaches a person but does not detain them, no
arrest or investigatory detention occurs
i. A seizure or stop occurs only if a reasonable person
would believe they are not free to decline an officer’s
requests or otherwise terminate the encounters
i. Property seizures on reasonable suspicion
i. Police may briefly seize items upon reasonable suspicion
that they are or contain contraband or evidence, but
seizures must be limited
1. US v. Place – 90-minute detention of luggage
reasonably suspected to contain drugs
unconstitutional
2. Car stops
a. Stopping a car is a seizure for fourth amendment purposes
b. Police officers may not stop a car unless they have at least
reasonable suspicion to believe that a law has been violated
c. Mistake of law
i. Police officer’s mistake of law that gives rise to
reasonable suspicion does not invalidate a seizure as
long as the mistake was reasonable
1. Helen v. North Carolina - police officer’s
reasonable mistake that a vehicle must have two
working brake lights, when in fact only one was
required by law, did not invalidate the stop and
subsequent arrests of defendants who were in a
car with one working brake light
d. Seizure of occupants
i. Car stop is a seizure of driver and passengers
ii. If police lawfully stop a vehicle, the officer can order
that the driver and passengers exit
iii. If the officer believes detainee is armed and dangerous,
they can frisk detainee
iv. Can search passenger compartment to look for weapons,
even after the occupants are out
e. Pretextual stops
i. If an officer has probable cause to believe that a traffic
law has been violated, the officer may stop the suspect’s
automobile, even if the officer’s ulterior motive is to
investigate a crime for which the officer lacks sufficient
cause to make a stop.
1. Whren v. United States - police in a high drug
crime area stopped D’s automobile after
observing D wait a long time at an intersection,
abruptly turn without signaling, and speed off at
an unreasonable speed
III. Evidentiary search and seizure
a. Must be reasonable, reasonableness usually means that police must have obtained a
warrant before conducting the search
b. General approach
i. Does the defendant have a fourth amendment right?
1. Was there governmental conduct?
2. Did the defendant have a reasonable expectation of privacy?
ii. If so, did the police have a valid warrant?
iii. If there was not a valid warrant, was the search within one of the six exceptions
to the warrant requirement?
c. Governmental conduct required
i. Government agents includes publicly paid officials and those citizens acting at
their discretion
d. Two ways in which searches and seizures can implicate an individual’s fourth amendment
rights
i. Search or seizure by a government agent of a constitutionally protected area in
which the individual had a reasonable expectation of privacy
1. Whether a person has a reasonable expectation of privacy is generally
based on the totality of the circumstances
2. A person has a reasonable expectation of privacy any time
a. She owned or had a right to possession of place searched
b. The place searched was in fact her home, whether or not she
owned or had a right to possession
c. She was an overnight guest of the owner of the place searched
3. Generally, a person does not have a reasonable expectation of privacy in
objects held out to the public
a. Exception: cell site location information which is stored in the
hands of third parties
4. Curtilage
a. Curtilage is the area that typically surrounds the home
b. Protection of the home extends beyond the walls of the home
c. Curtilage is NOT an open field, it is an extension of the home
d. Is it curtilage?
i. Factors (Dunn)
1. Proximity to home
2. Whether area is included in enclosure
surrounding home
3. How area is used
4. Has individual taken steps to protect area from
outside viewers
e. Curtilage does not necessarily mean there was a violation due to
common law “license” to approach front door of house
5. Open fields doctrine
a. Law enforcement may violate state trespass laws in an open field
b. Areas outside the curtilage are subject to police entry and search
and are unprotected by fourth amendment
i. The Court will consider the building’s proximity to the
dwelling, whether it is within the same enclosure—such
as a fence—that surrounds the house, whether the
building is used for activities of the home, and the steps
taken by the resident to protect the building from the
view of passersby (Oliver v. US)
ii. Fourth amendment does not prohibit warrantless search
and seizure of garbage left for collection outside the
curtilage of a home (California v. Greenwood)
6. Fly Overs/Aerial Surveillance
a. Police may fly over a field or yard to observe with a naked eye
b. Police may take aerial photographs
7. Technology enhanced searched
a. Because of the strong expectation of privacy within one’s home,
obtaining by sense enhancing technology any information
regarding the interior of a home that could not otherwise have
been obtained without physical intrusion constitutes a search, at
least where the technology in question is not in general public
use
b. Kyllo - use of thermal imager on defendant’s home from outside
the curtilage to detect the presence of high intensity lamps
commonly used to grow marijuana constitutes a search
c. Getting information from inside the home that you couldn’t
otherwise obtain triggers the fourth amendment
8. Cars
a. Police cannot covertly place a GPS device on a person’s car
without a warrant
i. US v. Jones
1. Installation of GPS device constituted a search
2. Not based on objective expectation of privacy,
when law enforcement commits what would
otherwise be common law trespass for the
purpose of gaining info
ii. Physical intrusion by the government into a constitutionally protected area to
obtain information
e. Searches conducted pursuant to a warrant
i. Requirements of a warrant
1. Issued by a neutral and detached magistrate
2. Based on probable cause established from facts submitted to the
magistrate by a government agent upon oat
3. Particularly describe the place to be searched and items to be seized
ii. Showing of probable cause – warrant will be issued only if there is probable
cause to believe that seizable evidence will be found on the premises or person to
be searched (Carroll v. US)
1. May be anticipatory
a. Sufficient that there is reason to believe that there is seizable
material
2. Use of informers – totality of the circumstances test
a. Reliability, credibility, basis of knowledge
b. Informer’s identity
3. Evidence may be admissible even though warrant is not supported by
probable cause
a. Evidence obtained in reasonable reliance on a facially valid
warrant may be used
b. Technical defect in a warrant may be an insufficient basis for
overturning murder conviction (Massachusetts v. Sheppard)
iii. Warrant must be precise – the warrant should describe with reasonable precision
the place to be searched and the items to be seized
iv. Search of third-party premise is permissible as long as there is probable cause to
believe evidence of someone’s guilt will be found
v. Neutral and detached magistrate
1. Magistrate who receives no salary other than compensation for each
warrant issued is not neutral and detached
2. Magistrate who participates in the search to determine its scope is not
neutral and detached
vi. Execution of a warrant
1. Must be executed by the police
2. Warrant should be executed without unreasonable delay because
probable cause may disappear
3. Announcement requirement – generally must knock and announce
a. If the officers have a reasonable fear that evidence will be
destroyed after they announce themselves, a limited delay before
using force to enter is reasonable (US v. Banks)
b. No knock entry is possible if the officer has reasonable suspicion
that knocking and announcing would be dangerous or futile or
that it would inhibit the investigation
4. Scope of the search is limited to what is reasonably necessary to discover
the items described in the warrant
5. Seizure of unspecified property - police generally may seize any
contraband or fruits or instrumentalities of crime that they discover
whether or not specified in the warrant
6. Search warrant does not authorize police to search people on the
premises who are not named in the warrant (Ybarra v. Illinois)
a. If police have probable cause to arrest someone found on
premise, they can search them incident to the arrest
b. If police have reason to believe someone on premises is armed
and dangerous, they can conduct a Terry search for weapons
i. Dickerson case: limitation on Terry
1. Knew cocaine was not a weapon, felt anyway,
this was unconstitutional
7. Detention of occupants is authorized while the search is being conducted
a. Detention should be limited, and is only applicable to people in
immediate vicinity
i. Officers cannot follow, stop, detain, and search people
who left shortly before the warrant was executed
f. Exceptions to warrant requirement
i. Search incident to a lawful arrest
1. If an arrest violates the constitution, any search incident to that arrest will
violate the constitution
2. Robinson – automatic right to do a search incident to arrest
3. Scope
a. Incident to a constitutional arrest, the police may search the
person and the areas into which he might reach to obtain
weapons or destroy evidence/his person and area in his
immediate control (his wingspan)
i. Chimel case, to prevent destruction of evidence or to
prevent the arrestee from grabbing a weapon
b. Police may make a protective sweep if they believe accomplices
may be present
c. Automobiles - After arresting the occupant of an automobile, the
police may search the interior of the auto incident to the arrest if
at the time of the search:
i. The arrestee is unsecured and still may gain access to the
interior of the vehicle; or
ii. The police reasonably believe that evidence of the
offense for which the person was arrested may be found
in the vehicle.
iii. Belton
1. Law enforcement can search entire passenger
compartment incident to arrest based on the fact
that entire area is within arm span
2. Dissent: if the recent occupant is in the back of a
police car, it is no longer within their reach
iv. Arizona v. Gant
1. Narrowed the scope of Belton
2. Arrestee must be recent occupant and be within
reaching distance OR it is reasonable to believe
that evidence relevant to the crime of arrest
might be found in the vehicle
d. Technological searches – court will balance the degree to which
the search incident to arrest intrudes upon a person’s privacy
against the degree to which the search is needed to promote
legitimate governmental interests
i. DUI arrest justifies breath but not blood test
ii. Physical attributes of cell phone may be searched but not
data
1. Data stored on a cell phone cannot be used as a
weapon
2. Riley case
iii. Carpenter v. US
1. Individual maintains legitimate expectation of
privacy in the record of his physical movements
as captured through cell phone records
e. A search incident to arrest must be contemporaneous in time and
place with the arrest
i. Cars – contemporaneous does not necessarily mean
simultaneous
1. May search the interior after the arrestee has
been removed from car and placed in squad car
as long as he was a recent occupant of the car
f. Search incident to incarceration – police may search an arrestee’s
personal belongings before incarcerating him after a valid arrest
i. Police may search an entire vehicle—including closed
containers within the vehicle—that has been impounded
ii. Automobile exception - If the police have probable cause to believe that a vehicle
such as an automobile contains contraband or fruits, instrumentalities, or
evidence of a crime, they may search the vehicle without a warrant
1. Chamber v. Maroney
a. Cars can be searched without a warrant provided that there is
probable cause to believe that the car contains articles that the
officers are entitled to seize
i. Cars are highly regulated
b. Search unnecessary where there is probable cause to search a car
stopped on the highway, the car is movable, occupants are
arrested, car’s contents may never be found again if a warrant
needs to be obtained
2. Scope – if the police have probable cause they can search the entire
vehicle including the trunk and all containers within the vehicle that
might contain the object for which they are searching
a. Passenger’s belongings – search may extend to packages
belonging to the passenger
b. Containers – if the police only have probable cause to search a
container, they may search that container but the search may not
extend to other parts of the car (California v. Acevedo)
3. Motor homes
a. Automobile exception extends to any vehicle that has the
attributes of mobility and a lesser expectation of privacy similar
to a car
i. California v. Carney: extends to motor homes if they are
not at a fixed site
4. Contemporaneousness not required
a. May tow the vehicle to the station and search later
iii. Plain view – the police can make a warrantless seizure when they:
1. Are legitimately on the premises
2. Discover evidence, fruits or instrumentalities of crime, or contraband
3. See such evidence in plain view; and
4. Have probable cause to believe (that is, it must be immediately apparent)
that the item is evidence, contraband, or a fruit or instrumentality of
crime
5. Hicks case
a. Cannot manipulate an item in any way
iv. Consent - police can conduct a valid warrantless search if they have voluntary
consent to do so; knowledge of the right to withhold consent is not a prerequisite
to establishing voluntary consent
1. If you consent to a search without putting certain boundaries, release
fourth amendment search rights
2. Officer’s false announcement that she has a warrant negates the
possibility of consent
3. Authority to consent – any person with an apparent equal right to use or
occupy the property may consent to a search and any evidence found
may be used against the other owners or occupants; search is valid even
if it turns out that the person consenting to the search did not actually
have such right, as long as the police reasonably believed that the person
had authority to consent
a. Limitation: where a party is present and objects, the police may
not act on consent from co-occupant
i. Georgia v. Randolph
1. A warrantless search of a shared dwelling for
evidence over express refusal of consent by a
physically present resident cannot be justified as
reasonable
4. Scope of search – limited by the scope of the consent
a. Consent extends to all areas which a reasonable person under the
circumstances would believe it extends
v. Stop and frisk
1. Standards
a. Police officer may stop a person without probable cause for
arrest if she has an articulable and reasonable suspicion of
criminal activity
b. If the officer also reasonably believes that the person may be
armed and presently dangerous, she may conduct a protective
frisk
2. Scope
a. Generally limited to pat down of outer clothing
i. Officer may reach into area of suspect’s clothing when
they have specific information that a weapon is hidden
there
ii. Cars - the officer may search the passenger compartment
of the vehicle, even if the officer has not arrested the
occupant and has ordered the occupant out of the
vehicle, provided the search is limited to those areas in
which a weapon may be placed or hidden and the officer
possesses a reasonable belief that the occupant is
dangerous.
iii. Identification may be required
iv. Time – no rigid time limit
1. Court will consider
a. Purpose of the stop
b. Reasonableness of the time in
effectuating the purpose
c. Reasonableness of the means of
investigation
3. Admissibility of evidence – if a police officer conducts a pat down, the
officer may reach into the suspect’s clothing and seize any item that the
officer reasonably believes is a weapon or contraband
a. Properly seized items are admissible as evidence
vi. Hot pursuit, exigent circumstances, evanescent evidence, and other emergencies
1. Hot pursuit – officers in pursuit of a fleeing felon may make a
warrantless search and seizure
a. If circumstances are such that you wouldn’t expect law
enforcement to get a warrant or it would defeat the purpose
altogether, a warrant is not required
2. Exigent circumstances – destruction of evidence
a. Police officers may enter a home without a warrant to prevent
destruction of evidence
3. Emergency aid – emergencies that threaten health or safety if not
immediately acted upon will justify a warrantless search
g. Administrative inspections and searches
i. Warrant is required for searches of private residences and businesses
ii. Search of airline passengers
1. Generally, searches prior to boarding are okay
h. Wiretapping and eavesdropping
i. Electronic surveillance that violates a reasonable expectation of privacy
constitutes a search under the fourth amendment
ii. For a valid warrant authorizing a wiretap to be issues the following requirements
must be met:
1. A showing of probable cause to believe that a specific crime has been or
is being committed must be made
2. The suspected persons whose conversations are to be overheard must be
named
3. The warrant must describe with particularity the conversations that can
be overheard
4. The wiretap must be limited to a short period of time (although
extensions may be obtained upon an adequate showing)
5. Provisions must be made for the termination of the wiretap when the
desired information has been obtained
6. A return must be made to the court, showing what conversations have
been intercepted.
iii. Exceptions
1. Unreliable ear
a. Speaker assumes the risk that person they are talking to is
unreliable, if the person they are talking to turns out to be an
informer, the speaker has no basis in the fourth amendment to
object to transmitting or recording of the conversation
b. US v. White
i. Testimony provided is not different than what the
informant would have said
ii. Informant is like an eavesdropper
iii. Assume the risk when you talk to someone that they
might tell someone else
2. Uninvited ear
a. Speaker has no fourth amendment claim if she makes no attempt
to keep the conversation private
IV. Methods of obtaining evidence that shock the conscience
a. Due process requires that state criminal prosecutions be conducted in a manner that does
not offend the sense of justice inherent in due process
b. Searches of the body
i. Reasonableness of searches into the body depends on weighing need for evidence
against magnitude of intrusion
ii. Blood samples are a reasonable intrusion
V. Remedies for fourth amendment violations
a. Standing
i. Whether or not someone has standing depends upon whether they had a
reasonable expectation of privacy
ii. Although there may be someone who had a reasonable expectation of privacy,
another person who was there may not have
iii. You cannot get standing based upon someone else’s reasonable expectation of
privacy
b. Exclusionary rule
Exclusionary Rule
I. In general
a. Judge made doctrine that prohibits the introduction of evidence obtained in violation of a
defendant's fourth, fifth, or sixth amendment rights
b. Scope of the rule
i. Fruit of the poisonous tree
1. Generally, illegally obtained evidence and all evidence obtained or
derived from exploitation of that evidence must be excluded
2. Limitation: fruits derived from Miranda violations
a. Fruits derived from statements obtained in violation of Miranda
may be admissible
ii. Exception – balancing test
1. Court’s must balance deterrence of police misconduct against the rule’s
cost (exclusion of probative evidence)
2. Exclusion is not automatic, whether exclusion is warranted depends on
“the culpability of the police and the potential of the exclusion to deter
wrongful police conduct”
a. Independent source: evidence is admissible if the prosecution
can show that it was obtained from a source independent of the
original illegality
3. Inevitable discovery – if the prosecution can show that the police would
have discovered the evidence whether or not they had acted
unconstitutionally, the evidence will be admissible (Nix v. Williams)
4. Intervening act of free will/attenuation – intervening act of free will by
the defendant will break the causal chain between the evidence and the
original illegality and thus remove the taint (Wong Sun v. US)
5. If the evidence can be retrieved from an independent source that has
nothing to do with the violation, the evidence is admissible
II. Limitations on the rule
a. Good faith exception
i. Exclusionary rule does not apply when the police arrest or search someone
erroneously but in good faith, thinking they are acting pursuant to a valid arrest
warrant, search warrant, or law
b. Knock and announce rule violations
i. Exclusion is not an available remedy for violations of the knock and announce
rule pertaining to the execution of a warrant
III. Enforcing the exclusionary rule
a. Right to hearing on motion to suppress
b. Govt bears the burden of proof by establishing admissibility by a preponderance of the
evidence
c. Defendant has the right to testify at suppression hearing without testimony being used
against him at trial on the issue of guilt
Confessions
I. Introduction
a. Admissibility of confession involves fourth, fifth, sixth, and fourteenth amendments
i. Fourth amendment – search and seizure limitations
ii. Fifth amendment – rights against testimonial self-incrimination
iii. Sixth amendment – rights regarding assistance of counsel
iv. Fourteenth amendment – protects against involuntary confession
II. Fourteenth amendment – voluntariness
a. Voluntariness is assessed by looking at the totality of the circumstances including age,
education, mental and physical condition, setting, duration, and manner of police
interrogation
i. Brown v. Mississippi: confession involuntary when obtained by physically
beating defendant
b. Must be official compulsion for a confession to be involuntary
i. Confession is not involuntary merely because it is the product of mental disease
that prevents the confession from being of the defendant’s free will (Colorado v.
Connelly)
c. Harmless error test applies
i. Conviction will not be overturned if an involuntary conviction was erroneously
admitted into evidence if the govt can show there was other overwhelming
evidence of guild
III. Sixth amendment right to counsel
a. Applies at all critical stages of a criminal prosecution
b. The right is violated when the police deliberately elicit an incriminating statement from a
defendant without first obtaining a waiver of the defendant’s right to have counsel present
c. Formal charges must have been filed
i. Right does not apply in pre-charge custodial interrogations
ii. Fifth amendment provides right to counsel at custodial police interrogations
IV. Fifth amendment privilege against compelled self-incrimination
a. Miranda warnings
i. Miranda warnings and valid waiver are prerequisites to the admissibility of any
statement made by the accused during a custodial interrogation
ii. Person must be clearly informed that
1. They have a right to remain silent
2. Anything they say can be used against him in court
3. They have the right to counsel
4. If they cannot afford an attorney, one will be provided to them
iii. Congress cannot eliminate the requirements by statute, this was based on
requirements of the fifth amendment
iv. Generally no need to repeat the warnings because of a break in interrogation
b. When required – anyone in police custody and accused of a crime must be given
warnings prior to interrogation
i. Custody requirement
1. Determining whether custody exists is a two-step process
a. Determine whether a reasonable person under the circumstances
would feel that he was free to terminate the interrogation and
leave
i. Reasonable person test presupposes an innocent person
b. Determine whether the relevant environment presents the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda
2. Test is objective – whether a person is in custody depends on the
objective circumstances of the interrogation
3. Traffic stops are generally not custodial, and thus no Miranda warnings
are necessary
ii. Interrogation requirement
1. Interrogation refers to any words or action on the part of police that the
police should know are reasonably likely to elicit an incriminating
response
a. Miranda does not apply to spontaneous statements not made in
response to interrogation
b. Miranda does not apply to routine booking questions
(Pennsylvania v. Muniz)
2. Break in interrogation
a. When a second police agency continues to question a suspect,
earlier denial of rights carries over into questioning by second
agency
3. Rhode Island v. Innis
a. Focuses primarily upon the perceptions of the suspect rather than
intent of police
b. No express questioning or its functional equivalent in this case
4. Test for interrogation
a. Express questioning
b. Functional equivalent
i. Practice that police should have known is reasonably
likely to evoke an incriminating response
ii. Intent of police is not irrelevant, may have a bearing on
whether police should have known
1. Ex: if a practice is designed to elicit an
incriminating response
2. Any knowledge police may have concerning
unusual susceptibility of a defendant to a
particular form of persuasion (ex: knowing they
are very religious)
c. Right to waive rights or terminate interrogation
i. After receiving Miranda warnings, the detainee can:
1. Do nothing
a. If the detainee does not respond at all, the court will not presume
a waiver
b. Court also will not presume the detainee has asserted their right
to remain silent
c. Police may continue to question
2. Waive rights
a. To be valid, govt must show by a preponderance of the evidence
that the waiver was knowing and voluntary
i. Totality of the circumstances test
b. Waiver is to interrogation in general, not to interrogation about
particular crime
i. Miranda is not crime specific
3. Assert right to remain silent
a. Indication of assertion of this right must by explicit,
unambiguous, and unequivocal
b. If the detainee properly indicates the assertion of this right,
questioning related to the particular crime must stop
4. Invoke right to counsel
a. If the detainee invokes this right, all questioning must cease until
the detainee is provided with an attorney or initiates further
questioning himself
b. Police may not resume questioning about any crime once this
right is invoked
c. Scope: whenever there is custodial interrogation, the right to
counsel applies
d. The request must be unambiguous and specific
e. If the detainee agrees to answer questions orally, but requests the
presence of counsel before making any written statements, the
detainee’s oral statements are admissible
i. Agreement to talk constitutes a voluntary and knowing
waiver of the right to counsel
f. Once invoked, the police cannot resume questioning in the
absence of counsel
i. This prohibition lasts the entire time that the detainee is
in custody for interrogation purposes
d. Effect of a violation
i. Generally, evidence obtained in violation of Miranda is inadmissible
ii. If the police obtain a confession without Miranda warnings, then give warnings
to obtain a subsequent confession, the subsequent confession is inadmissible
e. Public safety exception
i. If police interrogation is reasonably prompted by concern for public safety,
responses to the questions may be used in court (New York v. Quarles)
