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4A Searches and Seizures
Olmstead v. US (1928) (p.4) (nt case) – wiretapping ≠ search
o Note: and “physical intrusion” requirement for threshold 4A Olmstead Silverman
challenge applies to BOTH tangible items & oral stmts
Katz v. US (1967) (p.5) (telephone booth tap = search; *J.Harlan concurrence test: (1) actual
subjective expectation of privacy, and (2) society willing to accept expectation as reasonable)
US v. White (1971) (p.11) – radio transmitted recording of convos b/w D & informant ≠
search
Smith v. MD (1979) (p.17) – pen register collecting #s dialed ≠ search
CA v. Ciraolo (1986) (p.25) – cops flying over house to view marijuana plants in backyard ≠
search; focuses on what the public do, not what they actually docould
Carpenter v. US (2018) (supplement) – cell-site records containing indv’s physical locations
= search
o Facts: Gov. obtained wireless carrier’s cell-site records revealing D’s physical location
whenever he made or received calls.
o Holding: Cell-site records detailing indv’s physical location = search
o Rule: A person does NOT voluntarily “assume the risk” of turning over comprehensive
data of his physical mvmts to 3d parties – when indvs have a legitimate privacy
interest in the records held by a 3d party, that info is protected by the 4A.
o Reasoning: cell location data is different – depending on the amount of days of info
gathered (in this case it was 297 days) – it is the of technology that makes it so type
private
“Curtilage”
oOliver v. US (1984) (p.31) (nt case) – open fields ≠ curtilage
oUS v. Dunn (1987) (p.32) (nt case)
*US v. Jones (2012) (p.33) (nt case) – cts should apply BOTH the Katz
reasonable-expectation-of-privacy test AND the traditional trespass/physical
intrusion test
Facts: Officers installed a GPS tracking device on a car & monitored its
mvmts on public roads
Holding: installing GPS tracking on private property = search
Rules: When analyzing 4A challenges cts should apply BOTH the Katz
reasonable-expectation-of-privacy test AND the traditional
trespass/physical intrusion test. If gov action physically occupies private
property for purposes of obtaining info, it is a trespass and is a search
under the 4A (must have both: trespass & intent to obtain info)
Reasoning: Installing a GPS tracking device to the car constituted
physically occupying private property for purposes of obtaining info.
Grady v. N. Carolina (2015) (p.37) (nt case) – subjecting a convicted sex-
offender to satellite-based monitoring where he is forced to wear a tracking
device = search; where the gov. obtains info by physically intruding on
constitutionally protected area = search
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Bond v. US (2000) (p.38) – physical inspection of carry-on bag = search; focus on what the
public actually does
o Facts: Border agent squeezed D’s carry-on bag in the bus compartment above D’s
head & felt brick of meth. The officer described the “squeeze” as “very hard but not
hard enough to break anything” and would “shake the bags before squeezing.”
o Holding: physical inspection (squeeze) of carry-on bag = search
o Rules: Physically invasive inspection of a person or person’s effects is more intrusive
than a purely visual inspection and is a search under the 4A. Gov action that is action
which the general public would do ≠ search.actually
o Reasoning: squeezing the bag went beyond the reasonably expected general
“touching” or “squeezing” – not reasonable to expect fellow passengers to touch one’s
luggage in an “exploratory manner.”
Bond case vs. Ciraolo case
o D’s obligation to protect his own privacy
Couldn’t have protected his privacy by putting his drugs in a hard-sided Bond
suitcase (just as could have put up an awning)?Ciraolo
o What the public CAN DO or what the public ACTUALLY DOES
o Couldn’t the passengers on the bus have squeezed ’s luggage just as hard as the Bond
officer did (just as passengers in planes could have viewed ’s marijuana)? Ciraolo
Kyllo v. US (2001) (p.42)
o Facts: Agents used a thermal imager to take thermal images of D’s home b/c they
suspected he was growing marijuana inside (the agents were doing the scan from
across the street on public prop).
o Holding: heat images of the home w/a thermal imager = search
o Rules: Where the gov uses a device that is not in general public use, to explore details
of the home that would otherwise be unknowable w/o physical intrusion, that
surveillance = search. In the home ALL details are “intimate” b/c the entire area is
(extra) protected by the 4A.
o Note: The majority is unclear on what constitutes “general public use”
Dog Sniff Cases
oPlace (1983) (nt case) – dog sniff of luggage in public ≠ search (dicta)
oEdmond (2000) (nt case) – dog sniff of a car in public ≠ search (dicta)
oHarris (2013) (nt case) – dog sniff of a car in public ≠ search (holding)
oFlorida v. Jardines (2013) (nt case) – drug-sniffing dog on porch = search; b/c officers
physically invaded [trespassed] the curtilage (porch) to obtain info
Note: cops CAN knock on door to speak w/homeowner (implied license)
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US v. Jacobsen (1984) (nt case)
o Facts: Gov agent re-opened & inspected D’s package & performed field test on the
cocaine substance inside the package.
o Holding: re-opening a package & testing substance ≠ search
o Rule: A gov action does NOT threaten protected privacy interests if the gov os almost
certain to learn no info at all or if the info is either insignificant (not of special interest –
e.g., the substance in the bag tests negative as cocaine) or is illegitimate (illegal – e.g.,
the substance in the package tests positive for cocaine).
o Reasoning: B/c the package had already been opened by a 3d party – non-gov actor –
and told the gov actor what was found, there was nothing “new” to obtain or discover
by re-opening the package.
*Draper v. US (1959) (p.68) (nt case)
o Facts: A known informant told police that D was bringing heroin back on a train – he
provided the police with about D. The cops conducted their own extreme detail
investigation and at the day/time/place provided by the informant, the cops saw a man
matching the informant’s description and arrested him (before seeing any drugs) – D
did in fact have heroin on him.
o Holding: The hearsay from the known informant provided police with sufficient
probable cause to search.
o Rule: Hearsay info from a informant providing details that are then known extensive
corroborated by investigation is sufficient to provide cause to search.
o Reasoning:
The fact that info was so as to the intricate details of specific and extensive
the suspect’s appearance, travel schedule, type of bag, and description that he
would be “walking fast” indicate the reliability of the informant b/c it is likely he
got the info from the suspect or someone close to the suspect.
The fact that the informant had provided extensive info that was , corroborated
enhanced the trustworthiness of the info.
Fact that the informant was increased the reliability of the info.known
Illinois v. Gates (1983) (p.79) (anonymous tipster + independent police corroboration = PC
for warrant; don’t need to strictly apply Aguilar-Spinelli two-prong test)
MD v. Pringle (2003) (p.93) (nt case) (PC to arrest passenger in the car b/c there were drugs in
the car, was reasonable to assume anyone in the car is part of that common enterprise)
Whren v. US (1996) (p.95) (cop pulled car over for acting “suspicious” while stopped at stop
sign; ct held cop’s subjective intent is NOT relevant, just need PC that traffic violation
occurred; protections against racial discrimination is NOT protected by 4A, it’s only protected
by 14A EPC)
Devenport v. Alford (2004) (p.101) (nt case) (ct upheld arrest when PC was for a crime that
was NOT the crime of arrest and was “closely related” to the crime of arrest) not
Johnson v. US (1948) (p.114) (cops entered D’s hotel room w/o warrant & w/o permission
based on a tip for a known narcotic user and “smell” of opium; ct held warrantless search of
indv’s premises was unconstitutional)
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Franks v. Delaware (1978) (nt case) (when warrant is issued based on intention/reckless false
info from cop, D must make substantial preliminary showing of falsity/recklessness. Then
there must be a hearing. If judge finds allegations of falsity justified, strikes the false info from
affidavit and retests for PC. If no PC w/o the tainted info, mtn to suppress will likely be
granted)
US v. Watson (1976) (p.118) (“reliable” informant told cops D stole CCs; ct upheld the
warrantless arrest b/c PC to believe the person committed a felony)in public past
*Cty of Riverside v. McLaughlin (1991) (p.129) (nt case) (ct upheld county policy allowing PC
determinations to be made at time of IA; BUT struck down provision excluding weekends &
holidays from IA 48-hr requirement b/c lead to impermissible delays past 48hrs)
Atwater v. City of Lago Vista (2001) (p.131) (ct upheld D’s arrest when she was pulled
over for misdemeanor offense – driving w/o seatbelt – b/c cops can make warrantless arrest if
they have PC to believe crime has been committed in his presence)any
US v. Grubbs (p.145) (post office knew there was child porn in D’s mail at the post office; ct
upheld warrant based on PC that evidence be at a specific location in the future b/c an will
event will occur that will bring the evidence to that location b/c there was PC to believe that
the child porn would be delivered to D’s house and PC that once that happened, he would
have child porn in his house)
Wilson v. Arkansas (1995) (p.159) (D sold drugs to and threatened informant w/gun, cops
got warrant to search D’s home, then entered w/o knock-and-announce, and found D flushing
drugs; ct remanded case but held that knock-and-announce rule is part of the 4A
“reasonableness” test for searches)
Richards v. Wisconsin (1997) (p.163) (nt case) (lower ct held that knock-and-announce was
not required for searches w/warrant; S. Ct held there can’t be a categorical exception to the
knock-and-announce rule, reviewing ct must make case-by-case determination whether the
facts and circumstances of the particular entry justified dispensing w/the knock-and-announce
requirement; in order to justify “no-knock” entry, the cops must have a reasonable
suspicion that knocking and announcing would inhibit the effective investigation of the
crime by, for e.g., allowing the destruction of evidence.)
US v. Ramirez (1998) (p.164) (nt case) (w/o knocking, cops broke a window in D’s garage; ct
held that during search excessive or unnecessary destruction of prop may violate the
4A, even though the entry itself is lawful and the fruits of the search are not
subject to suppression; “no-knock” entry is permissible based on RS and the
constitutionality of the entry is not altered by the fact that prop was damaged or destroyed
during the entry, BUT the :seizure” involved in damaging prop during a “no-knock” entry
could be constitutionally unreasonable and could support a claim for damages)
US v. Banks (2003) (p.165) (nt case) (D was in shower when cops executed search warrant for
cocaine at 2pm on weekday, knocked, announced, and waited 15-20sec before entering; ct
held the 15-20 seconds w/o response could reasonably lead the cops to suspect that cocaine
would be disposed of; but the reasonableness of warrant execution must be determined
“case-by-case” based on the totality of the circumstances)
Wilson v. Layne (1999) (p.166) (nt case) (cops invited media to accompany them while they
were executing arrest warrant in a private home; ct held that media ride-alongs violate the 4A
b/c goes beyond the scope permitted by the terms of the validly issued warrant; 4A requires
police actions in execution of a warrant be related to the objective of the authorized intrusion)
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Warrant Exceptions
SILA
Chimel v. CA (1969) (p.182) (in executing valid arrest warrant, cops went to D’s home to
arrest him for the burglary of coin shop, D’s wife let cops inside, and when D returned home
they aoslerrested him; then, w/o search warrant or permission, cops searched the home –
instructed wife to remove items from drawers - and cops found & seized # of coins, medals
and tokens; ct held warrantless search of an entire home impermissible when search is
incident to lawful arrest taking place in the home b/c coins were not found in area under D’s
immediate control)
US v. Robinson (1973) (p.192) (ct upheld search & seizure of heroin capsules where, after
arrest, cop searched D, found cigarette pack in pocket, opened the pack and found drugs;
during lawful arrest, can search the arrestee items they find on the arrestee)and
Knowles v. Iowa (p.203) (nt case) (cop pulled D over for speeding, although he was not going
to arrest D, the cop conducted a SILA search before giving D traffic citation; ct held
impermissible; if an officer has no intention to arrest (i.e., just going to issue a citation), then
the officer may NOT conduct a SILA search)
AZ v. Gant (2009) (p.205) (ct held cop’s search of D’s car passenger compartment after D
was arrested and handcuffed unconstitutional)
Riley v. CA (2014) (p.220) (ct held warrantless search thru arrestee’s phone was
unconstitutional absent exigent circumstances)
Searching for Arrestees
Payton v. NY (1980) (p.232) (“partial” exception to the warrant requirement) (ct struck down
NY law allowing warrantless arrests when cops have PC; absent exigent circumstances, the
police must have (1) arrest warrant (PC that the indv committed the crime) and (2) PC that
the indv is in the location at the time of ENTRY)
Steagald v. US (1981) (p.241) (while executing arrest warrant for Lyons, cops searched 3d
party’s house looking for Lyons, during search found drugs; ct held arrest warrant applied only
to arrest of Lyons and did NOT permit cops to search for him in the home of someone else,
even if they had a reasonable belief that Lyons would be in that home; absent consent or
exigent circumstances, cops may NOT search for the subject of an arrest warrant in a 3d
party’s home w/o search warrant)
*US v. Santana (1975) (p.247) (nt case) (ct upheld warrantless arrest was valid where
suspected felon was standing in threshold of front door of her home was subject to
warrantless arrest b/c D was in a “public place” for 4A purposes, not in an area where she had
any expectation of privacy)
Exigency
Warden v. Hayden (1967) (p.256) (cab driver called in a detailed tip to cops that he was
watching a robbery happen, cops went to D’s home, D’s wife let cops in, during search found
D and evidence of robbery; ct held that police acted reasonably when they entered the home
and searched it for suspects and weapons)
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*Welsh v. WI (1984) (p.258) (nt case) (drunk driver crashed and left scene by foot, cops
followed footsteps to D’s home and entered w/o warrant to arrest D; ct held that the
warrantless entry was unconstitutional, exigent circumstance exception did not apply in this
case)
*Brigham Cty, UT v. Stuart (2006) (p.259) (nt case) (officers entered a home w/o a warrant
after witnessing an altercation in the kitchen b/w 4 adults and 1 minor; ct held the
warrantless entry was reasonable and fell under the exigent-circumstances exception)
*MI v. Fisher (2009) (p.260) (nt case) (cops respond to call about disturbance at residence
where resident was “going crazy,” found house in chaos and saw D screaming and throwing
things, cops knocked, D told them to come back w/warrant, but cop entered anyway; ct held
cops could enter under the “emergency aid exception” b/c it was reasonable to believe that D
had hurt himself & needed treatment or that D hurt himself or others or had already could
hurt someone else)
Kentucky v. King (2011) (p.260) (cops accidently went to wrong appt to arrest suspect,
smelled weed, knocked loudly and announced presence, then heard shuffling inside appt,
cops kicked down door and arrested the indvs inside; ct held that exigent circumstances
exception to the 4A's warrant requirement applies to officer-created exigency if the exigency
does not arise from cop’s unreasonable or unconstitutional conduct)
Automobile Exception
Chambers v. Maroney (1970) (p.278) (cops waited to conduct inventory search of arrestee’s
car till back at station instead of at the scene; ct upheld the warrantless search of the car
made at station is constitutional, cops only need PC to believe that the car contains items
that cops are entitled to seize)
Coolidge v. NH (1971) (p.283) (nt case) (ct upheld two warrantless searches of car at police
station where cops had towed car parked on arrestee’s driveway at time of arrest to police
station, searched car immediately at the station, and searched again 2 more times 11mo &
14mo later)
Cardwell v. Lewis (1974) (p.284) (nt case) (ct upheld warrantless search of a car found parked
in a public commercial parking lot b/c under exception, warrantless search of car Chambers
found on property is constitutional)public
Collins v. Virginia (2018) (supp. 23-24) (nt case) (issue: whether a vehicle parked in the
curtilage of a home could be searched w/o warrant under automobile exception; ct held
automobile exception does NOT permit the warrantless entry of the curtilage that is needed
to gain access to the vehicle)
TX v. White (1975) (p.285) (nt case) (ct upheld warrantless search of a car after it had been
towed to the police station even though there was no reason that it was unsafe or impractical
to conduct that search at the place where it was found)
US v. Johns (1985) (p.285) (nt case) (ct held the 3-day delay b/w arrest and subsequent
search of arrestee’s car at station was permissible b/c D failed to show the delay adversely
affected a privacy or possessory interest; there is no presumptively unreasonable or
excessive period of delay)
CA v. Carney (1985) (p.285) (ct upheld warrantless search of D’s mobile home under
automobile exception b/c cops had PC of illegal activity (that D was selling weed in exchange
for sex); mobile home is treated as a car for 4A purposes, b/c it was readily movable and has
reduced expectation of privacy due to its use as a licensed car)
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PA v. Labron Kilgore& (1996) (p.289) (nt cases)
oLabron (cops observed series of drug sales on street, arrested the participants and
searched the trunk of a car from which the drugs had been produced)
oKilgore (cops had PC to believe that narcotics would be found in D’s truck (the truck
was parked on the driveway of a farmhouse belonging to another indv) w/o obtaining
warrant, cops searched the truck and found cocaine on the floor)
o Ct held that there was PC in both cases, thus both searches were constitutional;
automobile exception is based on the car’s , an exigency sufficient to ready mobility
excuse a warrantless search ; reduced expectation of privacy in a car, once PC exists
b/c its pervasive regulation.
CA v. Acevedo (1991) (p.300) (cops watched as a man entered his home carrying a package
that they had PC to believe contained marijuana, before getting search warrant, D arrived at
the house and left after about 10min, carrying a bag that was the same size as the package,
he put the bag in the trunk of his car and drove away, fearful of losing the evidence, cops
followed him, pulled him over, opened the trunk and looked inside the bag, finding marijuana;
ct held that search of the bag found in the trunk of the car was constitutional because the
police had PC that the bag contained contraband; cops may search a car and the containers
w/in it to believe contraband or evidence is contained)where they have PC
Wyoming v. Houghton (1999) (p.310) (nt case) (when there is PC to search a car, the
automobile exception permits the warrantless search of a personal belongings, passenger’s
but PC to search a car does NOT justify a body search of a passenger; note: unclear how this
would be applied to a container that the passenger is holding outside the car)
Inventory Searches
S. Dakota v. Opperman (1976) (p.319) (ct upheld inventory search that led to finding drugs
in car that had been towed for being illegally parked; cops may constitutionally perform an
inventory search of a car lawfully in police possession; this (1) protects the vehicle owner’s
property, (2) protects police against false claims of damage or loss of property, and (3)
protects police from harm)
Illinois v. Lafayette (1983) (p.328) (ct upheld inventory search of an arrestee where, during
booking at police station, cop emptied the shoulder bag arrestee had been carrying and found
drugs)
Maryland v. King (2013) (p.333) (nt case) (ct upheld taking a DNA swab of arrestee during
booking; this procedure is a legit booking procedure and can be done w/o warrant or any indv
suspicion)
CO v. Bertine (1987) (p.334) (ct upheld inventory search of D’s van that led to discovery of
drugs inside a closed container inside a closed backpack that was behind the front seat –
search was done the van was taken to impound lot)before
FL v. Wells (1990) (p.339) (nt case) (inventory search of a locked suitcase found in the trunk
of an impounded car violated the 4A b/c cops had no policy at all regarding opening closed
containers they found during an inventory search.
Consent
US v. Matlock (1974) (p.358) (D shared bedroom w/gf; ct upheld gf’s consent to search the
shared room)
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Georgia v. Randolph (2006) (p.362) (wife called cops on husband, wife gave consent to
search house but D refused to give consent, cops conducted search based on wife’s consent;
ct held search was unconstitutional b/c when 1 occupant refused consent, the “no” will trump
the other indv’s consent)
*Fernandez v. CA (2014) (p.376) (nt case) (D was present and refused to give consent to
cops, but based on suspicion that D had assaulted a girl the cops arrested D; after arresting
D, cops returned to D’s house and woman at the house gave consent; ct upheld as valid
consent - the “yes” trumps the “no” when the indv saying “no” is no longer physically
present at the home)
Illinois v. Rodriguez (1990) (p.378) (woman called cops claiming D beat her, she went
w/cops to D’s house and unlocked door w/her key (she had moved out 1wk earlier but kept
key); ct held cops may enter a home without a warrant if they reasonably believe the person
who consents to their presence has the authority to do so)
Terry Stops & Frisks
Sibron v. NY (1968) (p.429) (nt case) (cop watched D talk w/known narcotic dealers for 8hr,
cops then stopped and frisked D based merely on suspicion that D had drugs; ct held that the
frisk was impermissible b/c cop lacked PC to believe D was armed and dangerous; mere
association w/known narcotics addicts, does not give rise to a reasonable fear of life or limb)
*US v. Mendenhall (1980) (p.432) (nt case) (D at airport – she was last to de-plane, she
appeared nervous, she scanned the boarding area, and then she changed tickets – DEA
agents approached D and asked to see her ticket and ID; in plurality opinion, ct held that D
was “seized” when the agents approached her and asked to see her ticket & ID; note: ct was
split on whether there was RS to stop D based)
FL v. Royer (1983) (p.433) (nt case) (no seizure occurred when cops approached a suspect in
an airport and asked for and examined his ID and ticket. However, the suspect was seized
when the cops subsequently identified themselves as narcotic agents, told the suspect he
was suspected of transporting narcotics, and asked him to accompany them to a police room,
while retaining his ticket and ID and not indicating that he was free to leave)
Michigan v. Chesternut (1988) (p.433) (nt case) (man standing on a corner turned and ran as
a marked police car approach; the care turned the corner and followed, accelerated to catch
up and driving alongside the suspect for a short distance; the cops didn’t use sirens or
flashers, didn’t command the suspect to stop, didn’t display weapons, and didn’t use the car
to block or control the suspect’s mvmts; the ct held that the mere following of the suspect in
a marked police car did not constitute a seizure)
FL v. Bostick (1991) (p.433) (officers doing routine search of buses asked D to search bags,
advised they could refuse consent, consented anyway and found drugs; ct held that bus
sweeps/questioning not seizures)
US v. Drayton (2002) (p.442) (nt case) (ct held D was not “seized” when cops came on public
bus and asked to search his person and he consented b/c D was “free to say no”)
CA v. Hodari D. (1991) (p.444) (5 youths saw officers, ran, and threw cocaine; ct held no
seizure occurred b/c not a seizure if D doesn't stop and cop doesn't make any contact w/D)
Brendlin v. CA (2007) (p.452) (nt case) passenger was seized when the car in which he was (
riding was stopped to verify that its temp operating permit was valid; the relationship b/w the
driver and passenger is not the same in a common carrier as it is in a private car; the crucial
question is whether a reasonable passenger in a stopped common carrier would feel free to
terminate the encounter)
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IL v. Wardlow (2000) (p.459) (four-car caravan of officers investigating drug ring, see man
w/opaque bag and D fled, cornered and pat down and find gun (is certainly seized); ct held
cops had RS to stop D)
AL v. White (1990) (p.469) (police received call that D was leaving her apartment in her car
w/right taillight broken was going to be transporting cocaine; after D consents, cops find
locked case with marijuana and cocaine; ct held that the tip was sufficient to establish RS)
FL v. J.L. (2000) (p.474) (police got tip that young black man was standing at a bus stop in a
plaid shirt and that this man had a gun; cops witness 3 men hanging out at bus stop, then
stop and frisk and find gun, two men with him are also frisked; ct held tip here was NOT
enough to have RS; fact that cops found the weapon does not confirm the tip, must measure
w/what officers knew BEFORE stop/frisk)
*Heien v. NC (2014) (nt case) (p.483) (cop stopped a car w/only 1 functioning brake light b/c
cop thought it was a traffic violation, the driver consented to search of car, cop found cocaine;
turns out the cop was wrong, there was NO traffic violation for a broken taillight, thus, there
was no objective RS to pull over the suspect’s car; Ct held ambiguities in the state’s vehicle
code meant that it was, in fact, “objectively reasonable for an officer in the officer who
stopped D’s car to think that D’s faulty brake light was a violation of law, and b/c the mistake
of law was reasonable, there was RS to stop)
Hayes v. FL (1985) (p.491) (ct held evidence inadmissible due to coercion when police,
lacking PC, told D that he would be arrested if he did not accompany them to police station to
be fingerprinted b/c this exceeded a Terry stop and is more like actual arrest)
US v. Sharpe (1985) (p.495) (truck w/ drugs did not pull over immediately and once pulled
over, police had to wait for DEA agent; Ct held that detention was NOT too long to be an
investigative stop if police are diligent, especially if delay is furthered by D’s actions)
*US v. Montoya de Hernandez (1985) (nt case) (p.505) (ct held detention reasonable when
customs agents held D for 16hrs on RS that she had drugs in her alimentary canal, b/c @
international border, D’s evasion, and agents’ diligence stemming from the fact that waiting is
all they could do w/o PC)
US v. Place (1983) (p.509) ( of personal items) (ct held seizure was illegal when seizure
police seized luggage for 90min to obtain warrant on suspicion of drugs, b/c limitations
applicable to investigative detention of the person should define scope of investigative
detention of luggage; this exceeded Terry)
Rodriguez v. US (nt case) (p. 507) (cop pulled D over for swerving, took ID and insurance,
after completing the traffic stop’s objectives, the cop proceeded to ask for permission to walk
his dog around D’s car, D said no. Cop then told D to turn the car off, get out, and stand in
front of the patrol car to wait for a 2d cop to arrive; minutes later the 2d cop arrived and the
dog was walked around D’s car 2x and dog alerted. The delay b/w ticket and dog sniff was
almost 10min; ct held this seizure unreasonable absent suspicion of criminal activity to justify
detaining D beyond completion of traffic stop investigation)
MI v. Long (1983) (p.516) (Terry frisk of a car) (cops stopped D’s cars, didn’t have PC to
arrest but they had reason to believe the car might have dangerous weapons inside so they
conducted a sweep of the car; ct upheld the sweep based on officer’s RS that (1) person was
dangerous, and (2) there are weapons in the car. Additionally, sweep did not exceed “light
touching” requirement of Terry b/c “light looking” into areas where weapons would be held,
driver/passenger compartment)
MN v. Dickerson (1993) (p.524) (cops stopped and frisked D just for leaving a known crack
house, and upon feeling a lump discovered crack cocaine; ct held this and manipulating
was a 4A violation b/c the plain touch doctrine requires w/o immediate apparentness
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manipulation; additionally, a Terry stop must be accompanied by RS the suspect was armed
and dangerous which was NOT present here)
MA v. Buie (1990) (p.530) (RED RUNNING SUIT) (Buie sweep – extends Terry frisk to the
house) (Buie wore red running suit while committing armed robbery, when cops executed the
arrest warrant, after they arrested Buie, they further searched the basement where he was
found and they found a red jumpsuit; ct held that incident to a lawful arrest, a protective
sweep of a home is permitted provided it is supported by articulable RS that others in the
home may pose a threat)
Ybarra v. IL (1979) (p.536) (nt case) (no PC to search people at a bar just because there is a
search warrant (w/ PC) for the bartender)
Special Balancing
MI v. Sitz (1990) (p.563) (temporary sobriety checkpoint upheld; cops can establish
checkpoints if state interest outweighs the intrusion into people’s privacy interests &
checkpoint is proven to be an effective means (“fit”) of achieving the state’s goal)
Edmond (2000) (p.571) (city set up w/brief stops & dog sniffs aimed at drug checkpoints
finding indvs w/drugs in their car; ct held unconstitutional b/c the purpose was for general
crime control; for permissible suspicionless searches/seizures, the checkpoint’s purpose must
be more than general crime control)
Lidster (2004) (p.582) (cops set up brief checkpoint to ask motorists for info about previous
hit-and-run accident; Lidster was driving toward the checkpoint, but suddenly swerved,
narrowly missing an officer; cop smelled alcohol on Lidster’s breath & administered a sobriety
test, and he was arrested; Ct held permissible b/c special need in solving an on-going crime
outweighed indv’s interests & the fit was good)
Skinner v. Railway (1989) (p.587) (RR blood draw after major train accidents; ct held
suspicionless search/seizure was reasonable b/c gov’s special need to ensure RR safety w/low
indv privacy interest due to working in a highly regulated industry)
Von Raab (1989) (nt case) (p.601) (ct upheld Customs requirement that employees seeking
transfer to positions involving drug interdiction be subjected to urinalysis b/c compelling
interest in protecting our borders and public safety)
*Vernonia v. Acton (1995) (nt case) (p.602) (suspicionless random urinalysis upheld for
student athletes b/c there is special need to prevent student athletes from using drugs, & the
fit was appropriate b/c finding of disproportionate drug use among student athletes (Note-
NOT used to punish criminally))
*Pottawatomie Cty v. Earls (2002) (nt case) (p.604) (suspicionless random urinalysis upheld
for students in all extracurricular activities; b/c even though fit is not as good & students’
privacy interests are diminished due to regulation of extracurricular activities)
Chandler v. Miller (1997) (p.605) (ct found no special need in drug testing candidates for
state office b/c no evidence that drug abuse was occurring in gov officials, & no special need
such as preventing drug abuse by students was present; showing evidence of a problem was
a bigger factor here than in school cases)
*Ferguson v. Cty of Charleston (2001) (nt case) (p.611) (ct struck down city policy of drug
testing pregnant women where results were handed over to police b/c primary purpose was
general crime control, NOT special need)
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US v. Flores-Montano (2004) (p.629) (ct allowed discretionary suspicionless inspections of
cars at the border, even as far as dismantling the gas tank, because of heightened special
need of border security + reduced interest in privacy in a vehicle)
DPC and Confessions
Brown v. MS (1936) (nt case) (pg. 717) (confession obtained after D had been whipped until
agreed to confess to stmts mirroring what cops dictated violated DP of law; common law rule
that coerced confessions are excluded from evidence b/c of fear that they are untrustworthy)
Ashcraft v. TN (1944) (p.718) (ct held confession obtained during 36hr continuous
interrogation presumptively involuntary inherently coercive, and violative of DP, b/c ;
switched from “reliability” rationale to “unfairness” rationale; dissent wouldn’t have used
duration alone, but would instead have looked to other facts)
US v. Alvarez-Sanchez (1981) (nt case) (p.729) (D gave confession after being arrested and
held in custody for nearly 3 days w/o being arraigned on either state or federal charges; Ct
held the confession was admissible b/c the federal statute governing the admissibility of
stmts given when there is a delay b/w arrest and arraignment does NOT apply to stmts made
by a person who is being held solely on state charges)
Jackson v. Denmo (1964) (nt case) (p.729) (“NY procedure” where judges would submit the
confession to the jury for the jury to determine if reasonable minds could differ as to whether
the confession was voluntary; jury then instructed to consider the confession as evidence only
if jury concluded the confession was voluntary; ct held the procedure violated DP)
Spano v. NY (1959) (p.730)
o Facts: D shot & killed man after a bar fight. GJ issued indictment against D for murder.
Days later D called his long-time friend, Bruno (a police officer in training) and
“confessed.” Then, accompanied by his lawyer, D turned himself in a few days after the
murder. D was 25yo, had no prior history with law enforcement, but had history of
emotional instability. D’s atty left him in police custody after advising him not to answer
any questions. Numerous officers began to interrogate D at about 7pm, and the
questioning continued for almost . D repeatedly told the police eight straight hours
he was not going to answer their questions and he made repeated requests for his
attorney to be present, all of which were denied. The officers then brought in Bruno, to
question D when the police could not get him to confess. Bruno played to D’s
sympathies and lied saying that he would lose his job if he could not get D to confess
(Bruno’s job was never in jeopardy). After 4 sessions with Spano, Bruno finally got him
to confess and Spano answered the prosecutor’s leading questions.
o Holding: Due to totality of circumstances, including youth, foreign born, lack of history
w/ police, low education, 8hrs of questioning, and use of friend to deceive/guilt into a
confession, D’s confession was involuntary.
Mincey v. AZ (1978) (nt case) (p.736) (ct held confession of a hospital ICU patient who
expressed wish not to be interrogated but was subjected to interrogation in his injured state
to be involuntary)
CO v. Connelly (1986) (p.737) (D randomly stopped officer on street and told him he
murdered a girl; ct held that there was no violation of DPC b/c there was no coercion
whatsoever by police; mental condition of D alone does NOT constitute an involuntary
confession, must also have police coercion)
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Miranda
Miranda v. AZ (1966) (p.756) (cops didn’t tell D of right to counsel before questioning him
and ultimately got a confession; ct held stmts were inadmissible; created mandatory warnings
that must be given after arrest and before interrogation to dispel inherent compulsion in
custodial surroundings: (1) right to remain silent, (2) any stmt made can be used as evidence
against, (3) right to counsel- retained or appointed)
NY v. Quarles (1984) (p.774) (woman told cops that D had just raped her and was inside gas
station & had a gun; when cops went inside, D ran to back of store; cops stopped him,
handcuffed him, frisked him, then asked D where gun was w/o giving warnings, D Miranda
responded “the gun is over there”; ct held there was NO violation b/c the situation Miranda
posed threat to public safety, fell w/in public safety exception)
Dickerson v. US (2000) (p.784) (Act of Congress – permitting stmts made by suspect during
custodial police interrogation to be admitted at trial as long as they were made voluntarily –
superseding was held unconstitutional b/c Congress cannot legislatively supersede Miranda
a SCOTUS interpretation of the Constitution)
Berkemer v. McCarty (1984) (p.802) (officer pulled over intoxicated driver and questioned
prior to manifesting intent to arrest; ct held the stmts were admissible b/c D was NOT in
custody at that time so NO warnings required; applies to misdemeanors, Miranda Miranda
but NOT Terry-like stops)
J.D.B. v. NC (2011) (p.809) (cops suspected 13yo, of involvement in house break-ins, they
pulled him out of school and 3-4 adults (school officials and cops) questioned him about the
break-ins for 45min w/o giving him warnings, they used pressure & guilt to try to Miranda
persuade him to confess, which he did; lower ct failed to consider D’s age; S. Ct held that
custody determinations should include consideration of the suspect’s age, only if the age is
known to the officer or would have been objectively apparent to a reasonable officer)
Maryland v. Shatzer (2010) (nt case) (p.823) (an inmate is not in custody, for Miranda
purposes, simply by virtue of his confinement in prison)
o Facts: A social worker reported allegations that Michael Shatzer had abused his three-
year-old son. At the time of this allegation, Shatzer was imprisoned for a different child-
sexual-abuse conviction. The 2003 allegation was assigned to Detective Shane
Blankenship, who went to interview Shatzer in prison. Shatzer initially waived
his rights but afterwards demanded an attorney, at which point Blankenship Miranda
ended the interview. The investigation was closed shortly afterwards. Two and a half
years later, further details of the 2003 allegations against Shatzer were reported.
Detective Paul Hoover undertook the investigation and on March 2, 2006 went to
interview Shatzer in prison. Hoover obtained a written waiver and interviewed Miranda
Shatzer. Shatzer agreed to take a polygraph five days later. Shatzer was again read
his rights. Shatzer signed another written waiver and proceeded to fail the Miranda
polygraph test. After further questioning, Shatzer confessed. Shatzer then requested an
attorney, and Hoover ended the interrogation.
o Holding: Since D’s break in custody was over 14 days, his incriminating statements is
admissible. An inmate is NOT in “custody,” for purposes, b/c of virtue of D’s Miranda
confinement in prison.
Howes v. Fields (2012) (nt case) (p.823) (while serving jail sentence, D was interrogated by
police in private w/o warnings; ct held this did not constitute custody b/c jail was Miranda
“home”)
o Facts: While Fields was serving a jail sentence, a corrections officer escorted him to a
conference room where 2 sheriff’s deputies questioned him about allegations of sexual
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conduct w/a 12yo boy prior to his confinement. The deputies did not give Fields his
Miranda warnings prior to the interrogation. After hours of questioning, Fields
confessed.
o Holding: Fields knew he was going back into jail no matter what so there was not the
level of persuasion present b/c he couldn’t go home no matter what. The combination
of imprisonment, questioning in private, and questioning about events in the outside
world is NOT necessarily enough to create a custodial situation.
RI v. Innis (1980) (p.833) (Gun hidden where handicap children could find it. Miranda
exception for “booking” questions; stmts made around the suspect that officers reasonably do
not believe will elicit incriminating stmts are permissible; here, cops discussion was b/w each
other in front of D about concern handicap kids will find D’s gun is NOT “interrogation”)
IL v. Perkins (1990) (p.843) (D bragged to undercover agent about his acts while in jail; ct
held warnings NOT necessary b/c where suspect doesn’t know that he is speaking toMiranda
gov agent, no reason to feel coerced)
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AZ v. Fulminante (1991) (nt case) (p.850)
o Facts: The D, an inmate in a fed prison as a result of a weapons offense, was
suspected of murdering his 11yo step-daughter. B/c child killers are detested by the
prison pop, D had apparently been receiving rough treatment from other prisoners.
Sarivola, another inmate who was a government informant masquerading as an
organized crime figure, told his superior in the FBI that D was rumored to have killed
his stepdaughter. The FBI told Sarivola to “find out more.” Sarivola had previously
asked D about his stepdaughter’s death, and D had denied any involvement. Sarivola
then offered D “protection” from the other inmates, but only if he would tell the truth
about his stepdaughter’s death. D then admitted to Sarivola that he had murdered his
stepdaughter.
o Holding: D’s confession was coerced and inadmissible b/c D’s will was overborne b/c
he faced credible threat of physical violence unless he confessed.
CA v. Prysock (1981) (nt case) (p.857) (ct upheld stmts to a minor D and his parents as
sufficient warnings although the language varied slightly; b/c they still fully Miranda
conveyed the rights included in the original 4 warnings)
Duckworth v. Eagan (1989) (nt case) (p.858) (ct deemed stmts to D claiming “we have no way
of giving you a lawyer, but one will be appointed to you, if you wish, if and when you go to ct”
as valid warning b/c doesn’t require that attys be producible on call, only that Miranda
suspect is informed of right to counsel)
FL v. Powell (2010) (nt case) (p.858) (ct held stmt, “you have the right to talk to a lawyer
before answering any of our questions” satisfied b/c it was sufficiently Miranda
comprehensive and comprehensible when given a commonsense reading)
Michigan v. Mosley (1975) (p.877)
o Facts: Mosley was arrested for robbery. Before questioning, M was given
the warnings and invoked his right to remain silent. The officer stopped the Miranda
interrogation, and M was taken to a cell. Later, a detective attempted to question M
about an unrelated murder. M was again given warnings, but did not invoke Miranda
his right to remain silent. M made incriminating stmts and was charged with first-
degree murder.
Changed locations
Limited invocation (to one offense only)
Ceased questioning
2 hours later
New crime
New location
New officers
Miranda warnings given before both questioning sessions
o Issue: Does Miranda forbid subsequent questioning of a suspect who previously
invoked his right to remain silent?
o Holding: No. Mosley’s statements were admissible under , b/c his invocation Miranda
was scrupulously honored when he invoked his rights. The period of ceased questioning
was sufficient and thus, the subsequent questioning about a different offense was
permissible.
o Rule: Miranda does not bar police from subsequently questioning a suspect who
previously invoked his right to remain silent, as long as the suspect’s right to end
questioning has been . Ceasing questioning after invocation scrupulously honored
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can’t just be a “hiccup” (can’t just stop for 5min and start again). is NOT offense 5A
specific (unlike the ).6A
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Edwards v. AZ (1981) (p.887)
o Facts: Edwards was arrested for robbery, burglary, and first-degree murder. He was
informed of his rights and agreed to answer the officers’ questions. After Miranda
some questioning, during which E made no incriminating statements, E invoked his
right to have a lawyer present. He was then taken to jail. The next day, two officers
came to the jail to see E. He said he did not want to see the officers, but the prison
guard said he had to talk to them. The officers read E his rights and E agreed Miranda
to answer their questions, this time incriminating himself.
Changed locations
Limited invocation (to one offense only)
Ceased questioning
2+ hours ceasing
New crime
New location
New officers
Miranda warnings given before both questioning sessions
o Holding: E's responses to the further questioning were not a valid waiver of his rights.
Accordingly, E's incriminating stmt was inadmissible.
o Rule: Once a suspect has received his warnings and invoked his right to Miranda
counsel, the police may not further interrogate the suspect until the suspect has been
given access to counsel, unless the suspect initiates further communication with the
police.
Invoking the Right to Counsel
o “Lawyer dog” case – “why don’t you just give me a lawyer dog…” was NOT a proper
invocation.
oDavis v. US (1994) (p.893)
Facts: Davis was suspected of murder. Naval Investigative Service (NIS) agents
conducting the interview advised Davis of his rights. Davis waived his rights in
writing. During the interview, Davis indicated he might want to consult an
attorney. The agents asked Davis if he was requesting a lawyer, and Davis said
he was not. Davis made incriminating stmts before he unequivocally invoked his
right to counsel and questioning was stopped.
Rule: Under Edwards, police are only required to stop a custodial interrogation
if the suspect has requested an attorney. A suspect must unambiguously
clearly indicate that he wants to consult an attorney in such a way that a
reasonable police officer in the situation would believe the suspect was invoking
his right to counsel.
If suspect gives about wanting an atty that ambiguous invocation
doesn’t constitute a valid invocation, officers do NOT have to cease
questioning.
Valid/unambiguous invocation requires the suspect to clearly
request that he wants to consult an attorney in such a way that a
reasonable police officer in the situation would believe the suspect was
invoking his right to counsel.
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o *Smith v. IL (1984) (nt case) (p.901)
Facts: A detective began reading the D his rights. When the detective Miranda
came to the part of the warnings dealing w/the right to an atty, the following
occurred:
Q: You have a right to consult w/a lawyer and to have a lawyer present
with you when you’re being questioned. Do you understand that?
A: Uh, yeah. I’d like to do that.
Q: Okay. . . if you want a lawyer and you’re unable to pay for one a lawyer
will be appointed to represent you free of cost, do you understand that?
A: Okay.
Q: Do you wish to talk to me at this time w/o a lawyer being present?
A: Yeah and no, uh, I don’t know what’s what, really.
Q: Well. You either have to talk to me this time w/o a lawyer present and if
you do agree to talk w/me w/o a lawyer you can stop at any time you want
to.
A: Alright. I’ll talk to you then.
Holding: D’s initial request for counsel WAS a valid, “unambiguous” express
invocation to the right to counsel. (Note: after he invoked, the officers could
finish the warnings, BUT must terminate all questioning until atty Miranda
present).
Rule: An accused’s responses to further interrogation may not be post-request
used to cast retrospective doubt on the clarity of the initial request itself.
oMcNeil v. WI (1991) (nt case) (p.902)
Facts: A def who had been charged w/armed robbery made an appearance in ct
w/counsel – an event that was treated as an invocation of his 6A right to counsel
for proceedings pertaining to that robbery charge. However, officers had initiated
interrogation w/respect to three crimes. After being given full uncharged
Miranda warnings, D waived his rights and made inculpatory stmts about the
uncharged offenses. Subsequently, he claimed that his stmts were inadmissible
to prove those crimes b/c his waiver was invalid under . More Edwards
specifically, he argued that his invocation of his invocation of the 6A right to
assistance regarding armed robbery (charged offense) also served to invoke his
Miranda entitlement to assistance for custodial interrogation regarding the
uncharged offenses.
Holding: D had no 6A right to counsel entitlement for the three uncharged
offenses.
Rule: The 6A right to counsel attaches formal charges are initiated only after
and is – that is, it attaches those offenses that have offense specific only for
been formally charged. A request for the offense-specific 6A right to assistance
in proceedings pertaining to a charged offense does constitute an invocation not
of ’s 5A-based entitlement to assistance for custodial interrogation Miranda
concerning separate, uncharged crimes. To trigger the special protection of the
Edwards rule, a suspect must make an unambiguous request for assistance
w/custodial interrogation.
Invoking the Right to Remain Silent
o *Berghuis v. Thompkins (2010) (nt case) (p.902)
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Facts: D argued that he had invoked his right to remain silent by not saying
anything for a considerable period of time (nearly 3hrs straight) while officers
persistently attempted to interrogate him.
Holding: This argument is unpersuasive.
Rule: A suspect must unambiguously, expressly invoke his right to remain
silent. The suspect may not impliedly invoke right to silence.
Initiation of Communication by a Suspect
o *Oregon v. Bradshaw (1983) (nt case) (p.903) (officers may proceed if the suspect
himself reinitiates the conversation)
Facts: D was arrested for furnishing liquor to a minor. He was also suspected of
driving a truck that left a roadway and struck a tree and embankment, causing a
minor’s death. An officer recited the warnings to him and then Miranda
suggested that he had been behind the wheel of the truck at the time of the
accident. D invoked his right to counsel, and the officer immediately ended the
interrogation. A few minutes later, D asked the officer, “Well, what is going to
happen to me now?” The officer responded by reminding him that he had
requested an atty and telling him, “I don’t want you to talk to me unless you so
desire b/c anything you say. . . since you have requested an atty, you know, it
has to be at your own free will.” General conversation followed in which D
agreed to take a lie detector test. The next day, after he received a new set of
Miranda warnings, D took the lie detector test. When the examiner informed D
that he did not believe he was telling the truth, D made incriminating
admissions.
Issue: Whether the stmt, “Well, what is going to happen to me now?”
constituted the “initiation” of communication under . Edwards
Holding: (split 4-4 decision) The stmt constituted initiation b/c although
ambiguous, the question in this case as to what was going to happen to him
evinced a willingness and a desire for a general discussion about the
investigation. D’s question could have reasonably been interpreted by the officer
as relating generally to the investigation. After initiating further communications
w/the officer, D had validly waived his rights under .Miranda
Rule: Some inquiries by a suspect would not qualify as an initiation of
communication b/c they are so routine that they cannot be fairly said to
represent a on the part of the suspect to desire open up a more generalized
discussion relating directly or indirectly to the investigation. Inquiries or stmts,
by either a suspect or an officer, that relate to routine incidents of the custodial
relationship – e.g., request for drink or phone call – do not eliminate the
additional protection against coerced waivers triggered by a clear request for
counsel.
“Re-initiation”: whether the D demonstrate a desire to discuss the
subject-matter of the investigation
“Routine” inquiries about the custodial relationship (e.g., request for
drink or phone call) do NOT re-initiate communications about the
investigation.
Breaks in Custody
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o *Maryland v. Shatzer Edwards (2010) (nt case) (p.905) ( presumption of involuntary
waiver ends after 14-day break in custody b/w interrogation sessions; return to prison
gen pop constitutes a break in custody for inmates)
Facts: While incarcerated for an unrelated offense, D was interviewed about
allegations that he had sexually abused his 3yo son. Upon being given his
Miranda warnings, he declined to speak w/o an atty, and the detective ended
the interview. In 2006 (2.5yr later), after the police dept. had received additional
allegation concerning the “same incident,” another detective interviewed D at
the prison. After receiving warnings, D waived his rights and made an Miranda
incriminating admission in response to interrogation. 5 days later, after another
set of warnings and a written waiver, D submitted to a polygraph test Miranda
and made another incriminating admission before requesting an atty. D was
charged w/multiple sex offenses, trial ct allowed both stmts into evidence, and D
was convicted. Ct of appeals reversed, holding that the incriminating stmts were
barred under .Edwards
Issue:
(1) Whether a break in custody ends the presumption of involuntary
waiver established in .Edwards
(2) Whether a suspect’s release back into the general prison pop
constitute a break in custody.
Holding:
Issue 1: Yes. does NOT require exclusion of D’s stmts in this Edwards
case b/c there was a sufficient break in custody b/w the two
interrogations.
Issue 2: Yes. D’s 2.5yr return to gen prison pop constituted a sufficient
break in custody.
Rules: After right is invoked, in order for interrogation to continue, officers must
either (1) wait for counsel to be present, (2) wait for suspect to re-initiate the
communications about the investigation, or (3) wait 14 days after Miranda
“custody” (jail/prison inmates are NOT in “custody” when they leave the
interrogation room and go back the prison gen pop).
Issue 1: The rule requiring police to cease interrogation when Edwards
the suspect invokes his right to counsel ends once that instant custody
ends. It does not create an indefinite bar to officer-initiated questioning
following the request for counsel. The protections of are Miranda
sufficient to protect the suspect’s desire to have an atty present when a
suspect who initially requested counsel is re-interrogated after a break in
custody that is of sufficient duration to dissipate its coercive effects.
“Sufficient duration” is no less than 14 days.
Issue 2: Lawful imprisonment imposed upon conviction of a crime does
not create the coercive pressures of custodial interrogation. The inherently
coercive pressures of custodial interrogation end when a prisoner returns
to his normal prison life.
Initiation of Communication by Different Officers About Different Offenses
oAZ v. Roberson (1988) (nt case) (p.907)
Issue: Whether the protection afforded by the rule applies when Edwards
different officers seek to interrogate a suspect about different offenses.
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Holding/Rule: Yes. A suspect who invokes the right to counsel during custodial
interrogation after being given warnings as to one offense may NOT beMiranda
questioned by a different officer about a separate offense unless the suspect
initiates further communications or exchanges w/the authorities. Whether the
second officer knows the suspect invoked his rights w/the first officer is
insignificant b/c focuses on the state of mind of the not of the Edwards suspect
police.
Consultation w/Counsel by a Suspect
oMinnick v. MI (1990) (nt case) (p.908)
Issue: Whether waiver of right to counsel made by suspect who clearly invoked
his right during custodial investigation can be valid if officers initiate
communication w/the suspect after he has consulted w/an atty.
Holding/Rule: NO. Mere consultation w/an atty does not terminate protection
against officer-initiated interrogation following a request for counsel. The stmts
should not have been admitted into evidence. Following a request for counsel,
officers may not re-initiate interrogation w/o counsel present, whether or not the
accused has consulted w/his atty.
Confessions & 6A Right to Counsel
Massiah v. US (1964) (p.930)
o Rule: Deliberate elicitation of incriminating statements by government agent = critical
stage and right of counsel attaches.
o Facts: indictment for federal narcotics violation; out of bail and other defendant came
to talk to him after agreeing to work with the police; record incriminating statements
while sitting in car with co-def.
Other Const. violations to consider:
Officer's performed "search" without warrant (recording in car? No, false
friends - no reasonable expectation of privacy for conversations)
Miranda - being out on bail was not custodial; and not "official
interrogation (Perkins)
DPC - is his "will being overborn" - seems like a tame conversation, not 36
hours long or no physical or phycological ploys
4A Mirand
a
Due Process
Clause
6A
NONE NONE MAYBE YES
o Issue: Violation of the 6A?
o Hold: Yes; violation of right to counsel; reversed
o Reason: contradicts basic dictates of fairness in the conduct of criminal cases; all
pretrial states need effective representation by counsel; the right to counsel attaches
"at or after the time that judicial proceedings have been initiated" against the suspect
by =
ATTACHMENT:
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Formal Charge (Indictment or Information); OR
Formal court proceeding (hearing, arraignment, IA, etc.)
Don't get confused by just "arrest"…arrest with warrant not enough to right to
counsel "attachment"
*TX v. Cobb (2001) (nt case) (p.938)
o Facts: arrested for murder/kidnapping, indicted ONLY for burglary; given, Miranda
confesses to murder while released on bail
D indicted for burglary, appointed counsel. Police suspected that he had
kidnapped and murdered woman and child from that premises, but was indicted
only for the burglary. Arrested for the murder kidnaps, given Miranda warnings,
confessed, but was not given counsel.
o Issue: are the crimes the same? Does right to counsel for burglary apply? Was the
confession obtained in violation of 6th A?
o Hold: 6A attaches; separate offense
o Rule: An offense is not “the same” as another offense if each requires proving a fact
that the other does not.
Two Tests for Same Offense:
Common nucleus of operative fact , same transactional occurrence, same
operative set of facts
An offense is not the "same" as another offense if each requires proving a
fact that the other does not ( )Blockberger
o Ex. assault and assault with a deadly weapon = the same offense
o Crafty ways to get around this
4 crimes, want more evidence.
Charge him on one of the crimes, maybe the one you have most evidence for so
you don’t need to elicit more info on that, then don’t charge on other crimes so
right to counsel doesn’t apply.
US v. Henry (1980) (p.940)
o Facts: arrested and indicted for armed robbery; FBI tells cellmate to "be alert to
statements" from Henry about the robbery crime; told not to initiate conversation or
ask questions
4A Mirand
a
Due
Process
Clause
6A
NONE NONE PROB NOT YES
Critical stage? YES, been indicted
Different Offense? NO, same robbery
Waiver? NO
o Issue: Whether the government deliberately elicited incriminating statements?
(Massiah)
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o Hold: Yes; affirms the conviction reversal of appellate court
o Reason: not a product of a knowing and voluntary waiver of counsels; affirms Massiah
Factors: (1) acting under the instructions/agent of government as a paid
informant; (2) held out to be no more than an inmate; and (3) Henry was in
custody and under indictment at the time he was engaged in convo by informant
"likely to induce him to talk"
"by intentionally creating a situation making it likely"
Sounds a lot like "Interrogation" under Miranda, "Express questioning or its
functional equivalent (likely to elicit incriminating statements"
o (p.940) – two different things often conflated, Stewart confused the
"critical state" question,
o Note: *deliberate elicitation* and *interrogation* are different things
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Kuhlmann v. Wilson (1986) (p.951)
o Facts: robbed garage and killed dispatcher; at first claimed no involvement in murder
but confessed to burglary; cellmate (police informant) said story "didn't sound so
good," revised story days later saying planned and carried out robbery and murder (on
federal habeas corpus appeal)
Could see scene of crime outside of cell window
State court found finding brother saying to confess non-coercive
o Issue: Did deliberate elicitation occur? 6A violation?
o Hold: No; no violation; reversed
o RULE: police/agent must have taken SOME action designed to elicit incriminating
statements
o Reason: defendant must demonstrate that police and their informant took SOME
action, beyond merely listening, that was designed deliberately to elicit incriminating
remarks; never asked about murder/spontaneous and unsolicited
D must demonstrate that the police and informant took some action, beyond
merely listening, that was designed deliberately to elicit incriminating remarks.
This was a habeas case - state appeals, collaterally attacking state procedures
(findings by state court presumptively correct, made finding that statements
were "spontaneous/unsolicited")
o Note: It is possible this case comes out differently on direct appeal than on habeas.
[Hypo] – D arrested for murder. Received Miranda warnings, denied knowing anything about
murder. 2 days later, D was indicted. As he was being transported to the county jail, D asked
officer who else had been indicted. Upon learning a particular person wasn’t indicted, D said
“he did everything.” The officer gave Miranda warnings again, and D waived, making lengthy
incriminating statements. Is Miranda waiver sufficient to waive his 6th A right to counsel as
well?
Brewer v. Williams (1977) (p.960) ("Christian burial speech")
o Facts: D abducted and killed 10yo girl after escaping mental hospital; informed of
Miranda rights 6x; atty was appointed, told not to talk, atty said D was not to be
questioned during car ride w/officers; atty was denied permission to ride in car w/D; on
car ride, cops started eferring to him as "Reverend" and started giving the "Christian
burial speech;" discussed snow that night, saying won't be able to find body in snow,
give parents the rights to Christian burial; D directs them to the girl's body, and was
convicted
o Hold: Not waiver because he had consistently relied on the right to counsel and
wearing him down and using his religion against him was not a voluntary waiver;
violation of 6A; reversal
Critical stage: Def. was arraigned on Kidnapping
Different crime: (*nobody argued for this!) different crimes because for murder,
test for same offense is "transactional relationship"
Deliberate Elicitation: YES
o Reason: The officers were obviously trying to get all the information he could before
he was back with his lawyer "yes sir; everyone believes deliberate elicitation,
disagreement is around "waiver;" was not an intentional relinquishment of rights
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o Dissent : told of his rights numerous times and decided to speak, said before that he
wanted to rely on counsel
Exclusionary Rule
Jones v. US (hypo case) – D was staying overnight at a friend’s home when the friend wasn’t
there. The friend gave D a key and permission to come and go as he pleased. Officers came
to execute a warrant for drugs. As they entered, D fled out a window onto an awning. The
officers later found drugs in a bird’s nest reachable from the awning. D moved to suppress
claiming there was no PC for the warrant, but he claimed no ownerships of the drugs. Does D
have “standing” to object to the search of his friend’s home?
o Holding/Rule: YES b/c Jones was “ .” (*no longer to legitimately on the premises
rule!!)
o NOTE: Even today, Jones would have “standing” as an overnight guest (Minnesota
v. Olson) b/c ppl are most vulnerable while sleeping
Rakas v. IL (1978) (p.1087) (*need possessory or privacy interests in place searched or
things seized to have standing)
o Facts: cops pull over truck for armed robbery and searched the car (automobile
search). They find bullet shells in locked glove dept and a gun under the back-
passenger seat. The passengers concede that they did NOT own the car (driver owned
car). The passengers also deny ownership of the gun/shells.
o Issue: Do the passengers have standing to challenge the search of the car and the
seizure of the gun/shells?
o Holding: No. The passengers did have a possessory or privacy interest in the place
searched (car) or the things seized (gun/shells). They do not have standing to assert 4A
rights in this case.
o Rule: Standing to assert 4A rights when the person has:
(1) possessory ownership/control of the place searched (e.g., in = car)Rakas
(2) possessory ownership/control of the thing seized (e.g., in = Rakas
gun/shells)
(3) reasonable expectation of privacy in place searched (e.g., in = car)Rakas
o Reasoning:
Note: passengers have “standing” to challenge a stop and search of the car they
riding in b/c the passenger is seized (wouldn’t reasonably think they were free to
go).
Passengers have general expectations of privacy in a car, but no evidence that
passengers had control or ever accessed the under part of the back seat & the
glove box is locked and passengers didn’t have key – can’t have privacy
expectation if don’t have access or control
Rawlings v. Kentucky (ft. nt. 11 in Rakas, p.1091) (*no “standing” to contest search of purse,
and no legitimate expectation of privacy in the drugs) – D was visiting a home. He was there
w/woman whom he has known only a few days. When the police entered the house unlawfully
to arrest another person, D dumped almost 2,000 tabs of LSD in the woman’s purse. The
officers didn’t find that suspect, but they smelled marijuana and obtained a search warrant.
They searched in the woman’s purse and found the drugs. D claimed the drugs as his.
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Holding: No “standing” to contest search of purse, and no legitimate expectation of privacy
in the drugs. This is not to say that such visitors could not contest the lawfulness of the
seizure of evidence of the search if their own property were seized during the search.”
oRakas prong 2 (possessory interest in thing seized) alone is NOT sufficient.
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Byrd v. US (2019) (supp p.25-26) – Natasha Reed rented a car and signed a rental contract in
which she agreed to be the sole driver. She, however, let D drive the car. He placed materials
in the trunk of the car. D was the sole occupant and driver when he was pulled over for a
traffic infraction. The officers (maybe w/PC, maybe w/o) searched the car and found body
armor and 49 bricks of heroin in the trunk. D concedes that the things searched were his
(Rakas prong 2 is satisfied). Does D have standing to contest the search?
o Holding: Yes, D had standing (even though he technically was breaking the law by
driving the car w/o being on the rental contract).
o Reasoning: Rental contract is a private agreement and is not binding to determine
legal status for purposes of determining who had “possessory interest” in the car.
MN v. Carter (1998) (p.1104)
o “Standing” Possibilities: (business guests vs. social guests)
Those like overnight guests have “standing”; ask whether they are more like
overnight guests or those merely legitimately on the premises (Majority holding –
CJ Rehnquist and O’Connor)
Only overnight guests (grudgingly) have “standing” (Concurrence – Scalia and
Thomas)
Anyone invited into a home to share in a common endeavor has “standing”
(Dissent – Ginsburg, Stevens, Souter, and Breyer)
Almost all social guests have standing (dicta pulled from majority, concurrence,
and dissent – 5 justices agree on this)
Standing is grounded in DP
o DP is based on “fairness” NOT necessarily “reliability”
oHypo – A is in police custody but NOT read his Miranda rights. A says “B did it.” B
does NOT have standing to raise a Miranda challenge b/c it is A’s rights in question for
Miranda challenge, not B’s.
Silverthorne Lumber Co. – Ds indicted. While in custody, officers went to their businesses
without a warrant and searched and seized all their books, papers, and documents. The
gov then used that information as the basis for a subpoena to acquire those same
docs. The Ds refused to comply, and the gov agents sought to hold the Ds in contempt.
o First, there is an this produces the is used to illegal entry docs subpoena
obtain docs that were only known about due to the initial illegal entry
o (dicta) no independent source in this case, but in a better case there might have been
an independent source that would have made it permissible (e.g., whistleblower gave
the docs to the gov)
o RULE: cannot use illegality to get a subpoena and “clear” the illegality
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Segura v. US (cited in Murray) – Officers had PC to enter an apartment. They entered,
secured the apartment, and held the Ds 19hrs while they obtained a warrant. The officers did
not observe any incriminating evidence while they waited. The warrant was issued based
entirely on info obtained by officers before the entry into the apartment. The execution of the
warrant led to evidence of narcotics transactions. May this evidence be used at the Ds’
subsequent trial?
o Since they had PC, should have got the warrant before entering
o Not enough of a fear of destruction of evidence that it rises to an exigent circumstance
(meaning no warrant needed), but still had enough fear to not want to wait for warrant
to enter (worried Ds would sell the drugs if they waited any longer)
Constitutional options that are less intrusive:
Knock-and-announce and “hear” scrambling exigent (destruction of
evidence)
Draw Ds outside of house and hold them outside
o Independent source in the general sense:
Segura = general independent souce:
[Search 1] Illegal entry find nothing
[Search 2] Warrant find drugs
(*see last ¶ on p.1123) “independent source” generally – identifies all evidence
acquired in a fashion untainted by the illegal evidence-gathering activity; where
an unlawful entry has given investigators knowledge of facts x and y, but fact z
has been learned by other means, fact z can be said to be admissible b/c derived
from an “independent source”
Inevitable discovery
oNix v. Williams (p.1129)
Facts: D abducts minor child. D turns himself in and leads cops to the body.
Trial 1, the stmt and body were admitted
SCOTUS vacated conviction b/c concerned about the stmt and body being
used – but cautioned that might have been admissible if:
o Don’t admit stmt
o Admit other evidence showing that the body would have
“inevitably” have been found
On re-trial the prosecutor only admitted evidence surrounding the finding
of the body (and not Ds stmt)
Rules: Burden of proof for “inevitable discovery” = POE; (dissent – b/c this is
hypothetical, it should be a higher standard, clear and convincing)
Reasoning:
POE burden for inevitable discovery b/c very rarely does clear and
convincing required; most common standard for evidence is POE
D argued that b/c they deliberately violated his rights, they shouldn’t be
allowed to use the evidence obtained
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o Ct rejects this “bad faith” argument – cost of exclusion in this case
(excluding the body) is too high
o (p.1133, ¶ 2)
o *If they had not done the illegality, the cops would have found the
body anyway and it would be admissible, thus even though they did
do the illegality, the evidence is still admissible
Problem 13B-7 – Officer stopped D for driving with cracked windshield. D didn’t have a
license, but had other ID. Officer recognized D’s name from Officer’s work at a jail. Officer
asked D to come to the patrol car so he could run a computer check, and he patted down D
before D entered the patrol car. During the frisk, he found a concealed weapon. After running
the computer check, Officer discovered that D had previously been in jail for a shooting and
that he didn’t have a valid driver’s license. Under state law, an officer must arrest a
misdemeanor suspect when it reasonably appears that the arrest is necessary to prevent
future criminal conduct. May the weapon be admitted at D’s trial for being a felon in
possession?
oPulling D over for having a cracked windshield was permissible (traffic/safety violation)
b/c he had PC to believe a current violation was going on
oCop is allowed to force D out of his car, no further PC required
oCop is allowed to ask for ID (required to have valid license to drive); identification is a
routine question
oWhen D gave ID instead of license, cop had PC to believe D might be driving w/o a
license – cop entitled to further investigate
oIn doing this further investigation, was it reasonable for the cop to frisk D?
(note: Terry frisk is limited to RS that person is )armed and dangerous
**THIS IS THE FIRST ILLEGALITY – choice to frisk D
Gun is the “fruit” of this illegal frisk
oIndependent source or inevitable discovery?
Inevitable discovery b/c there is no second search for it to be an independent
source
Inevitable discovery
If cop would not have frisked D before running his ID, cop would have run
his computer search and found previous shooting offense and no valid ID
Thus, would have arrested D for driving w/o license then could
permissibly conduct SILA search and would have found the gun
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Wong Sun v. US (1963) (p.1146)
o PART 1 – Case against Toy
o Facts: Based on info from an untested informant, federal narcotics agent came to Toy’s
laundry/home at 6am. Toy told them to come back when he opened the store, but they
pushed their way inside. Toy ran to his bedroom. One agent said to him, “We’re looking
for heroin,” and Toy said, “I smoked some last night at Johnny Yee’s house.” The agents
went to Yee’s house, entered, and recovered an ounce of heroin.
o Issues & Holding:
May Toy’s incriminating stmt be admitted against Toy? NO
May the heroin found at Yee’s house be admitted against Toy? NO
o Analysis:
Attenuation Doctrine - Three Factors:
(1) temporal proximity of the illegality and the acquisition of evidence;
(2) the presence of intervening events and circumstances; and
(3) purpose and flagrancy of the particular official misconduct.
Illegality (”poisonous tree”) #1 – cops entered Toy’s home w/o warrant (and w/o
exceptions to warrant requirement)per se
Note: the untested informant’s info likely wasn’t even enough to give the
cops RS, much less PC
“Poisonous fruit” #1 – Toy’s incriminating stmt
o “Poisonous fruit” #2 (a product of Toys NOT necessarily the stmt
original illegal entry) – heroin in Yee’s house
The cop’s illegally entered Yee’s house w/o warrant too
o PART 2 – Case against Wong Sun
o Facts: After the agents found the heroin, Johnny Yee told them that he bought the
heroin from Wong Sun. The agents went to Wong Sun’s house. They pushed their way
into his home and arrested him for possession and sale of heroin. Wong Sun was
released from custody, but returned a few days later and confessed.
o Issues & Holding:
May the heroin found in Yee’s house be admitted against Wong Sun? YES
May Wong Sun’s confession be admitted against Wong Sun? YES
o Analysis:
The heroin is a fruit of illegal entry of both Toy and Yee’s houses, NOT Wong Sun
Wong Sun lacks standing to challenge the heroin b/c it was a result of a
violation of other people’s constitutional rights, NOT his
Wong Sun’s stmt is not sufficiently connected to the “poisonous tree” b/c it came
after a few days being released; he voluntary chose to return and talk to the
cops; the coercion level had dissipated
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Hudson v. Michigan (2006) (p.1164)
o Facts: police had warrant to search for drugs and guns in D’s home. They go to D’s
house and announced their presence, but only waited 3-5sec before entering the
house. Once inside the house, they searched and found cocaine and guns.
o Issue: Does the exclusionary rule apply to evidence that is the result of a knock-and-
announce violation?
o Holding: No. The cocaine and guns are admissible.
o Rule: Violation of the knock-and-announce rule does not lead to exclusion of evidence.
Exclusionary rule only applies where its ability to deter police misconduct outweighs
the cost to society of letting criminals go.
o Analysis:
“Hudson Attenuation” – attenuation also occurs when, even given a direct
causal connection, the interest protected by the constitutional guarantee that
has been violated would not be served by suppression of the evidence obtained.
Purpose/interests of knock-and-announce would not be served by exclusion
Protecting human life and limb – unannounced entrance could provoke
violence (self-defense)
Protection of property – gives indvs opportunity to comply w/law and avoid
destruction of property from forcible entry
Protects privacy and dignity – gives opportunity to “prepare themselves”
for entry of the police
o Fails cost-benefit analysis
Benefit of exclusion – deterrence on cops
Cost of exclusion – letting criminals go free
The benefit must outweigh the costs.
There is already sufficient deterrence for cops not to violate the knock-and-
announce rule b/c
Dangerous to enter unannounced (police safety)
Cops are deterred from violating b/c risk civil suit or professional
reprimand
o Violation of knock-and-announce should not lead to suppression under various
precedents
Segura – (also involved an illegal entry) the cops illegally entered the first time
and then legally searched a second time w/warrant
Analogous to this case b/c the warrant obtained for Segura’s second
search was sufficient to “cleanse” the original illegality here, the first
search was w/warrant so it eventually would have been discovered legally
(1 warrant and 1 search)
o i.e., if they had done the entry legally, they still would have found
the evidence so the severity of the violation is diminished
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Good Faith Exception
oIL v. Gates (p.79) (should determine PC is totality of the circumstances; exclusionary
rule inappropriate where officers act in reasonable belief of valid warrant; no need to
look at “veracity, etc.” b/c only need to look at good faith of officers)
oUS v. Leon (1984) (p.1186) (ct does not focus on the unreliable informant; establish
good faith exception to exclusionary rule)
Facts: The police received an anonymous tip that two individuals were selling
drugs out of their apartment. Based on the information from the informant, the
police started an investigation and eventually submitted an affidavit requesting
a warrant to search three residences and automobiles. A facially valid search
warrant was issued and pursuant to the warrant the police conducted their
search.
Holding: the officers reasonably relied on a facially valid warrant and the
evidence obtained pursuant to the warrant is admissible even though the
warrant was later held to be invalid.
Rule: good faith exception should apply when warrants are obtained. However,
there are 4 exceptions to the good faith exception:
(1) magistrate was misled by info the affiant knew was false or for which
he had reckless disregard of the truth;
(2) magistrate wholly abandoned his judicial role such that a reasonable
officer cannot rely on the warrant
o E.g., rubber stamping, magistrate takes on actions resembling an
“adjunct law enforcement officer”
(3) affidavit so clearly lacked PC that it would be unreasonable to rely on it
o E.g., rubber stamping, “bare-bones” affidavit
(4) warrant so facially deficient that executing officers cannot rely on it
o E.g., itself doesn’t sufficiently describe the warrant
person/place/things to be searched or seized
oMA v. Sheppard (1984) (p.1207) (companion case w/Leon) (when officer acts
objectively reasonably in relying on a warrant = exception to the “facially deficient
warrant” exception of the good faith exception to the exclusionary rule)
Facts: (girl’s body found in parking lot; cops suspected girl’s bf (D)) Cop couldn’t
get warrant form on a Sunday so he used an old “controlled substance” form;
the judge said he would fix the form and grant the warrant; officer relied on
judge’s stmts and issued warrant to search D’s house; incriminating evidence
found. However, the warrant that the judge issued listed the wrong things to
search (he did not replace the “controlled substance” items – i.e., the warrant on
its face seemed to only authorize a search for drugs).
Holding: Good faith exception still applies and the evidence should not be
excluded.
Reasoning: The officer acted in reasonable good faith at all points
(investigation, affidavit was sufficiently particularized elied on judge’s stmts , r
and actions telling him the warrant was okay); o need for cop to read the n
warrant b/c he relied on the judge’s stmts and actions
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Note: the good faith exception applies to more than just warrant situations
oHerring v. U.S. (2009) (p.1212) (when police mistakes are the result of negligence,
rather than systemic error or reckless police disregard of constitutional requirements,
any marginal deterrence does not pay its way. Thus w/o showing of intentional bad
faith reliance on invalid warrant or systemic bad faith actions by the officers, the good
faith exception will apply)
o Good faith broad application – Officers may reasonably rely on:
Warrant issued by a magistrate ( )Leon
Subject to the exceptions
State statute later determined to be unconstitutional ( ) (state statute that Krull
allowed warrantless search was unconstitutional BUT the cop’s good faith
reliance on the law requires the good faith exception to the exclusion rule)
Appellate precedent later overturned ( ) (cops followed settled precedentialDavis
case law that was later overruled and held unconstitutional; the evidence
discovered while officer acted on reasonable good faith relying on the precedent
will not be excluded)
Negligent recordkeeping by the clerk of the ct ( ) (SILA search on invalid Evans
belief of outstanding warrant; the ct clerk errored in not updating the system
that the warrant had been canceled; officer relied on reasonable good faith that
the warrant existed and thus the evidence will not be excluded)
Negligent recordkeeping by other officers in another department ( ) (a Herring
staff member at a different dept. mistakenly told the officer that there was an
outstanding warrant for D; the cop relied on this info (and asked for the warrant
to be sent to him for confirmation), he arrested and SILA searched D before
finding out that the warrant had been removed; the evidence obtained through
negligent mistakes like this are not excluded)
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