Criminal Procedure Outline

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CRIMINAL PROCEDURE OUTLINE
Constitutional Criminal Procedure Overview
 4th Amend: Search & Seizure
 5th Amend: Self-Incrimination
 Sixth Amend: Right to Counsel
 Due Process Clauses
INCOPORATION
Barron v. Baltimore (1833): BOR does not apply directly to the states
14th Amendment: Due process of law with respect to the states
Warren Court (1953-1969): Marked an era in which the SC began t44o decide that a lot of the
guarantees in the BOR would apply to state criminal defendants
Incorporation: applies provisions of the BOR to states thru the 14th Amend. Due Process Clause
 1) No such thing as incorporation: if we wanted a Const. that would apply to the BOR to
the states, the Const. would say so.
 2) Total incorporation
 3) Selective Incorporation: choose on a case by case basis (SC chooses this method)
WHAT IS A SEARCH?
Roy Olmstead Case (1925): Facts – suspected of smuggling drugs. Federal agents electronically
tapped the line to his business and his phone, never went inside his home or business.
 Holding: NOT a search under 4th Amendment because no physical intrusion.
Katz v. United States (1960s): Facts – makes money placing bets across state lines via phone
booths; gov’t places electronic eavesdropping device on top of phone booth. Gov’ts arg. – didn’t
go inside phone booth, Katz doesn’t own the phone booth. Were super careful, didn’t listen to
things that didn’t involve criminal activity.
 Holding: IS a search. Physical trespass is not a prerequisite to finding a search
under 4th Amend.
 Rationale: 4th Amend protects “people not places”. Katz had a reasonable
expectation of privacy when he went inside the phone booth and closes the door.
Because gov’t didn’t have warrant, evidence has to be suppressed.
 Reasonable Expectation of privacy – 2 Components: subjective (what def. believes) and
objective (what society accepts as being a reasonable expectation)
o Problem: How do we know? Harlan doesn’t tell us.
OPEN FIELDS
Hester Case (1924): open fields do not come with 4th Amendment rights.
Oliver v. United States: Facts – narcotics agency received tip that Oliver was growing
marijuana on his property, secluded land a mile away from home. Passed 4 no trespassing signs
and a locked gate and found marijuana plants. Applied for warrant.
 Holding: Court says it doesn’t matter that they didn’t get a warrant because this
is NOT a search. Reiterates Hester, open fields are not protected by 4th
amendment.

Rationale: Court cites to language in 4th amendment (houses, papers, or effect) and
says that curtilage is also protected, but does not consider this curtilage.
What is curtilage?  US v. Dunn
US v. Dunn: facts – guys running meth lab, officers investigate area. Area was 50 yards from
actual house. Dunn argued it’s curtilage and protected by 4th Amend. Gov’t argued open field.
 Holding: NOT a search.
 Rationale: Justice White defines curtilage: (1) proximity to home (50 yards =
substantial distance); (2) whether enclosed with home (here, there was a fence around
Dunn’s home); (3) Use of Area: no intimate activity, no one’s living here, etc.; (4) steps
taken to prevent observation of area (nothing special, just a typical ranch fence)
OVERFLIGHT
Are Overflights “searches”?  CA v. Ciraolo
CA v. Ciraolo (1986): Facts – Ciraolo had 2 fences around home; officers took a plane and flew
it 1,000 ft above property; observed marijuana plants. Important note: no dispute the plants were
growing in the curtilage (had police physically gone onto property, they would need a warrant).
 Holding: NOT a search.
 Rationale: (1) If it’s fair game for everyone, it’s fair game for the police (observed
from publicly navigable space); (2) no physical intrusion
How low can the police fly?  FL. v. Riley
FL v. Riley (1989): Facts – growing weed in green house which can’t be seen from the street.
Police flew a mere 400 ft above & see marijuana & take pics.
 Holding: NOT a search.
 Rationale: Justice White (Plurality): Clear that observation was of things located within
Riley’s curtilage (publicly navigable airspace); no interference with his property; no
gov’t observation of intimate social activity; no threat of injury of police flying this low
above.
 O’Connor: Should be asking “is it normal for people to chart helicopters and fly over
your house”
 Brennan (dissent): What is possible for a person to do doesn’t necessarily mean
(reasonable). This is NOT what Katz meant; Katz was a normative q about what we
think of society protecting 4th Amendment law.
NEW TECHNOLOGIES
Kyollo v. US (2001): Facts – police used heat-tracking technology to gain evidence that Kyollo
was growing marijuana in the house. Obtained from public place. Def’s arg: Gov’t could obtain
private/intimate info by doing this
 Holding: IS a search.
 Scalia Opinion: this is a house, listed as being protected under 4th Amend. No diff.
than if police officer ran inside & checked out. Technology used was not in public
use, the quality of information that could be discovered is great (woman bathing,
etc.)
PUBLIC EXPOSURE
CA v. Greenwood: Police take garbage left out on curb. Contains incriminating evidence.
Police get warrant to complete search.
 Holding: NOT a search
 Rationale: When you put garbage out, you’re taking a risk that someone will go
thru it. If anybody can have access to it, so too can the police.
 Question: Does it make a difference how you treat your garbage (such as shredding
stuff?)  NO, people can still put the pieces together
 Question: What if trash is in curtilage?  NOT free for cops to go thru, only certain
people are invited into curtilage
US v. Knotts: Police placed beeper in can of chemicals sold to Knotts to make meth, Knotts
places it in his car and they follow him to location.
 Holding: NOT a search.
 Rationale: Tracking is not a search when movement on PUBLIC PLACES. No
reasonable expectation of privacy = no warrant required.
US v. Carrow: Facts – suspected Carrow involved in cocaine trafficking. Lose track of beeper
 starts beeping inside home. Use beeper as basis for search warrant.
 Holding: IS a search.
 Rationale: Difference between this & Knotts = not tracking public streets, here they
wouldn't have gotten this info unless police were in home. Private home.
US v. Jones: Facts – Police applied for warrant to place GPS tracker on car for 10 days within
DC. Tracker was put on outside of these bounds.
 Holding: IS a search.
 Scalia (majority): Task is to determine if this is a search in terms of the original meaning
of the 4th amendment. Goes back to Katz, says that Jones had a reasonable expectation of
privacy. Also goes back to property-based test articulate earlier. The problem is that the
tracker was placed on Jones’ private property
 Sotomayor: Whenever the government physically intrudes personal property to gather
information, a search occurs. SO much info could have been gathered by this search (are
you an addict, are you religious?)
 Alito: “The use of longer term FPS monitoring in investigations of most offenses
impinges on expectations of privacy”. Congress needs to develop rules for this.
ANALYSIS USED FOR SEARCH PROBLEMS
1) Is this an entirely novel activity or does it look like something we’ve seen before?
a. If novel  use Katz
b. If not  use similar cases
2) Is this an open field/curtilage?
a. Proximity to home?
b. Area enclosed?
c. What is the area used for?
d. Preventive steps?
THIRD PARTY DOCTRINE
Third Party Doctrine: no rights over things given to 3rd parties.
US v. White (1971): Narcotics smuggling operation. Had a friend who invited White to speak
with him. “Friend” was actually a gov’t informant. White’s arg: searched convos w/o a warrant.
 Holding: NOT a search.
 Rationale: Assume risk of trusting people; whatever comes out of your mouth is
exposed to the world.
 Question: What is beans were spilt on social media?  Doesn't matter; White still
applies.
 Diff. between White & Katz: When Katz made convo, other person was reg. person &
gov’t listened. White = one of the parties in the convo was the gov’t.
o Rationale for exception: Only way police can enter some systems is thru
deception.
Miller v. US (1876): Fed. Agency investigating Miller’s criminal activity. ATF subpoenaed
bank deposit slips. Miller’s arg.: Gov’t got private info about Miller w/o warrant.
 Holding: NOT a search
 Rationale: Info provided to bank was voluntarily conveyed by Miller “Voluntary
Exposure”. Miller knew that everyone at the bank would look at it & they could tell
gov’t.
Smith v. MD (1979): Defendant was convicted of robbery. A pen register tape that showed he
had called the woman he had robbed was introduced at trial. Issue: Does a person have a
reasonable expectation of privacy in the phone numbers he dials from the privacy of his home?
 Holding: NOT a search
 Rationale: When you dial a phone, all info goes through phone company, who keeps
track of all of these calls. “Knowingly expose” info to phone company. When you
“knowingly expose” you have no 4th Amend. Rights.
Metadata = data about data
 Argument against: Gives a lot of info – gambling addiction, Sac planned parenthood, etc.
Historical Cell Site Location Information:
 Graham: 221 days of his location info given to law enforcement; NOT a search.
 Davis: 67 days, NOT a search.
United States v. Carpenter (2017): Carp. Linked to series of robberies, gov’t received 127 days
of location info.
 Holding: NOT a search

Rationale: Miller & Smith apply. When you give service provider information, they
are free to turn around & give it to the gov’t.
Mosaic theory: 1 data point may not say much, but aggregation of all these points makes a
difference. SC has not endorsed this view.
DOG SNIFFS
When are dog sniffs searches?  US v. Place (1983)
US v. Place (1983): Facts – dog positively alerted for drugs in luggage. Police then go get a
warrant to search thru the luggage.
 Held: sniff itself isn’t a search. Dogs ONLY alert to contraband items, whereas
human officer can see noncriminal things and criminal things. Dog is unique.
Illinois v. Caballes (2005): Facts – Caballes speeding 6 mph over limit; dog sniffs around car
and positively alerts for drugs. Reason for stopping Caballes has nothing to do with using dogs.
 Held: NOT a search – doesn’t implicate privacy concerns. Use of dogs in traffic stop =
ok.
 Souter Dissent: Dogs make mistakes and errors, they aren’t unique.
Florida v. Jardines (2013): Facts – Warrantless search in the form of a drug dog on Jardines’
front porch
 Held: IS a 4th Amendment search. Jardines’ front porch = curtilage which is usually
protected by the 4th Amendment.
 Question: Could a dog do this, walking up and down thru your apartment building
hallway?
o Curtilage in apartment = area in front of your door, not the hallway. Distance
doesn’t matter, it’s how you characterize the area being searched.
 Question: Can the drug dog walk up and down A street sniffing you?
o Think about where the DOG is when it sniffs.
o If you use Jardines logic, we have no 4th A rights on a public sidewalk, so the dog
can do this and it’s not a search.
Rodriguez v. US: Facts – Off. Pulls car over for jerking off from the road onto the shoulder.
Completes traffic sstop, then walks dog around car after the reason for the stop is completed and
after driver says he cannot do so.
 Held (Ginsburg): After warning ticket was given, the officer could NOT detain
Rodriguez. This is an unjustified continued seizure.
 Rule: Dog sniff permissible ONLY during the traffic stop.
PROBABLE CAUSE
If you have a search/seizure, you need a warrant or probable cause.
 Probable Cause: Reasonable trustworthy facts within officer’s knowledge sufficient to
warrant a reasonably prudent person to believe:
o For an officer to arrest: an offense has been or is being committed
o For an object: an item subject to seizure will be found in the place to be searched
Aguillar-Spinelli 2-part test
Reliability/Credibility:
Is this person the kind of
person who tells the truth?
Ordinary person or
professional informant?
Reliability/Credibility:
Basis of Knowledge:
Is this person
thedokind
ofknow what
How
they
person whothey
tellsknow?
the truth?
Ordinary person or
professional informant?
Illinois v. Gates: Facts – police get anonymous tip that the Gates’ are drug dealers. Source of
info is unknown  fails under Aguillar-Spinelli two part test.
 Held: Probable cause should be assessed by looking at the totality of the
circumstances test
o Here, police corroboration of what the tipster said. Problem = they corroborated
perfectly innocent behavior. BUT, corroboration even of totally innocent behavior
means that the tipster is probably right about illegal activity also.
o Potential problem: people creating stories for police harassment
Florida v. Harris (2013): Facts – Argues that there is an issue with dogs’ reliability.
 Rule: If state can provide evidence that dog has been trained or certified, that’s
enough.
Maryland v. Pringle: Off. Conducts traffic stop, 3 people in car, sees big chunk of cocaine &
cash in the car.
 Pringle’s Arg: Off. Had probable cause in general but not prob. Cause in respect to him
 Held: The presence of drugs in a car gives rise to probable cause to arrest any
occupant who had knowledge about the drugs and exercised dominion and control
over them.
Whren v. US: Facts- car stops at stop sign for unusually long period of time, saw officer &
drove away at fast pace. Officers end up arresting individuals.
 Whren’s argument: They were stopped because they were African American and were
dealing drugs. Argued that this was a pretextual stop. Def. argues that standard should be
what would a “reasonable” police officer do.
 Scalia (Majority): If there is a divergence between actual reason and official reason,
doesn’t matter as long as there is probable cause – and here there was.
o As long as probable cause, no 4th A. violation.
Devenpeck v. Alford (2004): Facts – police arrested him for recording without consent thinking
this was a crime, but it really wasn’t.
 Held: Doesn’t matter – could have justified the arrest by another illegal violation
(impersonation of a police officer). Some other conceivable basis for establishing
probable cause = good enough.
WARRANT
Andreson v. MD: Facts – investigation into series of financial crimes. Andreson challenged
form of the warrants.
 Andreson’s Arg: Portion violated 4th A rights when it said: “Gov’t could look for ‘fruits,
instrumentalities and evidence of crimes at this time unknown.’”
 Held: This clause does not violate the particularity requirement bc you have to
understand it in context.
o This was just added at the end of every warrant
Digital Searches: SCOTUS has basically said nothing
Groh v. Ramirez: Facts – Citizen tipped off ATF that Ramirez had illegal contraband in house.
Warrant form did not name and describe the items to be seized or incorporate the supporting
documents by reference.
 Rule: A warrant that does not specifically describe the person or property to be
searched or seized or incorporate supporting documents with those descriptions is
invalid under the Fourth Amendment.
US v. Grubbs: Rule – you can have “anticipatory” warrants. Once that thing happens, you
have probable cause and can execute the search warrant.
Note: If police execute search warrant & you’re a random person there, police GENERALLY
cannot search people at the scene.
Michigan v. Summers (2013): Police have authority to seize your body even though no
suspicion that you’ve committed a crime. AKA if you happen to be at the wrong place at the
wrong time, police can tell you that you can’t leave.
 Rule: OK to detain incident to search.
Bailey v. US (2013): Facts – police scoping place out before execution of search warrant. See
Bailey leave; officers followed & stopped him.
 Gov’ts argument: Power of detention incident to search warrant
 Held: Bailey too far away to be held
 Rule: If going to detain, must be in “immediate vicinity”
Knock & Announce Requirement
Wilson v. Arkansas (1995): Facts – had a search warrant, announced themselves, but did not
wait.
 Held: Knock & Announce was a CL tradition.

Rule: When you do have a search warrant, required to wait a reasonable amount of
time under 4th Amendment.
US v. Banks: 15 seconds to wait = reasonable amount of time to satisfy knock & announce rule.
 Rule: Measurement = how long would it take for suspect to destroy evidence
Knock & Announce Limits?  Richards v. WI (1997)
Richards v. WI (1997): Too broad to say all felony drug warrants required no Knock &
Announce
 Rule: If there is reasonable suspicion that K&A will lead to disruption of evidence
or violence toward cops, no K & A requirement.
What if there are unforeseen circumstances or mistakes while executing a warrant?
Maryland v. Garrison
 Facts – police had warrant for McWebb’s apartment but accidentally entered Garrison’s.
 Held: Can use the evidence to prosecute Harrison, even though the police were never
looking for him in the first place and he wasn’t the subject of the warrant.
o Objective reasonableness standard: so long as the police reasonably
shouldn’t have known that the warrant wasn’t accurately describing the
place to be searched, there isn’t a 4th A violation.
o No suggestion of bad faith on the part of the police here
LA County v. Rettele (2007)
 Facts – police investigating identity theft ring of four African-American men; have
warrant to search home of a suspect; know that one suspect has a gun; didn’t know house
had been sold to new family; detained white family even though the suspects were black
 Held: No 4th A violation
o Reiterates reasonableness standard
o It is not uncommon in our country for people of different races to live together
EXCEPTIONS TO THE WARRANT REQUIREMENT
Consider:
 1) Rationale
o why is the exception ok?
 2) Showing need
o what did the gov’t need to show in order to meet the exception?
 3) Scope
o how much can the gov’t do pursuant to the exception?
 SEARCHES INCIDENT TO ARREST
o Chimel v. California (1969)
 Facts – arrested Chimel in house; police searched attic & far corners of the
house
 Held: Exception does not apply in this case
 the rationale for the exception is officer safety and to prevent
the destruction of safety.

Here, the search exceeded the scope of what police were allowed
to do
 Had an arrest, but police had no reason to believe that he would
have run to the attic after he was arrested.
 Searches incident to arrest must be roughly contemporaneous with
the arrest.
o US v. Robinson (1973)
 Facts – arrested for expired license; pat-down search yielded heroin on his
person
 Held: Search incident to arrest is an automatic right – there is no need
to make a showing of need to search
 Here, there was no evidence that needed to be safeguarded because they
already knew that his license was expired
 Chimel rationale is out
o Scope of Search Incident to Arrest:
 1) the person
 2) the “grab area”
o Riley v. California (2014)
 Does search incident to arrest rule apply to cell phones?
 Police can look at your wallet, scraps of paper, etc.
 Gov’ts arg: evidence destruction is a concern on cell phones
 Held: Police need warrants to search the cellphones of people they
arrest
 So much data = huge privacy concerns
 Faraday bags take care of remote wiping concerns
Exigent Circumstances
 In an emergency, the police can search without a warrant if there is probable cause
 Reluctant to find exigent circumstances
 Examples: hot pursuit of a felon, protecting safety, destruction of evidence
 HOT PURSUIT
o Warden v. Hayden (1967):
 Facts – police think armed robbery suspect went into a house; follow him
into the house & find evidence of the robbery
 Held: you don’t need a warrant to search for a fleeing suspect
 Scope: time & space limitations
 Person must be found so can look in person sized spaces, weapons
need to be found so can search in weapon sized spaces
 Once robber arrested, hot pursuit exception ended, but could rely
on SITA
o Payton v. New York (1980)
 Facts – had warrant to arrest Payton; Payton wasn’t home when they got
there
 Held: Warrant to arrest at home does not justify entry & search of home
 Exigency not based on seriousness of crime; must be real-time
emergency
o Stegald v. US (1981)





Facts – have warrant for Lyons; think Lyons is at Stegald’s house; find
cocaine at Stegald’s
 Held: Hot pursuit of X doesn’t justify searching Y’s home
 Need arrest warrant for X & warrant to search Y’s home bc there
are two distinct 4th A interests
EVIDENCE DESTRUCTION
o Welsh v. Wisconsin (1984): Facts – witness calls police to report drunk driver.
Car abandoned. Police check registration, figure out address, daughter lets them in
and they arrest him.
 Gov’t’s arg: Evidence being destroyed is BAC
 Held: Court doesn’t buy this argument because at the time these events
took place, if you were a 1st time drunk driver this was a non-criminal kind
of offense. Exigency isn’t there because state itself doesn’t believe it’s
very serious.
 Rule: Exigency depends on not just gov’t’s interest, but on the gravity
of the offense. Shows how Const. crim pro necessarily has a
relationship w/ state substantive law
o Mincey v. AZ (1978): Can’t have a categorical rule for warrantless entry based
on exigency
BLOOD DRAWN/BREATH
o Missouri v. McNeely (2013): Drunk-driving case, drove him to hospital, took a
nonconsensual blood draw. Missouri had law saying that cops NEVER needed a
warrant to get blood drawn
o Held: Per se rule of exigency doesn’t comport with 4th A.
 Rule: Should be judged on a case by case basis; “totality of the
circumstances”
o Birchfield v. North Dakota (2016): Issue – can states criminalize refusal to
consent to a blood draw?
 Gov’ts Arg: Can take blood/breath of DUI suspects subject to search
incident to arrest.
 Alito: Big difference in blood vs. breath. Blood = more intrusive, no
privacy interest in breath, breath it out all day. Thus, can’t criminalize
refusal of blood test.
 Rule: Subject to search incident to arrest covers breathalyzer.
CAN POLICE CREATE THE EXIGENCY?
o Kentucky v. King (20110): Facts – police see Def. run into apartment building,
weren’t sure which apartment he went into. Smell marijuana from one apartment.
Knock on door, hear moving around, bust in, found drugs but not def.
 Held: As long as police themselves don’t violate the 4th A, they can
create exigency
EMERGENCY AID RULE
o Brigham City v. Stuart (2006): Facts – noise disturbance call, can see fight thru
windows, go into house, make minor arrests. D’s move to suppress because police
entered w/o warrant.
 Held: Police were acting as 1st responder’s capacity so they don’t need a
warrant to go inside.



Rule: Whether or not the circumstances would constitute an
emergency is based on objective reasoning
o Michigan v. Fisher (2009): Facts – Fisher had destroyed his own property, was
bloodied up, police go inside to make sure no one else was in there.
 Fisher’s Argument: 4th Amendment rights
 Held: Police thought someone else might be in there; only thing that
matters is whether or not it was objectively reasonable
o Hypo: Meth lab?
 Meth labs are explosive; police can argue they entered as emergency
responders
PLAIN VIEW DOCTRINE
o Police find something they weren’t looking for while carrying out a search
warrant. Permits police to seize this stuff w/o a warrant
o Coolidge v. NH (1971): Rule- Police can seize if: (1) law view & access, (2)
inadvertence (stumbled upon it); (3) incriminating evidence = immediately
apparent
 Rationale: Warrant requirement is there to prohibit fishing expeditions by
the police. This is still protected by plain view.
o Horton v. CA (1990): Rule – inadvertence requirement is gone bc pointless.
 If police have a legal right to be where they are and they find
incriminating evidence and the incriminating character is immediately
apparent, the police may seize the evidence without a warrant under the
plain view doctrine.
o What if you see stolen Picasso painting thru window?  Plain view doesn’t
apply bc no search warrant/no lawful access
o AZ v. Hicks (1987): Facts – Police executing search warrant. See what they think
is stolen turn table. They look at bottom for serial #.
 Held: SC says immediately apparent really means probable cause.
Here, this is not probable cause because lifting up turntable = a new
search in and of itself. If turntable had postit saying “this is stolen”, then
there would be probable cause.
o Minnesota v. Dickerson (1993): Facts – police complete a “pat down” on
Dickerson. Officer said he felt a lump in the pocket, which turned out to be a few
grams of cocaine. Problem = lump in a pocket can mean a lot of things.
 Held: No probable cause to take item out of pocket.
 What about the fact that he was leaving a drug house?  Gives officer
ability to detain him, need more to seize.
CAR SEARCHES
o If police have probable cause to believe there is evidence of criminal contraband
in car, police don’t need warrant
o Carroll v. US (1925): Car exception in place because (1) mobility (no time to get
a warrant; (2) lower reasonable expectation of privacy in vehicles; (3) extensive
regulation: vehicles are heavily regulated by gov’t, must abide by laws when
driving, have to get license, etc.
o 2 Conflicting Doctrines


US v. Ross (1982): As long as police have prob. Cause for search, if it
happens inside car, it’s OK
 US v. Chadwick: Even if police have prob. Cause, must have a warrant
for the closed container itself
o CA v. Acevedo (1990s): Facts – Acevedo left house with paper bag. Have
probable cause to believe it contains MJ. See him put paper bag in trunk. Checked
container then.
 Gov’ts best arg: Car search exception
 Def’s best arg: Closed container (Need PC + Warrant)
 Rule: When you have container inside car, no need for warrant if they
have PC.
o When can police search people in cars?  US v. DiRe (1948)
 Car stopped but no PC for passengers. Thus, right does not extend to
people in the car
o Wyoming v. Houghton (1999): PC for container inside of stopped car, get to
search car & containers, doesn’t matter who the containers belong to
o Summary
 Car + PC = no warrant
 Sidewalk + PC = warrant
o CA v. Carney? Week 5 readings
SEARCH INCIDENT TO ARREST: CARS
o NY v. Belton (1981): Facts – police stop car for speeding; think there is
marijuana in the car; makes passengers exit the vehicle & places them under
arrest; finds mj; then does thorough search of car & finds more drugs
o Held: So long as it is a lawful arrest, police have right to search person and
the car (area around arrestee)
 Under Belton, police can use same power under Chimel & Robinson, no
different because the person being arrested is in the car.
o What if they are arrested right outside their car?  Thornton v. US (2004)
 Thornton v. US (2004): Facts – police justified search of car after
Thornton had already gotten out of car before police even approached him.
After he was out of car, police approached, arrested him & searched the
car.
 Held: What really matters is the temporal/spatial relationship
 Car occupant includes “recent occupants”
 No bright line rule – D’s status depends on temporal/spatial
relationship
 Scalia concurring: A better standard than the Belton rule
would be “is reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.
o Arizona v. Gant (Clarification of Belton): Facts – probable cause for arrest after
traffic stop; had warrant for arrest for driving with a suspended license; put in
squad car; search passenger compartment of vehicle
 Held: If police arrest person in car/recently in car, can only search
 1) When arrestee is unsecured & within reach of passenger
compartment OR


2) Reasonable to believe evidence relevant to crime of arrest
might be found in the vehicle
 Important Note: Whren & Belton meant police could search cars w/ pretty
much no limitation. Important to realize that limitations set forth in Gant
aren’t that strong (can still use traffic stops to do drug control)
 Gant does NOT overrule Robinson
o Knowles v. Iowa (1998)  Search Incident to Citation?
 Facts – police officer decides to issue a citation but then conducts full
search
 Held: In a citation situation, there is less of a concern for officer safety
 SITA rule is truly about arrest, not citation
 Important Note: Not really victory for Knowles because police can still
retain SITA. Cop may arrest to search, search and find nothing, then
decide to not arrest.
CONSENT
o 1) Voluntariness of Consent
o 2) Scope of Consent
o 3) Authority to Consent
o Note: The only thing that gives a 4th Amendment justification for the search is the
consent
 Exception to warrant & probable cause requirements
o Cases:
 Schneckoth v. Bustamonte (1973): Facts – four men in a car;
Bustamonte is a passenger; guy whose brother owns the car gives consent
to search including trunk; officer finds contraband (forged checks)
 Held: Voluntariness of consent is to be judged under the totality of
the circumstances
 Factors:
o Physical coercion
o Knowledge of right to refuse is not required
 Problem: Power balance, people feel nervous when they encounter
police officer who says this
 US v. Drayton (2002): Facts – officers on bus and ask man if he minds if
he searches his bag. Person has drugs taped in his inner thighs.
 Held: This is voluntary consent
 “No application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no
blocking exits, no threat, no command, not even an authoritative
tone of voice”
 Florida v. Jimeno (1991): scope of consent
 Facts: Traffic stop after traffic violation; police have hunch that
contraband is in the car; ask to search car and told him he has right
to refuse; Jimeno consents; off finds bag of drugs
 Jimeno argues the bag of drugs is NOT in scope of consent
 Held: Objectively reasonable for officer to believe they had
received consent to search containers w/in car






o Can withdraw consent at any time prior to the search
yielding the evidence.
Georgia v. Randolph (2006)  Who has authority to Consent?
 Facts: estranged wife tells police her husband uses drugs. Police
ask husband (Randolph) if they can search house, he says no.
Estranged wife says yes
 Previously held: Co-occupants can provide consent
o Difference here = there is a conflict of consent
 Held: With co-occupants, the “no” trumps the “yes”
Fernandez v. CA (2014)
 Facts – couple; abused woman; she grants entry but he denies;
police arrest him on probable cause of domestic abuse; police
come back later & she consents to search; finds guns used in
robbery
 Fernandez’s argument: his refusal should continue until he takes it
away & that police caused his removal
 Held: This is too hard of a rule to implement as a practical matter.
When a person who refuses isn’t there anymore, his refusal is
gone too.
Hypo: What if consent is given by a tinder date?
 Go to Apparent Authority Doctrine  must be objectively
reasonable standard again
Apparent Authority Doctrine
 As long as the police reasonably believe that the individual giving
consent has the authority to give consent then its ok
US v. Arreguin (2013): Facts – DEA conducting knock-and-talks; agents
see a bunch of people in the background, guy gives consent to search
apartment; turns out guy was just a houseguest
 Held: No reasonable basis for apparent authority
o There were other adults in the background, so not
reasonable. Can’t proceed on the theory that ignorance is
bliss
SPECIAL NEEDS CASES
o When present?
 Administrative searches
 Drug testing
 Checkpoints
 Border searches
 Probation/parole
o Camara v. SF (1967)  Administrative Searches
 Facts – Owner claimed 4th A violation when building inspector (gov’t
official) entered home to check for code compliance
 Held: Because of this administrative purpose (protecting health), can
satisfy warrant requiring by adhering to local laws
 Too burdensome for individualized warrants
 Inspector must give notice of entry & violations looking for
 Application
 1) Is this a situation where the gov’t is asserting a special need
beyond ordinary law enforcement?
 2) Balancing
o balance the gov’ts needs vs. the intrusion into
individualized privacy
o New Jersey v. T.L.O. (1985)
 Facts – search of student’s purse  found cigarettes. No warrant, no
probable cause
 Held: Administration had reasonable grounds (suspicion)
 This is a situation where school is responsible for students
 Interest in maintaining school outweighs diminished privacy in
public schools (do not have the same reasonable expectation of
privacy as others)
o Safford Unified v. Redding (2009)
 Facts – one girl rats out other girl for distributing pills. Girl who was told
on was considered to be part of a rowdy group of friends; 13 years old;
strip search
 Issue: Is it ok to strip search over school’s concern over ibuprofen & other
pills?
 Held: NO. Search must be reasonably related in scope
 There was reasonable suspicion, but strip search not OK
 Scope of the search
 Justification by school (important)
 Danger: relatively none, it was just ibuprofen
 Intrusiveness: highly intrusive
 Reaffirms T.L.O. holding of diminished privacy in public schools
o Drug Testing & Special Needs
 Skinner: Railroad Workers
 Employees in accident can be required to give blood/urine sample
 Allows warrantless suspicionless testing
 Important gov’t interest: Gov’t has great interest in preventing
train accidents & fatalities
 Von Raab: customs officials
 Allows warrantless suspicionless testing
 Can be tested: Safety-sensitive context
 Important gov’t interest: handling drugs & guns, so gov’t has huge
interest in who gets these jobs
 Chandler: political candidates
 No gov’t interest in drug testing political candidates. Politicians
taking drugs isn’t a public safety issue.
o Drug Testing of Public School Students


Veronia v. Acton (1995)
 Facts – random drug testing of student athletes. Known to have a
drug problem
 Held: permissible to do testing
o Court focuses on student athletes being role models at
school, so it makes sense to target them for random drug
testing
 Balancing
o Gov’t interest: strong in getting rid of drug problem
o Individual interest: even lower in athletic teams, have to get
naked/shower in front of others. Also asking students to pee
in a cup is a minimal privacy interest
 Important Note: school district does not even have to prove that
drug testing will fix the drug issue
 Pottawatomie County v. Earls (2002)
 Facts – known drug problem, drug testing of public students in
extracurricular activities
 Held: drug testing OK
o Undressing in front of each other wasn’t central to the
Veronia analysis
o These are voluntary programs
o Don’t have to show drug testing will be effect
o Don’t have to show that this is the least restrictive means of
reducing drugs problems
o “Protecting the children” = powerful gov’t interest
o Worst consequence = you don’t get to do band/cheer, not a
funnel into criminal justice system
o Special Needs Analysis
 Warrant?
 PC?
 Exceptions?
 Special need?
o At voluntary activity outside of school hours
o None are participants in the activity – just spectators
o Blood test, not urine
CHECK POINTS
o Initial stop: Gov’t is seizing you without individualized suspicion
o Second stop: gov’t now has individualized suspicion
 If the first stop is inconclusive then so is the second
o Michigan v. Sitz (1990)
 Facts – drunk driving checkpoint system. Each person stopped for a short
period of time, roughly 25 seconds unless they are found to be intoxicated
and they are asked to do more tests. 1.6% of the drivers were found to be
intoxicated
 Held: State interest outweighs the intrusion into the people’s privacy
interests at the checkpoints

Balancing:
 Gov’t has a significant interest in preventing drunk driving
 Doesn’t matter to Court how effective the checkpoint is at
preventing drunk driving (similar to Court’s position in drug
testing students)
 Individual’s Interest: not much intrusion, stops are short and not
very invasive
 Important note: police had very little discretion as to who to pull over 
everyone was stopped
o Indianapolis v. Edmond (2000) Primary Purpose
 Facts: predetermined number of cars were stopped (i.e. every third car);
checked for signs of impairment; drug sniffing dog
 Is crime control a special need?
 Could be  public safety, health concerns
 Held: Law enforcement is not a special need, needs to be a public
safety issue
 Distinguishable from Sitz because there drunk driving was public
safety issue
 MUST determine whether it is a special need before applying balancing
test
 If primary purpose is ordinary law enforcement, then not a special
need & no balancing required
o If not special need then need warrant, probable cause, or
another exception
 Dicta: “The fourth amendment would almost certainly permit an
appropriately tailored roadblock set up to thwart an imminent terrorist
attack”
 Safety valve: checkpoints allowed in emergency situations –
consider gravity of crime at issue
o Illinois v. Lidster (2004) primary purpose
 Facts – police investigating fatal hit & run; set up check point at accident
site to question people about seeing the car in question
 Held:
 Primary purpose of mass suspicionless warrantless search cannot
be ordinary law enforcement – must characterize particular act in
question as special need
 Police asking or info re hit & run  less anxiety to drivers
(privacy interest not intruded upon) so checkpoint ok
o Ferguson v. Charles (2001)
 Facts – state hospital had policy that if mothers repeatedly test positive for
coke, can be turned over to police
 Held: A state hospital may not conduct drug screenings of pregnant
women without probable cause or informed consent
 Primary programmatic purpose (objectively) is what matters
 Guidelines were set up for criminal prosecution; law
enforcement was intimately involved in creating the guidelines

Balancing
 Gov’ts interest:
 Individual’s interest: privacy expectation of a patient that medical
test results will be kept confidential is very compelling
o Consequence here more severe than a suspension from
extracurricular activities, it’s getting law enforcement
involved.
 Scalia: this isn’t even a search; don’t need to reach Special Needs issue;
pregnant women freely give urine sample to hospitals & actors are
allowed to turn over evidence to police
 BORDER SEARCHES
o What is a border?
 Water ports
 Physical land crossing
 International airport
 Ships
o US v. Flores – Montano (2004)
 Facts – knock on gas tank & sounds “full”; routine border search & found
marijuana in gas tank
 Majority
 Gov’t has a special & distinct power in border searches
 Gov’t has a long tradition of protecting & regulating its borders 
special place
 Right to keep people out
 People have a reduced expectation of privacy at borders
 Note: Do NOT need warrant or reasonable suspicion to conduct border
search
Have Collins v. VA here in notes – not sure why though. Was this just review of car search
exception?
o Border Search Exception: things gov’t can’t do within domestic US can be done
at the border because gov’t has paramount interest at borders
o US v. Ramsey (1977)
 Facts – customs officials opened international mail  found heroine. Before
opening the mail, they had “reasonable cause” that the mail had heroine
 Held: these situations don’t require warrant/probable cause because
PARAMOUNT interest at the borders
o US v. Cottleman (2013)
 Facts – gov’t made copy of laptop’s info
 Cottleman’s argument: violated 4th A rights
 Held: With respect to extra forensic work, gov’t needs at least reasonable
suspicion
o DE v. Doe (Aug. 2016)


Facts – Doe tried to drive to summer camp in Michigan. Ended up at
Canada/US border. Turns around after being told it was OK, car was searched
& found marijuana. Never left US.
Held: This falls under the border search exception because it’s really
hard for border patrol officials to tell who has gone out of the country or
just turned around
o US v. Montoya-Hernandez (1985)
 Facts – Believed to be a drug mule. She was detained, got magistrate to sign
off on medical exam, and she eventually passes 88 cocaine-filled balloons.
She was in detention for 24 hours before warrant was granted for medical
exam.
 Problems:
 1) not ordinary search
 2) never going to get requisite probable cause to detain a person in
these situations
 Held: These kinds of non-routine intrusions must have “reasonable suspicion”
that the person is involved in crime.
 If no reasonable suspicion  this WILL be a 4th A violation.
 Court is concerned about dignity of the person

Inventory Searches of Cars
o SD v. Opperman (1976)  When can police conduct an inventory search?
 Car impounded, inventory search yields marijuana
 Held: Inventory search OK
 Police do inventory search to prevent false claims against police (i.e.
they stole something)
 Officer safety
 Protect owner of the property (thieves going to impound lot)
 Inventory search exception = departure from both the warrant & the individual
suspicion requirement

Inventory Searches of the Person
o IL v. Lafayette (1983)
 Facts – arrested for disturbing the peace. Before booking, search bag
without warrant & find amphetamine pills
 Held: This is a permissible search
 However, requires the custody of the person by police
 Bright Line Rule: Need lawful arrest & prospect of incarceration in
order to complete an inventory search of the person
o Inventory Search v. SITA
 Different in place & time. Inventory search must be roughly
contemporaneous with the arrest
 Only people headed to jail can be subject to inventory search
 Not remote to place of arrest
o Maryland v. King (2013)
 Facts – arrested on assault charged; upon arrest state law said that it will
take DNA swab from you. 4 months later, match detected btw King and
2003 rape case  only evidence supporting PC was DNA
 Held: In favor of MD (5-4 decision)
 Balancing
 Gov’ts interest: want info to solve other crimes
o Kennedy frames this as “the need for officers in a safe way
to identify the person…”
 Individual Interest: minor intrusion – Q tip in mouth “doesn’t even
hurt”
 Scalia Dissent: Real issue is that they are trying to figure out if he has
been involved in other crimes
 Important note: must be for a “serious offense” (not defined, though)

JAIL/PROBATION/PAROLE
o Florence v. Burlington (2012): Facts – Mistakenly arrested on faulty warrant;
forced to shower, manipulate his genitals, cough, etc.
 Florence’s Argument: Nothing about him in particular that posed gov’t
concerns – argues their must be reasonable suspicion about him
specifically (that he had a disease, contraband, etc.)
 Held: If you go to general jail population, you can be subject to strip
searches with no reasonable suspicion at all. Doesn’t matter the
gravity of the offense.
 Gov’t interest in prison administration  safety
o How does Florence apply to probation or parole?  US v. Knights
o US v. Knights (2001): Facts – convicted of drugs, sentenced to probation with
search condition, stops paying PG&E bill, starts vandalism & arson campaign
against PG&E, police suspect Knights involvement, search house and find
evidence
 Held: Search is okay
 Balancing:
 Gov’t interest in preventing recidivism & encouraging
rehabilitation
 D’s expectation of privacy lowered bc search is a condition of
release
o Samson v. California (2006)  Can parolees be searched w/o warrant or
PC?
 Facts – Samson on parole, was stopped on street, finds no warrants for
him, searches him anyways, finds meth. As parolee, you agree to being
searched at any time
 Held: Parolees have even fewer expectation of privacy than
probationers. This search is consistent with 4th A
SEIZURES
US v. Watson  Is an arrest warrant needed in a public place?
 Facts – Watson suspected of selling stolen credit cards, informant was to give signal to
police and the police would arrest Watson
 Held: Ok for police to arrest w/o warrant if felony committed in public, or if a
misdemeanor is committed in the police’s presence
o Based on CL
Can police arrest you in your own home without a warrant?
 NO, need warrant (except in emergencies)
 Need warrant because special privacy interest in the home
Can police arrest you in a third person’s house?
 Need warrant to arrest & warrant to search homeowner’s house (Stigel)
US v. Mendenhall (1980)  When is a person seized?
 Facts – Woman arriving in LA airport, ask her a few qs, ask her to come back to office, if
she will open bag, takes off clothing, find 2 heroine packets
 (1) Encounter in terminal concourse  (2) DEA office detention & search (arguably
consent)  (3) formal arrest
o (1) Reasonable person would feel free to leave concourse interaction (so not a
seizure)
o (2) DEA office detention & search was consensual
 Bustamonte: totality of the circumstances
 Must show very coercive factors – severe imbalance of power
 Held: Person has been seized when reasonable person would feel that she is not free
to leave
o Factors to consider:
 (1) Threats
 (2) Weapons
 (3) Touched
Standard to apply: whether a reasonable, innocent person would feel free to leave
 Difficult standard to apply
 Florida v. Bostick (1991): police walk down bus aisle & check for drugs; Bostick
consents to search but felt he couldn’t leave bc of confines of the bus  no seizure b/c he
could still terminate the encounter
 US v. Drayton (2002): standard = reasonable innocent person
CA v. Hodari D.
 Facts – Hodari & friends start running when he sees the police; police give chase; Hodari
throws something while he was running; police tackle/seize him when they see him throw
the crack/cocaine
o Flight  throws cocaine  tackled by police



Hodari’s argument: seizure occurred as soon as the police chased him
Held: Hodari is seized when physically restrained in some way
o Mere pursuit doesn’t constitute a seizure
o No reasonable suspicion until crack was tossed. If tackled before crack was seen,
unlawful seizure
Examples:
o Police yelling after you = not seized
o If officer shoots you = seizure
o Just displays weapon = no seizure
Atwater v. City of Lago Vista  What is a “reasonable” arrest?
 Facts – TX law said must wear seatbelt. Can be fined or arrested, but no jail time as
consequence.
 Atwater’s argument = not reasonable for officer to make arrest over minor offenses.
Really need warrants, long historical tradition that this arrest is not something CL
permitted
 Held: When officer has PC to believe someone committed an offense, even minor
offense, the arrest is reasonable.
o Rationale = unreasonable arrests don’t happen very much. No incentives for
officers to make unreasonable arrests
 Too impractical for officers to make calls as to which is a danger to public
 SC hasn’t addressed this, unreasonable arrests must not be huge issue
Terry v. Ohio  Stop & Frisk
 Facts – experienced police officer observed two men outside a store. Several times, he
observed the men walk up to the store window, peer inside, and then walk away. Officer
approached the men, officer grabbed Terry, spun him around, patted down his outer
clothing to determine whether Terry was armed. Found a gun, the officer then conducted
same type of pat down of the other man and discovered a gun on him as well.
 Held: Officer has to be able to point to specific, reasonable inferences that criminal
activity is afoot (Scope)
o After this ^, can have a brief detention of the person at the scene
o & can perform brief pat down of outer clothing (ONLY justification is to make
sure person being briefly stopped does not pose a risk)
 Balancing: limited intrusion vs. gov’t interest in safety
Stop v. Arrests
 Length of detention
o US v. Place (1983)
 90 minute detention of suitcase
 too long, need at least PC for this
 Place of detention
o FL v. Royer (1983)
 Moved defendant from concourse to office, this was no longer a Terry
stop
o Hayes v. FL (1985)


Home to station, not just a stop
Have to have PC for this
Terry & Traffic Stops
 “Frisks” of a car
 Michigan v. Long (1983): looks inside car, find evidence of a crime. Is this permissible?
o YES. If officer has reasonable suspicion there is something inside of car that
poses a danger, the officer can frisk the car
o Limited to passenger seats of car, trunk is off limits
Ordering People Out of Cars
 PA v. Mimms (1977) & Wilson (1997)
 Can automatically order people out of car to neutralize any type of danger. No showing
necessary
AZ v. Johnson
 Facts – expired registration traffic stop, one officer on scene is gang task member &
believes person in car might be gang member, patted down after ordering everyone out of
car
 Held: Reasonable suspicion because person may be armed & dangerous
 Note: (1) just because there is reasonable suspicion for car stop doesn’t translate into
automatic reasonable suspicion for Stop & Frisk; (2) Officer can ask passengers unrelated
questions, doesn’t convert stop to unlawful seizure so long as it is in the course of the
traffic stop
Maryland v. Buie  The Scope of Terry
 Facts – bank robber wearing red tracksuit; police go to Buie’s home to arrest Buie; they
can go anywhere they think Buie might be; just until seizure ends when Buie is found;
once Buie is found, automatic right to search arrestee’s person & the grabbing area
around him; don’t find Buie but find red tracksuit
 Police can seize the track suit because of the Plain View Doctrine
 Two things police can do: Protective Sweeps
o Areas adjoining place of arrest w/o suspicion where a person/human being
might hide
o Other areas with reasonable suspicion
o Note: expands places where police have a reasonable justification to be
 Degrees of suspicion
o Mere hunch  reasonable suspicion  probable cause
o Mere hunch will NEVER be enough
REASONABLE SUSPICION
US v. Arvizu  Reasonable Suspicion
 Facts – Border patrol agents stop van  leads to consent search which yields MJ
 Issue: Was the initial stop supported by reasonable suspicion?

Held: Reasonable suspicion is about totality of the circumstances. Just because one
fact is wholly innocent conduct doesn’t rule out RS
o Car was driving along back roads during uncertain time for boarder patrol (when
they change shifts)
o Driver had stiff/rigid demeanor
o Children start waving in weird manner
ANONYMOUS TIPS
Alabama v. White (1990)
 Facts – anonymous tip that she would have cocaine in her car. See woman leave home,
get in same car described & drive in the direction of the motel described. Pulled over,
found cocaine
 Held: If you have anonymous tip + police corroboration, this is enough for
reasonable suspicion
 Note: very close case
Florida v. J.L. (2000)
 Facts – tip about young black man in plaid with concealed weapon at a bus stop; police
find three black men at the bus stop; frisk all of them
 Held: Identifying someone is not enough, must have something else such as
corroboration about future actions
o Anyone could have made this up
Navarette v. CA (2014)
 Facts – anonymous call saying that a silver ford 150 pickup almost ran them off the road;
driving SB Hwy 1; provided license plate number; police do a traffic stop & consent
search; find MJ
 Held: There was reasonable suspicion in this case
o Thomas (majority): seems somewhat reliable, eye witness, call to 911 can be
traced (5-4 decision)
o Scalia (dissent): “A freedom-destroying cocktail” no further police observation.
Too easy to have people make tips us. Police didn’t witness the reckless driving
 Note: RS can be VERY low
IL v. Wardlow (2000)
 Facts – high crime areal Wardlow sees cops & starts running; they stop him & frisk him
& find gun
 Note: different from Hodari because no crack-cocaine thrown prior to stop
 Held: Unprovoked flight is a factor leaning towards RS, but can’t be the only factor
o In this case they also have high crime neighborhood
o So this is RS
 Dissent: some people run because they are terrified
 Note: what unprovoked flight means isn’t clarified, don’t know what a high crime
neighborhood means
PROFILING & REASONABLE SUSPICION
US v. Sokolow (1989)
 Facts – suspected drug smuggler; paid for ticket in rolls of twenties; didn’t check
luggage; only stayed in MIA for 48 hours; DEA agents approach him at a curb at
Honolulu airport; grab & take him into DEA office (clearly a seizure); police dog alerts
to his bags, finds drugs
 Held: Terry stops cannot be executed just because of some abstract profile. They can in
part rely on this so long as they do some investigation into this specific person
o Abstract profile is not enough
o Need specific articulable facts about this person
 Here, the search was OK because the officers observed additional info: extreme
nervousness, implausible travel plans, driving/flying from known drug source, etc.
 Race & Profiling
o Officers can never just use race to stop someone
 Predictive policing = where might crime happen in our city in the future? Yet to be
determined if this can be RS
THE OUTER LIMITS OF REASONABLENESS - USE OF DEADLY FORCE
Tennessee v. Garner (1985)
 Facts – tried to escape burglary he was committing; 10 lb teenager; stolen purse w/ $10 in
it; Gardner shot and fatally killed
 At time, Tennessee allowed officers to use deadly force if defendant running away (did
have PC)
 Held: Can ONLY use deadly force when significant threat of death or injury
o Deadly force against “all felony suspects is constitutionally unreasonable”
Scott v. Harris (2007)
 Facts – police officer ended high-speed car chase by bumping subject’s car; subject
rendered paraplegic for the rest of his life
 Held: Deadly force standard is objective; officer doesn’t have to be factually correct.
o Judged at the time the force is employed
o Here, the suspect posed a threat to the public with his erratic driving
THE OUTER LIMITS OF REASONABLENESS - 4TH A. LIMITS TO OBTAINING
EVIDENCE
Winston v. Lee (1985)
 Facts – Defendant refused surgery to get bullet from collar bone
 Held: violation of 4th A rights to complete this surgery
o Doesn’t mean the gov’t can never do this, but in this case, the evidence wasn’t
super important (victim shot him and victim ID’d him)
o Surgery is much more intrusive than blood draw
ENTRAPMENT
ENTRAPMENT
 Gov’t officials hiding their identity
 Entrapment defense not based on constitutional law
JACOBSEN V. US (1992)
 Facts – Jacobsen orders a legal publication; later that year it becomes illegal; gov’t
spends two years convicncing Jacobsen to order more sexually explicit materials of
minors
o First gov’t contact: Jan 1985
o Petitioner breaks law: March 1987
 Issue: Was Jacobsen entrapped?
 Court: concerned with degree gov’t was goating Jacobsen – it wsan’t once, the gov’t
wouldn’t leave the person alone until he gave in
 Rule: Gov’t must show that the conduct was “not the product of the attention that the
gov’t directed at him”
 Follows subjective version
Subjective Version of Entrapment (federal courts & majority of jurisdictions)
 1) Was the crime induced?
 2) Defendant predisposed to commit the crime?
Objective Version of Entrapment (minority of jurisdictions & MPC version)
 1) Methods create substantial risk that a person would commit the crime?
Examples:
 Gov’t offers to buy drugs from D, who is not predisposed to sell drugs
o Not entrapment under the objective version
Due Process Defense: Entrapment
 US v. Russell (1973)
o Facts – undercover agent helps Russell find ingredients to make amphetamines
o Russell argues that the gov’t helped him commit the crime
o Held: The provision by law enforcement officials of something necessary to
facilitate the commission of a crime does not amount to entrapment. Degree &
nature of gov’t conduct must be against “Fundamental fairness, shocking to the
universal sense of justice”
 AKA outrageous gov’t conduct defense
STANDING
STANDING
 Must assert your own rights & injuries
 Limits the reach of the exclusionary rule
 Focus on:
o Whose privacy rights are being violated
o NOT whose evidence is being used against
o NOT who owns the evidence
Rakas v. Illinois (1978)



Facts – D was passenger in car, police found sawed off rifle & shells in car and place him
under arrest
Held: Person can only object to lawfulness of search when their own 4th A rights are
violated
o Must have reasonable expection of privacy in area that was searched
o Here, Rakas had no REOP in the car, so he can’t complain that your personal 4th
A rights were violated
Rule: A person can only make a substantiated 4th A claim if their personal 4th A rights
have been violated
Wyoming v. Houghton (1999)
 Facts – Car search case but her purse was searched
 Held: Passenger could object to her purse in the car being searched – REOP in the purse
Rawlings v. Kentucky (1980)
 Facts – police search purse of X, containing D’s contraband
 Held: Owner of purse has standing, D does NOT have standing
Schneckloth v. Bustamonte (1973)
 Facts – got consent from brother of car owner ot check the car
 Note the date: 1973 so target of the search standard is still in place
 Bustamonte does NOT have standing today because he doesn’t have a REOP in someone
else’s car
Minnesota v. Carter (1998)  When do visitors have standing?
 MN v. Olson (1990): overnight guests have reasonable expectation of privacy
 Facts in 1998 case: officer gets tip from informant saying drug dealing going on in
apartment. Sees them bagging cocaine
 Issue: Does Carter (person bagging cocaine but doesn’t live at apt) have standing?
 Held: Carter lacks standing, but Social guests CAN have standing
o Carter was only there 1 time
o Was not a friend and isn’t staying there overnight, so this is different from Olsen
o Seems entirely commercial
 Dissent: Carter may have standing in some situations. Shouldn’t have commercial
transaction test
Brendlin v. CA (2007)  When do passengers have standing?
 Facts – Brendlin is passenger during traffic stop. Has arrest warrant, find drugs on him.
 Held: Brendlin is seized just as driver is, so he has standing to object to traffic stop
Important note: When given standing problem, do Rakas first and then Brendlin, etc.
EXCLUSIONARY RULE
Exclusionary Rule
 Where does it come from?
o NOT the 4th A
o Rather it's a remedy for 4th Amend violations
Road Map to Mapp v. Ohio (1961)
 Weeks v. US (1914): Exclusionary rule is to be used in Federal Court for Federal
officials’ conduct
o w/o remedy of exclusion, 4th A meaningless
 Wolf v. Colorado (1949): state court
o Remedy of suppression doesn't apply to states
 Weeks & Wolf lead to  Silver Platter Doctrine
o Exclusion only applied to federal officers for evidence in federal court
o State police illegality could be used in federal prosecution
 Done away with in Elkins v. US (1960)
o Federal police illegality could be used in state prosecution
 Done away with in Rea v. US (1956)
 Mapp v. Ohio (1961)
o Facts – police looking for Ogletree (Mapp’s bf), living at Mapp’s house. Mapp
refuses to let them enter, police provide a fake warrant, enter & find Mapp’s
obscene materials
o Held: If there is a violation of Mapp’s rights (state criminal defendant), there
should be a suppression remedy for her
o Overrules Wolf
o Court’s rationale:
 1) Procedural Uniformity Rationale (want same rules to apply in all cases)
 2) Judicial Integrity (courts should not be forced to recognize this type of
evidence)
 3) Police Deterrence from violating defendant’s rights
Challenges to Truthfulness of Police Statements w/ regards to PC
Franks v. DE (1978)
 Def’s must show:
o 1) Deliberate Falsification OR
o 2) Reckless disregard for the truth
Exceptions to the Exclusionary Rule
 Standing & Derivative Evidence
 Independent Source
 Inevitable Discovery
 Attenuation
Primary/Derivative (Secondary) Evidence
 Police search X’s home illegally
 Evidence: Address to Y’s home  Police search Y’s home illegally
 Evidence: incriminating X & Y
 Can X complain about evidence incriminating X & Y?
o YES. Because evidence comes about as a result of police violating his rights

What if everything is the same, but search X’s home legally?
o X CANNOT complain about evidence incriminating X & Y because he’s
essentially claiming illegal search of friend’s homes  can’t do this
INDEPENDENT SOURCE EXCEPTION
 If fact can be justified by an independent means/source, that evidence gets to come in
Murray v. US
 1) Police seize trucks w/ marijuana from warehouse
 2) Police enter warehouse w/o a warrant
 3) Police apply for a warrant w/o mention of fact #2
 4) Police enter warehouse w/ warrant & seize drugs
 Issue: What is the scope of the IS Doctrine?
 Held: As long as gov’t can show warrant was premised on facts having nothing to do
with Murray’s rights, then IS Doc applies
o Have to prove that police would have sought warrant without going into
warehouse 1st time
INEVITABLE DISCOVERY DOCTRINE
 Gov’t must show by a preponderance of the evidence that the evidence would have been
discovered by an alternative source
 Pure speculation not enough
o Example: not inevitable for housekeeping to clean toilet tank
 Lower courts suggest gov’t must have actions in motion before violation, suggesting
inevitable discovery would happen
Nix v. Williams (1984)
 Facts – clear violation of D’s 6th amendment rights regarding confession which led to
discovery of victim’s body; search team assembling to look for body; very cold winter in
Iowa
 Held: Even if police obtain evidence from violating rights, if police would have
discovered this by other lawful means, it can come in
o Don’t want to over deter police
o At the point of Nix’s statement, search team was already looking for the girl.
Possible that the search team would have found the body anyways
ATTENUATION
Wong Sun v. US (1963)
 Arrest of Toy for heroin  oral statement implicating Yee
 Drugs from Yee  statement source is Wong Sun
 Wong Sun’s confession days later after being released on bail & returning to give
statement on his own volition
 Issue: Is Wong Sun’s confession days later admissible?
 Held: Wong Sun’s voluntary decision to come back and confess was too attenuated from
the first police involvement, so it is admissible.
o If causal chain between illegal police conduct & evidence is sufficiently
weakened, then attenuation exception applies & evidence comes in
GOOD FAITH EXCEPTIONS
GOOD FAITH EXCEPTION
 US v. Leon (1984)
o Facts – PC lacking; judge should not have approved warrant
o Held: when police act in good faith upon a warrant that is constitutionally
defective, suppression isn’t appropriate
o Look at purpose of the error – purpose of exclusionary rule is to deter police, not
magistrate
 Police exercises reasonable care here, nothing to deter them in the future,
so exclusion not applied here
 When is “good faith” inapplicable?
o Police officer’s reckless disregard for the truh
 Franks v. Delaware (1978)
o When a magistrate fails to be neutral
o “Bare bones” supporting affidavit
o Warrant is so “facially deficient”
 Ex. Groh v. Ramirez (2004)
GOOD FAITH APPLIED TO LEGISLATIVE ERRORS
 Illinois v. Krull (1987)
o Violation bc of reasonable reliance on state law
o Nothing to deter here  GF applies & evidence admissible
GOOD FAITH APPLIED TO CLERICAL ERRORS
 Arizona v. Evans (1995)
o Facts – court employee should’ve deleted arrest warrant. Police officer arrested
the person w/o probable cause & evidence should be suppressed
o However, suppression wouldn’t deter police in the future
o Held: must be police error to exclude evidence bc of exclusionary rule rationale
GOOD FAITH CASES
 Herring v. United States (2009)
o Facts – arrest w/o probable cause; Herring came ot police station voluntarily bc
his car was impounded; check to see if he has any warrants; clerk discovers that
there is an outstanding warrant one county over; arrested; turns out that the
warrant should’ve been rescinded from database but other county clerk had not
updated their system
o Held: When situation of “isolated negligence” attenuated from the arrest, then
exclusionary rule not required
o Dissent: hard for indigent defendants to defend themselves bc their attorneys
don’t have time/resources to search the entire databased for systemic negligence
 Davis v. Alabama/US (2011)
o Facts – 2007 traffic stopl Davis provided false name to police & is arrested;
search of car with secured arrestee & no potential evidence
o SITA  Belton (1981)  Automatic Search
 Evidence allowed
o SITA  Gant (2009)  Not automatic (must be related to reason of arrest)
o Held: When police reasonably rely on binding appellate precedent, then they
act in GF & exclusionary rule should not apply
ATTENUATION
Utah v. Strieff
 Facts – stop individual leaving drug house under surveillance w/o legal justification; call
in info & find out he has a warrant; arrest him; search incident to arrest reveals meth
 Issue: Whether this attenuation doctrine applies when an officer makes an
unconstitutional investigatory stop; learns during that stop that the suspect is subject to a
valid arrest warrant; & proceeds to arrest the suspect & seize incriminating evidence
during a search incident to arrest
 Held: The evidence the officer seized as part of the search incident to arrest is
admissible because the officer’s discovery of the arrest warrant attenuated the
connection between the unlawful stop & the evidence seized incident to arrest.
 Factors:
o (1) how much time has passed
o (2) intervening circumstances
o (3) misconduct
 Analysis:
o (1) Time: not in gov’ts favor, only a few minutes pass between violation of rights
and discovery of warrant
o (2) Intervening circumstance: arrest warrant which was legit (in gov’ts favor)
o (3) Police Misconduct: say no police misconduct at all. Decision to stop wasn’t
intentional and at most was negligent (in gov’ts favor)
 Sotomeyer Dissent: This means you can stop individuals for doing nothing; it
disproportionately affects the poor & minorities; the warrant was for unpaid parking
tickets
MISTAKE OF LAW UNDER 4TH AMENDMENT
Heien v. NC (2014)
 Police officer pulled over motorist for only having one functional brake light
 Issue: Whether such a mistake of law can nonetheless give rise to the reasonable
suspicion necessary to uphold the seizure under the 4th Amendment
 Held: if mistake is reasonable, the stop is lawful under the 4th amendment
o A mistake of law can nonetheless give rise to the reasonable suspicion
necessary to uphold the seizure under the 4th Amendment
 Sotomeyer Dissent: “One wonders how a citizen seeking to be law-abiding and to
structure his or her behavior to avoid these invasive, frightening, & humiliating
encounters could do so”
CONFESSIONS
Three Approaches to Confessions:
 (1) Due process “voluntariness”
 (2) 5th amendment privilege & Miranda
 (3) 6th Amendment right to counsel
DUE PROCESS
Bram v. US (1897)


way confession as obtained violated 4th amendment privilege toward self-incrimination
Federal case  applied to federal prosecution
Malloy v. Hogan (1964)
 Bram rule applies to state cases
Brown v. Mississippi (1936)  Can police use torture to obtain confessions?
 Facts: men tortured prior to confession
 Held: being tortured violates their rights under the 14th amendment
o When it comes to a confession that is challenged thru due process  look at
totality of the circumstances
o Confessions from torture are inherently unreliable
Arizona v. Fulminante (1991)  What kinds of violence violate due process?
 Facts – D in prison for murder of a child, confesses to another crime in exchange for
informant’s protection; informant gives info to police; informant is gov’t actor here
 Fulminante’s argument: incriminating statement was involuntary because he was going ot
get beat up if he didn’t tell this person
 Held: This is a coercive threat so the confession as involuntary
o Extends logic of Brown v. Mississippi
o Even a credible threat of course of violence can make a confession
involuntary as a matter of due process
o Coercion need not be violence itself; threat is enough
Spano v. New York (1959)  What psychological techniques violate due process?
 Facts – D gets in bar fight; friends with police officer so calls him; DA’s office says get
friend to talk to/interrogate D; tells D “my job is on the line; D confesses
 Held: Deception is one of the reasons that Spano’s confession is to be deemed
involuntary
o Court didn’t say that deception is NOT ok
o Totality of the circumstances: Spano was just 25, had very little experience with
police, had been interrogated quite a lot, intimacy of friendship
Colorado v. Connelly (1987)  When is a confession “involuntary” for due process?
 Facts – paranoid schizophrenic confesses to police out of blue
 Held: not a due process violation because no coercive police activity (need police
misconduct for violation)
o Look at police deterrence  if this has to be suppressed, how should police act
differently in the future?
 Here, deterrence value is very low
 Deterrence is the driving force behind confession regulation & this is not
relevant here
Voluntariness Today
 Look at:
o 1) is there any evidence of police coercion?

o 2) was the defendant’s will overborne?
o 3) look at totality issue to see what specifically happened in the case to see if there
was a DP violation
Violence or credible threats of violence
o Harder to establish
o Statement inadmissible for all purposes
FIFTH AMENDMENT CONFESSION
Malloy v. Hogan (1964)
 5th amendment right against self-incrimination applies to the state
Miranda v. Arizona
 Facts – none of the defendants had strong due process claims, no extreme psychological
pressure, but were all complaining about the way that they had been interrogated
 Held: when it comes to situations of custodial interrogations, you can’t have any
statements exculpatory or inculpatory without procedural safeguards
o Custodial interrogation = after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way
o Want the police to say these things:
 Right to remain silent (to dispel coercive atmosphere of the interrogation)
 Any statement he does make may be used as evidence against him (police
not your friends)
 Right to presence of an attorney, either retained or appointed
 If he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking there can be
no questioning
o When does Miranda apply?
 Custody: deprivation of freedom of action in any significant way
 Custody is to be determined from an objective point of view
 Interrogation:
 Both parts need to be present in order for a Miranda warning to be
necessary
Custody is to be determined from an objective point of view
 Oregon v. Mathiason (1977)
 Facts – admits to burglary after officer told him his prints had been found at the scene
 Held: Mathiason was not deprived of his freedom in any significant way
o Voluntarily came to station
o Was repeatedly told he was not under arrest
o Allowed to go home afterwards

Orozco v. Texas (1969)
 Held: defendant was in custody even though it took place in his own bedroom for
purposes of Miranda
 From objective viewpoint: coercive atmosphere, he was surrounded by police in
his bedroom and dominated by them, didn’t feel as if he could leave
Should age be considered in determining “custody”?
 JDB v. North Carolina (2011)
 Facts – came to school, pulled him out of class, & questioned him in conference room
for 30 minutes; provided incriminating statement, was never given Miranda warning
 Held (5-4 decision): When it comes to juveniles, age can be a consideration for
determining custody
Are traffic stops “custodial”?
 Berkemer v. McCarthy (1984)
o Facts – pulled over for suspicion of DUI; “Have you been drinking?” “Yes &
smoking pot”
o Held: Ordinary traffic stops are not custodial
 Not a police dominated atmosphere
 More like a Terry stop
o Practical policing: silly to make police announce warnings whenever they interact
w/ public
 Primary doctrine that regulates over police/citizen encounters = 4th A
When are inmates “in custody” under Miranda?
 Howes v. Fields (2012)
o Facts – inmate serving 45-day sentence; interrogated about another unrelated
charge; 7 hours; no Miranda warnings; told he could leave at any time; was
offered food & water; door sometimes open, sometimes closed; confesses
o Held: D not in custody for purposes of Miranda
 Presumption against custody in each of these settings
 For custody to apply, you need those normal requirements: would you feel
free to leave?
 Here, they treated the prisoner as if he’s a normal person out in the
world
The Custody Determination
 Site of interrogation
o Can’t just be police station, needs to be something about it that is policedominated
 Focus (are you the suspect, or do they just think you know who did it?)
 Objective signs of arrest (handcuffed, display of weapons)
 Length & form (longer it goes, the more it feels like a custody situation for Miranda)
 Age (juvenile)
 Note: no single factor is determinative, courts will look at totality of the circumstances
INTERROGATION
 Rhode Island v. Innis
 Facts – suspected of murdering taxi driver; invokes counsel; riding in back of squad
car; police say to each other “God forbid those special needs children find the sawed
off shot gun”; Innis tells them where the gun is


Held: “Interrogation” for purposes of Miranda is not limited to express
questions but applies to any words or actions that the police know are
“reasonably likely to elicit an incriminating response from the suspect”
o Here, court says that this was not violated; officers wouldn’t have known that
Innis would respond as he did
o Practical implication: no interrogation, no violation of Innis’s Miranda rights
When are actions “interrogation”?
o Arizona v. Mauro (1987)
 Facts – police deliberately placed defendant’s wife in interrogation room.
Subsequent convo she has with D makes him provide incriminating
statements which were recorded
 Held: This was not interrogation for purposes of Miranda
 This was a custody situation
 But, what the wife said & spoke to him does not need ot be
preceded with Miranda warnings
 Note: VERY narrow view
o IL v. Perkins
 Facts – put D in specific jail cell w/ 2 people who were gov’t informants;
D confesses to unsolved murder
 Issue: is this a Miranda violation?
 Held: NO, consider the goal of Miranda
 Goal = concern about police dominated atmosphere
 Can’t have a police dominated atmosphere when you don’t even
realize that you’re talking to the police
 Refines the standard: Miranda warnings are required when
you’re in custody and subjected to formal/official
interrogation. Have to have an idea that you’re being
interrogated
o Undercover Policing
 5th A: IL v. Perkins
 no requirement for Miranda warning for undercover operations
 4th A: US v. White
 mistake in trusting false friend
 Due Process: Arizona v. Fulminante
 Violence threats may give rise to due process claim even if
unaware that you’re speaking to gov’t agent
WARNINGS
 How much can police deviate from the Miranda warnings?
o CA v. Prysock (1981)
 Held: Miranda doesn’t require literally the exact words
o Duckworth v. Eagan (1989)
 Facts – Warnings given: (1) you have the right to talk to a lawyer for
advice before we ask you any questions, and to have him with you during
questioning; (2) you have this right to the advice and presence of a lawyer
even if you cannot afford to hire one; (3) we have no way of giving you a
lawyer, but one will be appointed for you, if you wish, if and when you go
to court
 Held: deviation is OK so long as gist of M is there, which it was here
o Florida v. Powell (2010)
 Warnings given to Powell:
 (1) you have the right to remain silent
 (2) If you give up on the right to remain silent, anything you say
can be used against you in court
 (3) You have the right to talkt o a lawyer before answering any of
our questions
 (4) If you cannot afford to hire a lawyer, one will be appointed for
you without cost and before any questioning
 (5) you have the right to use any of these rights at any time you
want during this interview
 Held: just need 4 warnings reasonably conveyed
 Here, warnings were unclear that D had right to counsel during
interrogation, but ok
 Court is willing to give a lot of leeway in having variations in M
warnings – of to deviate as long as looked at as a whole, rights
were conveyed to suspects
VIOLATIONS
 Oregon v. Elstad (1985)
o Facts – unwarned confession, then a warned confession.
o The first unwarned statement is suppressed
o Held: A Miranda violation can exist even without a 5th A violation
 The second confession is admissible because it was preceded by a
Miranda warning
 Not a case where there is deliberately coercive tactics on the aprt of the
police
 Congressional Reaction (1968) 18 USC § 3501
o Try to overrule Miranda
o “A confession shall be admissible in evidence if it is voluntarily given”
o Warnings are just a factor  totality of the circumstances, due process
o Everyone pretended that this statute didn't exist
 What is the status of Miranda?
o Dickerson v. United States (2000)
 Congress cannot overrule Miranda
 Deviations ok, but must provide as much protection as original warning
 It’s deeply embedded in what police do & what people expect when
dealing with police
 Constitutionally based, but does not go as far as saying Miranda warnings
are a constitutional right
 Deliberate Evasion of Miranda
o Missouri v. Seabert (2004)




Facts – woman provides a confession that is not preceded by any Miranda
rights. After she confesses, police give her a quick break, then they come
back, then they Mirandize her and she waives her rights and provides
another incriminating statement
 Police kept referring to “remember you already told us you were
responsible…” to confession which was not preceded by Miranda
 Difference btw Seabert & Elstad?
 This was not a mistake but was an intentional, systematic evasion
of Miranda requirements
 Souter Plurality: objection to “question first” technique, suggests multifactor test
 Similar questions btwn first & second interrogation
 Change in locations
 Change in personnel
 Here, suspect would have viewed this as one long interrogation w/
meaningless M warning in the middle & thus this is M violation
 Kennedy Concurrence
 Unless curative steps taken by police to get rid of M issues (ie
change location), this is M violation
US v. Patane (2004)
o Facts – Miranda violation; no warning; confession; leads to discovery of gun
o Held: privilege against self-incrimination does not apply to tangible &
derivative evidence gained by voluntary statement
 Statement inadmissible, but gun is admissible
o Note: In Nix v. Williams
 Violated 6th A rights  provided a statement  physical evidence found
 If you have a violation of 6th A rights, the court decided physical evidence
was admissible bc police would have inevitably discovered it
 However, this is an exception, usually it’d all be suppressed
When does a Miranda violation occur?
o Chavez v. Martinez (2003)
 Facts – two police officers detain Martinez; think Martinez is reaching for
one officer’s gun; other officer shoots him; another officer questions him
in ambulance w/o Miranda warning. No charge ever filed against Martinez
 Held: Miranda violation only happens when unwarned statement is
used against you in a criminal proceeding
Miranda & Derivative Evidence
o Unwarned confession  leads/witnesses
 Exclusionary Rule does NOT apply (Michigan v. Tucker)
o Unwarned confession  second confession
 Exclusionary Rule does NOT apply (Oregon v. Elstad)
 Exception: Deliberately evade Miranda (Missouri v. Seibert)
o Unwarned confession  physical evidence
 Exclusionary Rule does NOT apply (Patane)
WAIVERS
Miranda Options
 (1) invoke right to silence
 (2) invoke right to counsel
 (3) waive all rights and talk
Admissibility of Statements
 (1) Given Miranda Warnings  (2) Waiver in Fact (need not be explicit)  (3) Effective
waiver (knowing & voluntary)
What we know about Miranda
 Pervasiveness
 Police adaptation to Miranda – try & find ways to make Miranda work for them
 Police evasion
 Waivers: about 80 of Miranda rights waive them
Was there a waiver in fact?
 North Carolina v. Butler
o Facts – Butler arrested for participation in gas station robbery; questioned by
police & read his Miranda rights; he refuses to sign any statement that he is giving
up rights; confesses
o Held: Miranda waiver can be implied
 The fact that he didn’t explicitly say “I give up my Miranda rights”
doesn’t matter
 No bright line rule, based on totality of the circumstances/case by case
analysis
o Nod of defendant’s head can = giving up Miranda rights
Was the waiver Effective?
 Morgan v. Burbine (1986)  what does it mean to be voluntary?
o Facts – signed off on Miranda waiver but didn’t know his lawyer was trying to
contact him. Argued he had to have known lawyer was doing this to be voluntary
waiver
o Held: Voluntariness means you choose to give up your Miranda rights freely
& deliberately
 But, doesn’t mean that you have all of the info you would have liked
 Colorado v. Spring (1987)  What does it mean to be knowing?
o Facts – D didn’t realize that police were going to talk to him about a whole series
of crimes. Said had he known, he wouldn’t have waived rights
o Held: Having a knowing waiver doesn’t mean that police have to tell you in
advance of your waiver everything that they’re going to be asking you.
 Only need to know what’s in the warrant
INVOCATION
 Right to silence
 Michigan v. Mosley (1975)







o Facts – gets warnings & invokes right of silence; a couple hours later another
detective reads him his rights again & asks him about another crime; he waives &
gives a statement
o Rules: Invocation of the right to remain silent must be “scrupulously honored”
o Considerations
 Police must immediately stop questioning
 Time btwn invocation of right & second questioning
 New warnings
 Different crime
 Different cops
 Different place
 Does it feel like one continuous interrogation or two?
o Note: first three facts HAVE to occur
o Here, it looks like 2 separate interrogations.
Right to counsel
Edwards v. Arizona (1981)
o Facts – D invokes right to counsel; police come back next day; read new set of
Miranda warnings & play a taped statement of his accomplice. D waives rights
and makes incriminating statement
o Held: when you invoke your right to counsel, you’re saying you can’t handle
being alone in a situation with police. Because we interpret the right to counsel
differently than the right to silence, a different result occurs
 Police can’t reinterrogate that person, period
 Only way they can have another conversation is if the defendant decides
on his own volition if he or she would like to initiate the convo
Is Miranda crime-specific?
Arizona v. Roberson (1988)
o Facts – D invoked right to counsel; a few days later police ask him about different
crime; preceded by new Miranda warnings
o Held: Miranda right to counsel is custody specific & extends to entirety of
the time you are in custody
 The fact that he was asked about a different crime is insignificant
 Police cannot question unless D reinitiates
Can you use up your right to counsel?
Minnick v. Mississippi (1990)
o Facts – invokes right to counsel; meets with public defender a couple of times;
few days later a sheriff reads him his rights; D waives
o Held: Cannot “use up” your right to counsel
 Still cannot re-question once D invokes right to counsel even if D has met
with attorney
 Edwards v. Arizona is a bright-line rule
Hypo: person is interrogated, invokes right to counsel, lots of evidence though so it
doesn’t matter, the case is tried, and the defendant is convicted. After being convicted,
what if law enforcement wants to talk to you about something else?
o Under Robertson, right to counsel is not crime-specific
o Does Edwards, Roberson, and Minnick bar this? It would appear so



How long does waiver last?
Maryland v. Shatzer (2010)
o Facts – D in prison for one crime; D invoked right to counsel for 2nd crime
unrelated to one he was in prison for; 2.5 years later, different police approached
D, read Miranda, D waived rights & incriminates himself
o Held: end of 1st waiver is break in custody of 14 days
o Exception to Edwards
What is “initiation”?
o Oregon v. Bradshaw (1983)
 Facts – invoked right to counsel, on way to jail asked “what is going to
happen to me now”; officer told him he didn’t have to talk but they started
a convo & it became one in which Bradshaw gave incriminating
statements
 Issue: Did the police violate his right to counsel?
 Held: This is the kind of situation that you can characterize as one of
the defendant initiating the convo
 Question to officers indicated a willingness to talk
 However, police must give a fresh set of Miranda warnings & must
get a valid waiver from the defendant
o Right to Counsel
o Davis v. United States (1994)
 Facts – after being provided w/ Miranda warnings D says “maybe I should
talk to a lawyer”; officers respond saying they aren’t trying ot harass him
and D said it’s fine. Officers wait, come back, then re-Mirandize him;
didn’t stop questioning until the 3rd time he said that he wanted a lawyer
 Issue: What should the gov’t do when they hear the word “lawyer” or
“attorney”?
 Held: Invocation of right to counsel has to be the kind of statement
that a reasonable officer would understand as a clear invocation of the
right to counsel
 Burden is on D to make wishes clear
o Right to Remain Silent
o Burgess v. Thompkins (2010)
 Facts – read Miranda rights but declines to sign a form saying that he
understands them. During 2 hours 45 mins of interrogation, he says
nothing. At very end, detective says to him “do you believe in God”, D
confesses that he committed murder
 Issue: Did Thompkins invoke his Miranda rights?
 Held: Invocation of right to silence must be unambiguous
 There is a heavy burden on D’s and a not so heavy burden on the
gov’t
 Found to have waived rights
o Questioning After Invocation
 Right to Silence  Police may reinitiate questioning
 Right to Counsel  Only D may reinitiate questioning
EXCEPTIONS TO MIRANDA WARNING REQUIREMENT
 Impeachment Exception
 Harris v. NY (1971)
o Facts – unwarned statement; prosecution wanted to use statement for
impeachment purposes
o Held: OK to introduce statement in impeachment context even if it did occur
w/o proper warnings
 Do not want to over deter police
 Sufficient deterrent = exclusion of statement for prosecution’s case in
chief
 Emergency/Public Safety
 NY v. Quarles (1984)
o Facts – rape victim says man who raped her had a gun; go up to D, see shoulder
holster but it’s empty; ask “where’s the gun”; D says “it’s over there”
o Held: In situations where police are deliberately avoiding Miranda warnings
bc there is a concern for public safety, this will be considered an exception
 Court refuses to put a test to any sort
 Leaves it completely up to the officers – if they believe that it’s important
to avoid providing warnings due to public safety & the qs asked are
reasonable for public safety, OK to not provide Miranda
 Routine Booking Exception (Inventory Search Exception)
 PA v. Muniz (1990)
o Facts – suspected of drunk driving; at time of booking asked name, address,
height, weight, eye color, DOB, age, & Date of 6th Birthday
o Held: Bc it is necessary for police to ask these qs to everyone being arrested,
court will recognize a booking exception to Miranda
 Last question excluded (6th bday) bc no warning & not routing
 Compelling Attorney to Produce Documents
 Fisher v. United States (1976)
o Facts – IRS investigating taxpayers for possible violations of income tax laws.
Defendants gave tax documents to their attorneys and attorneys were compelled
to produce them
o Held: No 5th A violation w/o personal compulsion
 Here, compulsion was directed at attorneys & no legitimate argument that
the taxpayers retained any type of possession over the documents.
SIXTH AMENDMENT
Massiah v. US (1964)
 Facts – Massiah formally indicted; released on bail; talked to someone he thought was a
friend and provided incriminating statements
o Argued this was a form of interrogation
 Held: 6th A right to counsel exists whenever gov’t has initiated “formal adversarial
proceedings” (even after D released on bail)
o Applies to all critical stages (interrogation by the gov’t is one of these stages)
o Deliberate elicitation standard: 6th A violated when incriminating words, which
police deliberately elicited from D after right to counsel invoked, are used against
D at trial
o Interrogation was done not within the presence of his attorney, so 6th A violation
Confessions
 Formal adversarial proceeding  6th A
 Custodial interrogation  Miranda
 Due Process
Escobedo v. Illinois (1964) (vague)
 Facts – not arrested, interrogated w/o counsel  rights violated
 Written in a way that indicated 6th A attaches even before formal proceedings
 Miranda decided two years later  clears things up
The significance of Brewer
 Massiah
 Escobedo
 Miranda
Brewer v. Williams (1977) (inevitable discovery doctrine)
 Facts: in transit from one jail to another, police says it would be nice for V to have
“Christian burial”, D then leads police to body
 Held: deliberate elicitation standard focuses on police intent  violation of 6th A
right to counsel
o Illegal search finds evidence, but evidence would have been found by lawful
search
o Precursor to Nix v. Williams (1984): inevitable discovery doctrine – if police
would have come upon E anyways, then derivative E should not be suppressed
Arizona v. Roberson (1988): Miranda is not offense specific
McNeil v. Wisconsin (1991): Can you invoke Miranda & the 6th A at once?
 6th A right is Offense Specific
 Right to counsel of 6th A & right to counsel protected by Miranda are separate & distinct
 Invoking one does not invoke the other; mutually exclusive
 Formal proceeding = 6th A
 Custodial interrogation = Miranda/Edwards rights
 Police free to approach D about other crimes after 6th A right invoked
Texas v. Cobb (2001)
 Facts – D indicted for robbery & invoked 6th A right to counsel; then suspected of
murders related to the robbery, read Miranda & waived & confessed to murders
 Rule: factual overlap but separate offenses  no 6th A violation
 When element of one offense are necessarily included in another offense, then same for
purposes of 6th A (very narrow – lesser included offenses only)
 Double jeopardy test
Waiver of 6th A rights
 Attachment + Invocation
 Patterson v. IL (1988)
o Facts – police approach D, read Miranda, D waives & makes incriminating
statement
o Rules: rights had attached because D indicted, but D had not invoked right to
counsel
 Waived M rights, so also waiver of 6th A right
 Upholds post-indictment 6th A waiver given after M warnings where D
hadn’t invoked M rights
 Must be aware with dangers & disadvantages of representing himself, his
waiver of 6th amendment counsel is knowing & intelligent.
o Look up on Quimbee for better facts
 Michigan v. Jackson (1986) (this one got overruled)
o Facts – D invokes right to counsel at arraignment, police come to D & give M
warnings which D waives & confesses
o Held: waiver not valid
 When D invokes 6th A right to counsel, curtain comes down & police
cannot talk to D anymore unless D initiates
6th A: not custody specific but offense specific
 Montejo v. Louisiana
o Facts : lawyer appointed at arraignment; police later approach D, give M
warnings & obtain waiver & confession
 Originally, the question before the court whether passively accepting
appointment of counsel was different than invoking
o Held: All that matters with respect to admissibility was whether D provided
voluntary, knowing, & intelligent waiver (accomplished by second set of Miranda
warnings)
 Once right to counsel invoked, can still talk to police w/o lawyer
 Cannot presumptively invoke right to counsel
o Overrules Jackson
Jailhouse Plants
 US v. Henry: 6th A claim, had right to counsel during interrogation, even though
interrogation was done by jailhouse snitch
o Massiah in thet jail setting. Can have a 6th A violation because it is a critical stage
 Kuhlmann: “passive” informants DO NOT trigger “critical stage”
 Informant who wasn’t planted by police
Identification of Defendant
 US v. Wade: thought to be involved in bank robbery, lined up with others after being
indicted & appointed counsel, counsel not present
o Held: this is a critical stage, have the right to have counsel present in live
takeaway

Gilbert v. CA
o If you’re going to rely on an in-court identification to identify the defendant, have
to show that it didn’t stem from the lineup you had where defense counsel was not
present
Limitations
 Kirby v. IL (1972): if defendant is not formally charged, there is no 6th A violation
during prior ID
 US v. Ash (1973): photo lineup, doesn’t matter if defense counsel was there because the
defendant isn’t even there (no one for him to represent)
o Defense counsel can reconstruct that lineup later using the photos
DP claims for unnecessarily suggestive identifications
 Stovall v. Denno (1967): husband was killed, victim almost killed, in hospital bed, police
bring defendant, she identifies him, defendant suggests so suggestive that it violated his
due process rights
o Two-part test: 1) unnecessarily suggestive; 2) high risk of mistaken identification
 Court said that this was suggestive but not unnecessarily bc they didn’t
know if V was going to live or die

Foster v. CA (1969): lineup of defendant and 2 people, then did second lineup, he was
the only one in both. Was lso only one wearing leather jacket (which perpetrator was
wearing during crime)
o Same test as Stovall

Perry v. NH (2012)
o Someone calls 911 to report that someone was breaking into cars on street; police
go to person’s apartment who called; Perry happens to be walking on street when
police arrive and contact woman who called 911
 Police ask caller to identify person, she points thru window at Perry
 Officer’s didn’t create ID situation, eye-witness did so this is OK
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