LAW 604 ARIZONA STATE UNIVERSITY OTHER CRIM PRO Outline - 2020.pdf

Luna | Spring 20 J.Pettit

CRIMINAL PROCEDURE

Part 1: Overview

I. CRIMI AL PROCESS N

Pg. 11–63

A. Failures

B. Bill of Rights & Incorporation

Norms & Goals of Crim Pro:

Accuracy: ideally the criminal justice system should be designed to produce accurate results

Fairness: access to counsel & other procedural safeguards

Limited Gov.: there should be limits on what the gov. can do (i.e. mass surveillance)

Efficiency: cases should be resolved quickly w/o waste of fairness (in tension with accuracy &

fairness)

Exceptional Circumstances: in tension with limited government — maybe we want surveillance

and enhanced interrogation techniques to prevent terrorism?

Rule: state may regulate procedure, so long as it does not offend some principle of justice so rooted in

traditions and conscience of our people as to be ranked fundamental

A. F AILURES

Incorporation Debate: whether the provisions of the BOR as originally applied against the federal gov

now apply to the states through the 14th Amendment

—Phase 1: S.Ct. held that BOR didn’t apply to states prior to 14thA

—Phase 2: 14thA & Due process amounted to the invitation for the courts to define some of the

limits of crim pro to the states; defined certain necessary elements of fairness and found certain

things were so fundamental to fairness that refusal is a denial to due process

—Phase 3: Focuses on the specific language of the BOR as opposed to just “fundamental

fairness”

Brown v. Mississippi: (*pre-incorporation case): use of torture to obtain coerced confessions prevented

the trial from being fair and violated due process relied exclusively on text of 14thA 

Rule: In a capital case, where is unable to employ counsel or incapable of making his own ∆

defense (education, youth, etc.) it is the duty of the court whether requested or not assign

counsel to him as a necessary requisite of due process of law. And duty is not discharged if it is

assigned at a time to preclude effective aid and preparation before trial

Powell v. Alabama: (Scotsboro boys case): very narrow ruling that created the right to counsel, including

the essential time before trial

Appointment of “all members of the bar” was “little more than a gesture”

“a charged with a serious crime must not be stripped of his right to have sufficient time to advise with ∆

counsel and prepare his defense”

—trying to get rid of the patent abuse of the crim justice system but w/o much authority to do so

—Butler Dissent: the failure was only that they didn’t have enough time; applying fed.

Procedure to the states goes too far

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B. B R & IILL OF IGHTS NCORPORATION

Factors that motivate judges to make choices: (1) security & individual rights; (2) federalism; (3) racism

Overall theme of the 4thA: establishes “the people” as a separate entity from the gov.

4th & 5thA: less about ensuring accuracy or fairness and more about restricting the gov.

Duncan v. Louisiana: (*phase 3): the 6thA right is incorporated to the states through the 14thA and

requires a jury (at the very least) in criminal cases where the may serve jail time or where a jury would ∆

be required if the case were to be charged federally

Three Ways to Look at Incorporation:

1. Not Engage: due process does not equal BOR language; (Harlan Dissent: incorporation was

wrong and the right to a jury trial does not extend to the states)

2. Selective Incorporation: not a whole application of the BOR; but application of selected

provisions on a case by case basis (Fortas Concurrence: the right of a jury trial is incorporated to

the states but they can do so in the manner they choose, i.e. 9 jurors)

3. Full Incorporation: due process equals the BOR and applies the text exactly as written (Black /

Douglass Concurrence)

Rule: The test for incorporation of the Bill of Rights, is whether the right protected is among those

fundamental principles of liberty justice which lie at the base of our civil and political institutions

Part 2: Fourth Amendment

II. 4TH AME T OVERVIEW NDMEN

Pg. 71–94

A. Text

B. Exclusionary Rule

A. T EXT

4th Amendment: [clause 1] 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 [clause 2] no warrants

shall issue but upon probable cause supported by oath or affirmation and particularly described the place

to be searched and the persons or things to be seized

•Unreasonable: not really defiend

•“the people”: also not sure who this includes

oUS v. Verdugo Urquidez: 4thA did not protect a foreign citizen or his home abroad from

the 4thA because he was “not the people the framers intended to protect”

▪Mexican citizen brought from Mexico to US and DEA agents searched his home

in Mexico; was NOT protected by the 4thA; ∆

▪Left open 2 questions: (1) whether a non-citizen will receive constitutional rights

if they are involuntarily in the US for a substantial period of time (i.e. prison); and

(2) whether the 4thA protects non-citizens unlawfully living in the US but have

accepted some obligations (i.e. taxes)

•Remedies: none explicitly in the text

oOriginally only remedy was a civil suit

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oToday, presumably there is the exclusionary rule

2 Ways of Understanding Clause 1 & Clause 2:

1. Disjunctive: neither has clause had anything to do with the other

2. Conjunctive: clauses inform one another and what makes a search unreasonable depends on a

search or probable cause

B. EXCLUSIONARY RULE

Federal exclusionary rule: Weeks v. Ohio: establishes the federal exclusionary rule; excluded evidence

that was obtained without a warrant by federal officers in federal court — necessary to provide 4thA any

value

(*let in evidence that was obtained in violation of 4thA by state officers)

Rule: evidence obtained (*by federal agents) in violation of the 4thA is inadmissible at trial

Silver Platter Doctrine: local police would conduct unreasonable searches/seizures and then deliver the

evidence to federal prosecutors

Bryars v. US: held that this doctrine didn’t apply if it was in substance and effect a “joint federal

venture”

Wolf v. Colorado: (*overruled) held that the exclusionary rule did not apply to the states

example of selective enforcement: while they held that the 4thA did apply to the states, it is up to

the individual states to determine their own remedy for violations of the 4thA

Rule: S.Ct. held that states do not necessarily violate due process when they obtain evidence in violation

under circumstances that would make it inadmissible in federal court

Rochin v. California: (*the exclusionary rule in due process clothing)

Officers broke into ’s home; they watched him quickly swallow two capsules on his bedside table; they ∆

demanded his stomach be pumped S.Ct. excluded this evidence holding that “this is conduct that 

shocks the conscience” … illegally breaking into the privacy of someone’s home and the forcible

extraction of his stomachs contents … “they are methods too close to the rack and screw to permit of

constitutional differentiation”

Mapp v. Ohio: (*overrules Wolf): without the exclusionary rule, the 4thA is meaningless and if this

evidence is allowed in the police will have no incentive to follow the rules

•Black Concurrence: compared to the 5thA; there is an exclusionary rule for the 5thA and it is

imputed to the stated; logically this should follow; both provisions should work in tandem to

protect individuals

•Stewart Concurrence: (expressed no view) but believed that this was actually a 1stA issue instead

because the prohibition on pornography violated the 1stA

•Harlan Dissent: court violated stare decisis; the comparison between the 4th and 5thA is tenuous

because the 5thA was about making sure accurate evidence was admitted into court where as the

exclusionary rule prohibits accurate evidence (although obtained illegally)

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oProblems of criminal law vary from state to state and all SCOTUS should be doing is

making sure they are constitutionally fair

III. 4th AME T SEARCHES NDMEN

Pg. 95–176; & supplement

A. Katz Doctrine

B. Open Fields

C. Katz & New Tech

D. What is a Seizure

A. K D ATZ OCTRINE

Protected interests: persons, houses, papers, and effects

BUT an officer can get at all of things, he just needs a warrant

Searches: initially based on trespass: Boyd v. US: every invasion of private property is a trespass

Search ELEMENTS:

1. police (or those acting on their behalf) take an investigative action that intrudes on the

defendant’s subjective expectation of privacy; AND

2. that expectation of privacy is one that the court determines to be a reasonable one under the

circumstances

Factors to Consider:

Nature of place to be searched homes will get the highest deference 

Steps taken by owner to ensure privacy

How intrusive is the search? things like pen registers are much less intrusive 

What is the nature of the activity observed

Katz v. US: holds that the 4thA protects PEOPLE not places

 “what a person knowingly exposes to the public, even in his own home, is not a subject of 4thA

protection; but what he seeks to preserve as private, even in an area accessible to the public, may be

constitutionally protected”

What petitioner sought to exclude was not the intruding eye but the uninvited ear

Tapping a phone booth violated a reasonable expectation of privacy

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Stewart: no expectation of privacy for what we disclose to the public

Does not explain WHO is the public

Black Dissent: essentially equates this to eavesdropping and ties the 4thA back to trespass

Harlan Concurrence: 2 Prong TEST

1. Subjective: Person exhibited a subjective expectation of privacy

2. Objective: Expectation of privacy is one the public is willing to accept

*almost all the weight falls to the 2nd prong to determine what societal expectations of privacy are

Rule: the 4thA protects that to which we have a reasonable expectation of privacy; 4thA affords no

protection to the misplaced belief that a person with whom he voluntarily confides his wrongdoing will not

reveal it

US v. White: (*recorded conversations from informant wearing a wire)

Adopts Harlan’s 2 prong test

1. did not have a subjective expectation of privacy might have felt his conversations were ∆  ∆

private, but you always run the risk that someone will snitch

2. Expectation of privacy was not reasonable assumption of the risk 

*it also does not make sense to allow an informant’s memory of a conversation to come in, but disallow

a very accurate recording

***got rid of the idea that there had to be a physical intrusion for there to be a search

•Douglass Dissent: this compares gun powder to the nuclear bomb; the framers might have

allowed eavesdropping but this has gone too far

•Harlan Dissent: has fears of an Orwelian society; the consequence is that nobody will talk feely

because they will always be fearful that they may be recorded; the question must be answered in

assessing the nature of the particular practice and the likely extent of its impact on the individual

sense of security balanced against the utility of the conduct as a technique of law enforcement

Three Ways the Gov. Can Get a Conversation:

1. : surreptitiously eavesdrop with a warrant Katz

2. Gov. can participate in the conversation itself

3. One party to the conversation can turn that information over to law enforcement

Smith v. Maryland: (*pen register) — applies the 2 prong test

1. No reasonable expectation of privacy People know they convey numbers to the telephone 

company so they can make the connection and you receive a printout of this at the end of the

month so it is clear they keep a record

2. Not an expectation society accepts what someone screams out of a window is not private 

and this is what they have done by conveying these numbers

*important distinction: they did not get the content of the calls

•Dissent: even w/o the content of the calls, the numbers themselves are very revealing

•Stewart Dissent: a phone is no longer a luxury; people cannot really assume this risk; denies the

idea of the third party doctrine

Third party doctrine: allows third parties (i.e. the telephone company) to turn over their own information

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Dog Sniffs: Dog sniffs are NOT a search!!!

1. not a physical intrusion of privacy

2. only reveal contraband, which is something society is not prepared to protect and the

information obtained is very limited (i.e. no legit privacy interest in contraband)

Illinois v. Caballes: dog sniff at a traffic stop did not violate a reasonable expectation of privacy because

all that it revealed is the presence of narcotics

B. O F PEN IELDS

Open Fields: may include any unoccupied or undeveloped area outside the curtilage of the home; an

open field need neither be open nor a field; for example, a thickly wooded area nonetheless may be an

open field as that term is used in construing the 4thA — Oliver v. US: confirmed that Katz did not

overrule open fields

*a no trespassing sign does not convert property into a home/paper/person/effect

•Marshall Dissent: property law should matter; law enforcement should not be allowed to jump

fences onto private property merely because it is considered an open field; people do not put up

no trespass signs and fences arbitrarily

Open field protected UNLESS it is within the curtilage of the home ≠ 

Hester v. US: open fields are not protected by the 4thA

 an individual may not legitimately demand privacy for activities conducted out of doors in fields,

except in the area immediately surrounding their home

 there is no societal interest in protecting these activities; as a practical matter, these lands are usually

accessible to the public and the police in ways that a home, office, or commercial structure would not be

Curtilage Factors: US v. Dunn

1. proximity of the area claimed to be curtilage to the home

2. whether the area is included within an enclosure surrounding the home

3. the nature of the uses to which the area is put

4. steps taken by the resident to protect the area from observation by passers by

*don’t really produce a fine tuned formulation

Court concluded that the barn was not a search because there was no reasonable expectation of

privacy because the barn was not within the curtilage of the home

Aerial Surveillance

California v. Ciraolo: surveillance conducted within the navigable airspace is not a violation of the 4thA

Rule: there is no reasonable expectation of privacy from aerial surveillance, even if within the curtilage

of the home

Key point: what was observed could have been observed by any member of the public

1. subjective expectation yes; had very high fences around his plants 

2. society no; the society is not prepared to protect what can be seen by the naked eye 

Dissent: the yard was w/in the curtilage reliance on the manner of surveillance is directly

contrary to the standard of Katz; the majority’s premise is also flawed because the actual

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risk to privacy from civilians in commercial flights is nonexistent and at most they would

get a fleeting glance; what these officers did goes well beyond that

Florida v. Riley: surveillance from a helicopter used to view a partially covered greenhouse growing

marijuana; there was no expectation of privacy because anyone could be in the airspace and it happens

so infrequently

*it MIGHT have been a different story if the helicopter was flying to low, causing undue noise or

dust, etc. (but just dicta)

**both and were w/in the curtilage (*technically) because they did so from a place that the Riley Ciraolo

public could have seen it, it was fine

Garbage:

California v. Greenwood: no reasonable expectation of privacy in garbage left outside the curtilage of

the home for trash removal — particularly important that you have already conveyed the trash to a 3rd

party

No reason for cops to avert their eyes from something anyone in the public could have seen

Bond v. US: agents squeezed luggage on a Greyhound bus agents grab was a violation of 4thA 

Gov. argued that by exposing the bag to the public that he lost a reasonable expectation that his

bag would not be physically manipulated;

BUT while he may expect it to be handled, he does not expect it to be felt in an exploratory

manner

C. K & N ATZ EW TECH

Kyllo v. US: (*use of thermal imager) sense enhancing technology to see inside the curtilage of the home

violates the 4thA

Rule: it is a search when officers use sense enhancing technology that is not in general public use to

gather information about the interior of the home

The fact that the wall/home was not physically penetrated is irrelevant they obtained private 

information from the home and that is sufficient; the protection of the home is not premised on

the content or quality obtained

*court is unwilling to create a jurisprudence based on intimate v. non-intimate activities w/in the

home

Stevens Dissent: this is not a search because it was heat emanating from the home and no

physical intrusion

Beeper Cases:

US v. Knotts: (beeper placed on bottle w/ sellers permission) search did not constitute a search under 

the 4thA because a person traveling on public thoroughfares has no reasonable expectation of privacy

(i.e. the police could have followed him around if they had wanted to)

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Rule: Public routes of travel are not a protected privacy interest. The less information the

technology provides, the less likely it is to be a search

US v. Karo: same facts but different result because the beeper was placed in his home and they received

information they otherwise would not have been entitled to

Rule: monitoring of a beeper in a private residence, a location not open to visual surveillance,

violates the 4thA

US v. Jones: warrantless placement of a GPS on a vehicle is a violation of the 4thA

 justified under a trespass theory; Katz did not supplant the original trespass understanding but merely

expanded it

(they also tracked him consistently for 2 weeks and length of time is a factor)

Vehicle = private effect

Rule: the gov. installation of a GPS device on a private (i.e. an effect) and its use to track its

movements constitutes a search

***differs from Knotts/Karo because the beeper was lawfully placed with the permission of a third party

before it was sold to the tracked party;

Sotomayor Concurrence: accepts the idea of a common law trespass but does not believe this

will be relevant with new technology whenever the government physically intrudes on 

personal property to gather information it is a search

Alito Concurrence: confused why they are using a 1700s concept to apply to modern day

technology; is also concerned about the sheer amount of data a GPS tracker can obtain

Grady v. North Carolina: (*ankle monitor attached to sex offender) — attaching a GPS tracking device

w/o consent is certainly a search remanded to determine whether the search was unreasonable 

4thA extends beyond criminal investigations???

Carpenter v. US: (*cellular records used to place at the scene of a crime spree) ∆

Holding: gov. acquisition of cell data invaded a reasonable expectation of privacy and rendered the

search unreasonable w/o a warrant

Compared it to two types of cases:

(1) Beeper Cases: similar to GPS tracking, but even more intrusive; not limited to a car or a

container but to a phone that goes everywhere; it is also remarkedly cheap and easy to get the

data

*Most importantly: when they place a GPS on someone they are already suspected of a

crime; cellular records allow law enforcement to get retroactive data on anyone

(2) Third Party Doctrine: does not resolve this case because this is much more intrusive and not

used transactionally like bank records

*does not overrule beeper cases or third party doctrine

Dissents:

•Kennedy: this isn’t dissimilar from any other biz record; these aren’t even your records but the

cell phone companies

•Thomas: cell data isn’t a person, paper, house, or effect; and if there was a search, it was the cell

company that was searched; also wants to reject Katz all together because privacy isn’t in the

4thA

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•Gorsuch: Katz is problematic because we have no idea what “reasonable expectation” means

and what society is prepared to protect; also just because a third party as access to something in

your possession does not eliminate your interest (i.e. a mortgage)

Florida v. Jardines: a drug sniffing dog on a person’s porch constitutes a search of a person’s home

(curtilage)

—license argument: although the public (and the police) might have a license to go to the front door,

that license is limited to walking up the sidewalk, knocking, waiting and then leaving if not invited in 

the license doesn’t include sniffing the porch;

•Kagan Concurrence: should have been decided under Kyllo or a reasonable expectation of

privacy

•Alito Dissent: officer did not violate trespass law because he had a license; also, customarily we

have used drug sniffing dogs

D. WHAT IS A S EIZURE

US v. Karo: container containing a tracking device does not constitute a seizure; at most this was a

technical trespass

Seizure: occurs when there is some meaningful interference with an individual’s possessory interest in

that property

A seizure of a person occurs when the officer, by means of physical force or show of authority,

has in some restrained the liberty of a citizen

Rule: Objects subject to seizure include contraband (not lawful property of possessor), fruits of crime,

instrumentalities of commission of offense, mere evidence (i.e. a blood stained shirt)

Arrest: considered the quintessential seizure!

IV. PROBABLE CAUSE

Pg. 177–238

A. Probable Cause

B. Arrest Warrants

C. Search Warrants

Searches

Not Searches

Katz: tapping a telephone booth

Bond: squeezing luggage

US v. Karo: beeper that followed someone into a home

NC v. Grady: ankle bracelet on a sex offender (unclear

if unreasonable)

Jones: placement of GPS on vehicle

Carpenter v. US: cell records

Florida v. Jardines: drug sniffing dog w/in curtilage

US v. White: CI wearing a wire

Smith v. Maryland: pen register

Illinois v. Caballes: dog sniffs

Hester & Oliver: open fields

Dunn: barn not w/in curtilage of the home

Cali v. Ciarolo Florida v. Riley: & aerial

surveillance

Greenwood: trash

US v. Knotts: beeper in public traffic

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A. P C ROBABLE AUSE

Probable Cause: PC to arrest exists where the facts and circumstances within the officers’ knowledge

and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man

of reasonable causation in the believe that an offense has been or is being committed

an arrest w/o probable cause is always an unreasonable seizure

a search or seizure is constitutionally unreasonable unless accompanied by PC but there are a

lot of exceptions

PC Required for: ALL arrests, ALL warrants, and MOST searches and seizures of property

Probable cause: no numerical answer; somewhere lower than preponderance of the evidence which is

51% (i.e. more likely than not)

The 4thA prohibits unreasonable searches & seizures, which generally means they have to be supported

by probable cause

 i.e. searches / seizures without probable cause = unreasonable

Aguilar Two-Prong Test:

1. basis of knowledge: how did the informant get the info? (i.e. credibility/integrity)

2. veracity: why should we believe the informant

Rule: an affidavit that lacks sufficient detail to explain why an informant is reliable and how he came to

that conclusion does not provide the necessary information to supply a valid search warrant

Spinelli v. US: to uphold a search warrant under the 4thA, the warrant has to meet the Aguilar two prong

test

—here, the evidence was generally vague and circumstantial and not as predictive as the info in Draper

TEST: Illinois v. Gates: discards the two-prong test in favor of the ; BUT totality of the circumstances

the two prongs are relevant in analyzing the totality of the circumstances

Standard of Review: great deference; should not be hyper technical but common sense

Rule: A warrant application satisfies the 4thA probable cause requirement so long as it establishes a

substantial basis for concluding that the search will uncover evidence of wrongdoing

Elements about whether a CI is reliable: if CI has previously provided reliable information;

whether the informant is a member if a reliable group (i.e. a minister v. a career criminal); the

specificity of detail in the tip, especially if it contains personal or predictive knowledge; whether

the tip includes evidence against the CI’s interest; freshness of the information

McCray v. Illinois: S.Ct. ruled that the due process clause does not require a judge in every probable

cause of evidence suppression hearing to compel disclosure of the informants identity

If ’s could demand disclosure, all would do so and there would be no CIs which we rely on ∆

heavily

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Franks v. Delaware: where makes a substantial prelim showing that a false statement knowing & ∆

intentionally (or recklessly disregards truth) was included in the warrant, the 4thA requires that a hearing

be held at the ’s request ∆

If this is established by a preponderance of the evidence, the false information is set to one side

and then if the remainder of the info contained in the warrant is sufficient for a PC finding then the

warrant will be upheld

Maryland v. Pringle: (*speeding vehicle w/ 3 men and none would admit who the cocaine belonged to)

Determined that there was probable cause to arrest all of them and that there was probable cause to

believe that committed the crime of possession either jointly or solely ∆

All occupants were equally likely = probable cause for each

Schmerber v. Cali: (*took blood sample from motorist) — involves an intrusion into a human body, is a

more offensive type of search than ordinary and therefore requires a clear indication that in fact such

evidence will be found “ probable cause plus”

Winston v. Lee: police need greater information than PC to compel a hyper intensive surgery to obtain

evidence

Rule: when the police seek to intrude into an area in which our society recognizes a significantly

heightened privacy interest, a more substantial justification is required to authorize such a search

US v. Harris: credentialed dog that sniffs can be basis for PC but remember dogs are infallible 

B. A RREST WARRANTS

Peyton v. NY: police may not enter a person’s home to make an arrest without a warrant (but they may

do so on the streets or if there are exigent circumstances)

“it is the basic principle of 4thA law that searches and seizures inside a home without a warrant are

presumptively unreasonable”

RULE: to arrest a person in their own home, a warrant is required that contains who they are searching

for and where they expect to find them

Exceptions: exigent circumstances or suspect is in public

Arrest warrants do NOT authorize the police to enter into the home of a third party

Gerstein v. Pugh County of Riverside v. McLaughlin and : if an arrest is made in public w/o PC, officers

have 48 hours to bring them before a judge and demonstrate why there is PC

PC can be established after the fact

*does not answer what remedy is available or what happens if a timely hearing doesn’t occur

Minnesota v. Olson: S.Ct. refused to determine whether there was/was not PC; but in this case, once the

suspect was no longer in hot pursuit (the next day) the exigency exception did not apply

Steagald v. US: an arrest warrant does not authorize officers to search for the suspect

Arrest warrant for Lyons; officers broke into Steagald’s house where Lyons was hiding and

found Steagald’s drugs; arrested Steagald a search warrant could have been obtained, but they 

only had an arrest warrant so this behavior was not authorized

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Absent a search warrant or exigency, conducting a search while attempting to execute arrest warrant in

a 3rd party’s home is a violation is a violation, including items in plain view

Warrants and the Constitutional Debate

Conjunctive view: clauses should be read together because lack of a warrant is what makes a

search unreasonable (*adopted)

Disjunctive view: the two clauses need not be read together; a search w/o a warrant just has to be

reasonable and a search with a warrant allows nearly everything

Presumption of a Warrant per Scalia, it is an illusory victory because the exceptions to the 4thA have 

rendered the warrant requirement almost intelligible

Pro: makes sense, textually sound, and provides very little detriment to law enforcement

Con: if it is so easy to get a warrant then it isn’t safeguarding anyone; it also doesn’t matter

because officers forum shop for judges that frequently give them out

C. S EARCH WARRANTS

Lo-Ji Sales v. NY: warrants must be (1) detailed and contain a list of things to be seized (with varying

degrees of particularity) and (2) issued by a detached magistrate

(2-page warrant that was edited after the fact and the magistrate participated in the search invalid) 

General warrants = invalid

Elements of Valid Search Warrant

1. neutral & detached magistrate

2. supported by probable cause to believe the items to be seized are connected with criminal 

activity and will be found in the location to be searched

3. supported by oath or affirmation

4. describes place to be searched or thing to be seized with particularity

When is their PC for a search warrant? when items sought are subject to seizure by virtue of their connection 

with criminal activity (or their status as contraband) and the items will be found in the place to be searched

Coolige v. New Hampshire: warrant issued by the AG not allowed; warrant has to be issued by a 

judge and NOT the chief law enforcement officer of the state

Connaly v. Georgia: paid magistrate when she issued the warrant not allowed; financial incentives 

prevent her from being a detached magistrate

US v. Decker: what if the magistrate doesn’t read or merely skims the warrant maybe allowed; a 

minimal review is all that is required

Andresen v. Maryland: courts should read warrants in a fair context and not go searching for evidence of

ANY crime; they have to state what they are looking for or in relation to a particular crime

Groh v. Ramirez: the fact that a warrant application accurately describes the things to be seized does not

save the warrant if the warrant itself is inadequate

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Knock and announce rule: (*old requirement / not considered absolute) — protects notice,

unwarranted violence, privacy, personal property destroyed in entry (i.e. dogs)

Part of the reasonableness test to determine whether a search was reasonable under the 4thA; police

must knock and announce before attempting forceful entry UNLESS exigent circumstances exist and to

do so would be to undermine law enforcement interest

Richards v. Wisconsin: no blanket exception to the knock and announce rule, but police may justify a no-

knock entry if they have reasonable suspicion that it would be dangerous or futile or inhibit the effective

investigation (i.e. by allowing the destruction of evidence): Time required 15-20 seconds 

Illinois v. McArthur: not a 4thA violation to require a man to wait outside his home while another officer

obtained a search warrant – period of time was not longer than necessary (2 hours) and he would’ve

gone back inside to destroy evidence

1. police had PC to believe there was contraband

2. police had a good reason to believe evidence would be destroyed

3. police made reasonable efforts to reconcile their law enforcement needs w/ demands of

personal privacy

4. restraint was for a limited time

Scope of a Search:

(1) Can only search in containers that are large enough to conceal the item they are looking for

i.e. small baggie of heroin? can look almost anywhere 

stolen motorcycle? garages, porches, etc. 

officers get around this by looking for the keys to the stolen motorcycle

(2) May seize any item they have probable cause to believe is sizeable — do not have to be blind

to evidence they come across

(3) Events before and after may cause law enforcement to halt their search

Maryland v. Garrison: once officers realized were searching the wrong apartment they

had to cease searching; BUT the evidence found prior to that point is still admissible

The fact that there were two units upstairs only matters if the officers knew or should

have known that there were two units

Ybarra v. Illinois: officers must have independent probable cause to search each person; simply being

present on a scene where officers have a search warrant to search does

not mean that officers get to search every person there; a mere propinquity is insufficient

this doesn’t mean that they can’t search people coincidentally at the scene, but they must have

independent probable cause for those individuals

Michigan v. Summers: a warrant to search a residence for contraband founded on PC implicitly carries

with it the limited authority to detain the occupants of the premises which a proper search is conducted

Detention limited to the duration of the search & applies to individuals in the immediate vicinity

Muehler v. Mena: right of detention pursuant to Summers is automatic: it does not require law

enforcement to have a particular suspicion that an individual seized is poses a specific threat or involved

in criminal activity [also includes the right to use reasonable force to secure & maintain detention]

Luna | Spring 20 J.Pettit

Arrest v. Search Warrant:

Common Search Warrant Exceptions:

1. Incident to a lawful Arrest

2. Whether the police are acting with the consent of the person controlling the premises

3. where the police are in plain view of the item and they are standing in a place they have the

right to be

4. search of a movable vehicle under the automobile exception (PC still required)

5. where police are in hot pursuit

6. where the immediate destruction of evidence is threatened

7. during the frisk of a stop and frisk (RS is required)

8. where police are making a protective sweep of the premises (valid only if reasonable belief of

danger to officers)

9. inventory search following impoundment or arrest

10. regulatory (admin) searches in the form of emergency inspections or inspections of highly

regulated industries

V. WARRA T REQUIREME TS N N

Pg. 238–320, 331–339

A. Exigent Circumstances

B. Search Incident to Arrest

C. Cars & Containers

When a Warrant is NOT Required

1. Emergency aid

2. Hot pursuit of a subject

3. Exigency to prevent imminent destruction of evidence

A. E CXIGENT IRCUMSTANCES

Warden v. Hayden: warrant not required to chase a fleeing suspect into his home

Kentucky v. King: can police create the exigency yes 

TEST: so long as law enforcement has not yet violated the 4thA, and it is not threatening to, there is no

violation

Knocking on the door and announcing did not create an exigency; if they hear scuffling that

leads them to believe they can enter to prevent the destruction of evidence they may enter

without a warrant

Arrest: issued by a magistrate upon a

showing that PC exists to believe that the

subject of the warrant has committed an

offense and thus the warrant primarily

serves to protect an individual from an

unreasonable seizure

Search: issued upon a showing of PC to believe

that the legitimate object of a search is located in a

particular place, and therefore safeguards an

individual’s interest in the privacy of his home and

possessions against the unjustified intrusion of the

police

Luna | Spring 20 J.Pettit

S.Ct. declines to require getting a warrant if possible there may be many reasons to avoid this 

* case remanded to determine if what they heard was sufficient to justify an exigency

Rule: The exigent circumstances exception to the 4thA applies to officer created exigencies so long as

the exigency does not arise from the officers unreasonable or unconstitutional conduct

Welsh v. Wisconsin: before agents can invade the sanctity of the home, the burden is on the gov. to

demonstrate some exigent circumstances that overcome the presumption of unreasonableness that that

attaches to all warrantless home entries

Noncriminal offense (like a DUI) is likely insufficient But not a categorical rule 

Stanton v. Sims: rejects Welsh because it wasn’t really “hot pursuit”’ allows officers to chase a suspect

into a home when they are in hot pursuit even if it is a low level offense

Distinguished from Welsh because Welsh was literally walking from his car — there really was

no hot pursuit; Welsh only held that a warrant would usually be required

*seriousness of a crime may be a factor in determining whether there was a “hot pursuit”

BUT warrantless hot pursuit can be constitutional . . . but a warrant will usually be required

Supplement: Mitchell v. Wisconsin: exigent circumstances existed when a party was too lethargic and

unconscious for a breathalyze and a blood draw was permitted to determine BAC — partially justified

that the suspect had to go to the hospital and undergo a blood draw anyway

***does not definitively answer whether warrantless blood draws are permissible

Emergency Aid Exception:

Brigham City v. Stuart: officers may lawfully enter a premises to break up a fight and render aid

(permitted because they could see the fight from the backyard, and were lawfully in the backyard

because they saw underage drinking)

B. S I EARCH NCIDENT TO ARREST

Chimel v. California: incident to a lawful arrest, police may search 

A. anything within the suspect’s reach — “grabbable area”

B. his person

Reasoning: officer safety & destruction of evidence

RULE: incident to a lawful arrest, a warrantless search of the area in possession and control of the

person under arrest is permissible under the 4thA

US v. Robinson: an arresting officer does not need probable cause to believe that the arrestee has a

weapon or criminal evidence on his person; the right to conduct the warrantless search is automatic. If

the custodial arrest is based on probable cause, no more is needed

Getting a Warrant:

Rule: police must, whenever practicable, obtain advance judicial approval and the scope of the search

must be strictly tied to and justified by circumstances which rendered its initiation permissible

1. warrantless searches are unreasonable (default)

2. burden is on officers to demonstrate existence of justification for lack of warrant

3. scope of a warrantless search must be no broader than the justification compels

4. once circumstances leading to the justification no longer exist, back to the default rule

Luna | Spring 20 J.Pettit

Riley v. California: Cell phone searches do not fall into the incident to arrest category

1. Officer safety: cell phones do not pose a threat to officers and the police may take physical

custody of the phone to prevent it from being used as a weapon

2. destruction of evidence: there isn’t really any risk that the arrestee will delete information once

he is in custody, and remote wiping and encryption can also be dealt with

*there is also an extremely high privacy interest at stake given the vast quantity of data

Cell phones can be searched: 1. Exigent circumstances; and 2. With a warrant

“should truly limit exigent circumstances to now or never circumstances”

Balancing Test: degree of intrusion into privacy and legitimate government interest (case by case)

Birchfield v. North Dakota: officers may arrest a motorist for drunk driving and compel a breathalyzer

but not a blood test too intrusive (unless exigency) generally have to use the less obtrusive means  

State may criminalize the refusal of a breath test and warrantless breath tests incident to arrest

are per se constitutional BUT blood tests are too intrusive 

C. C & CARS ONTAINERS

New York v. Belton: police can search anything in the immediate area of the arrestees control 

expanded to mean that this means the entire interior of the car, including a jacket pocket containing

drugs (*does not include the trunk of the car)

Majority purports to follow but actually doesn’t because they don’t follow a case-by-case Chimel

analysis of what is in the immediate area

ONLY applies if the arrestee is unsecured and in the reaching area of the vehicle

Container: includes any object capable of containing another object; includes glove compartments,

consoles, luggage, bags, etc.

Brennan Dissent: the compartment of the car is not always going to be in the immediate control;

what about locked glove boxes, luggage, etc.

White Dissent: far too sweeping to permit searches of containers inside cars w/o any suspicion

Knowles v. Iowa: search incident to arrest first requires that the suspect be arrested; cannot merely be

done pursuant to a traffic violation

Atwater v. City of Lago Vista: officers may arrest a suspect and bring them to jail even if their offense

was not jailable no matter how minor the offense, an officer can arrest if he sees it happen 

Virginia v. Moore: a custodial arrest based on PC, even in violation of state law, is still lawful for 4thA

purposes

Search incident to arrest requires a LAWFUL arrest; a custodial arrest although in violation of

state law, is still lawful for the purposes of the 4thA

Thorton v. US: extends Belton to apply to situations where the was the recent occupant of a car (but ∆

not taken into custody while he was in a car)

RULE: police may search a vehicle incident to arrest only if the occupants are within reaching distance

at the time of the search or it is reasonable to believe the vehicle contains evidence of arrest

Luna | Spring 20 J.Pettit

Arizona v. Gant: rejected and applied the reasoning in Belton Chimel

There is NOT an automatic right to search a vehicle incident to arrest the factors must exist!  Chimel

 here, is handcuffed & not near the vehicle & nothing is within his reach; ∆

A search incident to arrest may occur when it is reasonable to believe that evidence relevant to

the crime of arrest might be found within the vehicle unlikely to exist in traffic arrests 

Alito Dissent: overturning precedent requires accounting for reliance, changed

circumstances, workability, consistency, and bad reasoning; should have kept Belton

bright line rule

Rule: except with inventory searches and administrative inspections, when probable cause of illegal

conduct exists an officer’s true motivation for searching or detaining a person does not negate the

constitutionality of the search or seizure  no reasonable officer standard!

Whren v. US: motivations of police officers do not really matter (even where there is an indication that

officers were racially profiling) the only question is whether there was sufficient PC 

*court remains adamant about evaluating police conduct objectively

Automobile Exception:

Chambers v. Maroney: officers may search a vehicle (not incident to arrest) if there is probable cause to

believe it contains evidence of a crime

Justified on the basis that cars are readily movable & can drive away, therefore they should

dispense with warrants

Coolige v. New Hampshire: (*distinguishes Chambers): officers later searched ’s two cars located in ∆

his driveway; the rule does not apply when there is a temporal break the point of Chambers 

Chambers is that cars & their evidence might disappear quite quickly, but if the cars are not searched

until much later that justification disappears

Rule: under the 4thA, a vehicle that can be readily moved & has a reduced expectation of privacy

due to its use as a licensed motor vehicle may be searched w/o warrant provided probable cause exists

California v. Carney: automobile exception applies to any mobile vehicle, including RVs, that people

live in court unwilling to distinguish categories of vehicles 

*further, it serves as a repository for personal items that travel on public thoroughfares and

Stevens Dissent: they key aspect of the automobile exception was that the car can be moved

quickly; this is not present here

Collins v. Virginia: (supplement): motorcycle covered by a tarp on a front porch is sufficient to fall

within the curtilage of the home & therefore the automobile exception did not apply

Officers may search a car when:

•Automobile exception: PC required

oChambers, Carney

•Incident to arrest: IF the arrestee is unsecured & in reaching distance, OR there is PC that there is

evidence pertaining to the arrest

•Inventory search: so long as there are police polices in place

South Dakota v. Opperman: vehicle can be searched when it is impounded

Luna | Spring 20 J.Pettit

1. protects owner’s property by making a record

2. protection of police against property disputes

3. protection against danger

Florida v. Wells: highway patrol officers were not permitted to open a locked suitcase they discovered

during an inventory search because they had no policy whatsoever with respect to the opening of closed

containers encountered in an inventory search

Chadwick: what happens when you have PC to a container within the car but not the car itself?

 can search the car

•Carroll line of cases: PC to believe that there is evidence of a crime in the car can conduct a 

search through the automobile exception

•Ross: police conducted a warrantless search & found a container; if PC justifies a search of a car,

then it also authorizes vehicle compartments

•Sanders: suitcase containing marijuana in a taxi; automobile exception did not apply because PC

only went to the particular item and couldn’t rely on PC for a single item

Rule: when police have probable cause that a container in a car contains contraband, they may search

the container without a warrant, but unless they have probable cause for the car as well, the search must

be limited to the container

Chadwick & anomalies resolved in 

California v. Acevedo: officers may search a vehicle for an item but if they only have PC for a particular

item then they cannot use the automobile exception to search the entire car just for the item 

Rationale: (1) containers can be easily destroyed or hidden; (2) privacy concerns or exigent

circumstances would be the same; (3) two rules doesn’t make sense

Scalia Concurrence: these searches were permitted at common law

Stevens Dissent: searches were per se unreasonable w/o exigency; if officers lacked PC for the

car before the container was placed in it, placing it inside does not change the circumstances

VI. PLAI VIEW & TOUCH N

Pg. 339–83

A. Doctrine

B. Consent

A. D OCTRINE

Rule: when police have a legal right to be where they are and they find incriminating evidence and the

incriminating character is readily apparent, the police may seize the evidence without a warrant under the

plain view doctrine

Horton v. California: TEST: to seize an item in … plain view

Luna | Spring 20 J.Pettit

1. item must be in plain view & incriminating character immediately apparent

2. officer is legally allowed to be there

Rejected the idea that officers have to find objects inadvertently but still relevant 

Brennan Dissent: thinks this leads to allowing a very broad search of a home when they are

searching for small items

Arizona v. Hicks: turning stereo equipment around to check serial numbers is a violation

of the plain view doctrine; to do so they need independent probable cause for that item

—plain view does not authorize manipulation of objects

Plain touch: Minnesota v. Dickerson: when patting someone down it has to be obvious that what they

feel is a weapon to remove the object from that person

B. C ONSENT

Rule: the question of whether consent was freely given is to be determined from the totality of the

circumstances. Knowledge of the right to refuse is one factor of many. The 4th and 14thA require the STATE

to demonstrate consent was voluntary and not the product of coercion.

Balance two competing concerns: legit need for these searches & requirement of assuring absence of

coercion

Schneckloth v. Bustamonte: to show that was voluntarily given they have to look at the consent totality

of the circumstances

Comparison to 5thA fails; the 5thA is concerned with the accuracy of statements made during 

an interrogation, but the evidence obtained under the 4thA is generally very accurate, just

obtained unlawfully

Marshall Dissent: people really cannot consent if they are unaware of their rights

Ohio v. Robinette: officers are not required to tell s that they are free to go before they request a ∆

consent search

Bumper v North Carolina. : consent is involuntary when the police claim a lawful authority that they do

not have (i.e. lying about a warrant)

Rule: if a physically present tenant refuses to a search, that refusal trumps consent by a second tenant

Georgia v. Randolf: when 1 occupant consents and the other does not, anything the police find is

inadmissible to the non-consenting party

Assumes that co-habitants assume the risk of granting equal rights to one another

Police also must have a reasonable belief that the person giving consent has the authority

Matlock: allowed consent by 1 occupant so long as the other occupant was not present

Fernandez v. California: initially objected to consent of his home but was arrested ∆

because he was beating up his wife; officers went back an hour later and asked the wife to

consent and this was valid

Rule: under the 4thA, the police may enter a home without a warrant if they reasonably believe the

person who consents to their presence has authority to do so

Illinois v. Rodriguez: 4thA requires that the search always be reasonable, but it does not have to be

correct even though the woman did not have authority to allow them to enter, the officers believed 

she did (*remanded to determine if this belief was reasonable)

Luna | Spring 20 J.Pettit

Scope of Consent: parties may limit the consent they give; i.e. only 2 minutes or only the kitchen

Florida v. Jimeno: consented to the search of car but not the search of containers

VII. TERRY

Pg. 384–468;

A. Doctrine

B. Terry Seizure v. De Facto Arrest

C. Non-Seizures

D. Reasonable Suspicion: Focusing on the Warrant Clause

E. Reasonable Suspicion: Focusing on Reasonableness

Terry Stop: permitted if reasonable

Stop = Seizure requires RS 

Search = Frisk requires RS they are armed & dangerous 

A. D OCTRINE

Camera v. Municipal Court: court overruled holding in Frank that the 4thA full protections did not

extend to housing inspections

Reversed the roles of probable cause and reasonableness and established a balancing test between

individual’s and society’s interests in given type of administrative search

Just because this is a civil case does not mean that 4thA in inapplicable, just that something less

than PC is required

RULE: balancing test between the gov. interest in conducting the search v. the individual privacy interest

Significance of Terry:

1. Transported Camara’s reasonableness test from the realm of admin searches to certain

warrantless searches & seizures

2. Searches & seizures can vary in their intrusiveness

3. Because the police can now perform a wide array of searches & seizures that are considered

less than ordinarily intrusive on the basis of a lesser standard of cause than PC

4. Made warrantless searches easier to justify and heightened racial tensions

RULE: when an officer observes “unusual” conduct that reasonably leads him to believe that criminal

activity is afoot and that the people he is interacting with are armed, the police may conduct a limited search

for weapons

Terry v. Ohio: allows officers to “stop & frisk” a suspect, for weapons only, if the officer reasonable

believes that criminal activity is afoot and that the suspect is armed (*see quote pg. 399)

TEST:

1. whether the officer’s action was justified at its inception

2. whether it was reasonably related in scope to the circumstances which justified the inference

in the 1st place

Luna | Spring 20 J.Pettit

Objective standard: would the facts available to the officer at the moment of the seizure or the search

warrant a man of reasonable caution in the belief that the action taken was appropriate

Requires consideration of the nature and extent of the gov. interests involved (i.e. crime

prevention and detection)

Rationale: law enforcement has to deal with complex situations on the ground and they need to

be able to respond to things most of which will not amount to PC 

Policy: it is NOT search for evidence but a search to protect officer safety

•Harlan Concurrence: if there was not PC and a judge would not have issued a warrant for this,

why are we giving officers this much power?

•White Concurrence: a citizen who is stopped on the street need not answer an officer’s questions;

the refusal to answer is not a basis for arrest

•Douglas Dissent: if a judge could not authorize a warrant, why do officers have this much

power????

“Good” Terry: broadened definition of search and seizure; showed that a warrantless search can

sometimes occur in a situation where a warrant cannot issue;

some basic components of reasonableness: proportionate to a legit gov. interest; respect bodily

integrity and personal dignity; be sensitive to race

“Bad” Terry: an unreasonable side to reasonableness; the 4thA is meant to be part of the mutually

reinforcing consent that flows between citizenry and gov., a form of reciprocal trust

US v. Hensley: Terry doctrine also applies when police wish to investigate a completed felony; stops are

allowed if officers have a reasonable suspicion, grounded in specific and articulable facts, that a person

they encounter was involved in or is wanted in connection with a completed felony

Minnesota v. Dickerson: officers performed a Terry stop; they felt a lump and manipulated it to

determine what it was (*drugs) violated  Terry — has to be evidently clear that the item is a weapon

Adams v. Williams: officers received a tip amounting to RS that a man nearby had drugs & a weapon;

officers approached the vehicle and the man rolled down the window; instead of conducting a search, the

officer reached into the man’s waistband and retrieved the gun

S.Ct. holding: reasonable; gun was in exactly the place the RS believed it to be

Rodriguez v. US: traffic stop for swerving; documents for both men were taken & returned with

citations; 22 minutes had elapsed but at that point they lacked RS to perform a search; they were ordered

out of the car and a dog called to perform a sniff that yielded results

S.Ct. holding: went beyond the bounds of — the traffic stop had been completed and they Terry

prolonged the time reasonably required to complete the stop & therefore is invalid

**critical question is not whether the dog sniff occurs before or after the officer issues a ticket,

but whether conducting the sniff prolongs the stop

Sibron v. US: officer watched talk with known drug addicts for 8 weeks; suspecting that was ∆ ∆

dealing, the officer stopped him and said “you know what I am after” and pulled out packets of heroin ∆

1. Officer was not looking for a weapon and that wasn’t what was produced

Luna | Spring 20 J.Pettit

2. Predicate that he was talking to drug addicts does not rise to the level of RS because crime was

not afoot

(*compare to Terry: there they were watching Terry case a joint, whereas here they were watching a guy

eat lunch)

B. TERRY E ACTO RREST V. D F A

As a general rule, a Terry stop is a limited stop and a special category that is much less obtrusive than

an arrest

Dunway v. NY: Terry stops are limited to stops on the street (generally) and they cannot be expanded to

seize someone for RS and bring them into questioning

Rehnquist Dissent: this isn’t a Terry stop because he went voluntarily

Florida v. Royer: RS to believe was a drug courier; agents stopped him before his flight and asked to ∆

see his ID and ticket; the ticket was under a fake name; agent did not return anything and asked to ∆

follow them; then he consented to a search of his bag that had drugs (*compare to ) Mendenhall

S.Ct. Holding: went beyond the bounds of a Terry stop was never informed he was free to  ∆

leave and as a practical matter he was under arrest

1. by returning his ID/ticket, the officers might have obviated any claim that the search was non-

consensual

2. there are reasons of safety and security in moving a suspect to another location that don’t exist

here

3. the luggage could have been expected in a more expedient way

Pennsylvania v. Mimms: under Terry, law enforcement can order someone out of the car w/o reasonable

suspicion that the person poses a threat to officer safety the person is stopped anyway so it doesn’t 

really matter where they wait

Maryland v Wilson: . also applies to passengers (although there isn’t really the same motivation

in ordering them out because they weren’t the ones that committed the traffic violation)

US v. Sharpe: a 20-minute roadside detention does not necessarily fail to meet the brevity requirement

In assessing whether a detention is too long in duration to be justifiable, we examine whether the

police diligently pursued a means of investigation that was likely to quickly produce results — it

is not simply whether some alternative is available but whether the police acted unreasonably in

failing to recognize or pursue it (*2 campers and 2 officers on the road)

US v. Hernandez: balloon swallower was subject to a nearly 24 hour stop to complete an pregnancy test

and x-ray and remove the balloon deemed reasonable under the circumstances (perhaps boarder 

justification?)

C. N ON-SEIZURES

Rule: a person is ONLY seized when, by means of physical force or show of authority, his freedom of

movement is restrained

US v. Mendenhall: a 4thA seizure occurs when the reasonable person believes that he is not free to leave

police custody — based on the totality of the circumstances

Luna | Spring 20 J.Pettit

Factors: public place, she consented, no uniforms no show of force, no show of weapons,

informed she could leave, gave her ID and ticket back

*the fact that she acted contrary to her self-interest is irrelevant

Bus Sweeps:

US v. Drayton: the arrest of one person on a bus (and other stationed officers) does not mean that

everyone on the bus has been seized

—whether a reasonable person would feel free to decline the officers requests or otherwise terminate the

encounter

After his friend was seized officered asked to search ; he consented and was arrested for drugs; ∆

argued that he felt had been seized and the officers lacked RS

∆ was addressed in a police manner and provided him with no indication that he was required to

comply

***during a traffic stop an officer seizes everyone in the vehicle, not just the driver

When a Seizure Occurs:

California v. Hodari: a seizure does not occur during a chase because officers have not yet exhibited

physical force or submitted to an assertion of authority

“the mere grasping or application of physical force with lawful authority, whether or not it succeeded in

subduing the arrestee, was sufficient”

Why does it matter? if he was seized before he discarded the drugs, then the officers need RS 

that crime was afoot (which they didn’t have in this case); but if he was not yet seized, then the

drugs can be discovered and used w/o RS or PC

Stevens Dissent: this walks a dangerous line about the timing of the seizure

*distinguish from Mendenhall: show of authority is a necessary, not sufficient condition

Rule: when officers, by means of physical force or a show of authority, restrain freedom of movement

through means intentionally applied, a seizure has taken place

Brendlin v. California: an officer may make a seizure by a show of authority but it does not occur w/o

submission — i.e. passive acquiescence

Requires that the show of authority be done intentionally — a person who was struck and killed

by officers during a high speed chase was not seized for purposes of the 4thA

Without actual submission, at most it is an attempted seizure

*car stopped; driver & passenger seized, although there was no intent to seize the passenger

D. R S : F C EASONABLE USPICION OCUSING ON WARRANT LAUSE

Alabama v. White: to determine whether an anonymous tip provides RS we ask whether the tip under the

totality of the circumstances, depending on the veracity reliability, and basis of knowledge against the

informant

Amount of information or the quality of it doesn’t have to be as high as it would be for PC

Has to be at least enough facts to show an intimate understanding of what was occurring

Stevens Dissent: if you are watching anyone for a long enough period of time you could

report these same facts without knowing anything about what was going on

Luna | Spring 20 J.Pettit

Rule: reasonable suspicion requires reliability in assertion of illegality not just tendency to identify a

person

Florida v. JL: anonymous tip that a young black man wearing a flannel at a Greyhound station was

carrying a gun although this person existed, this is insufficient 

*tip has to be reliable in its assertion of illegality, not just in its tendency to identify someone

Navarette v. California: reported that a truck tried to run her off the road; officers located the truck and

performed a Terry stop

S.Ct.: upheld the search: 911 calls are pretty reliable and can be pinpointed; and even though

they did not observe erratic driving, people drive very carefully when they see cops

Scalia Dissent: there is no way to verify this and people could be malicious and get their

enemies stopped w/o repercussions

Mistake of fact permitted if reasonable 

Hein v. North Carolina: was pulled over for a broken taillight; although that turned out to not be ∆

illegal in the state, and therefore there was no basis for the stop, it was upheld as a reasonable mistake

Hibel v. 6th Judicial District: during a Terry stop the refused to provide ID; this provided RS for a ∆

Stop and identify statute cannot be enforced if stop was unlawful for want of reasonable

suspicion, but otherwise statute is unconstitutional

The principles of permit a state to require a suspect to disclose his name in the course of a Terry

Terry stop; the request for identity has an immediate relation to the purpose of the stop

Illinois v. Wardlow: headlong flight + high crime area = RS(?)

An officer may stop and frisk based on RS that person is armed & poses a threat this can be 

based on a headlong flight and in a high crime area BUT does not create a bright line rule that

flight is enough and the analysis will be factually dependent

High crime area: may be a contextual clue but not a basis itself

Headlong flight: people have a right to go about their business, but a headlong flight is

literally the exact opposite of that

Stevens Concurrence / Dissent: running is not dispositive; people run for so many

reasons

E. R S : F R EASONABLE USPICION OCUSING ON EASONABLENESS

Rule: incident to an arrest, the police may conduct a protective sweep of a premises based on

reasonable suspicion that the other people who pose a threat are in the building, provided the search is limited

to those areas where a person may be hiding

Maryland v. Buie: (*red running suit)

Incident to arrest, officers may conduct a protective sweep of the premises based on RS that there are

individuals who pose a threat in the building to go beyond the immediate vicinity, they need RS 

Limits: cursory inspection (not a thorough sweep) only in places where people might be located,

may not last longer than necessary to dispel the RS

Luna | Spring 20 J.Pettit

Protective Sweep: quick & limited search of the premises incident to arrest and conducted to

protect the safety of the officers or others. Should be narrowly confined to cursory visual

inspection of places where a person could be hiding

Rule: reasonable suspicion must be justified by articulable facts and must be limited to where people

may be hiding and last no longer than necessary to dispel the reasonable suspicion

Stevens Concurrence: the rule makes sense, but wasn’t it safer for the officers to stay

upstairs instead of enter a dark creepy basement?

4thA Seizures / Searches: TEST

1. balance the intrusion of the individuals 4thA interest against its promotion of legit gov.

interests

(most searches of homes will be unreasonable w/o PC or a warrant)

2. if there is PC, consider if there is an exception to the warrant requirement; if there is a

reasonable suspicion supported by articulable facts, consider whether the public interest is such that a

warrant is not required

Therefore, following the logic in , officers with an arrest warrant could under the home and search for Buie until he was Terry

found. once the arrest was made, there was no longer that justification to enter the remaining rooms (and Buie had a privacy

interest in those rooms) but that does not mean the rooms are immune from entry! As in Terry, where there was an immediate

interest in an officer taking steps to assure persons he was dealing with were not armed with a weapon that could

unexpectedly and fatally be used against him, here the officers have an interest in making sure the house is not harboring

other dangerous persons that could attack them. Risk here is great, if not greater than Terry, because the officer is not on his

own turf.

US v. Place: detentions must be properly limited in scope

Miami officials alerted officials in NY that a suspicious person would be arriving; officers detained her

in NY and took her luggage for 90 minutes to conduct a sniff test violated Terry 

The 90 minutes itself was not dispositive, but the fact that the agents failed to inform her when

and where she could retrieve the luggage and what was going on were factors

Michigan v. Long: observed a man swerving and driving into a ditch; then he got out of the car and left

the door open; officers could easily see a large knife on the floor of the car and then searched the car to

find a leather pouch they thought contained weapons but actually had drugs

—RS permitted the “frisk” of the car

Brennan Dissent: search of containers in the car was unnecessary for officer safety

Maryland v. King: DNA cheek swab obtained from suspect

S.Ct. holding: buccal swab is a search but a reasonable one; the intrusion is brief and there is a

compelling gov. interest because it is important they have the right individual

VIII. REMEDIES: STA G NDIN

Pg. 493–516

RULE: the established principle is that suppression of the product of a 4thA violation can be

successfully urged only by those whose rights were violated by the search itself, not by those who are

Luna | Spring 20 J.Pettit

aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been

accorded no special standing.

Standing: to bring a 4thA challenge, the petitioner must have standing

Alderman v. US: the issue of exclusion must be determined on an individual basis — each must prove ∆

that he personally has standing to raise a 4thA claim

i.e. co-conspirators & co-defendants generally don’t have standing

Jones v. US: TEST: in order to qualify as a person aggrieved by an unlawful search/seizure, one must

have been the victim of a search/seizure, one against whom the search was directed, as distinguished

from one who claims prejudice only through the use of evidence gathered as a consequence of a search

or seizure directed at someone else

i.e. that he himself was a the victim of an invasion of privacy

A person is entitled to suppression of unlawfully heard conversations if:

1. gov. agents unlawfully heard that person’s conversations, regardless of how or where they

occurred

2. if the conversations occurred on that person’s premises whether or not they were present or

participated

Atomistic v. Regulatory Perspectives of the 4thA

•Atomistic: court viewing the 4thA as a protection of certain individual rights; the 4thA is a

collection of protections of atomistic spheres of interest of individual citizens

oMost important question is whether the individual rights have been violated

•Regulatory: views the 4thA as a regulatory cannon requiring the gov. to order its law

enforcement procedures in a fashion that keeps us collectively secure against unreasonable

searches & seizures

oCritical question is whether the gov. has engaged in activity, that if left unregulated,

would pose a threat to the security of people

*the answer to both might be the same

US v. Payner: illegal IRS investigation against a foreign bank with US ties; inculpated Payner

 Payner did not have standing to allege a 4thA claim because he was not the party subject to the search

or seizure — it was the bank’s rights that had been violated

Rule: only people with a legitimate expectation of privacy in the place searched or the thing seized may

challenge a search or seizure as unconstitutional

Rakas v. Illinois: petitioners riding in a vehicle did not have standing to raise a 4thA claim because they

did not have a property or possessory interest in the automobile nor an interest in the property seized

Jones merely stands for the unremarkable proposition that a person can have a legally sufficient

interest in a place other than his own home so the amendment protects him form unreasonable

gov. intrusion

Jones: ∆ at least had a key and was an overnight guest

•Powell Concurrence: expectation of privacy in a car is significantly different from the

tradition expectation of privacy & freedom in one’s home

Luna | Spring 20 J.Pettit

•White Dissent: the court holds that the 4thA protects property, not people, and

specifically that a legit occupant of a car may not invoke the exclusionary rule &

challenge a search unless he happens to own or have a possessory interest in it

Rakas TEST:

(1) Whether a disputed search / seizure has infringed an interest of the which the 4thA was designed to ∆

protect

 Answered by determining whether the has a legit expectation of privacy that has been ∆

invaded by the gov.

(2) whether the challenged search / seizure violated that 4thA right

 Answered by determining whether applicable cause & warrant requirements have been

properly observed

HYPO:

Officers stop a car on a private road; they search the trunk w/o PC or consent; they find a blood stained

jacket; they seek to introduce it against B in a murder trial

At the time of the search, A owned the car and was driving, and B was a passenger

 B has no right to challenge

Minnesota v. Olson: staying overnight as a houseguest has a legit expectation of privacy

Supplement pg. 25:

Byrd v. US: (*Byrd had borrowed a rental from his friend) — a person need not always have a

recognized common law property interest in the place searched to have a reasonable expectation

of privacy s.ct. deemed that he did have a reasonable expectation of privacy 

Risk allocation (based on who rented the car) has little to do with whether one would

have a reasonable expectation of privacy in the rental car

(Byrd could not have rented the car because he was a criminal and asked his gf to do it;

they considered him a car their who would not have had a reasonable expectation of

privacy remanded to find this fact) 

Minnesota v. Carter: while houseguests generally have a legit expectation of privacy, property used for

commercial purposes is treated differently

Also relevant is the fact that the occupants were only there briefly and did not know the owner

To claim 4thA protection an individual must have a personal reasonable expectation of privacy in the

place searched

Rawlings v. Kentucky: bears the burden of proof that not only the search of another’s person was ∆

illegal, but also that he had a legit expectation of privacy

(*∆ had dumped thousands of dollars of drugs in another person’s purse; he had only known her

for a few days and nothing shows that he took reasonable precautions to maintain his privacy)

Luna | Spring 20 J.Pettit

IX. REMEDIES: EXCLUSIO ARY RULE & EXCEPTIO S N N

Pg. 517–83

A. Exclusionary Rule / Fruit of the Poisonous Tree

B. Independent Source & Inevitable Discovery

C. Attenuation / Dissipation of Taint

D. Narrowing of Exclusionary Rule / Good Faith

A. EXCLUSIONARY RUIT REE RULE / F OF POISONOUS T

RULE: evidence obtained through an unreasonable search and seizure in violation of the 4thA is

inadmissible in state criminal proceedings

US v. Calandra: held that the exclusionary rule did not apply to grand juries

“exclusionary rule is a judicially created remedy designed to safeguard the 4thA generally through a

deterrent effect, rather than a personal constitutional right . . . the exclusionary rule has never been

interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons  it

is restricted to those areas where its remedial objectives are thought to be most efficaciously served”

i.e. exclusionary rule doesn’t apply to civil cases & doesn’t apply to certain processes: grand jury

probable cause hearings, parole, or sentencing

Purpose: deterrence!! NOT grounded in an individual rights theory 

US v. Janis: evidence obtained in violation of the 4thA can be used to impeach, but may not be used

against him (see also Walder v. US)

Fruit of the Poisonous Tree: evidence that is considered “secondary or derivative” and was obtained as

a result of an initial constitutional violation or illegal method of search

 the question is whether the derivative evidence is gained by the original violation and is therefore

fruit of the poisonous tree if yes, it must [generally] be excluded 

Fruit of the Poisonous Tree: TEST

1. Identify the tree constitutional violation 

2. Identify the fruit the evidence the gov. seeks to introduce 

3. Determine whether the fruit comes from the tree is there a causal link 

4. if yes, is there any reason that justifies the conclusion that the fruit is no longer poisoned

Exceptions:

—independent source doctrine

—inevitable discovery doctrine

—dissipation of taint

Rule: knowledge gained by government wrongdoing may not be used at trial

Silverthorne Lumber v. US: information obtained from the unlawful gathering of evidence must also be

excluded (i.e. papers illegally seized excluded; gov. sought to introduce info they learned from it)

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Nardone v. US: at some point the law stops looking backward in time and says enough is enough and

eats the fruit — there is some limit on the causal nexus: a point in time or intervening actions that break

the causal chain

B. I / INDEPENDENT SOURCE NEVITABLE ISCOVERY D

Independent source doctrine: if law enforcement found the evidence by an otherwise lawful means

then the evidence may be admitted

Burden of proof: preponderance of evidence

Murray v. US: (*warehouse search): applying the independent source doctrine to the “rediscovery” of

previously illegally discovered evidence

idea behind the exclusionary rule is to put law enforcement in the position they would have been in had

the illegal conduct not occurred, not worse

burden is on law enforcement to show sufficient facts to establish probable cause that they would

have gotten a search warrant, or conducted the search lawfully

Two Types of Independent Sources:

•General sense: officers have knowledge of X & Y illegally but Z from other means; Z can be

admitted

•More difficult: X and Y are illegally obtained but also obtained through a legal method;

*court remands to determine whether law enforcement would have gotten the warrant if they hadn’t

searched the warehouse illegally prior to getting a warrant and legally searching the warehouse

Marshall Dissent: creates an incentive for law enforcement to search without a warrant

Nix v. Williams: (kidnapping + Christian burial speech)

Inevitable discovery doctrine: if the state can establish that the evidence would have ultimately or

inevitably been found by other means, then the evidence may be admitted because there would be no

deterrence value in keeping it out

Burden of proof: preponderance of evidence

C. ATTENUATION ISSIPATION AINT / D OF T

Dissipation of Taint: evidence obtained through illegal police conduct must be excluded as fruit of the

poisonous tree unless the connection between the illegal police conduct and the evidence has become so

attenuated as to dissipate the taint

Standard: totality of the circumstances

Factors:

Length of time elapsed

Flagrancy of initial violation (bad faith violations take longer)

Existence of intervening conduct

Presence of an act of free will by ∆

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RULE: while evidence obtained through illegal police conduct must be excluded at trial as it is fruit of

the poisonous tree, the connection between the illegal police conduct and a relevant piece of evidence

become so attenuated as to dissipate the taint and such evidence may then be admissible

Wong Sun v. Lee:

•Toy’s statements made in his bedroom inadmissible; no lawful authority to be there 

•Toy points them to Yee; Yee has drugs inadmissible; they only have this info from Toy and 

there is no intervening event or causal break to dissipate the taint

•Wong Sun’s statements to police admissible 

oArrest initially was illegal; BUT Wong broke the chain by voluntarily returning to the

station to make a statement

oThis is the type of causal break that allowed the court to say that the confession was

attenuated

Brown v. Illinois: was arrested in apt. w/o PC & makes an incriminating statement in custody ∆

Must the statements be suppressed? yes; a warning does not automatically remove the taint  Miranda

of the initial violation

State bears the burden of proof that the taint is dissipated totality of the circumstances 

US v. Ceccolini: unlawfully seized evidence led to the discovery of a witness witness not suppressed 

It is a lot more problematic to suppress a witness; individuals have free will and choose whether

or not to be involved with law enforcement; witnesses are not like guns or documents that stay

hidden until discovery

Utah v. Strieff: state conceded that their initial stop of the was unlawful because they lacked RS but ∆

the drugs found on him (i.e. the fruit) were deemed admissible

There was temporal proximity, intervening circumstances (outstanding warrant), and at worst

this police conduct was negligent

D. N EARROWING THE XCLUSIONARY AITH RULE & GOOD F

Rule: whether the exclusionary sanction is appropriately imposed is an issue separate from the question

of whether the 4thA rights of a party seeking to invoke rule were violated by police conduct

US v. Leon: does the exclusionary rule exclude information that was obtained in on a facially good faith

valid warrant no 

The point of the exclusionary rule is deterrence, and officers cannot be deterred from relying on

warrants that they believe to be correct; we also cannot expect officers to re-check the

magistrate’s warrant; it also has no impact on already neutral judges

BUT there are limits

1. if the affidavit is invalid

2. magistrates cannot serve as rubber stamps

3. has to show that there is PC — if it is so deficient in PC that officers could not have relied on

it, it will be excluded

4. cannot rely on false information or show a reckless disregard for the facts

5. affidavit must contain more than bare bones

Reasoning behind the good faith rule:

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(1) exclusionary rule is crafted to curb police misconduct, not the judiciary

(2) court employees are unlikely to subvert the 4thA

(3) no basis for believing application of exclusionary rule would have significant deterrence

effect

Massachusetts v. Sheppard: even though the warrant was deficient, the officers had taken all necessary

steps to obtain a warrant that could have been reasonably expected of them

Non-Casebook Cases:

•Arizona v. Evans: arrested in a traffic stop; found that he had an outstanding misdemeanor ∆

warrant; search incident to arrest and found marijuana; warrant had actually been quashed and

not updated in data base good faith exception 

oS.Ct. held it admissible this is the fault of court employees and therefore it would not 

deter police conduct

•Illinois v. Kroll: state statute allowed law enforcement to go to auto parts stores & secure certain

records to check it wasn’t actually a chop shop; searched the premises, found 3 stolen cars, and

arrested the owners; statute was struck down the next day good faith exception applies 

oLaw enforcement should not be punished for reliance on a statute that later turns out to be

unconstitutional

oDoes NOT apply if law makers abandon their rule making function and the law is clearly

unconstitutional

Rule: exclusion may not be based on the mere fact that violation is “but for” cause of obtaining

evidence. (but for is necessary but not sufficient). The exclusionary rule is only applicable where its

remedial objectives are most efficaciously served, that is, where deterrence benefits outweigh substantial

social costs

Hudson v. Michigan: whether violator of knock & announce requires the suppression of all evidence

 no; (Officers had a valid search warrant; knocked and announced; and entered 3 seconds later)

**exclusionary rule does not apply because in absence of the violation the evidence would have been

lawfully obtained

knock & announce does not protect evidence and it does not prevent the gov. from seeing or

taking evidence contained in a warrant — it serves to allow some dignity (i.e. a minute of

composure or time to put pants on) therefore, no deterrence 

Attenuation can occur when causal connection is remote and also when even direct causal

connection, the interest protected by constitutional guarantee would not be served by suppression

Kennedy Concurrence: narrow holding; there is still an exclusionary rule and a knock &

announce rule; but it isn’t a sufficient condition that the violation of knock & announce

equals suppression

Herring v. US: good faith exception also applies when the bookkeeping error is made by law

enforcement clerks

*so long as it was based on simple negligence and not recklessness or systematic errors

When police act under a warrant that is invalid for lack of probable cause, exclusionary rule does not

apply if they acted in objectively reasonable reliance on subsequently invalid warrant

Viewed objectively, would a reasonably well-trained officer have known that the search was

illegal in light of the circumstances?

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RULE: to apply the exclusionary rule, the police conduct must be:

1. sufficiently deliberate that exclusion can meaningfully deter it

2. sufficiently culpable that deterrence is worth the price paid by the justice system

i.e. deliberate, reckless, grossly negligent, or recurring & systematic

Analysis not an inquiry into the subjective awareness of arresting officers  objective:

Davis v. US: whether the exclusionary rule applies when the police do a search in objectively reasonable

reliance on binding judicial precedent that later is overturned no 

While the search turned out to be unconstitutional, the search was in strict compliance with then

binding law

All that exclusion would deter in this is conscientious police work

For exclusion to be appropriate, the deterrence benefits must outweigh its heavy costs

Part 3: Confessions & Police Interrogation

XI. CO S NFESSION

Pg. 585–614

A. Torture & Confessions

B. Interrogation w/o Torture

A. TORTURE ONFESSIONS & C

Hector v. State: a jury could not take into consideration a confession that had been made after hours of

torture — whether a confession is free and voluntary is a question of law

Brown v. Mississippi: confessions extracted after hours of torture and changed until the mob received a

sufficient answer were inadmissible ( s accepted a plea on re-trial rather than risk it) ∆

B. INTERROGATION W ORTURE /O T

Colorado v. Connelly: approached police officers and confessed to a murder; he then moved to ∆

suppress the evidence because “God told him he must confess or kill himself”

Is this confession voluntary? yes; because there was no state action that forced him to confess the 

admission is deemed voluntary

Coerced confessions are rendered in violation of due process and may not be admitted at trial

Lisenba v. California: whether an officers violate due process is based on the totality of the

circumstances — even if the officer’s behavior toed the line, there was no mob violence, threats of

coercion, or physical violence

There is a huge risk that coerced confessions are false, but the aim is not to prevent

presumptively false evidence, but to prevent fundamental unfairness in the use of evidence

TEST: whether there was enough inducement for a false confession

Spano v. New York: officers used childhood friend, who was also a cop, to guild into confessing ∆

Luna | Spring 20 J.Pettit

 inadmissible

Factors: foreign, young, no history w/ law enforcement, limited education, emotionally unstable,

subjected to leading questions, fatigued, questioning continued despite his requests for an

attorney, and use of a childhood friend was deemed particularly grievous

*analysis will be very fact specific

Voluntariness Factors:

Length, daytime, in private, promises of leniency or threats of harm, deceptive tactics

Personal characteristics: age, education, mental issues, prior experience with police, race

*non-exclusive and hard to flesh out

Does NOT apply to taking DNA or fluids because they are non-testimonial! (same for line ups)

HYPO:

A. child set fire to a church; was taken to be interrogated; officer pulled out a Bible and asked the child

if he knew God lived in the church; asked him to swear on the Bible and the child confessed

  confession deemed voluntary child was young, articulate ad quick; he understood his rights and

his statements

(*luna isn’t sure this came out right)

Arizona v. Fulminante: undercover officer coerced to confess in exchange for protection in prison ∆

S.Ct. called it a close call but deemed the confession inadmissible was small, unintelligent,  ∆

and would have been brutalized in prison as a child rapist and therefore this was extremely

coercive

Chavez v. Martinez: police interrogated a suspect at a hospital bedside confession inadmissible 

∆ was in immense pain and medical was being withheld until he answered and he was not

mirandized

Standard: did the behavior shock the conscience diff standard because the question is not whether ? 

the confession was admissible at trial but whether his due process rights had been violated

Rationales for Excluding Confessions:

1. deter police from engaging in untrustworthy confessions

2. deter police from engaging in offensive conduct

3. deter police from engaging in conduct that is somewhat less shocking to the conscience

4. deter police from engaging in inquisition — as opposed to the adversarial system

5. deter police from overbearing a suspect’s will

X. SELF-INCRIMI TATION N & MIRANDA

Pg. 615–90

A. Pre-Miranda

B. Miranda

Luna | Spring 20 J.Pettit

C. Progeny & Clarification Miranda

A. P RE-MIRANDA

5th Amendment: “No person shall be compelled in any criminal case to be a witness against himself”

Was originally not a privilege to not testify against yourself original rationale was that 

criminals were liars and we did not want them to testify

By late 19th century, the fed. Gov. allowed criminal s to testify their own trial and then the ∆

question became how far this privilege extended

Bram v. US: (*old ship case — ordered to strip search & then confessed)

Excluded the confession if any degree of influence had been exerted

Escobedo v. Illinois: another limit on police interrogation — 6thA right to counsel

(*but this is a weird result because he was not yet in custody so …)

B. M IRANDA

Miranda v. Arizona: requires that officers inform suspects of their right to counsel and right to remain

silent before a custodial interrogation can begin

Custodial interrogation: arrested and taken into custody or otherwise deprived of their freedom

of movement in a significant way police dominated atmosphere deemed per se coercive 

*justifies putting this burden on law enforcement because warnings are simple, non-time consuming,

and easily understood

Harlan Dissent: the court redefines voluntariness in a way that is inconsistent

White Dissent: does not believe that custodial interrogation is necessarily coercive and requires

safe guards

Miranda Requirements: (1) right to remain silent; (2) anything he says can and will be used against

him (3) he has a right to counsel before and during questioning (4) counsel may be appointed for him

Miranda Checklist

1. Triggering mechanism: custodial interrogation

Defined as: questioning initiated by police after a suspect has been detained or his liberty

otherwise restrained in a meaningful way

2. Is there a waiver? What constitutes a waiver?

3. If the warnings were not given, are there situations where these statements are still admissible?

i.e. when it leads to other information fruitless 

4. Are there outright exceptions were outright doesn’t apply at all? Miranda

Illinois v. Perkins : Miranda warnings are not required when the suspect is unaware he is speaking to a

law enforcement officer and gives a voluntary statement there is no coercion because coercion is 

Luna | Spring 20 J.Pettit

determined from the perspective of the suspect; when a suspect believes himself in the company of

friends, the coercive atmosphere is lacking

Objective — from POV of suspect: encounters between suspects and undercover officers do not

trigger Miranda

C. M P & CIRANDA ROGENY LARIFICATION

Miranda was initially very unpopular and tried to be congressionally overruled failed 

Miranda warnings are not themselves rights protected by the constitution, but instead, measures to insure

that right against compulsory self-incrimination is protected

Miranda Progeny:

•Harris v. NY: statements taken in violation of Miranda can be used to impeach a ∆

oSuggested that much of Miranda was dicta

•NJ v. Portash: a ’s compelled statements, as opposed to statements taken in violation of ∆

Miranda, may not be put to any testimonial use against him in a criminal trial

oDraws the distinction between Miranda and the right against self-incrimination 

Miranda is not that right in its purest form;

•Michigan v. Tucker: interrogated before Miranda was decided; violation of Miranda didn’t

constitute a violation of the 5thA because Miranda is not a constitutional right but a prophylactic

o1. Good faith violation

o2. Evidence provided at trial was not ’s statements, but statements of a witness whose ∆

name had provided ∆

oConsidered Miranda to be a prophylactic — it protects the right but it is not the right

itself

New York v. Quarles: public safety exception to Miranda

The availability of that exception does not depend on the motivation of the individual officers involved

O’Connor Concurrence: does not think that this is a Miranda violation because the only fruit of a

statement taken in violation of the 5thA is the statement itself

Marshall Dissent: if the police need to ask questions in an exigent manner they can do so, they

just cannot introduce this information at trial

HYPOs

A. (State v. Lockhart): walks into a police station and screams “I killed her, I killed her”; the officers ∆

knew ’s wife was missing and they asked him where his wife was and he said “in the boathouse”; they ∆

find her dead body there

—“I killed her” admissible, because no police questioning 

—further questions likely admissible because the questions were about finding a missing 

woman so public safety exception was applied

B. (Fleming v. Collins): a bank robber is shot by security but manages to escape; someone sees him

feeling and follows him to a field where he collapses; he takes care of the robber until the police arrive;

the officers ask the robber who he is, who his friends are, and where the gun is

—statements deemed admissible

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C. (US v. Lutz): officers arrest on outstanding warrants; they notice he is chewing & swallowing ∆

plastic bags; when the officer asks what it is tells them it is meth; ∆

—state argues that this is necessary for health and safety

—statement suppressed was not a threat to public safety, just himself so the exception  ∆

doesn’t apply

D. (US v. Carrillo): was arrested for conspiracy to distribute coke; before searching prior to ∆ ∆

detention, officers asked him if he had any drugs or needles; said no, he sold drugs not used them ∆

—admissible

Dickerson v. US: Miranda was not given but a federal statute (§3501) just required that statements be

voluntary statements inadmissible 

Miranda is a constitutional holding that cannot be overturned by congressional statute

Congress has the ultimate authority to modify any judicial rules that are not required by the

constitution Miranda is required by the constitution and therefore congress may not modify it 

Miranda sets a floor — congress could raise the floor, but not lower it

Dissent: court never really held that Miranda was a 5thA right

Initial failure to read warnings does not necessarily taint later voluntary statements

Oregon v. Elstad: statements made before the warning/custody were excluded, but statements made at

the station were deemed admissible, even though he likely wouldn’t have made the later statements he had not

confessed to earlier

Fruit of the poisonous tree is based on the pristine application of the 4thA, but Miranda is merely

a prophylactic and sweeps more broadly so exclusion based on the fruit of the poisonous tree

doesn’t apply here

BUT SEE:

Rule: the threshold issue when interrogators question first and warn later is whether it would be

reasonable to find that, under the circumstances, the warnings could function “effectively” as Miranda

requires. Would a reasonable person in the suspect’s shows have seen the second phase as a new and distinct

experience, and warnings presenting a genuine choice on whether to follow up on earlier admission

Missouri v. Seibert: (*double interrogation)

Officers cannot engage in conduct that is specifically done to get around the Miranda requirements

Kennedy Concurrence: the court should focus on the subjective intent of the officers; was the

conduct intentional? Only if it is intentional should we look to the majority

Seibert TEST:

(1) Whether law enforcement deliberately employed the 2-round interrogation strategy

 if no, the inquiry ends

(2) If yes, then we apply the 5 factors

1. completeness & detail of the questions/answers in 1st round of interrogation

2. overlapping content of the two statements

3. timing & setting of the first & second statements

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4. continuity of police personnel

5. degree to which the interrogator’s questions treated the second round as continuous w/

the first

(3) Whether the interrogator took any curative measures

Difference between Siebert and Elstad:

Siebert: intentional 2-step process calculated to undermine the Miranda warning

Elstad: inadvertent failure

HYPOs (pg. 688)

A. Miranda violation in first interrogation was the result of incomplete warnings; they did not know that

the initial warnings had been defective and did not give a fresh Miranda until the suspect confessed

—admissible

B. Officers interrogated w/o giving Miranda for 95 minutes; officers only gave him the warning after ∆

he confessed; then he waived Miranda and completed his confession

—probably inadmissible

—apply 5 factors here

C. was arrested for kidnapping; was waiting with one officer in silence while the others looked for a ∆ ∆

tape recorded; after several minutes burst into tears; the officer told him “I hope you know how much ∆

trouble you are in” and then said “yes I know, I killed her” and then confessed; officers then ∆

mirandized him, we waived rights and then he confessed again

—admissible

US v. Patane: state admitted that the confession was inadmissible, but gave them the location of the ∆

murder weapon is the location of the weapon admissible? yes  

Miranda only suppresses statements!!!

Miranda is designed to protect the right to not be coerced into testifying against himself; but

physical evidence is deemed “nontestimonial”

3 Rationales:

•Thomas / Rehnquist / Scalia: Miranda is a prophylactic; only concerned with self-incrimination

and not other fruits

•Kennedy / O’Connor: Concurrence: it should be a cost benefit analysis

•Souter / Stevens / Ginsburg: this is just a way for officers to get around Miranda when they can

obtain physical evidence

X. CUSTODY & INTERROGATION

Pg. 691–710

A. Custody Miranda

B. Interrogation Miranda

Luna | Spring 20 J.Pettit

A. M C IRANDA USTODY

Rule: an officer’s subjective intent is irrelevant; the only relevant inquiry is whether a reasonable

person in the suspect’s position would have felt under arrest or deprived of their freedom in any meaningful

way

Berkemer v. McCarty: is roadside questioning at a traffic stop interrogation for purposes of Miranda?

 no

*traffic stops do NOT require miranda!!!

The features of a roadside stop make it unlikely that there will be police coercion; it is public, they aren’t

yet detained, and it is usually brief

Relevant factors: single officer, modest number of questions, requested simple balancing test, public

location “treatment of this sort cannot fairly be characterized as the functional equivalent of formal 

arrest”

We also want officers to be permitted to ask reasonably related questions at a traffic stop

—should Miranda govern the statements made during roadside questions? (i.e. does Miranda even

govern these misdemeanor offenses) yes 

*Miranda does not kick in until a custodial arrest occurs whether police intent to arrest the suspect or 

not is irrelevant

Any custodial interrogation entitles someone to custodial interrogation, regardless of the severity

of the offense

HYPO: pg. 697

A. (teenager) pulled over to perform a sobriety test; tells the officer his house is right over there and ∆ ∆

his mom is expecting him, can he just go let her know what’s going on; officer says no

—is this a custodial arrest? yes; because his freedom is restricted 

*also, how old a suspect is may be a factor in determining whether the suspect felt they were in custody

Maryland v. Shatzer: being in prison itself is insufficient to be considered custody

The inherently compelling pressures of a custodial interrogation ended when he returned to his normal

life and had freedom of movement again (i.e. gen pop)

∆ was serving time for crime A; officers came to interrogate him for crime B, but ceased when ∆

requested an attorney

Oregon v. Mathison: in the absence of any restraint on freedom of movement, there could be no custody

Officer asked to come to the station; he was told he was not under arrest & that he was the ∆

suspect of a burglary and (falsely) that they found his prints at the scene; then confesses ∆

 Miranda does not apply because he was not arrested and therefore there was no restriction on

his freedom of movement and therefore no custody

HYPO: pg. 699

Luna | Spring 20 J.Pettit

∆ threatens his wife not to move out; a week later her daughter and granddaughter are murdered in the

wife’s new apartment; officers told him he was not under arrest & they wanted to ask him some ?s; he

wasn’t under arrest but they had to cuff him to the table per station policy; he makes incriminating

statements and is released

— Was he in custody for purposes of Miranda? no; even though he was handcuffed, that was out of 

policy & not to restrict his freedom of movement

HYPO: pg. 700

A. is an air force officer & suspected of child porn; his commanding officer orders him to meet with ∆

them; invites officers into his home and is assured he is not about to be arrested; confessed ∆ ∆

— Miranda custody? yes; police dominated atmosphere because of the military order and chain of 

command; his commanding officer ordering him to his home to answer questions is sufficient to find

custody for purposes of Miranda

B. has hired an undercover officer to murder his wife; officers surround his house when he is having a ∆

pool party as an alibi; trees prevent anyone from knowing officers surround the place; single officer goes

in to tell his wife is dead; feigns shock and answers the questions the officer asks in front of all of ∆ ∆

his friends; after the questioning, the officer pulls out an arrest warrant and arrests him

— Miranda custody? no; he was not under arrest, no threatening presence of officers, and with all of 

his friends

C. Prostitute found murdered; officers interview her old bf 3x; was told each time that he was not ∆

under arrest and voluntarily appeared; the last interview took 11 hours; his keys were taken to perform a

consensual search of his car; eventually confessed ∆

—Miranda custody? yes; it was initially voluntary, but later became involuntary 

Primary emphasis on the fact that he eventually asked to leave and the police said no

B. M C IRANDA USTODY

Rhode Island v. Innis:

Interrogation: defined as, express questioning or its functional equivalent and any words or actions on

the part of police that the police should know are reasonably likely to elicit an incriminating response

from the subject

Intent of the officers is not irrelevant, because it may heave bearing on whether the police should

have known that their words/actions were reasonably likely to evoke an incriminating response

Any knowledge the police have concerning the unusual susceptibility of a to a particular form ∆

of persuasion is an important factor in the analysis

—officers commenting on their fear that a little disabled girl would find the missing gun was not

considered coercive or the functional equivalent of interrogation it was merely dialogue between two 

officers

Marshall Dissent: agrees with the court’s definition of interrogation, but thinks the statements

here rise to that; this is a classic interrogation technique

HYPO: pg. 697

Luna | Spring 20 J.Pettit

A. is arrested for murdering a woman during a robbery; declined to answer questions; officers ∆ ∆

placed the stolen furs in front of s cell; then asked to speak to the DA but was told that the DA ∆ ∆

couldn’t do anything for him; said he couldn’t do a lot of time and asked what he could do for them ∆

—interrogation? yes; placing the stolen goods in front of him was designed to elicit an incriminating 

response

(*Luna thinks this is an act and therefore Miranda isn’t implicated)

B. was taken into custody for the murder of his baby; was mirandized and said he understood his ∆ ∆

rights but wanted a lawyer present; no lawyer was available but they’d find one; then said he wanted ∆

to talk; an officer told that god takes care of little babies and confessed to the murder ∆ ∆

—interrogation? no; he invoked Miranda and talked anyway 

C. was the suspect in a robbery and rape of V; permitted the two officers to take his photo and go ∆ ∆

with them to V’s house; they went inside, talked to V, and then came out and accused of lying; he ∆

confessed

—interrogation? no; calling someone a liar does not demand or elicit a response 

(*Luna also isn’t sure this is right)

Pennsylvania v. Muniz: routine police questions (i.e. sobriety test) do not seek incriminating answers and

therefore are not an interrogation

Drunken activity on the police video of the incident is also not an interrogation and can be

admitted

Also backed up terry because asking someone basic info, like their name, is not incriminating

BUT the question about when his 6th birthday was deemed inadmissible because was required to ∆

communicate a response and his answer would support an inference that his faculties were impaired

XI. WAIVER & INVOATION OF MIRANDA

Pg. 711–43

RULE: the question of waiver is NOT one of form but whether the defendant knowingly and voluntarily

waived his rights

If there is no express waiver, prosecution bears the burden of overcoming presumption against

waiver; can be inferred from conduct and words in some limited cases

Voluntary: means that the actions were not overborne by the will of the state; a free and deliberate

choice rather than coercion

Knowing & Intelligent: ∆ does not have to know the consequences of waiver, just his rights

North Carolina v. Butler: silence + understanding of rights + course of conduct = waiver (sometimes)

Question is whether the gov. can demonstrate the knowingly and intelligently waive its privilege ∆

against self-incrimination

*silence alone is insufficient! – but an outright or explicit statement is not required

Johnson v. Zerbst: voluntary, knowing, and intelligent waiver of Miranda

Luna | Spring 20 J.Pettit

Heavy burden on the gov to prove a valid waiver  preponderance of the evidence (Lego v. Twomey)

Butler + Lego = historical irony: Miranda was supposed to be a bright line rule as opposed to the

voluntary test, but they then return to a voluntariness jurisprudence

Colorado v. Spring: a waiver of Miranda to an interrogation is general and not crime specific

(∆ brought in and questioned about possession of firearms; other officers questioned him about

an unrelated murder waiver applied to both) 

Moran v. Burbine: a Miranda warning is valid even if outside circumstances unknown to the would ∆

have changed his decision to waive his rights

∆ ∆ was arrested; his sister brought a lawyer to the station but he was not let in; had been aware

that he had a lawyer available and present he claims he would not have waived his rights and

confessed

Davis v. US: must waive his rights ∆ unambiguously

∆ contemplated getting a lawyer but then aid he was fine a suspect need not speak with the 

discrimination of an Oxford don, but he must articulate his desire to have counsel present

sufficiently clear

Rule: Miranda waiver may be implied by silence coupled with an understanding of rights and a course

of conduct indicating waiver, but may be revoked at any time

Requirements:

(1) voluntarily made

(2) awareness of the right being abandoned and the consequences of doing so

Berghuis v. Thompkins: whether a can impliedly waive his right to remain silent and whether waiver ∆

must be obtained prior to commencing police interrogation can be implied and waiver can be invoked 

at any time

∆ waived his rights: (1) he clearly understood his rights, and read them back to the officer; (2) if

∆ wanted to remain silent he could have or he could have unambiguously asked to invoke his

rights but he did neither and answered occasional questions; (3) there is no evidence that was ∆

coerced

“if the state establishes that a Miranda warning was given and the accused made an uncoerced statement,

this is insufficient to demonstrate a valid waiver — the state must make an additional showing that ∆

understood these rights”

Rule: an accused, having expressed his desire to deal with police only through counsel, is not subject to

further interrogation until counsel has been made available to him, unless he himself initiates

conversation

Edwards v. Arizona: once a suspect invokes his counsel under Miranda officers must cease questioning

∆ was mirandized and interrogated; he said he wanted an attorney and incarcerated; officers

came back the next day to question him

BUT just because someone invokes the right to counsel, does not mean that law enforcement can never

use an incriminating statement against him he can relinquish that right later, initiate a conversation 

himself, talk to an attorney and then relinquish, or can just blurt something out

Luna | Spring 20 J.Pettit

Michigan v. Mosley: if a has invoked the right to remain silent, questioning must be cut off and the ∆

right to cut off questioning must be scrupulously honored

∆ was arrested & did not want to answer questions related to crime A; different officers came in

to question him about an unrelated crime; waived his rights and made incriminating statements ∆

 deemed admissible (right to end interrogation did not extend to the second questioning)

Oregon v. Bradshaw: re-initiation of the conversation occurs only when it can be fairly said to represent

a desire on the part of the accused to open up a more generalized discussion relating directly or

indirectly to the investigation

asking for a drink of water does not constitute initiation

HYPO: pg. 736

A. is arrested for a misdemeanor after admitted minor involvement in the offense; requested ∆ ∆ ∆

counsel & officers ceased the conversation; when was being transferred from the station asked what ∆ ∆

would happen to him and the officers stated they could not talk to him; said he understood and the ∆

officer suggested he could help himself out by taking a polygraph; took one that revealed he was lying ∆

and confessed

— did waive his rights? yes; officers warned him not to talk and he did anyway ∆ 

Minnick v. Mississippi: officers cannot approach a suspect again and question him after the suspect has

asked for an attorney

∆ had met with officers in between the initial conversation and the officers returning still 

insufficient waiver

Minnick + Edwards: create the irrefutable rule that once someone asks for counsel they cannot waive

their rights later turns out not to be true in: 

Maryland v. Shatzer: (*does not formerly overrule Minnick) — 2 week period between release from

custody and then approaching the to ask him to waive his rights can be sufficient ∆

2 week “cleansing period” is sufficient: provides sufficient time to get reacclimatized to his

normal life, consult with friends & counsel, and shake off any residual coercive effects

Examples of Invocation:

HYPO: pg. 741

A. officers arrest and place him a car; officers mirandize him and ask if he understands; states he ∆ ∆

understands; he is asked to sign a form and tells officers to F off

—invocation of rights? no; has to be unambiguous 

B. Officers ask to come to the station to discuss a police matter; officers tell him he is not under arrest ∆

and free to leave at any time; says he wants a lawyer; officers ignore this and question him; makes ∆ ∆

incriminating statements

—admissible? yes; was NOT in custody and therefore Miranda does not apply  ∆

C. officers want to question about a forgery charge; officers mirandize him and signs a standard ∆ ∆

waiver; answers questions freely; he later asks for a lawyer and says “how do I know that if I tell you ∆

everything I won’t end up with a complicity charge”

Luna | Spring 20 J.Pettit

—invocation? no; this was not unambiguous 

D. is in police custody; before officers question him or read Miranda, states that he should talk to an ∆ ∆

attorney by the name of Evans, and produces a biz card with the attorney’s name and number; the officer

leaves the room, returns, and reads Miranda; makes incriminating statements ∆

—invocation? yes; a reasonable officer would have understood that she was invoking the right to 

counsel by definitively naming an attorney and providing their contact

XII. 6th AME T RIGHT TO COU SEL NDMEN N

Pg. 755–

A. Eliciting Statements in Absence of Counsel

B. Massiah Waiver

A. E SLICITING TATEMENTS IN ABSENCE OF OUNSEL C

RULE: a person who has been indicted on criminal charges has as much a constitutional right to have a

lawyer present during police interrogations as he does in trial

Massiah v. US: once has invoked their right to counsel, officers cannot approach the suspect—through ∆

any medium—to get incriminating statements without his attorney present

Two s arrested and released; officers convince the co-conspirator to wear a wire and get ∆

information/confessions from ; even though is no longer in custody (and therefore ∆  ∆

Miranda does not apply) the 6thA right to counsel applies and law enforcement may not

approach him without counsel present

White Dissent: majority goes too far; presence of counsel should be part of totality of

circumstances test

Rationale: indictment = due process, because adversarial proceedings have begun

Triggers: formal charges, prelim hearing, indictment, arraignment

Kansas v. Ventris: statements taken in violation of 6thA cannot be used against the but may be used for ∆

impeachment

The need to prevent perjury outweighs interests safeguarded by exclusion, so impeachment use

is permissible

US v. Henry: officers placed another inmate in jail with to elicit information; officers may not use ∆

another party to get information from a in jail — even though they told the spy to not pry and to just ∆

listen this was still a violation

BUT SEE:

Luna | Spring 20 J.Pettit

Kulhman v. Wilson: statements that were merely overheard in jail and relayed to law enforcement are not

a violation of the 6thA for it to be a violation, law enforcement has to be engaged in eliciting a 

statement (a “listening post” isn’t enough)

Maine v. Moulton: law enforcement may use statements taken in violation of the 6thA for crimes that

have not yet been charged

∆ was in prison; recorded discussing killing one of the state’s witnesses with a co-conspirator;

and then he admitted to some other crimes the evidence about murdering the witnesses cannot 

come in, but evidence of the other crimes can 6thA had not yet attached because he had not 

been charged for those crimes

B. M ASSIAH WAIVER

Rule: courts will indulge every reasonable presumption against a waiver; state bears the burden of

proving an intentional relinquishment of a known right or privilege

Brewer v. Williams: (*Christian burial speech): once adversary proceedings have been commenced

against an individual, he has the right to legal representation when the gov. interrogates him

Waiver requires understanding & relinquishment: under the totality of circumstances, evidence

does not show that waived his rights ∆

A does not waive his rights if he invokes his right to counsel and remains silent and ∆

then makes a statement subject to police interrogation

•Marshall Concurrence: good police work is more than catching the criminal at any price

•Powell Concurrence: inferred waivers are to be discouraged

•Burger & White Dissent: he had FIVE Miranda warnings and spoke anyway; he was more than

well aware of his rights; the officers made statements but did not interrogate him;

Michigan v. Jackson: at his arraignment requested counsel; the court held that this created an ∆

“Edwards-like” right that forbids further police interrogation

∆ never invoked his Miranda right to counsel and therefore Edwards did not apply; but the 6thA

right to counsel did shield him because he requested counsel and judicial proceedings had begun

against him

(*later considered unworkable because some states automatically appoint and therefore not everyone

invokes their right to counsel; later overturned)

Rule: so long as the accused is made aware of the dangers and disadvantages of self-representation

during post-indictment proceedings through the use of Miranda warnings, waiver of the 6thA right to

counsel is knowing and intelligent

Patterson v. Illinois: whether a who has been indicted and mirandized knowing and intelligently ∆

waived his 6thA right to counsel if he chooses to speak with officers and incriminates himself yes 

Miranda warnings are more than sufficient to inform someone of their rights and for them to

waive them

Key Inquiry: was accused made sufficiently aware of his right to have counsel present during

questioning and the possible consequences of forgoing the aid of counsel

Stevens dissent: Miranda warnings really do not make it clear what lawyers can and

cannot do for clients during interrogations and what the real benefits of attorneys are in

this situation

Luna | Spring 20 J.Pettit

Rule: once the adversarial process has begun and defendant has requested counsel, subsequent waivers

are presumptively invalid and involuntary based on the supposition that suspects who assert their right to

counsel are unlikely to waive that right voluntarily in subsequent police interactions

Montejo v. Louisiana: (*overrules Jackson as unworkable) — whether officers may approach a after ∆

his 6thA right has attached and ask him to knowingly and intelligently waive that right and speak with

officers w/o counsel present yes 

McNeil v. Wisconsin: (*Jackson still in effect) — when a invokes his 6thA right to counsel for the ∆

charges currently brought against him, this does not apply to crimes that the police are still investigating

i.e. the 6thA is crime specific

An invocation of the 6thA right is NOT an invocation of Miranda! would impede effective law 

enforcement by making persons in pre-trial custody even when they have not expressed an

unwillingness to be questioned

Texas v. Cobb: affirms the 6thA right is offense specific

∆ is arrested for a burglary & indicted; an attorney is appointed and he claims he had nothing to

do with the related disappearance of the woman who lived at the burglarized home

While out on bond he tells his father that he did murder the woman and his father snitches

∆ is arrested, waives his rights, and confesses; he later moves for suppression because they

violated his 6thA right

—S.Ct.: rejects the state court test of factual relation; adopts the Blockburger v. US test: different

statutory offenses are the same only when the elements of one offense are necessarily includes in the

elements of the other offense

i.e. offenses are the same only when proving the elements of the greater will always prove the

elements of the lesser

because the murder is a different and separate crime (although related) the 6thA right did not

attach

6th Amendment Right

Miranda Right

Attaches only after adversary proceedings have begun

Attaches during a custodial interrogation

Applies whether the is or is not in custody ∆

ONLY applies during a custodial interrogation

Applies to deliberate elicitation by undercover agents

Does not apply if the does not know he is being ∆

interrogated

Offense specific—only applies to offenses where

adversarial proceedings have begun

Applies to any offenses

Prohibits direct solicitation once the right has attached

Does not apply in situations where the does not ∆

know he is being interrogated (i.e. a CI)

Luna | Spring 20 J.Pettit

Purpose of the 6thA counsel guarantee is to protect the layman with expert adversary after adversarial positions

of gov. and suspect have solidified

Purpose of Miranda/Edwards is to protect the suspect’s desire to deal with police only through counsel; it is

narrower than the 6thA right because it only applies to custodial interrogation but broader than the 6thA because

it relates to interrogation about any crime and attaches whether adversarial proceedings have begun

Fruit of poisonous tree applies; must determine

whether derivative evidence is admissible against or ∆

whether it is the fruit of a poisonous tree and must be

suppressed

Physical fruits are fully admissible

Police are not prevented from approaching the later ∆

and seeking a Miranda waiver

Police must cease interrogation until an attorney is

present (but a 2 week period to re-approach may

suffice)

LAW 604 ARIZONA STATE UNIVERSITY OTHER CRIM PRO Outline - 2020.pdf

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