Crim Pro Outline Fall

Criminal Procedure Spring 2018
How are the Laws of Criminal Procedure Implemented and Interpreted? Judicial Philosophies
Competing Judicial Philosophies
a. Crime Control Model: (Conveyor Built Model)
i. Purpose: Repress Criminal Conduct; If we can repress crime than law abiding citizens can carry on normal lives b/c they
know the criminal law deters people from engaging in crime. If we don't deter, law abiding citizens are at the mercy of
ii. Focus: Efficiency and making earliest possible determination of guilt/innocence: apprehension, trying, and conviction
must happen quickly to serve as the most effective deterrent
iii. Requirements: Manpower/resources. An efficient system requires significant resources
iv. Values: Speed, Finality, and Uniformity, and INFORMAL processes
b. Due Process Model
i. Purpose: Promotion of Equal Justice
ii. Focus: Eliminating Mistakes; stresses the possibility of error in the judicial process and wants to make the government
“prove it” at every step
iii. Requirements: At every step, obstacles in the way of the gov’t;
iv. Values: FORMAL processes, the individual as opposed to the system, an impartial court and an adversarial fact finding
process. The model wants a 1:1 ration between factually guilty and legal guilty. It may sometimes result in a factually
guilty but legally innocent person.
Fourth Amendment
Text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
Two threshold requirements: In order for the 4th to apply: (1) the conduct in question must be governmental, not private; (2)
the conduct in question must constitute a “search”
An action by law enforcement that does not infringe on a reasonable expectation of privacy is not a search and therefore
need not be authorized by a warrant or be based on PC, or in any way be "reasonable."
The court has used that rummaging through garbage, undercover agents, flying helicopters, etc are not regulated by the 4th. The
purpose of the Katz test is to help us define what constitutes a search.
Two plausible interpretations of the 4th:
1. Warrant preference Model: If you look at the amendment altogether, it says warrants are always required. Reasonable
means, you must obtain a warrant to search, i.e. "warrant" modifies the first part of the Amendment. (Reasonable =
warrant). Associated with Due Process Model, b/c warrant is an obstacle to the police.
2. Reasonableness Model: The two clauses are completely separate. The only relevant question is whether the search/seizure
was reasonable, not was there a warrant. The second part of the Amendment simply states that if you get a warrant, it
must have probable cause…i.e. the two clauses are separate and warrant is not required. Most often associated with
crime control model (which doesn't want obstacles in the way) (only asks: did the police act reasonably?) Asks: was the
search reasonable regardless of lack of warrant?
How Does the Court Analyze Case under the Fourth Amendment?
I. State Action: First ask, is there state action? If yes, move on. If no, inquiry is over.
II. Search/Seizure: Was there a search or a seizure? If yes, move on. If no, the 4th does not apply.
III. Reasonable? May require examination of the following:
a. Warrant: If a home is searched, it is generally only reasonable if a warrant was obtained.
b. Probable Cause: In some instances, reasonableness might not require a warrant but it may require PC (ex: car)
i. Exceptions: warrantless arrest, plain view, consent, search incident to arrest, automobile exceptions,
inventory searches
c. Reasonableness: Sometimes reasonableness means reasonableness
i. RAPS/Terry
ii. Special Needs
IV. *Result* is that if the search is reasonable based on these standards, the evidence is admissible (vice versa)
Searches: What is a Search?
I. Protected Areas and Interests
a. Search: action by the state that violates an individuals reasonable expectation of privacy
i. Two Part Test (Katz): A search has only occurred (and the 4th is only implicated) when: (1) Citizen has manifested
a subjective expectation of privacy; (2) that expectation is one society accepts as objectively reasonable.
ii. Reasonable expectation of privacy exists: When the D has taken steps to ensure privacy (i.e. shutting the door)
iii. Reasonable expectation of privacy does not exist: When the D has transmitted something into public, made
conversation public, given information to the phone company, put stuff in his trash, etc. (Because then anyone in
public could see/do something with this information.
b. United States v Dunn: Drug agents trespassed onto D’s ranch by crossing two barbed wire fences in order to peer into
D’s barn which was part of D’s ranch. In most instances, areas surrounding a home may be protected on grounds that it is
part of the home’s curtilage, as to which inhabitant has justifiable expectation of privacy under Katz. Area surrounding
the curtilage is “open field” and gets no protection b/c society doesn’t recognize.
i. Four factors to determine whether a building falls within curtilage of main dwelling:
1. Proximity of home to the area claimed to be curtilage
2. Whether the area is included within an enclosure that surrounds the home
3. The nature of the uses to which the area is put
4. The steps taken by the resident to protect the area from observation by passersby
ii. Holding: The barn was not in the dwelling’s curtilage based on these factors, thus, D was found to have no justifiable
expectation of privacy (even if the man subjectively thought he was entitled to privacy) in the barn and therefore no
Fourth Amendment search occurred.
iii. What can officers do on the open field? We know they can step onto the open field and there is no COTUS protection
so the lack of a warrant is irrelevant. Could the officers have gone into the barn to search?
1. Under what category of the 4th does a barn fall? It is an effect. It is property. The police can walk around on
the open field, but in order to search "effects" they need a warrant. The 4th says to officers you can be on this
land, but since were talking effects, you need a warrant to search. Anything you can observe is in plain view.
Officers can get as close as they can and see what they can see.
iv. Curtilage for an apartment: the balcony. There is no curtilage in front b/c that is where public travels
c. California v Greenwood: Investigator received tip about narcotics at a home. Asked garbage collector to leave out the
trash to be turned over to the cops. Cops found evidence of narcotics in trash, cops got warrant, search the house and
arrest the defendant. Cops did a "trash grab." Does the 4th protect a warrantless search of an individual’s garbage placed
at the edge of his curtilage? No. While the man may manifest his reasonable expectation of privacy, society is not
prepared to recognize it.
i. D’s argument: D wants to remove the search of his trash cash as the basis for getting the warrant to search his home.
He argued the closed opaque trash bag manifested his expectation of privacy.
ii. Ct says: Society doesn't recognize that as reasonable b/c once you put trash outside, ANYONE could look at it.
Raccoons, dogs, etc could bite into it. Further, when you put trash on street for pickup, you convey it to a 3rd party
(trashman) who may rummage through it.
iii. Result: Even if the police conduct in examining trash is irrational, discriminatory, or continues for years, the evidence
is admissible.
d. Florida v Reilly: D suspected of growing weed. Nothing observable from the ground. Fence around the greenhouse and a
no trespassing sign. Cops got in a chopper and observed through a hole in the roof that weed was growing. Got a warrant,
searched green house, found weed. Arrest. Are naked-eye observations of the curtilage of a property made from a
helicopter 400 feet in the air a search for purposes of the Fourth Amendment for which a warrant must be obtained? No.
As long as the chopper is flying where a member of the public could fly a helicopter w/o damaging property, the
homeowner would have no reasonable expectation of being free from such overhead flights.
i. Anyone can look down, and if anyone can do it, one of those "anybody's" could be a cop. The curtilage is protected
from the ground, but not from above so long as the cops are in "navigable" air space. Thus, looking down onto the
curtilage is not a search.
ii. If the chopper was flying at a level that threatened to damage property, then it would be a search
e. Kyollo v United States: The police obtained evidence of a marijuana growing operation inside the defendants home, by
using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance
of a search warrant for the home. Does the use of a device by the government to obtain evidence from a constitutionally
protected area without physical intrusion constitute a search under the Fourth Amendment of the Constitution? Yes, The
use of a device by the government, which is not generally used by the public, to obtain evidence from inside a
home is a presumptively unreasonable search without a warrant under the Fourth Amendment.
i. If this was a search, the evidence cannot be used to establish probable cause to obtain a warrant.
ii. The home has the highest expectation of privacy and any search w/o a warrant is presumed to be unreasonable.
Unless some exception applies, a warrantless search of a home is invalid. BUT If it can be determined that there was
no search, then you can bail out of 4th analysis.
iii. Govt argues: the radiation was being released into the outside atmosphere, so that the police’s perception of it should
fall under a plain view analysis.
iv. Test for when use of technology constitutes a search: information gathered regarding the interior of the home that
could not otherwise be obtained w/o physical intrusion into the home constitutes a search when the technology is not
in public use.
1. The "blobs" of heat reveal intimate details about the happenings of the home that you could not otherwise
get unless you were inside the home. To the extent of what the imaging reveals, it is intimate details and thus
is a search. All details that come from inside the home are intimate. The 4th draws a firm line at the entrance to
the house.
v. Public use: the opinion seems to say if the device was in widespread public use, it may not be a search (example: an
x-ray machine at an airport) b/c if its in widespread public use, society not prepared to recognize a privacy interest
vi. To the extent the technology reveals something inside the home that could not otherwise be revealed unless you were
in the home AND if the technology is not in general public use, it IS A SEARCH and the analysis continues to ask: Is
it reasonable?
f. US v. Antoine Jones: GPS tracking device on his Jeep,
g. Carpenter v. US: CSLI, cell phone locating devices, several robberies had happened and suspects were identified. Cops
used cell phone records to match up suspects’ location with robberies
i. D’s argument: This is a seizure without a warrant. Cell site info should be thrown out.
ii. There is no reasonable assumption of privacy in your cell records
iii. 2 questions involved:
1. No expectation of privacy moving in public
2. 3rd party doctrine: voluntarily giving info to 3rd party
iv. Court says we have legitimate expectation to privacy in your physical movements through cell records.
1. Very narrow ruling
2. We’re not necessarily turning this info over “voluntarily”
3. Court says warrant will usually be required in this instance
h. United States v. Place: Drug dogs sniffed mans bags at airport, dogs went nuts, officers obtained a warrant and searched
the bags. Does the use of a drug-sniffing dog constitute a search? No. A sniff by a well-trained narcotics dog that does
not require opening of the luggage is not a search for Fourth Amendment purposes.
i. D’s argument: Dog sniffing is a search, and there was no warrant to do so, thus the evidence from that search should
be struck.
ii. Why is the dog not a search: (1) it doesn’t require opening luggage; (2) the dog can ONLY identify contraband; (3)
society doesn’t recognize as legitimate a privacy interest when carrying contraband
iii. The dog is not revealing the contents of the case w/o opening it and while there may be a subjective expectation of
privacy, "Any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that
only reveals the possession of contraband compromises no legitimate privacy interest." – Caballes
iv. Society does not recognize a legitimate privacy interest in contraband, and the canine sniff only reveals the presence
of contraband without exposing noncontraband. Because sniffs only reveal contraband, they are not searches.
i. Florida v Jardines: Cops approaching home with dog sniff is a search. Cops may not be on the curtilage w.o warrant or
PC. Court is not saying the dog sniff was a search, saying the fact they were on curtilage without the warrant is a search.
Cops can go knock and talk, they cannot go on premises for sole purpose of searching.
i. This does NOT say a dog sniff is always a search
ii. Court says the officer has to be in a place he has the right to be when searching
iii. Court does not care what the officer’s subjective intent is
1. As long as there is an objective legal reason, that is all that matters
j. Illinois v Caballes: Man stopped for speeding. Officer #2 heard of the stop of radio at arrived at scene. His dogs sniffed
drugs. While Officer #1 is writing up the ticket, officer #2 is walking the dog around the car. Whether the 4th requires
reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop?
No. A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if
its prolonged beyond the time reasonable required to complete that mission. Any interest in possessing contraband
cannot be deemed legitimate and thus governmental conduct that only reveals the possession of contraband
compromises no legitimate privacy interest.
i. The dog must get its work done in the parameters of the stop. If it goes beyond that, it becomes an unlawful stop and
evidence is suppressed.
ii. What is the difference between a thermal imaging device and the dog? The dog can only detect only certain
contraband; the thermal imaging device can detect all types of conduct in the house and presents a visual image.
k. Illinois v Andreas: Police lawfully opened container at international terminal. Knowing that container addressed to D
contained a table with drugs inside posed as deliverymen and delivered the container to D. For 30 minutes following
delivery, D was alone in his apartment with the container before emerging with the container and being arrested. Issue:
Whether a warrant is required to reopen a sealed container in which contraband drugs had been discovered in an earlier
lawful border search, when the police seized the container after it had been delivered to respondent under police
supervision? No protected privacy interest remains in contraband in a container once government officers lawfully
(as here) have opened that container and identified its contents as illegal. The simple act of resealing the container
to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded
privacy rights, and the subsequent reopening of the container is not a "search" within the intendment of the
Fourth Amendment." It is irrelevant that the container leaves the control or view of the police for a brief period.
i. The break in observation was not enough to reinstitute D’s legitimate expectation of privacy in the contents of the
container. Since no justifiable expectation of privacy, the reopening of container was not a search at all.
ii. Once it is lawfully opened, that diminishes your expectation of privacy. Resealing it does not revive your expectation
of privacy. It is essentially, in "plain view."
iii. Standard to determine whether a privacy interest is revived: Is there a substantial likelihood that the contents
could have changed during the gap in surveillance? If so, then the D regains a legitimate privacy interest.
1. Here, given the unusual size of container, its specialized purpose, and the relatively short break in surveillance
made it substantially UNLIKELY that D had changed the contents of the container. Thus, privacy interest was
not revived and the container was lawfully reopened w/o a warrant.
U.S. v White: Government authorities, through the use of an informant, secretly recorded conversations with the
Respondent, James A. White. The recorded conversations were admitted. Whether the electronic recording of private
conversations with the Respondent for the purpose of instantaneous dissemination with other agents violates the Fourth
Amendment of the Constitution? No. The secret simultaneous (electronic) recording of conversations between an
individual and government agents, without a warrant, does not violate the Fourth Amendment.
i. The Court says this is not like Katz. There is no reasonable expectation of privacy in the contents of your
conversations that you reveal to other people bc when you participate in conversations there is always the chance that
what you say could be taken by other person to the police.
1. In Katz, the device only heard the defendant’s portion of the conversation
ii. False Friends Doctrine: No legit expectation of privacy in your conversations once you reveal them to a 3rd party
(that conversation is now in the public domain as that person could tell someone else, be recording it, etc)
1. You speak at your own risk: you assume the risk that when you speak to other people about criminal activity,
those people could report to the police
2. Thus, there is not a SEARCH as distinguished from Katz in which there was a search.
3. Once you put your words out there to a 3rd party, even if you make a K with that person, you’re still at risk that
those words can go to the police (and you can sue for breach of K from behind bars)
Facts: 8ft privacy fence surrounds yard. Weed is growing in the yard.
Issue in each: Has a search occurred?
#1) officer jumps the fence, and observes the weed.
-Officer has no warrant and no PC, there has been a search. Under Dunn, it's close proximity to home, it's within an
enclosure, it's used for domestic activities, and he took steps to protect the privacy…under Dunn, it is the curtilage and
therefore a high expectation of privacy and thus officer cannot be there w/o probable cause. Thus, it is a search and the
evidence is suppressed.
#2) What if officer is on the public sidewalk and climbs a ladder and sees the weed?
-There is no protection on the cartilage from above. Anyone could be above the curtilage above your fence. Anyone
could look down on the curtilage (could be a neighbor kid). There is NO search.
#3) Police officer gets consent of the neighbor and observes from the neighbor's second story window. No search.
#4) What if the neighbor sees a meth lab in the neighbor's house while on his way to observe our defendant? The neighbor
consented to the offer coming in, and it was in plain view, thus no search.
#5) What if the weed is outside the fence in a wooded lot surrounded by pine trees? You can't see the weed from the road unless
you trespass on to the lot and walk through the trees and observe the weed. Is that a search?
-It is out in the open field based on the Dunn factors, so there is no reasonable expectation of privacy (the tress pas sign does not
matter bc we don't ask was the cop trespassing) (it is not one that society is prepared to recognize as reasonable)
II. Warrant Requirements and its Exceptions
a. Background: To get a warrant, the officer must assemble probable cause. Some of the information comes from CIs,
some comes from direct observations, some may come from 3rd parties (phone company, garbage, etc). Police assemble
all this information and then put it into an affidavit: here is what I observed and a CI told me, etc. Once the affidavit is
drafted and signed under oath, it gets taken to a magistrate (judge). What the magistrate is supposed to do is examine the
officer on all details of the warrant application, i.e. how did the CI get this information? How reliable is the CI? How
reliable is the 3rd party? The magistrate makes the determination of probable cause, not the officer.
Arrest Warrants: Required only when the police enter a private home to make an arrest and no exigent circumstances exist
Search Warrants: A warrantless search is presumptively unreasonable unless certain exceptions apply:
 Search incident to valid arrest: may search area w/in arrestee’s control
 Search under exigent circumstances: hot pursuit or preventing destruction of evidence
 Plain view: police lawfully in a particular place may seize evidence w/o warrant if in plain view
 Automobile searches: When the driver of a car is arrested, the car may be searched at the station-house without a
warrant, or if the cop reasonably believes the car is carrying contraband it may be subject to a full warrantless search in
the field including any closed containers
Consent searches
Stop and Frisk: an officer may briefly detain a suspect to make inquiries if he has reasonable suspicion that criminal
activity is afoot. He may frisk outer clothing in attempt to discover weapons
Certain types of regulatory searches GREAT SUMMARY
b. Execution of Warrants
i. Payton v New York: Police entered the home of a man suspected of a felony pursuant to a NY statute that said the
police could enter without an arrest warrant. Is an arrest warrant required for an in-house arrest under the 4th
amendment right to privacy? Yes. Absent exigent circumstances, the 4th bars warrantless, nonconsensual entry
into a home to make a routine arrest. A warrantless home entry is the chief evil against which the 4 th is
1. Both arrest warrants and search warrants implicate the same interest in preserving the privacy/sanctity of the
home and justify the same level of COTUS protection.
2. If property is suspected to be related to crime, it can be seized w/o a warrant but only when it is in plain view.
The equivalent applies to people: if the person is in public, and there is probable cause that the person has
committed a crime, the person can be arrested when he is in public w/o a warrant.
a. However, when the person/property is in private, a warrant is necessary
3. Ex: Cop walks down street, sees pot in the window. This establishes PC, but no matter how much PC a warrant
is still needed unless there are exigent circumstances (destruction of evidence likely/hot pursuit)
4. Absent exigent circumstances, cops cannot go into a home to arrest someone w/o a warrant (it’s presumptively
unreasonable). An arrest warrant founded on PC gives officers the limited authority to enter the home
when there is reason to suspect that suspect is home. Once inside, officers can look around and search
any places where the suspect might be (closets, garage) but may not open drawers (where the suspect
cannot be).
5. The evidence found during a warrantless arrest is also suppressed (here, the shell casing found during arrest
was not admitted)
6. The cop must knock and announce. If he has reason to believe there is someone inside, he has the authority to
bust in, but if there’s no reason to assume someone is home, he cannot go inside. In either case, no looking
around once inside.
ii. Steagald v United States: Police had an arrest warrant for Lyons. When searching for Lyons, cops went to the home
of Steagald to look for him. Cops barged in, and didn’t find Lyons, but they did find cocaine. Do cops need a
search warrant to go into the 3rd party's home if they have an arrest warrant, or do they also need to bring a search
warrant? Yes, an arrest warrant cannot be used as legal authority to enter the home of a person other than the
person named in the warrant.
1. Court’s biggest problem w/ the search: No neutral magistrate ever evaluated the cops’ probable cause to
believe that Lyons would be found at Steagald’s home.
2. Potential for abuse: If the police acted alone and in the absence of exigent circumstances, great potential for
abuse. The police, armed solely w/ arrest warrant for a single person, could search all the homes of that
individual’s friends and acquaintances. The arrest warrant would also serve as pretext for entering home which
police have suspicion but not probable cause to believe illegal activity was occurring.
3. Interests served:
a. By search warrant: PC to believe evidence of crime will be found in particular location
b. By arrest warrant: PC to believe individual has committed crime
4. The home of the 3rd was not subjected to any PC determination by a magistrate. Thus, the 3rd party deserves
protection and has an interest from being free from unreasonable searches and seizures, and if the police want
to go into his home, the cops need to submit that request to a neutral magistrate.
5. Holding only applies to searches of a 3rd party home, not the suspect’s home (Payton).
iii. US v Banks: Police were executing a search warrant to look for cocaine in the D’s house. They knocked, and waited
15-20 seconds. Then they knock down the D’s door. D was in shower. D argues the cocaine that was found should be
suppressed on grounds that police did not wait a reasonable time to open the door. If it is required to knock and
announce, how long is a reasonable time to wait to enter? The cops need only wait a reasonable time, i.e. the
amount of time it would take the D to destroy the evidence or put the cops in danger.
1. The fact that D is in the shower is irrelevant, it is the police’s actual belief about the danger of destruction of
2. The type of evidence they are looking for dictates the amount of time: i.e. drugs can be flushed down the toilet
and the time is shorter. If the police are searching for a piano, the time to wait may be longer bc less chance of
c. Probable Cause
i. Generally: No warrant shall be issued unless there is probable cause.
1. Probable Cause to Arrest: (1) violation of the law has occurred; (2) the person to be arrested committed it
2. Probable Cause to Search: For there to be probable cause to search, it must be more likely than not that
specific items to be searched for are connected with criminal activities and that these items will be found in
the place to be searched.
ii. Establishing PC: Two sources of PC that are given to the Magistrate to determine if PC for warrant exists:
1. Direct information: information from a cop’s observations; considered trustworthy b/c cop swears under oath
2. Hearsay information: information received by the officer from a source, usually a CI.
a. Arthur/Spinnelli Two Prong Test: Test for whether CI’s information creates PC for a warrant:
i. Basis of Knowledge: facts showing particular means by which CI came upon information
ii. Veracity: facts showing the CI is reliable or credible, by virtue of past information or special
reasons that his info in this particular case is reliable.
b. Gates Test: (replaces Spinnelli):
i. Standard for the Magistrate: Totality of the Circumstances: The two prongs of Spinelli are
relevant considerations in the totality of the circumstances. Based on the CI’s information and all
other available facts, the tests asks: is there a FAIR PROBABILITY that evidence will be found in
a particular place for a search warrant or the person will be in a particular place for an arrest warrant
ii. Standard for the Court reviewing PC: don’t look at every piece of evidence, only examine if there
was a SUBSTANTIAL BASIS to conclude PC existed.
3. Gates Test (other considerations)
a. Doesn’t replace Spinneli: Merely says the two factors need not be rigidly applied
b. Strong factor makes up for weak one: A strong showing on one of the prongs can make up for an
inadequate showing on the other, provided as the weak prong meets a minimum standard.
i. Ex: if a particular CI has been reliable in the past, his failure to set forth his basis for knowledge in a
particular case will not be a bar to finding FC
c. Corroboration: Corroboration of the CI’s story may be corroborated by police investigation, and thereby
strengthening the case for PC
i. Ex: if the anonymous informant’s tip says the man will be wearing red jacket on a particular day, it
makes his story more likely.
d. Allows anonymous tips: Under Spinneli, anonymous tips were impossible b/c couldn’t meet voracity
prong. Not the case under T of C, particularly with corroboration.
e. No one factor is determinative: everything is relevant, nothing is necessarily determinative
iii. Illinois v Gates: Police received anonymous letter that a couple were involved in drug trafficking. Letter said which
flight the two would be on, where they would pick up, etc. Cops followed. Cops obtained warrant, and searched the
couple’s home. Court found PC for the warrant.
1. Abandoned Spinneli for several reasons: so stringent that cops might resort to warrantless searches; in some
towns, the magistrate may not be a lawyer/judge and could not understand the complex requirements of the
technical test; anonymous tips are devalued.
iv. Franks v Delaware: Addresses what the D can do to challenge the truthfulness of an officer's statements made in an
affidavit supporting a warrant. Court allows establishment of a Franks Hearing but D must first show two things:
1. D must make a substantial preliminary showing that false statement was knowingly and intentionally or with
reckless disregard for the truth was included in the warrant affidavit
2. D must also show that the allegedly false statement was necessary in the determination that PC existed.
At the hearing, D must establish by a preponderance of the evidence that the statement was included and was critical to PC. If
the D can show these things, the ct will take out the false statement and then look at the warratnt to determine if PC existed. If so,
warrant stays. But the D doesn't automatically invalidate the entire warrant just b/c one statement was false in there--its a
substantial hurdle for the D.
d. Warrantless Arrests
i. Generally: The only situation where an arrest warrant may be required by COTUS is where police wish to enter a
private premise to arrest a suspect. Police may arrest a suspect in public w/o a warrant if PC exists (Payton)
1. Non exigent circumstances: If there are no exigent circumstances, police may not enter a home for an arrest
fw/o a warrant (Payton v New York). If the arrest is invalid, evidence found during the arrest is suppressed.
2. Exigent Circumstances: If there are exigent circumstances or the cop is in hot pursuit, no arrest warrant is
ii. No exception for fine-only or other minor crimes: So long as probable cause exists, the cop may arrest a
person for anything in public, regardless of whether it is a felony or a misdemeanor so long as it is an arrestable
offense as defined by the statute (Atwater)
iii. Statutory requirements:
1. Felony: All states allow officer to make warrantless arrest for a felony, even if committed outside cop’s
2. Misdemeanor: Many states allow an officer to make a warrantless misdemeanor arrest only if the
misdemeanor was committed in the officer’s presence.
iv. Maryland v Pringle: Three men riding in car. Stopped for speeding. Cop searched the car and found drugs after the
passengers consented to a search. Nobody admitted to owning the drugs. Cop then arrests everyone, later Pringle
confessed the drugs were his. Pringle moves to suppress the evidence. If he can get the arrest taken away as being
illegal, then the evidence and his confession are all fruits of an illegal arrest, and all that evidence
is suppressed. Whether the warrantless arrest of a front-seat passenger in a car driven by its owner lacks probable
cause in violation of the Fourth Amendment when the basis for the arrest is paraphernalia found in the back of the
car. No. When a reasonable officer can conclude PC exists, the arrest is not unlawful.
1. PC is fluid: it may change based on the context
2. Here, b/c the men were in a tight confined space and engaged in a common enterprise of traveling together, it is
a reasonable inference that all men could be responsible for the drugs
3. In Ybarra, court ruled it was unreasonable to pat down everyone in the bar when the owner was suspected of
drugs b/c there was no common enterprise. Here, common enterprise existed and the Ybarra argument fails
v. Atwater v Lago Vista: Woman stopped for not wearing a seat belt. Cop cuffed her and took her to jail. She sued for
unlawful arrest, humiliation etc. [W]hether the Fourth Amendment forbids a warrantless arrest for a minor criminal
offense, such as a misdemeanor seatbelt violation punishable only by a fine? No. If an officer has PC to believe the
individual has committed even a minor criminal offense, the officer may arrest the offender w/o violating the
1. P argued for a new rule: You cannot be arrested for a crime for which a fine, not jail time, is punishment
2. The problem w/ the argument is application: what if this is the 9th time the offender has committed the
infraction? There is no way for the on-site officer to know the offender’s criminal history. The officer may not
know the penalty for the offense either.
3. The case assumes the arrest was valid under state law. If a state modified their law to prohibit making
arrest for all or certain fine-only offenses, Atwater would have no application
vi. Whren v United States: Undercover cop patrolling notorious drug area. Spots a suspicious vehicle full of black
males. Pulls over the car for a minor infraction, and plain view search reveals drugs. The stop was undoubtedly
pretextual. D moved to suppress the evidence contending that the officers used the traffic violation as a pretext for
stopping the truck because they lacked either reasonable suspicion or probable cause to stop them on suspicion of
drug dealing. [W]hether the temporary detention of a motorist who the police have probable cause to believe has
committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable
seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce traffic law. No.
As long as officers have a reasonable cause to believe that a traffic violation occurred, they may stop any
vehicle and if an actual traffic violation occurred, the ensuing search and seizure of the offending vehicle was
reasonable, regardless of what other personal motivations the officers might have had for stopping the vehicle.
1. The cop’s subjective thoughts, no matter how nefarious, are irrelevant
2. D argues for a reasonable cop standard, saying that reasonable cop undercover is looking for drugs not traffic
violations. Court says that standard opens pandora’s box
3. The only thing the Court will examine is whether the cop acted reasonably with respect to whether the
person violated a traffic law. As long as cop acted reasonably in believing a traffic violation occurred, the cop
may pull over the car.
4. The cop may literally follow a car and wait for a minor violation, then pull over the car. The avenue for
pursuing a “profiling” claim is the 14th, not the 4th.
e. Plain View
If there is an object of an incriminating nature, it may be seized without a warrant if it is in plain view of an officer lawfully
present at the scene.
For the Plain View Doctrine to be applied so that a warrantless seizure of evidence is allowed, 3 requirements must be met:
1) The officer must observe from a lawful vantage point
2) The officer must have a lawful right of access to the object
3) The incriminating character of the object must be immediately apparent
Lawful vantage point: Is the officer in a place where he has a right to be? Several ways to do so:
 officer in the home by virtue of a search warrant/arrest warrant
 hot pursuit of a fleeing felon and the cop ends up in the home
 officer knocks on door and suspect consents to allowing the officer in home
 officer standing in the open field
Physical right of access to object itself: Examine the reason for the officer's presence.
 Officer must stay w/ in the bounds of what originally allowed him onto the premises
 officer has a warrant to look for a stolen bike. The officer can only look in the places where the bike can be found, he
cannot look in the jewelry box (this exceeds the scope of the original search)
 The original lawful vantage points provides the boundaries for the search.
Immediately apparent as contraband w/o need for any further examination.
 The police must have probable cause at the moment they see item in plain view to believe it’s incriminating
 Officer cannot pick it up, test it, etc. It must be immediately apparent as contraband. Then and only then may the officer
seize the item.
Why does Plain View exist? If an officer is in a place he has the right to be, and sees obvious contraband, it's not practical to
make them to go back and get a warrant: it makes officers more efficient.
Plain View: Warrantless Seizures of Evidence
 Search w/ a warrant: When the police have obtained a valid search warrant describing particular items, and during
the course of their search they discover an item not covered by the warrant, but which is obviously contraband, the
item may be seized without getting a new warrant. This is only if it comes before the discovery of the intended item
and it is found in a place where the police have a lawful right of access (I.e. an area where reasonable suspicion the
pursued item may be found)
 Exigent circumstances bring police to premises: May seize the contraband if it is in plain view
 No entry w/o warrant: If the police, while standing on public property, see “in plain view” an object on private
property, they must still get a warrant to enter the home.
Arizona v Hicks: Police lawfully enter the D’s apartment to locate the shooter, other victims, and any other weapons when a
bullet is fired through an apartment floor. Cops notice expensive stereo, doesn’t look like it fits. Cop moves the stereo, records
the serial number and discovers it stolen. The plain view doctrine did not apply b/c at the moment the cop picked up the
stereo he did not have probable cause to believe the stereo was contraband, thus it’s a search and it’s unreasonable.
 Only after moving the item to see the serial numbers did he get probable cause that its stolen. Had he been able to see
the serial numbers in the course of looking for the weapons w/o moving it, then there would not have been an illegal
search in the first place.
 There is No Probable Cause to believe that this is contraband when it’s just sitting there (it’s not readily apparent)
Horton v California: A police investigated a robbery had a warrant to search D’s home. The warrant issued specified a search for
the proceeds of the robbery, specifically, three rings. Warrant did not include the guns used in the robbery. Cop found the guns
in plain view during the search. Whether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth
Amendment if the discovery of the evidence was not inadvertent? No. Inadvertence “is not a necessary condition” to plain
view seizures. As long as a police had a prior justification for an intrusion in the course of which he came . . .across a
piece of evidence incriminating the accused” and so long as the scope of the search is not “enlarged in the slightest,” it is
 We don’t care what the officers subjectively thought—if they thought weapons might be there and found them, it’s is
irrelevant what they thought/hoped to find
 Since the cops had a warrant to be in the premise to look for proceeds of the robbery, the cops could look ANYWHERE
in the house where a ring might be. If in the process of looking for rings, they can seize the weapon as long as it
the weapon is immediately identifiable as contraband (this is the only question we ask: were the cops sticking to
objective requirements of what they were supposed to do).
 A general exploratory search is prevented by element #2 of the plain view doctrine
 Once the cops find the item, the search is over. If they find the rings, then a gun, that gun is product of an
unlawful search.
i. Generally: If none of the exceptions to requirement of a search warrant is present, police may make a constitutional
warrantless arrest if they get the consent of the individual. Consent = voluntary waiver of 4th rights
ii. Totality of Circumstances (Shneckloth): Used to determine whether consent is voluntarily obtained.
iii. Scope of Consent (Jimeno): Sometimes not clear what is the scope of consent; the closed container in the car is
searchable on a general consent of search
Schneckloth: Cop stopped car w/ 6 people in it after a headlight was out. He asked for permission to search car. Stolen checks
were found in the trunk. Whether a consent could be valid if the consenter was not aware that he had a legal right to refuse
consent? Yes. To determine whether a search was voluntary does not require that a person knew of his rights, but
whether the totality of circumstances indicated that the person was voluntarily allowing the search.
 Under the 5th Amendment standard for voluntariness of confession, the standard for determining whether the confession
is Totality of the Circumstances, which the court imputes to 4th cases of consent to searches.
Totality of the Circumstances Test: Used to determine whether the consent was voluntary.
o Includes person’s education, his prior interactions w/ justice system, length of detainment, etc. All are relevant,
none are dispositive.
No requirement that the police tell the person that he has a right to refuse the officer searching
Florida v Jiminez: Man pulled over and consented to search. In the backseat, cop found and opened closed plastic bag, revealing
drugs. Man argued he consented to search of the car, not the plastic bag. Does the consent to search the vehicle extend to closed
containers therein? Yes. Objectively reasonable for the police to conclude that the general consent to search respondent's
car included consent to search containers within that car which might bear drugs. A reasonable person may be expected
to know that narcotics are generally carried in some form of a container.
 The scope of the search is defined by its expressed object: When you consent to a search for the object, you consent to a
search of all areas the object might reasonably be found.
 Once the man says “Stop this search,” it is over. No suspicion follows and the cop cannot do anything except arrest the
man later for a traffic violation.
(Reasonable Mistake) Illinois v Rodriguez: Woman tells police she was beaten by D. She also tells police that D is in “our”
apartment and asked police to go there to arrest D. The woman was only an infrequent visitor at the apartment and did not live
there. No arrest/search warrant was obtained. Police go w/ woman to partment, get her consent to search it, and they find cocaine
and D sleeping on bed. May a 3rd party give consent on behalf of another to a search? Yes. So long as the police are
reasonably mistaken in their belief that 3rd party has authority to consent (“apparent authority”) then consent was given.
 The reasonableness of the search doesn’t depend on if the police are correct, but whether it was reasonable to believe
the woman had the authority to let them in (“apparent authority”)
o Ex: Maid answers the door & consents- the surrounding circumstances probably wouldn’t permit entrance
 The cops cannot take anyone’s word to enter the premises, the question is whether the surrounding circumstances lead
them to reasonably believe the person has the authority to allow them entrance
(D is present and objects/ 3rd party consents) Georgia v Randolph: D is present when the 3rd party consents to a search of the
premises over which the two have joint authority. D makes clear he doesn’t consent to search. Whether the 3rd party consent is
valid if the D is present and objects? No. When the two parties are not living in a “recognized hierarchy,” the cotenant who
wishes to open the door does not prevail over the D’s objection, provided the D is on the premises.
 The cop’s warrantless entry in the face of D’s objection made the search unreasonable (common sense rule: you would
never enter someone’s house when one person said come in and the other said no)
 Consent of 3rd party IS VALID if the D is ABSENT—his objection is only relevant if he is on premises
 Hierarchy: If a child consents is the one speaking, whatever the adult decides provides the consent or not
g. Searches Incident to Arrest: another exception to the warrant requirement
Chimel v California: Cops came to D’s home who was suspected of robbing coin shop. Police had arrest warrant but no search
warrant. After arresting D, cops conducted full scale search of the house and discovered stolen coins. May cops conduct
warrantless search incident to an arrest? Yes, cops may conduct a limited search of the person/area w/in his control.
 Chimel Standard: A warrantless search incident to arrest is permitted if it is a search of the person or the area
immediately beyond the suspect’s control for either weapons or evidence that may be destroyed
o Allows for search of anything on the person—containers/purse/backpack/etc and for area w/in D’s wingspan
o If the person is near a dresser—the entire dresser can be searched if it is within the wingspan area
 Rationale: prevents the suspect from having a weapon on his person or lunging after one and prevents them from
lunging to destroy evidence—these justifications are not applicable to areas beyond the person’s control.
Order doesn’t necessarily matter: Rawlings: a search incident to arrest can occur prior to the official making of the arrest so
long as the officer has PC to arrest. The officer will need to establish PC for arrest. He cannot get PC from the search. It is a
risky strategy, but it can be done in a case where the person has drugs on him that leads to the arrest, but the officer searches the
man before slapping on cuffs.
New York v Belton: Officer pulled over car and found envelope marked “supergold.” He suspected marijuana and arrested the
men. Then he searched car, finding jacket w/ cocaine in it. Does the Chimel standard apply to automobiles? Yes. When a
policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile” and that “the police may also examine the contents of any
containers found within the . . . compartment.”
 When the cop arrests the individual outside the vehicle, the cop may search the passenger portion of the vehicle,
including containers for the same reasons underlying a Chimel search (preventing lunging for weapon/destroying
 The trunk CANNOT be searched
 It’s an automatic search, doesn’t matter the type of crime—you’re arrested and you and your passenger portion of the car
is going to be searched
Thornton Case: Affirmed a Belton search is permissible even if the person is nowhere near the vehicle. The standard for
searching the vehicle is if the defendant had recent occupancy of the car.
Automobile searches incident to arrest: The search incident to arrest rationale allows a warrantless search of the passenger
compartment only if one of two things is true:
 The arrestee has access to the passenger compartment at the moment of the search (which will virtually never be the
case if the standard police practice of placing the driver securely in the patrol car is followed); or
 The police reasonably believe that the passenger compartment might contain evidence of the offense for which the
arrest is made [GANT]
This is a huge change from Belton, under which whenever the police arrested a driver they could search the entire passenger
compartment incident to arrest, even if the driver no longer theoretically had access to the compartment.
Traffic arrest where the driver is handcuffed: When police make arrest for traffic violation, handcuff the driver and put him in
the car, and then find evidence of some other crime when they search the passenger compartment of the car, Gant means that
the search will now no longer be justified by the incident to arrest doctrine. This will also apply when the driver is handcuffed
but other passengers are standing around the vehicle.
 Example: Police reasonably (and turns out, correctly) believe that D’s license is suspended and there is an outstanding
arrest warrant for driving with suspended license. They wait for D at his residence and when he drives into the driveway,
arrest him on the warrant. Then they handcuff D and put him in the patrol car. They search passenger compartment of
car and find cocaine in a jacket in the back seat. Held for D. The search of the passenger compartment was not proper
because by the time of the search, the compartment was not within D’s control as is required for search incident to arrest.
Search for evidence that led to arrest: But even if the driver has been secured so that he has no possible access to the passenger
compartment, rationale #2 of Gant may apply: if the police “reasonably believe” that the passenger compartment might contain
evidence of the offense for which the arrest is being made, the police may search that compartment.
 Example: Police learn that a warrant is issued for arrest of D for heroin smuggling. If cops pull D over, arrest him and
place him in the car, the officers may then search the vehicle for evidence of drugs. The search will still be held valid
even if the cop didn’t have PC to believe that the vehicle was currently being used to smuggle drugs.
o “Reason to believe that evidence might be found” is a much easier standard to satisfy than PC, the usual
standard for a proper search.
Arizona v Gant: (Clarifies Belton): Police arrested man on warrant when he was in his car for suspended license. They locked
man in the squad car and searched his vehicle, where they found drugs. D argued the Chimel rationale shouldn’t be applied when
the D could not have possibly gained access to the passenger compartment. Chimel rationale authorizes police to search a
vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment
at the time of the search.
 CURRENT RULE: Two basis for search of passenger compartment incident to arrest when outside automobile:
o The person is unsecured outside vehicle and has possibility of lunging for weapon/destroying evidence
 The cops can search the passenger compartment (and containers therein) for ANYTHING
 This is also applicable if one suspect is in the squad car and other passengers are standing around
outside the car
o If it is reasonable to believe that evidence of the crime for which the person is being arrested might be found in
the vehicle (ex: person arrested for traffic violation, a search would be unlawful)
 The cops can search the passenger compartment (and any containers therein) ONLY for evidence of that
Riley v California: Stop for traffic violation searched incident to arrest including cell phone.
 digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve
evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday
 Court says, generally, officers must obtain a warrant for cell phone searches. The level of expected privacy is high.
h. Searches of Automobiles
Two rationales for warrantless searches of cars: (1) cars are movable; (2) cars have diminished expectation of privacy
When the police have probable cause to believe that a car is being used to transport contraband or evidence
of a crime, and they stop it, they may conduct a warrantless search not only of the car but of closed containers
in the car that could hold that type of contraband or evidence, even if those containers belong to a passenger
and even if there is no PC to believe the passenger has been involved in carrying the contraband. (Ross).
Carroll v US: (Automobile Exception) Officers pulled over car, believed alcohol illegally being transported and searched the car.
If there is PC to believe the vehicle is carrying contraband, anywhere that contraband might be in the car can be
searched. If only a rifle is being looked for, cops can only search where a rifle can be found.
Chambers: Officers brought the car to the police station and then searched it w/o a warrant. Search held valid.
Sanders: Luggage was placed in cab trunk and searched without a warrant. The search was held invalid b/c there’s a heightened
expectation in privacy in luggage. Chambers/Sanders began to develop a container exception (requiring warrants) to the
automobile exception (where a warrant isn’t required so long as PC exists)
Ross (Container Rule that overrules Sanders): Since the police legitimately stopped a vehicle and had PC to believe contraband
was contained in it, they could conduct a warrantless search of the vehicle and could search every part of the vehicle where
contraband could be stored including containers therein that could store the contraband.
 BUT there must be PC to search the container—ex: PC to believe illegal aliens are being transported in a van doesn’t
allow for a search of a briefcase.
Rules After Ross: Dichotomy:
 If there was PC to search the car, the entire car could be searched including containers
 However, if the PC only went to the container, and the person put the container in the vehicle, the PC only applies to the
container and a warrant is needed to search container.
California v Acevedo (Clears up Ross): Police saw D leaving house with paper bag similar to one they had seen earlier
containing drugs. D put the bag in his car trunk and drove away. Cops stopped D and searched the trunk for the bag, even though
they lacked PC with respect to the car itself and lacked a warrant. Police right to conduct a warrantless search of containers
in a car should apply not only where PC relates to the car as a whole (situation in Ross) but also where PC extends only to
the container itself.
 ONE RULE TO GOVERN ALL VEHICLE SEARCHES: if there is PC to believe contraband is in the vehicle, the
cops can search the entire car including closed containers therein provided the officer is in a place he has the right to be
(cannot search a car on the curtilage if the officer doesn’t have a right to be there) and the search is constrained by the
object of the search (can only look in places where the object of the search might be)
 But it also created an anomaly: if the cops have PC to believe you have contraband in your bag and you’re walking
down the street, the cops must get a warrant to search the bag. But as soon as you put that bag in your car, the cops can
search the entire vehicle including the bag (basically you lose your 4th rights in the bag as soon as put it in car)
Search incident to arrest vs. Search of an automobile:
 Search incident to arrest permits a limited search of the passenger portion of the vehicle (Gant)
 Search of automobile w/ PC: permits searching the entire vehicle and any container therein w/o regard to who may own
the container or where in the car it may be located (Acevedo) provided the object of the search may be found in the areas
-Question: If cops believe a rifle is in the car, may the cops search the entire car or only places where rifle could be found?
Only the places where a rifle may be found
Inventory Searches
Illinois v Lafayette: Man taken to police station and cops searched his shoulder bag as part of an inventory search and found
drugs. Is it reasonable for police to search the personal effects of a person under lawful arrest as part of the routine
administrative procedure at a police station house incident to booking and jailing the suspect? Yes. The justification for such
searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. It
is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested
person who is to be jailed.
 Inventory searches prevent theft of the D’s property, claims of false theft, and weapons from entering police station
 Inventory searches must be pursuant to department standards
Colorado v Bertine: D was arrested for DUI, his van towed to an impound lot, and an officer took inventory of the items in the
van. The cop opened a closed bag and found drugs. Whether a warrant is required for a routine inventory search? No. The
warrantless inventory search of an impounded vehicle may include the entire vehicle including closed containers.
 Two conditions must be met before inventory search of an impounded vehicle can be made: (1) police follow
standardized procedures so that the searching officer doesn’t have unbridled discretion; and (2) the police do not act in
bad faith or for the sole purpose of investigation
 Same interest as when a person is going to jail permits inventory of car—prevent theft and prevent dangerous items from
reaching the police station (bombs)
J. Exigent Circumstances: Last Exception to the Warrant Requirement
Exigent circumstances can justify a warrantless entry of a home to make a felony arrest or to conduct a search
related to a serious offense under the following circumstances:
(1) hot pursuit of a fleeing felon;
(2) imminent destruction of evidence;
(3) the need to prevent a felon’s escape; or
(4) risk of harm to the police or others.
Vale v Louisiana: Police officers holding a warrant for D’s arrest witnessed what they believed was a narcotics deal outside D’s
house after he went inside and brought something out to give to a known addict. They arrested the D on the front steps and
proceeded to enter and search the house, discovering narcotics in a bedroom. Is a search of a home allowed to be considered
valid as being “incident to an arrest” if the arrest did not take place within the home/ did exigent circumstances exist? No. Just
because narcotics are involved and could be destroyed does not present exigent circumstances/ if the search incident to
arrest doctrine permits searching the home, the arrest must occur in home.
 There was nobody in the home, nothing suggested the drugs were about to be destroyed
 Exigent circumstances:
o Hot pursuit of a felon
o Person inside the house that could hurt cops
o Evidence the contraband could be destroyed
Mincey v Arizona: Cops search a murder scene of a police officer without a warrant. Cops argued exigent circumstances
permitted the warrantless search. There is no murder scene exception—once the shooter and the victims were accounted for,
there is no permission to conduct a warrantless search of the house.
 When shots are fired, the officers have a legitimate basis to go into the home to aid victims/apprehend shooter
 A warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.”
o Once the persons were accounted for and apprehended, nothing justified ripping open drawers and searching the
 Cops can go in when they believe homicide may have occurred, and exigent circumstances permit them to look for
shooters/victims. Anything beyond that requires a warrant (unless there is a plain view exception)
Seizures: People
A. Brief Detentions and the Reasonable Suspicion Standard: The last step of 4th analysis: Sometimes the
reasonableness of the search is based on a standard of reasonableness.
a. Three levels of police/individual conduct:
i. (1) consensual approach by the officer; individual has right to walk away
ii. (2) Terry stop
iii. (3) full-scale arrest governed by PC: individual has no right to walk away
b. Difficulty: how does a person know if he is in a 2 or a 3? In either case, he is not free to go.
Prior to Terry, no way for police to proactively prevent crime without the person having the right to just walk away.
Terry v Ohio: A police officer may stop someone in public even without probable cause for arrest if there is Reasonable
Articulable Particularized Suspicion (RAPS) that the person is engaged in or about to engage in criminal activity and
may conduct a limited frisk for weapons.
 Is the 4th even implicated? Yes. There is a “seizure” whenever the cop stops the citizen and prevents him from walking
away, and there is a “search” when the cop explores the suspect’s clothes for weapon
 Stop must be justified at inception: RAPS
o Reasonable: what would a reasonable officer think about the circumstances
o Articulable: Officer must be able to articulate facts and circumstances leading to suspicion
o Particularized: the person who was stopped must be engaged in the behavior
o Suspicion: needs to only be suspicion of criminal activity, not PC
 Stop must be justified in scope: it must be brief and limited by the nature of the intrusion (can only pat down for
 Terry is a balancing test between the individual’s COTUS rights and the ability of law enforcement to prevent crime
 JUSTIFCATION: We want to give cops the opportunity to be proactive
 Reasonable suspicion: More than a hunch
US v Sokolow: DEA agents stopped D as he left Hawaii airport after a flight from Miami. DEA suspected D of drugs based on:
payment in cash, traveling under an alias, trip to a source drug city, appeared nervous, no checking of luggage. Police got a
warrant and searched luggage, finding drugs. Whether cops had reasonable suspicion to stop D? These factors taken together,
even though each by itself was consistent with non-criminal behavior, were sufficient to establish reasonable suspicion.
 In establishing reasonable suspicion, we look at totality of circumstances and no factor is determinative but all
are relevant.
 Drug courier profiles: Set of factors established by cops or DEA which predict which travelers might be smugglers and
the court allows, but a stop still must be justified by RAPS
Dunaway v New York: D asked to come to police headquarters where he was Mirandized and eventually confessed. No PC to
arrest him but reason for police to suspect him in connection with a robbery. When the D was taken into custody, the
intrusion of his privacy was more severe than an on the street stop and the situation therefore doesn’t fall under the
Terry approach.
 D argues successfully that this goes well beyond Terry, that this was the equivalent of an arrest and without PC, the
arrest was unreasonable
 Factors which help us determine if this is a Terry Level 2 or a Level 3 Arrest: moving the person, length of detention,
physical restraint
Wardlow: Reasonable suspicion is based on a common sense approach. Taken alone, presence in a high crime area and running
when seeing law enforcement is not enough to present reasonable suspicion. But the factors taken together establish reasonable
3 Levels of Police/Individual Contact:
(1) Consensual: No 4th Amendment issues.
(2) Terry Stops (R.A.P.S –––> Reasonable, Articulable, Particularized Suspicion) - no requirement of Miranda
(3) Custody/Arrest (Probable Cause) - Miranda Warning?
*Test for Searches: Katz Test
*Test for Seizures: Bostick Test. This is used to determine whether the encounter goes from Level 1 to
Level 2
Florida v. Bostick
 Facts: In Broward County, Florida, Sheriff's Department officers regularly boarded buses during stops to ask passenger
for permission to search their luggage. Terrance Bostick, a passenger, was questioned by two officers who sought
permission to search his belongings and advised him of his right to refuse. After obtaining Bostick's permission, the
officers searched his bags, found cocaine, and arrested him on drug trafficking charges. Bostick filed a motion to
suppress the evidence on the ground that it was illegally obtained, but the trial court denied the motion. Following an
affirmance and certification from the Florida Court of Appeals, the State Supreme Court held that the bus searches were
per se unconstitutional because police did not afford passengers the opportunity to "leave the bus" in order to avoid
 Issue: Can officers approach individuals at random on buses to ask them questions and to request consent to search their
luggage so long as a reasonable person would understand that he or she could refuse to cooperate?
 Rule: When deciding if a search request is overly coercive, within a confined space such as a bus, one must NOT look at
whether a party felt "free to leave" but whether a party felt free to decline or terminate the encounter.
o Bostick’s Argument: We are being detained by officers on buses with no reasonable suspicion.
o Test for Moving from Level 1 to Level 2 Prior to Bostick: Whether a reasonable person felt free to leave.
o Test after Bostick: Whether a reasonable person feel free to terminate the encounter and deny the request to
search. This is based on the totality of the circumstances.
Important Note: A person who exercises his or her right not to speak to a police officer DOES NOT amount to
reasonable suspicion. A lawful exercise of a person’s right to refuse NEVER constitutes R.A.P.S.
 Court’s Reasoning:
 Absence of intimidation or harassment, Bostick could have refused the search request.
 The fact that he knew the search would produce contraband had no bearing on whether his
consent was voluntarily obtained. (i.e. Bostick says, “Why would a reasonable person, who
believes he or she has ability to refuse, consent to a search that would turn up drugs?”).
Florida v. J.L.
 Facts: Miami-Dade police were told by an anonymous caller that an armed black male in a plaid shirt was standing at
bus stop. There was no audio record of the call, no any other specific information. Two officers were instructed to
respond. Upon arriving at the bus stop, the officers saw three black males, one of whom, respondent J.L., was wearing
plaid. There was nothing else about the situation that suggested to the police that illegal activity was afoot. The officers
could see no firearm, and the respondent did nothing threatening. The officers approached all three men, and frisked
them. They found a gun on J.L.’s person.
 Issue: Is an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer’s stop
and frisk of that person?
 Mack’s phrasing: Is an anonymous tip able to be used to create reasonable suspicion to conduct a Terry Stop?
 Rule: The reasonableness of official suspicion must be measured by what the officers knew before they conducted the
search. An anonymous tip must posses a moderate level of reliability, including "predictive information" that offers
police a "means to test the informant's knowledge or credibility.” Tip w/o corroboration is not enough.
o That there ended up being a gun does not suggest that the officers, prior to the frisk, had a reasonable basis for
suspecting J.L of engaging in wrongful conduct.
o Just because an anonymous tip accurately describes a person that the tipster is accusing of wrongdoing does
NOT mean that the tipster had any knowledge of concealed criminal activity.
o Class Notes:
 Reliability: Anonymous tips are less reliable. We don’t know who the person is, what the basis of
their knowledge is, etc.
 Criminal Activity: There must be some evidence of criminal activity. The anonymous tip only
corroborated that a young black male in a plaid shirt was standing at a bus stop. There was no
evidence of criminal activity when the officers showed up. The description was corroborated, but not
evidence of criminal activity.
 Probable Cause vs. Reasonable Suspicion: With use of anonymous tips to form the basis of probable
cause, there is always something else to go on besides just the anonymous tip. With reasonable
suspicion, police are almost always going on ONLY the tip.
 There was nothing that suggested credibility or reliability.
Hiibel v. Sixth Judicial District Court of Nevada (Notes Case p.184-85)
 Facts: Person called in to report that they believed an altercation between a man and a woman in a car. The officer
pulled over the car and asked the man to produce ID. The man refused to produce the ID and was arrested. The girl was
the man’s 16 year old daughter and there was no criminal activity. Failure to comply was the only charge.
 Issue: Whether, during the course of a legitimate Terry Stop (Level 2), can an officer ask for ID and can a person be
arrested for refusing?
 Rule: Yes and Yes. Had this been a Level 1, there would have been no problem with refusing. However, this was a
Level 2, and the man was required to produce ID.
o Hibel does NOT establish that the police may demand that the person stopped supply an ID, all it establishes is
that the police may demand that the stoppee give an oral statement f his name. During a lawful Terry stop, if the
statute says that the individual says he can be arrested for failing to provide an ID, he may be arrested. But a cop
cannot just approach someone and demand ID.
๏ U.S. v. Arvizu
o Facts: A section of Highway 191 in Arizona serves as a border patrol checkpoint. Roving border agents check
the unpaved back roads to catch smugglers who are seeking to avoid the checkpoint. Magnetic sensors lining
the dirt roads alert agents to such smugglers. In January 1998, one Agent Stoddard was notified that a sensor
had been triggered. Driving out to investigate, Stoddard encounter a minivan. It was the only vehicle Stoddard
encountered. The minivan is a type of vehicle favored by drug-smugglers. A family of five occupied the van.
Stoddard followed it after the driver appeared unnaturally stiff and didn’t want to look at the officer. The
children began to wave in an “unnatural pattern” at Stoddard. After turning the last road to avoid the
checkpoint, Stoddard radioed in for the vehicle’s registration, and then pulled the vehicle over upon learning
that the owner lived in a high drug-traffic area. He asked the respondent, Ralph Arvizu, if he could search the
van. He found over 100 lbs of marijuana in the
Issue: Whether certain factors, “alone . . . susceptible to innocent explanation, and some factors are more
probative than others, taken together . . . sufficed to form a particularized and objective basis for stopping the
vehicle” in compliance with the 4th Amendment.
Rule: Just because individual factors on their own may have innocent explanation, the test for whether
reasonable suspicion exists is a totality of the circumstances and factors. When taken together, those factors
may give an officer reasonable suspicion.
 This standard allows officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them that ‘might well
elude an untrained person.
 Although each factor alone could have appeared innocent, when taken together they sufficed to form
a particularized and objective basis for Stoddard's stopping the vehicle, making the stop reasonable
within the meaning of the 4th Amendment.
 This case illustrates well the idea of presenting “particular, articulable suspicion” based on a totality of
the circumstances.
 Reasonable suspicion ≠ a hunch
 Reasonable suspicion lies somewhere between a hunch and probable cause.
Searches (“Frisks”) of People and the Reasonable Suspicion Standard
Terry frisk: separate justification apart and separate from the reason for the stop.
A. Frisk is permissible under Terry: Terry indicates that where the officer wishes to conduct a frisk in connection w/ stop,
two step process required:
a. First pay down outside of suspect’s clothing to feel for hard objects which might be weapons; and
b. Only if he feels such an object may he reach inside a pocket or article of clothing.
B. Limited purpose of the frisk: When the frisk does occur, it must be limited to the search for weapons. Thus, items
which could not be weapons may not be examined, and areas not within the control of the suspect may not be searched.
a. EX: If the office feels something he doesn’t believe to be a weapon but thinks is contraband, an officer cannot
expand the search by removing the object unless he already has PC to believe the object is contraband.
Minnesota v Dickerson: Officers spot D leaving a notorious crack house. D engages in evasive behaviors. Officer suspects D
may be involved in drugs. Officers stop D, with reasonable suspicion but not PC. Officer frisks D and feels a lump, which he
doesn’t believe is a weapon but thinks might be cocaine. He feels it up with his hand, and it turns out to be cocaine. Did the
manipulation of the bag by the officer’s hand go outside the scope of the frisk? Yes. The sole justification for the Terry frisk is
to protect the officer from danger posed by weapons. Thus, once cop realized the object was not a weapon, he was not
permitted to expand the scope of the frisk by manipulating the object.
 “Plain Touch Doctrine” established: analogous to plain view: in the context of searching for weapons, the cop may feel
something that is not a weapon but contraband. If he has PC to believe it is drugs, the officer may remove it at that
moment. (The cop has a lawful right of access, therefore).
Here, the cop had lawful right of access but the item was not immediately identifiable as contraband, thus, to
manipulate it was expanding the scope of the search and was no longer in “plain touch.”
Searches and Seizures of Property
Search of Automobile: Michigan v. Long: Police believed that D, who had driven his car into ditch, was drunk. While D was
out of car, cops noticed large knife on the floor of the car. After performing a Terry pat down of D, they searched the passenger
compartment (claiming they were looking for weapons) but found drugs. SCOTUS upheld the search on the Terry rationale.
Just as police may frisk the body of the suspect if they reasonably believe him to be armed, the cops may search the
passengers compartment of his car for weapons if two conditions are met:
o (1) reasonably believe based on specific and articulable facts that he is dangerous and may gain immediate
control of weapons in the car; and
o (2) the cops look only in the parts of the passenger compartment where weapons might be placed
Plain view: If, while performing the extended Terry weapons search, the police discover contraband in place where
weapon might be placed, plain view permits the police to seize it w/o violating the 4th.
The Belton rule was not applicable—Belton permits search incident to arrest but no arrest had yet occurred
o In Belton, the justification for search incident to arrest is protection of officers AND preventing destruction of
evidence. Thus, cops may search entire passenger compartment of vehicle.
o A Terry search has one justification: protection of officers. Thus, officers can only look in places where
weapons might be placed.
 The frisk of the vehicle has a different justification separate from the frisk of the person. Thus, both the
frisk of person and frisk of car must be justified in inception and scope.
US v Place: D was met on a Friday by drug enforcement agents on arrival at the airport and he refused to consent to a search of
his bags, leading an agent to tell him that they were going to take the bags to a judge to get a search warrant. The agents took the
bags to another airport to have the drug detection dogs sniff them, and the dogs reacted positively ninety minutes after seizure of
the bags. The agents kept the bags over the weekend, and on Monday they were able to get a search warrant for the bags which
yielded cocaine. Does the seizure of a person’s luggage for an entire weekend until a warrant may be procured violate the
Fourth Amendment as exceeding the limits of a Terry stop?
Seizing a person’s luggage for an entire weekend until a
warrant may be obtained violates the Fourth Amendment as beyond the scope of a valid Terry stop.
 As Terry applies to property, the stop must be just as brief as applied to people. The cops cannot hold the property for
too long of a period, and must be a brief detention.
 As long as the officer observation lead him to reasonable believe the property contains narcotics, then the detention of
luggage is justified at its inception as long as either a dog sniff is conducted or a warrant is obtained, the detention is
justified in its scope.
The justifiability of a seizure on less than probable cause is predicated in part on the brevity of the detention,
although there is no bright-line time limitation to a Terry-type seizure. Compare United States v. Place, 462
U.S. 696 (1983) (90-minute detention of person suspecting of carrying narcotics in his luggage in order to
subject the luggage to a dog-sniff test was held excessive in length) with United States v. Montoya de
Hernandez, 473 U.S. 531 (1985) (16-hour detention was upheld where a woman, who was suspected of having
swallowed narcotics-filled balloons in order to smuggle them, refused to undergo an x-ray, and was thus
detained until she had a bowel movement).
Balancing Approach and Special Needs
Special Needs Cases: a need for a search beyond law enforcement, and the standard is reasonableness. When the state actor can
articulate a primary purpose (a special need) beyond law enforcement, the state actor may engage in suspicion-less searching in
order to accomplish that primary purpose.
- Reasonableness may require either: RAPS (Terry) or Special Needs
New Jersey v TLO: HS girl claimed she didn’t smoke after being suspected of smoking in bathroom. Principal searched her
purse, finding cigarettes then evidence of marijuana dealing. School officials may search the person/property of a student
without a warrant. Even though there was no PC, at the inception all that is required is reasonable grounds for suspicion
that the student is violating the law or school rules.
 Standard for determining whether the scope of the search is reasonable (given that its justified at outset): “when the
measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the
age/sex of student and nature of the infraction.
 Fourth Analysis:
o State actors: School is a state actor—it’s not just a form of a parent, it has a legal obligation to carry out state
law of education, thus it is a state actor
o Search: Kids bring items to school that they have a reasonable interest in privacy in—thus, search
o Reasonable:
 No warrant, but Ct says to require a warrant would be too burdensome.
 No PC, but it’s also too burdensome to require a school official to know what PC is or what’s required
 All we’re going to require of the school officials is reasonableness to be reasonable
 If it’s reasonable for the official to conduct a search in order to maintain order and discipline it
is permissible.
 Two categories of reasonableness: (1) Terry; (2) SPECIAL NEEDS
o Special Needs: the state actor is searching/seizing for a “special need” beyond that of
law enforcement. The primary purpose is NOT finding evidence of a crime. The closer
it gets to law enforcement, the less special needs.
 For Terry we need individualized suspicion, but not for special needs—applies to everyone
Vernonia School Dist v Acton: Random drug testing for high school athletes, without suspicion. A school district could require
all student athletes to submit drug test as condition of participation, provided tests were done in the least intrusive way
possible and not shared with law enforcement.
 Do we have a search? Yes, people have a legit expectation of privacy in bodily fluids
 Is it reasonable w/o suspicion? B/c the search is not conducted by law enforcement, Ct isn’t going to require a warrant or
 Is it justified at inception and scope?
o Inception: Nature of the privacy interest: When the student enters school, he has lower privacy expectation in
certain locations, even less so for athletes who shower together.
o Scope: Samples are not turned over to law enforcement and done in least intrusive means, thus scope is limited
to what the policy purports to do: stop student drug use.
 If the school can articulate a special need beyond law enforcement, so long as the state actor can articulate that
the search is justified at inception and scope, and serves a compelling state interest, the search is reasonable
Traffic Stops for General Criminal Investigation: Edmond
Indianapolis v Edmond: police set up series of six checkpoint locations, at each they stopped a predetermined number of vehicles.
Although the officers checked each driver’s license and registration, primary purpose of the checkpoint was to check for illegal
drugs by conducting a plain view exam of each stopped vehicle from the outside and a drug dog walked around the car.
Searches were unreasonable b/c the primary purpose was to detect ordinary criminal wrongdoing.
This checkpoint is distinguished from a border search or from a drunk driving checkpoint which the primary purpose is
NOT law enforcement but to keep other drivers on the road safe.
Primary purpose vs. special need: When there is a special need, a suspicion-less search is okay but when primary
purpose is law enforcement, a suspicion-less search is not allowed.
Cop trick: put up a fake drug checkpoint sign, and observe who pulls off the road. Then pull that car over for minor
traffic violation.
US v Montoya: D was suspected of having swallowed balloons containing drugs. She was detained for 27 hours bc she refused a
pregnancy test and other searches that would have revelaed the balloons. Court justified the seizure and determined the stop
was not unreasonable long or intrusive.
 At the international border, ROUTINE searches and seizures need not be justified or based on anything.
o If the search is NON routine, then reasonable suspicion is the standard and must be justified at inception and
Exclusionary Rule
Def: Evidence obtained by violating the Ds constitutional rights may not be introduced by the prosecution for purposes of
providing direct proof of the Ds guilt.
Rationales for the E.R: 1) Deterrence: Cops will have no motivation for an unlawful search/seizure if they know that they
cannot use the evidence that comes from it; 2) Judicial integrity: courts should not be made party to lawless invasions of COTUS
rights of citizens by permitting unhindered governmental use of the fruits of such invasions.
Wolf v Colorado: Julius Wolf was convicted by a State court of conspiring to commit abortions based upon evidence allegedly
obtained in violation of the Fourth Amendment’s search and seizure clause. Whether a State court conviction for a State offense
denies due process protection under the Fourteenth Amendment of the Constitution because evidence that would have been
excluded in a federal court under the Fourth Amendment was admitted? No, due process is not denied when evidence
obtained through an illegal search and seizure is admitted by a State court for a State offense. Unlike the requirements
and restrictions placed by the Bill of Rights upon federal authorities, the Fourteenth Amendment of the Constitution
does not subject criminal justice in the States to certain limitations.
 In Weeks v. United States, the SCOTUS held that in a federal prosecution, evidence obtained in violation of the Fourth
was barred from use. As of the Weeks decision, twenty-seven states had passed on the Weeks doctrine, but had not left
other means of protection, which would be as effective as the federal exclusionary rule.
 Court says other remedies exist to protect the individual when his COTUS rights have been violated: he can sue the
police officer in a civil action or internal discipline of police (these are completely ineffective)
 What the court is saying is the 4th applies to States, but no effective remedy for violation of it: the court is hesitant
to apply the ER to the states because it is not in the COTUS and the court is hesitant to tell the States what they must do
if something is not in COTUS
Mapp v Ohio: Police officers sought a bombing suspect and evidence of the bombing at the petitioner, Miss Mapp’s house. After
failing to gain entry on an initial visit, the officers returned with what purported to be a search warrant, forcibly entered the
residence, and conducted a search in which obscene materials were discovered. The petitioner was tried and convicted for these
materials. Whether evidence discovered during a search and seizure conducted in violation of the Fourth Amendment of the
Constitution shall be admissible in a State court? All evidence discovered as a result of a search and seizure conducted in
violation of the Fourth Amendment of the United States Constitution shall be inadmissible in State court proceedings.
 Court says w/o E.R., the 4th is basically meaningless b/c no consequences for violating it
 Two rationales for the E.R.: judicial integrity and restraining police.
US v Leon: A search warrant was issued to search the Respondent, Leon’s residence wherein a large quantity of illegal drugs
was found. The affidavit upon which the search warrant was issued was found to be insufficient on its face. The evidence was
suppressed at trial. Whether evidence obtained under a search warrant issued by a neutral and detached judge, but ultimately
found to be unsupported by probable cause shall be excluded? Reasonable reliance upon an otherwise invalid search
warrant does not render evidence obtained during the search inadmissible.
 Gov’t argues: if the officer acted in good faith, should we really be excluding the evidence? If the E.R purpose is
deterrence, and the officer did what he is supposed to do, then the ER is serving no function in such a case
 When the cops act in good faith, any evidence found even if in violation of 4th is admittable.
 Good faith and examples of Non-good faith:
o If the officer goes to a judge known to “rubber stamp” warrants
o Officer submits a recklessly false statement
o If the officer knows the affidavit is so lacking in PC that no reasonable magistrate would issue warrant
o If the affidavit is obviously facially deficient
 Herring case: to trigger the E.R., the police conduct must be sufficiently deliberate that exclusion can meaningfully
deter it
o Even negligent conduct is not enough to trigger the E.R. Leon said if the conduct was in good faith, ER would
not be triggered. Herring says absent systemic or willful negligence, the evidence is admissible.
o When the purpose of ER is deterrence, it does not deter random negligence.
Standing to Assert the Exclusionary Rule
General Rule: the D may assert the ER only to bar evidence obtained through violation of his own constitutional rights.
Inquiry: Whether the D has a legitimate expectation of privacy, which was violated by the search.
 Three ways to acquire standing:
o With a possessory interest in the place searched
o With a possessory interest in the evidence seized—this gets rejected in Rawlings
o A legitimate expectation of privacy in the place the evidence was searched/seized
(Is this right???-If a cop breaks in to my friends house and finds a gun with my name on it, can I contest this search????)
Alderman v US: admissibility against one co-D of evidence obtained from an illegal wiretap of another co-D’s conversation.
Former conceded the wiretap was not a violation of his COTUS rights, but that the E.R. required the exclusion of evidence
derived from violation of a co-D’s rights. Suppression of evidence from a 4th violation can only come from those whose
rights were violated by the search itself. Co-D’s have no special standing.
 If the cops break in to your friend’s house and find evidence against you, you have no standing to contest that evidence.
Jones v USA: D was arrested in the apartment of an absent friend, and drugs were found in the apartment. D testified that he had
the owner’s permission to be there and had been given a key. The D, by virtue of his legitimate presence during the search,
manifested a sufficient interest to confer standing on him to object to that search.
 This gets narrowed IN RAKAS and merged with Katz. Legitimate presence at the scene overruled.
Rakas v. Illinois: Police stopped a car in which the Ds were riding as passengers, suspecting that the vehicle was the getaway car.
Police searched interior of car and found a rifle. Ds never asserted a property interest in the items seized, instead asserting: any D
at whom a search is “directed” has standing and since the Ds were legitimately on premise (under Jones) they had standing to
object to the search. New standard for standing: Whether the D had a legitimate expectation of privacy which was
unreasonably violated by the search.
 Court rejects target theory: Ct refuses to extend standing to cover who the target of the search might be because many
times we do not know who that target exactly is.
 Court recharacterizes Jones: Legitimately on premise could open up availability of ER rule to whole category of
unintended people.
 Do you have a legitimate expectation of privacy? If yes, you have standing.
o In this case, the Ds were just passengers in the vehicle and had no legitimate expectation of privacy in
the glove compartment. No possessory interest in the vehicle.
o In Jones, the D did have a legit expectation of privacy because the D had a key.
 Three ways to acquire standing:
o With a possessory interest in the place searched
o With a possessory interest in the evidence seized—this gets rejected in Rawlings
o A legitimate expectation of privacy in the place the evidence was searched/seized
Getting into court (standing) is one question, having a substantive argument is the other, despite asking the same Katzlike inquiry: Ex: In a diary I say that I murdered X. I bring the diary to school but leave it open on a desk, and a cop sees it. The
diary is brought in as evidence. For purposes of standing, do I have a legitimate expectation of privacy?
 Since I own/possess the diary, I have a legitimate expectation of privacy so I have standing
 BUT, for purposes of a search—is society prepared to recognize an open diary as a reasonable expectation of privacy?
Of course not. So I can get into court, but I have no substantive argument.
[Court further narrows standing]:
Rawlings v Kentucky: D was a visitor to a house belonging to X. Police arrive with arrest warrant to arrest X. While there,
searched X and Y. In Y’s handbag, they found drugs, which X immediately claimed were his. D had no standing—the fact he
had a possessory interest in the evidence seized was irrelevant. The question was did he have a legitimate expectation of
privacy with respect to Y’s purse and its contents, which he did not.
 D argues under Rakas: even if I don’t have a possessory interest in the purse, I have a possessory interest in the evidence
o Ct says no. It is the premise/place the evidence is found that the D must have a possessory interest in.
o The man only knew the woman a few days, so he has no legit expectation of privacy in the purse.
o D had put the drugs in the purse only minutes before police arrived, had no right to exclude others from looking
through the purse, he thus had no reasonable subjective expectation of privacy in the purse.
 This differs from Rakas—under Rakas, he probably would’ve had standing because he had a possessory interest in the
 Possessory interest is only one factor in establishing a reasonable expectation of privacy
 The court is further narrowing who has standing—even if Rawlings did have standing, he would not have had a
substantive argument because the cops searched the purse with a warrant.
 Search incident to arrest sidenote: a search incident to arrest can occur prior to the official making of the arrest so
long as the officer has PC to arrest. The officer will need to establish PC for arrest. He cannot get PC from the search. It
is a risky strategy, but it can be done in a case where the person has drugs on him that leads to the arrest, but the officer
searches the man before slapping on cuffs.
[Social visitors]: A social guest normally has standing to object to search of premise he is visiting. An overnight guest has
standing to challenge search. (Minnesota v Olson). A business visitor to remise normally does not have standing, at least where
the visit it a brief (Minnesota v Carter).
Minnesota v Carter: Wayne Thomas Carter, Melvin Johns and Kimberly Thompson were arrested after a police officer observed
them through a window bagging cocaine. Carter and Johns moved to suppress the evidence, under the theory that they had
Fourth Amendment protection against unreasonable search and seizure; however, the court held this does not apply to
individuals who merely visit another’s home. Do household visitors have the same protection against unreasonable searches
and seizures as do residents or overnight social guests? No, people who visit someone's home for a short time do not have
the same protection against unreasonable police searches and seizures as do the residents or their overnight guests.
Short-term visits for commercial transactions are not protected by the Fourth.
 Review: man is on the curtilage looking through the window: if he is there without PC, it is a search. The individual
does not have a legitimate expectation of privacy, however, if the officer can see from the street through the window.
 We do have a legit expectation of privacy when we stay in another’s home or in a hotel, but that’s not the case her
People are on the premise solely for a business transaction, not invited to stay overnight.
The person is only there temporarily, thus, no legit expectation of privacy
[occupants of a vehicle]
Brendlin v California: Cop pulls over car for minor traffic violation. Cop sees D and recognizes him as parole violator, arrests D
and searches his person and the passenger compartment of the car finding drugs. D challenges stop, claiming no PC for the stop.
Gov’t argues that even if there is no PC for the stop, only the driver (not the passengers) are deemd to have been “seized”
therefore the D was not seized until the moment of his arrest (which was founded on legitimate PC). Is it just the driver or the
passengers who are seized such that they can challenge a stop? When a cop makes a stop, the driver of the car is seized and
any passenger is seized as well, so the passenger may challenge the constitutionally of the stop.
 The test for whether a person is seized: whether a reasonable person in that position would have believed herself free
to terminate the encounter between the police and her. (Bostick test)
o Here, the passenger would not expect the cop to allow the encounter to be terminated.
In sum, lacking a possessory interest or a close connection to the place seached Ds will not be able to pursue their claims of
unconstitutional search/seizure.
Fruit of the Poisonous Tree
Generally: E.R. = Evidence obtained in violation of the 4th is not admissible in the criminal trial of the person whose rights were
FOTPT is an extension of that doctrine. Not only is direct evidence not admissible, but secondary evidence stemming from a
violation is not admissible. Thus, the ER applies to direct and secondary evidence obtained from the violation. The justification
is that the government should not be able to make any use of the evidence seized from a constituonal violation.
Secondary evidence vs. Direct evidence: Policeman breaks into someone's home for suspicion of murder w/o warrant. As he
rifles through the possessions, he finds a diary where the person says he committed the murder and the name of a witness who he
plans to kill. FOTPT says: the breaking without a warrant is the "poisonous tree" (the COTUS violation). The direct evidence of
that violation is the diary. That direct evidence can NEVER come in. The secondary evidence is the name of the witness:
evidence gained from the diary. FOTPT says that evidence is out too: you cannot use this witness because it is secondary
evidence from the poisonous tree.
Three Exceptions to the FOTPT:
1. Independent Source Exception: FOTPT does not apply where the secondary facts in question came from two sources,
only one of which was related to the original illegality. If law enforcement are able to obtain the same evidence from a
complete independent source, then the secondary evidence will be admissible.
a. Example: The cop breaks in and finds the diary with the witness’s name in it. The diary can NEVER get in
because it is direct evidence, but say there is another group of officers who have been investigating and discover
that there may be another witness. Assume they speak with that witness, disconnected from the first officer, the
secondary evidence that comes from that witness is admissible because it comes from an independent source so
long as there is no connection between officer number one and that witness. The prosecutor must show there
was an independent source by the preponderance of the evidence.
2. Inevitable Discovery Doctrine:. Evidence may be admitted if it would “inevitably” been discovered by other police
techniques had it not first been obtained through illegal discovery. Prosecution must show by preponderance of the
evidence that the information would have been inevitably discovered by other lawful means.
a. Example: A group of officers obtained a warrant to search the person’s home for drugs. But at the time of the
unlawful search, they just had not executed. What the government can argue is that because the other group of
officers could have searched for drugs, they would have inevitably discovered the diary and the information in it
through other legal means.
i. Most often occurs when the evidence illegally obtained is a weapon or body.
b. FACT SENSITIVE INQUIRY: the prosecution must show that the particular evidence would have inevitably
been found, but also that the evidence would have been found in its said condition (Ex: if the prosecution seeks
to show that a body would’ve been found anyway, they must also show that the body would have been intact
and in the same condition.
c. Difference between ISE and IDD: ISE deals in what ALREADY happened, IDD deals in PROBABILITIES
d. Similarity: Direct evidence is always OUT, the question is what to do with the secondary evidence
3. Wong Sun Sufficient Attenuation: If additional factors intervene between the original illegality and the final discovery
of evidence, neither the “deterrence” or “judicial fairness” rationales behind the Exclusionary Rule apply. Thus,
evidence may be admissible despite the fact that it would not have been discovered ‘but for” illegality.
a. Once we have the illegal act, all evidence that flows from it is presumed tainted and illegal unless the
prosecution may show the evidence is sufficiently disconnected from the illegality. Factors to observe:
i. Time: time between the illegality and the discovery of the evidence
ii. Voluntary behavior: if the D engaged in any voluntary behavior, the connection between the illegality
and the evidence is less likely to be sufficiently connected
iii. Miranda rights read
iv. Flagrancy of the conduct: What did the officer do? If it is flagrant conduct, more time is needed to
dissipate the taint
b. Gov’t wants to show disconnect between the unconstitutional behavior and the evidence
Wong Sun v US: Acting on a tip, federal agents broke into Toy’s apartment and handcuffed him. The entry was without P.C.
Immediately after the entry, Toy made a statement accusing Yee of selling drugs. The agents went to Yee who made a statement
that he had been sold his drugs by Toy and Wong Sun. Wong Sun was arrested (without PC) and both he and Toy were
arraigned and released. Seven days later, Wong Sun was interrogated and Mirandized. Wong Sun confessed, but did not sign it.
 Issues of admissibility:
o Whether the statement made by Toy after the illegal entry to his house could be used against him:
 Inadmissible because it was the fruit of an illegal invasion
o Whether the drugs seized from Yee could be used against Toy, or were their FOTPT from the illegal entry to
Toy’s house:
 Seizure was the direct result of Toy’s statement, which itself was inadmissible fruit of the illegal
invasion. The relationship between the original illegal entry, Toy’s statement implicating Yee, and the
seizure of drugs from Yee was so close that nothing had occurred to purge the taint of the illegal entry.
o Whether the same drugs could be used against Wong Sun:
 Drugs were admissible against Wong Sun, even though their seizure was the direct product of the illegal
entry into Toy’s house because Wong Sun HAD NO STANDING to object to their seizure (BE
o Whether Wong Sun’s confession was excludable fruit of his illegal arrest
 Wong Sun’s arrest was without PC and was illegal. But because he had been released for seven days
and because he returned voluntarily to make the statement, the connection between the arrest and the
statement had become some attenuated as to dissipate the taint.
Brown v Illinois: D was arrested without PC, so that he could be questioned concerning a murder. After the arrest, D was taken
to police station and Mirandized, interrogated. Within two hours of the arrest, he made an incriminating statement. Several house
later, D made a second incriminating statement. Both confessions were the tainted fruit of the illegal arrest, and were illegal.
Use of Miranda does not always purge the taint of the illegal arrest, they are only one factor to consider.
 Confession distinguished from Wong Sun: no significant intervening acts occurred between the arrests and the
confessions, unlike Wong Sun’s which was several days later. D also had no opportunity to consult counsel here.
 Flagrant Conduct: Police also broke in…the more flagrant the conduct, the more time is needed to purge taint.
Ceccolini: Cop happened to be in the D’s floral shop talking to a friend (Hennessy) when he picked up an envelope with money
in it. He discovered money and betting slips. Cop passed the money on to the FBI and the FBI interviewed the friend. The
friend’s testimony eventually led to the D’s perjury conviction. Although the cop’s search of the envelope was illegal, the
Hennessey’s testimony was admissible because it was attenuated. The taint attached to an illegally obtained witness is not
difficult to purge.
 Four months elapsed between the search and the FBI interview with Hennessey.
 The cop was not motivated in his search of the envelope to find a witness or even evidence of a crime (It was not a
FLAGRANT violation)
 There is generally less incentive for cops to make an illegal search for witnesses, as opposed to physical evidence
Nix v Williams: A man’s 6th rights were violated when he had been unconstitionally interrogated, leading to information on the
whereabouts of a body. D moved to suppress the evidence of the finding of the body of the victim. Court determined the body
would have been found anyway, thus, the statements are not admissible but the evidence of the body IS because the
inevitable discovery exception applied.
 Direct evidence = the statement; derivative evidence = the body
 Even if the COTUS rights were not violated, the body would’ve been found in 2-3 hours because cops were going to be
searching that ditch anyway
 Ct refuses to make it a condition of the inevitable discovery exception application that the prosecution prove an absence
of bad faith by the police
James v Illinois: D, a murder suspect, told police (without Miranda, thus unconstitutional) that on the day of the murder his hair
had been reddish brown and the next day it had been dyed black and curled. At trial, D did not testify but called as a witness W,
who testified that D’s hair had been black on the day of the shooting. Prosecution impeached W’s testimony by introducing D’s
police statement. Should illegally obtained evidence be allowed to impeach all defense witnesses and not just the D? No. The
impeachment should not be allowed b/c allowing the impeachment of defense witnesses would have a chilling effect on a
Ds ability to present his defense: a D would have to worry that friendly witnesses might through simple carelessness
subject themselves to impeachment.
 The gov’t wants to use the statement to impeach the witness, the court says no. Illegally obtained evidence is not going
to be admitted in order to impeach witnesses
 An exception to the FOTPT doctrine states: direct evidence that would otherwise be inadmissible may be used against
the D when the D testifies to impeach the defendant (Harris v NY). The gov’t wants to use this exception to expand
the categories of witnesses who can be impeached and get the W’s statement impeached.
o No expansion: Threat of perjury alone is sufficient to deter defense Ws from intentionally lying on D’s behalf.
o Expansion might chill some Ds from presenting their best defense by not calling certain Ws who might
accidentally subject themselves to impeachment
o Would significantly weaken deterrence effect of Exclusionary Rule b/c police would stack the deck in favor
of the prosecution w/ illegally obtained evidence
 CANNOT use unlawfully obtained evidence to impeach defense witnesses
Fifth Amendment
I. Pre-Miranda Standards:
Brown v Mississippi: a confession obtained through coercion/brutality/torture was held to violate the Due Process clause of the
14th amendment. This was the beginning of the “Voluntariness Doctrine,” an examination of the totality of the circumstances to
determine if the confession was voluntary.
A. Voluntariness Doctrine: State Courts start out using the 14th
a. In determining whether the admission of a particular confession would violate the suspect’s fundamental rights,
the Court attached importance to whether the confession was voluntary. In applying voluntariness test, the
admissibility of a confession was based on the Totality of the Circumstances:
i. Two prongs:
1. What was the police conduct? Was it blatant, intimidating, etc.
2. Characteristics of the accused (age, experience, education)
ii. All factors are important, none are outcome determinative
b. Lynum v Illinois: Officers threatened to take away the D’s kids if she did not make a confession. Because she
had no prior experience, officers encircled her, the confession was coerced.
c. Haynes v Washington: Man held incommunicado, denied counsel, not allowed to leave til confession…court
says coerced
d. To this point state courts are using the 14th and Totality of the Circumstances.
i. What’s the problem with the 14th? It really only bars physical violence or overt psychological pressure.
It doesn’t protect the D’s rights when it comes to subtle psychological techniques
B. Federal level: Court uses the 5th
a. The standard at the Federal Level regarding confessions is the 5th: a confession cannot be extracted by ANY
coercion, threats, promises…it must be entirely voluntary.
i. Key question: “But for” the officer’s behavior, would the statement have been made? (Bram v US)
ii. The 5th is more protective of the D’s rights than the 14th
The court also takes the privilege out of the courtroom and applied it to the interrogation context
b. Malloy v Hogan: The values of the 5th Amendment get applied to the States via the 14th D.P. Clause.
i. The 5th standard is whether the confession was voluntary
ii. The 14th never gets overruled, so it’s plausible the D may use either approach
1. 5th: Whether the confession was compelled in any way
2. 14th: whether it was voluntary
C. Sixth Amendment Detour:
a. Massiah v US: Indicted D, while out on bail and in his co-D’s car, made incriminating remarks which were
overheard by the police via a concealed wire planted with the co-D. The incriminating statements were held to
be inadmissible.
i. The overheard conversation was obtained without a right to counsel.
ii. Ct takes the 6th out of the courtroom and says it “attaches” after an indictment or other critical phase in
the criminal justice process. That is so because once you are indicted, you are no longer a suspect, the
gov’t says “We know you did this and we’re going to prove it. We have our lawyers.” Because the gov’t
has its lawyers, the D has a right to his.
iii. As soon as this “critical phrase” occurs, the D has an absolute right to counsel and the gov’t may not
take any statement without the D’s exercise of that right.
iv. Once the suspect has been indicted, it is a violation of 6th to deliberately obtain incriminating statements
from the suspect in the absence of counsel
b. Escobedo: D made a confession after he had made repeated requests to see his lawyer and the lawyer had been
turned away from the police station. Limited holding: Where the investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect, the suspect taken into police
custody, the police interrogate him leading to incriminating statements, the suspect has asked for and
been denied opportunity to consult with lawyer, and the cops have not warned him of his COTUS right to
remain silent, the statement cannot be used against him at trial. THIS CASE DOES NOT HAVE ANY
Holding: “When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect that privilege …The suspect must be warned prior to any questioning:
o He has the right to remain silent
o Anything he says can be used against him in a court of law
o That he has the right to presence of an attorney
o If he cannot afford one, an attorney will be appointed for him prior to any questioning
 When does it apply: Custodial Interrogation: The person must be in custody AND interrogated (A Terry stop is only
 To what does it apply: The Miranda rules apply to any statement made by the suspect while in custody.
 Waiver: The D may waive these rights, but only if he does so knowingly, voluntarily, and intelligently. Even if the
person indicates he waives his rights, at any point during interrogation he may change his mind the interrogation is over.
 Failure to give the warning: creates an irrebuttable presumption that the confession was involuntary. It does not matter
if the suspect is already aware of his rights.
Reasoning for Miranda: We know what it does, why did the Court decide it?
 Subtle psychological pressures: The police have manuals detailing subtle psychological ploys to elicit confessions.
These tactics get around the 14th Voluntariness Test
 Miranda provides procedural safeguards to combat these subtle psychological pressures
What is Custody?
A. A person is deemed to be in custody if he is deprived of his freedom of action “in any significant way.”
“Custody” requires the existence of coercive conditions that would cause a reasonable person to believe, under
all the circumstances surrounding the interrogation, that he is not free to go.
B. Objective reasonable test: whether a suspect is or is not in custody is determined by an objective reasonable
suspect test: whether a reasonable person in the suspect’s position would believe that he was or not in
custody at that moment. (Mathiason)
a. Requires two distinct questions: (1) was this a police dominated atmosphere, i.e. is it the type of
encounter where police are in control and likely to force the person to give evidence against himself?
(2) Would a reasonable person have felt free to terminate the encounter?
b. Factors we use to determine custody: (Yarborough case)
i. Transportation: How did the person get to the police—was it a voluntary trip to the police
ii. Threats or statements by the police—do the cops make certain statements that suggest the
person cannot leave until he provides the information the cops want?
iii. Time—was the person with police for 30 minutes or 3 hours?
iv. Dialogue—did the police “interrogate” the suspect saying we know you did it, or was the
suspect treated more like a witness and casual questions were asked?
v. AGE (J.B. v North Carolina): age is a relevant factor to consider if the police officer knows the
suspect’s age or it is reasonably apparent.
vi. Freedom to take breaks?
vii. Freedom to leave at the end?
c. Reasonable minds can differ as to whether or not there was custody. They cannot differ on the
factors to determine it.
Generally, questioning during a traffic stop is not considered a custodial interrogation because it's
typically relatively brief. Additionally, the public nature of the traffic stop doesn't make a motorist
feel as though they are completely at the mercy of the police. Thus, Miranda warnings aren't
required. However, when a motorist (or passenger) is questioned during a traffic stop under
circumstances suggesting that they are in custody per the factors described above, Miranda
warnings may be necessary before questioning the motorist and/or passenger.
What is Interrogation?
For purposes of Miranda, “interrogation” refers to express questioning or its “functional equivalent,” i.e., “any
words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis.
 The subjective intent of the police officers is irrelevant. If the police intend to provoke an incriminating
response, but the ploy is not reasonably likely to be successful, under Innis there is no interrogation.
o Likewise, if the eliciting of an incriminating response is not intended, but the officers negligently fail
to realize that this is likely to be the result, there will be deemed an interrogation
 We are not concerned with the police objective; only with the suspect and how it plays from his point of view
Subtle point: an arrested suspect does not automatically need to be read his rights. He only needs to be read his
rights if the police plan to interrogate/question him (which invariable happens)
A. Volunteered Statements
a. Non custodial statements: No Miranda warning required when a person walks up to police officer or
into police station and makes an incriminating statement
Voluntarily custodial statements: Lack of Miranda does not necessarily bar all unwarned statements
by a person in custody. For example, a suspect in custody might volunteer a statement without any
questions asked at all. But because coercive possibility of station-house atmosphere, courts are
skeptical of any lack of Miranda when a statement is made in such an environment,
Indirect questioning:
i. Rhode Island v Innis: a murder suspect was being transported to the police station when the
police commented that they hoped that the murder weapon, which had not yet been located,
would not be found by any children from a nearby school for the handicapped. In response, the
suspect, who had previously requested a lawyer, revealed the location of the gun. The Court
held that the comments were not the functional equivalent of interrogation because it found:
1. (1) the comments were brief;
(2) the comments were not particularly evocative;
(3) the suspect was not disoriented or upset when the comments were made;
(4) there was no evidence that the police should have known that the suspect would be
susceptible to an appeal to his conscience.
2. We do have to probe the officer’s minds a little bit; if the cops knew making
statements about a handicapped child may provoke the suspect, then we have
d. Interrogation by undercover police: If the D talks to an undercover agent without knowing he is
talking to a law enforcement agent, no “custodial interrogation” has occurred. This is true even if the D is in jail
at the time:
i. Illinois v Perkins: an undercover police agent, posing as a criminal, was positioned in the defendant’s
cellblock and engaged the defendant in a conversation designed to elicit details of the crime for which
he was suspected; the Court held that such statements, although the result of interrogation while in
custody, and in the absence of Miranda warnings, were admissible.
1. The D is in jail, and is obviously in custody. But this is not the type of custody for Miranda
purposes: he is freely walking about his cell conversing with other inmates, not in a police
dominated atmosphere where he is being questioned.
a. An undercover officer situation is NOT custodial interrogation because it is not custody
for Miranda purposes and it is not interrogation because it is questioning not designed
to elicit a self-incriminating response.
2. SIXTH: However, the use of undercover agents, although it might not be a Miranda violation
may be a violation of the 6th right to counsel. If the suspect had been indicted here, it will be a
violation of his 6th right for a secret agent to deliberately obtain incriminating statements from
him in the absence of counsel.
Exceptions to Miranda
The Supreme Court has interpreted Miranda to not support the “fruit-of- the-poisonous-tree” doctrine. Michigan v.
Tucker (the government may call a witness to testify at trial, even if that witness’s identity became known as a result
of a statement by defendant secured in violation of Miranda); Oregon v. Elstad (the government may introduce a
defendant’s own voluntary, post- Miranda, admissions, even if they were obtained as a result of an earlier Miranda
However, Tucker and Elstad were based on the premise that Miranda was a “prophylactic” but not a constitutional
rule. Subsequently, the Court in Dickerson v. United States departed from the reasoning in Tucker and stated that
Miranda was in fact a constitutional decision. Nevertheless, the Court has not thus far reversed its position on the
inapplicability of the fruit-of-the-poisonous-tree doctrine to statements obtained in violation of Miranda.
I. Public Safety Exception:
a. A public safety exception to Miranda the police to interrogate a suspect prior to Miranda warnings if an
exigency exists that requires immediate police action to ensure public safety, e.g., to locate a loaded weapon in
a public place. The questions asked prior to issuance of the warnings must be directed at the exigent
circumstances only. New York v. Quarles (observing that the defendant, who had just attacked a woman and
then fled into a grocery store, had an empty shoulder holster, an officer validly asked the defendant, without
issuing Miranda warnings, where the gun was).
i. When police officers make the assessment that public safety is at risk, they can forego the Miranda warnings until
the exigent circumstances are calmed.
ii. In some situations, giving a Miranda warning may prohibit the protection of public (i.e. maybe in Quarles the man
doesn’t say where the gun is)
iii. Test for exigent circumstances: the reasonable officer standard (not the subjective belief of an officer) who
believed that there is a threat that requires postponing Miranda
II. Fruit of the Poisonous Tree and Miranda: Derivative testimony: Witnesses
a. Michigan v Tucker: Police interrogated a suspect and obtained the name of a witness without proper Miranda (neglected
to tell him that if he couldn’t afford any attorney…) SCOTUS held that although the D’s own statement (direct
evidence) could not be used against him since it was in violation of Miranda, the witness’ testimony (derivative)
had been purged of its taint and was admissible.
i. Direct evidence: The D’s Statement to police
ii. Derivative evidence: The witness’ identification from the statement
iii. Court recognizes the difference between violating the Miranda rules by making a mistake, and violating the
D’s constitutional rights: we need to recognize the difference between violating a D’s 5th rights by
coercing/compelling him and violating the Miranda procedural rules used to enforce the 5th’s protection.
1. The exclusion of the direct evidence is deterrence for failing to enforce Miranda.
2. The following factors led the Ct to allow the testimony: (1) the police had conducted the interrogation in
good faith, thus, the deterrence rationale behind the exclusionary rule didn’t apply; (2) the interrogation
didn’t involve compulsion sufficient to breach the privilege against self incrimination, it merely departed
from the prophylactic standards of Miranda; (3) no indication the witness testimony was untrustworthy.
iv. Two tracks: If we have a 5th violation, the direct and derivative evidence is OUT unless we have an exception to the
FOTPT. If we have a Miranda violation by making a mistake/negligence, and there is nothing coercive about the
situation, the direct evidence is OUT but the derivative evidence is IN.
Fruit of the Poisonous Tree: Second Confession as Fruit of the First from the D himself (as opposed to a witness)
On the exam, Elstad tells us if we understand Miranda as it relates to the 5th. It tells her if we understand direct and derivative
evidence. Tells us if we understand Wong Sun. If we understand FOTPT. Understand violation of Miranda or violation of 5. (It's not
wroth more than any other question)
The standard for violation of the 5th Amendment: Complete lack of coercion, threats, promises…confession must be 100% voluntary.
The standard for violating Miranda: Failing to say the rights, failing to say them correctly
b. Steps of Analysis: (Oregon v Elstad)!!!
i. Do I have custodial interrogation?
ii. What type of violation has occurred:
1. Fifth Amendment: follow the same rationale as FOTPT for the 4th:
a. The direct evidence is always excluded
b. The derivative evidence is always excluded unless an exception (sufficient attenuation is most common)
i. It will be difficult to sufficiently attenuate a second statement because it is likely going to be
compelled—a long time is needed to sufficiently remove the taint
2. Miranda violation:
a. Direct evidence is always excluded
b. Derivative evidence is analyzed in terms of whether the D knowingly, intelligently, and voluntarily
(meaning before the second confession he was read Miranda) waived his rights. If he did, the statement
comes in. If not, the statement is out. [Question: how can he KIV if he wasn’t properly read Miranda?]
c. Situations it may occur: D is legally arrested, is given insufficient Miranda warnings, confesses, given adequate Miranda
warnings, and then confesses again. The second confession is, when considered by itself, valid, but is it nonetheless
tainted fruit of the earlier, unlawful confession?
i. The second confession will not be deemed tainted as long as it was voluntarily made and the Court will presume that
the second confession is indeed voluntary if made after warnings, even though that confession followed an earlier
unwarned confession (Oregon v Elstad).
ii. The second confession is more likely to be deemed voluntarily made if the underlying circumstances do not make
that second confession a mere continuation of the first. (For example, if the second is meaningfully separated by
time, place, or interrogator)
iii. The second confession is less likely to be deemed tainted if the failure to warn prior to the first confession was the
result of an inadvertent mistake by the police
iv. But where the police follow an intentional two step practice of eliciting an unwarned confession, then immediately
giving a warning under circumstances that lead the suspect to believe that even the already made confession can be
used against him (so that the suspect sees no reason not to repeat the confession after the warning) the second
confessional will be deemed INVOLUNTARY and thus tainted (Missouri v Seibert).
d. Oregon v Elstad rejects the “cat out of the bag theory:” D was a young suspect arrested at his house for burglary. In brief
encounter in D’s living room, officer told D he thought D was involved in the crime, and D acknowledged he was at the
scene. This exchange occurred w/o Miranda, apparently b/c officer didn’t think D was in custody at that moment. D wa
then taken to the police station, Mirandized, and subjected to interrogation which he confessed. Whether the second
confession was tainted fruit from the early questioning that should’ve been Mirandized? Second confession was
admissible because no causal connection between first and second confessions was demonstrated.
i. Direct statement: “Yeah I was there.”
ii. Derivative statement: Second confession at police station
iii. D argues if there is a violation of Miranda, it should be treated like a violation of the 5th: first statement should be
out and the second statement is out unless it is sufficiently attenuated
iv. Court:
1. If we have a 5th violation, the direct is excluded as is derivative unless sufficiently attenuated. But we don’t
have violation of 5, we have violation of Miranda and Miranda is not the COTUS.
2. When the evidence is the D’s own testimony, than it is just like Tucker and if the violation is not
coercive/compelled statement, then we don’t follow the FOTPT analysis like we would if it were a violation
of 5.
a. “There is a vast difference between the direct consequences flowing from the coercion of a confession by
physical violence or other deliberate means calculated to break the suspect’s will and the uncertain
consequences of disclosure of a “guilty secret” freely given in response to an unwarned but noncoercive
question. The causal connection between any psychological disadvantage created by his admission and
his ultimate decision to cooperate is speculative.”
b. The living room conversation was a violation of Miranda, but it was not coercive.
v. No need for passage of time or intervening events: All that matters is whether the second statement was
voluntarily made.
vi. Court does state if the first confession was not only unwarned, but was produced by deliberately coercive or
improper tactics, there would be a presumption that the second statement was the product of that coercion.
Confession in violation of Miranda leading to physical evidence
a. United States v Patane: Police acted on a tip that D, a felon, illegally possessed a Glock. D was arrested at his house for a
different crime (violating restraining order) and cop tried to Mirandize D, but D cut him off and said he knew his rights.
D asked about the Glock, and D eventually told police where it was. Whether the evidence of the Glock was admissible?
Yes. Even after Dickerson, we still treat violations of Miranda separately from violations of the 5th. Physical
evidence that derives directly from a non-Mirandized confession will never be excludable as FOTPT, so long as the
confession is not coerced.
i. After Dickerson, Miranda is a COTUS rule, but to violate it does not violate the COTUS.
ii. There is nothing about the gun evidence that implicates the 5th b/c D wasn’t compelled. Thus, it is analyzed the same
as a violation of Miranda:
1. Direct statement: OUT
2. Derivative evidence: the gun itself: IN because nothing to link it to a violation of 5th.
iii. Trilogy:
1. Tucker: witness testimony that was the fruit of an unwarned statement did not have to be excluded
2. Elstad: D’s own statements that were the fruit of unwarned statement could be admitted as long as the
statements were given K,I,V.
3. Patane: physical fruits of an unwarned statement can be admitted into evidence against D
a. The only difference is that in Tucker and Elstad, the derivative evidence is admissible only if it is given
K,I,V. Here, the derivative evidence is physical fruit of a voluntary statement. Since the 5th or Miranda
violations only occur upon the admission of unwarned statements into evidence at trial, the admission of
an inanimate object—even though the police possession of it derived from a non-Mirandized
confession—did not violate either Miranda itself or the 5th principles Miranda is designed to protect.
iv. **Since Patane follows Dickerson, the question is whether it would be extended to deny FOTPT treatment for any
evidence deriving from a Miranda violation, not just physical evidence, other than a direct evidence-confession by
the non-Mirandized suspect himself.
1. Example: In Patane, if the police seized the Glock and then asked the D, “Does anyone know who owns this
gun and how it came into your possession?” Suppose the D responded, “Joe knows, because he sold it to me
at a gun show.” The police then procure testimony of Joe. Even though the police probably would not have
learned of Joe’s existence were it not for the non-Mirandized statement by D, the Patane majority would not
exclude Joe’s testimony as FOTPT. Only the suspect’s own non-Mirandized remarks, not any evidence
derived, seem to be excludible by virtue of Miranda.
When we have an unwarned, but voluntary statement in violation of Miranda the statement is always out, but the derivative
evidence is in because the statement doesn't taint anything.
Invoking Miranda and Waiver:
A. Request for lawyer must be unambiguous:
a. Davis v US: D, while in custody, is interrogated about a murder in which he is a suspect. Hour into the interview,
D says, “Maybe I should talk to a lawyer.” The agents indicate that if the D wants a lawyer, they will stop
questioning and ask to clarify. D says, “No, I am not asking for a lawyer.” Interrogation continues and D makes
incriminating statements. He then unequivocally asks for counsel. D argues that the “Maybe I should talk to a
lawyer,” means the questioning should have ceased. The obligation to stop questioning once the suspect asks
for a lawyer applies only where the suspect articulates his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would understand it to be a request for an
i. If the statement does not meet this level of clarity, the officers DO NOT need to stop questioning the
suspect and need not even ask clarifying questions (although it might be good practices to do so).
B. Invoking Rights vs. Waiver of Rights:
a. Standard for Waiver of Rights under Miranda: K, I, V (Miranda)
b. Berghuis v Thompkins: Shooting at mall in Michigan led cops to Ohio to interrogate a suspect. The suspect was
silent most of the interrogation, just saying yes or no. He refused to sign a waiver. When the cop asked if D
prayed for forgiveness for shooting the victim, D said yes. Are police required to obtain an express waiver of the
right to remain silent as a necessary precondition to the admissibility of uncoerced statements if the suspect was
given his Miranda rights and understands them? No. A suspect who has received and understands
his Miranda rights and has not invoked these rights (by an explicit statement) waives the right to remain
silent by making an uncoerced statement to the police.
i. Invoking your rights and waiving them are two separate inquiries:
1. To invoke right to remain silent, the D must make an EXPLICIT unambiguous statement: he
must speak in order to invoke the right of silence. Barring an unambiguous statement by the D,
the cop may continue to question. CANNOT IMPLICITLY invoke right to silence.
a. Invokes the Davis unequivocal standard: absent an unequivocal invocation, cop can
keep questioning
2. To waive your right to remain silent: Where the prosecution shows that Miranda warnings
have been given and that they were understood by the suspect, a suspect’s uncoerced statement
establishes an implied waiver of the right to remain silent
a. Unlike invoking your right (which requires explicit), you can waive your right
implicitly. We will accept an implicit waiver, but not an implicit invocation of rights.
Waiver can be done implicitly, so long as it is done K,I,V.
C. Multiple Interrogations
a. Where right to remain silent invoked in the first interrogation session:
i. Michigan v Moseley: D was interrogated about two robberies after receiving Miranda and declining to
answer. Questioning stopped. A few hours later, he was taken to a different floor and Mirandized, and
questioned about an unrelated shooting. D implicated himself and moved to strike the statements. D’s
right not to be questioned was NOT violated by the resumption of questioning on a different crime
b/c it was a different crime, significant time lapse, different locations, and both times D
1. Questioning about first crime cut off; questioning on second crime is not.
2. After the D invokes the right to remain silent, the cops can come after a significant period of
time and question about a second crime.
b. Where right to counsel is invoked in the first interrogation session:
i. Edwards v Arizona: D was arrested, and received Miranda warnings. He invoked his right to counsel by
saying that he wanted to talk to an attorney before making a “deal.” The next day, D was required to
meet with the police again; the police gave D new warnings, obtained a waiver, interrogated D, and
obtained incriminating statements about the crime for which he had been arrested. Once a D invokes the
right to counsel, and police cut off questioning, may police approach D to seek a waiver so that
interrogation may occur? No. After the accused expresses desire for counsel, he is not to be
subjected to further interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communications with the police. [Grants an absolute
shield…which changes in Shatzer to 14 days]
1. Waiver is NOT established by the mere fact that D responds to later police initiated
interrogation, even if the interrogation is preceded by Miranda.
a. Compared to waiver of right to remain silent, which may be implicit
2. Initiating the Conversation test: Once a suspect indicates a desire to have lawyer, any
subsequent waiver of that right will not be measured by the usual tests for waiver (TofC to
determine K,I,V), rather, the only way a suspect may waive a previously asserted desire to
have a lawyer present at interrogation is initiating the conversation with police.
This rule is intended “to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights” and applies to all interrogation, including
questioning about crimes other than the one for which the suspect is in custody.
4. Once the suspect has asserted A DESIRE FOR COUNSEL, the cops may never question him
again prior to supplying that counsel (this is different than invoking the right to remain silent)
5. The Edwards rule only applies where the suspect clearly asserts his right to have counsel
present (Davis)
6. Rule: When a suspect in custody invokes his right under Miranda to consult with an attorney,
the police must cease the interrogation until the suspect’s attorney is present unless the suspect
initiates further “communication, exchanges, or conversations” with the police. This rule is
intended “to prevent police from badgering a defendant into waiving his previously asserted
Miranda rights” and applies to all interrogation, including questioning about crimes other than
the one for which the suspect is in custody.
ii. Maryland v Shatzer: D is questioned by police while he was in jail about an unrelated sexual assault. D
invoked right to attorney and the case was closed. Two years later case was reopened and a different
detective questioned the D. D waived his rights and confessed in this second interrogation. Edwards
does not prohibit re-interrogation of a suspect who invokes his right to counsel after 14 days have
passed between the interrogations.
1. Doesn’t overrule Edwards: says you still have an absolute protection once you invoke the right
to an attorney, but only for 14 days. At the second interrogation, if you are read Miranda and
waive right to counsel, the statement can be held against you.
2. The person is still free at this second interrogation to demand his right to counsel.
Overruling Miranda?
Dickerson v United States: departed from the reasoning in Tucker and stated that Miranda was in fact a constitutional decision.
 Tucker and Elstad were based on the premise that Miranda was a “prophylactic” but not a constitutional rule, thus
Miranda did not support the FOTPT doctrine…confusion: if Miranda is COTUS and not prophylatic, then what do we
do with all the cases that tell us FOTPT analysis is different for Miranda violations and 5th violations?
 Court says Miranda is constitutional because of stare decisis. Court says: we’ve already exceptioned Miranda to death,
just read the rights and get a valid waiver, and the confession is admissible.
 Elstad Is still good law.
United States v Patane: [This is above—it’s the third in the Tucker, Elstad, Patane trilogy]
Intentional two step approach struck down: Missouri v Seibert: D was interrogated without giving a Miranda warning. D
confessed to arson/murder. Cops then gave D a 20 minute break, Mirandized her, and got the same confession again. When
police engage in an intentional two step process whereby they coerce a confession from the D, then Mirandize D and get
the same confession, it is a virtual continuation of the pre-warning interrogation and the second confession not
 The two-step process was intentional: question first, Mirandize later. Bring the D into custodial interrogation and
intentionally avoid Miranda, ask questions to get a confession, and once you get a confession take a break then come
back and give Miranda and get the confession again.
o How does this help police? Elstad says that the first statement is out. But if we can get the suspect to tell us in
the second confession what she already told them, then that second statement is in. It's a deliberate strategy that
is a direct result of Elstad, which says the first statement is out but the subsequent statement is in so long as
there is a valid waiver.
o In Elstad, the Miranda violation was a good faith mistake, and the only statement made in the first confession
was “I was there.”
o Here, it is intentional violation of Miranda, and the second confession is not a new and distinct experience, it is
the same confession just punctuated by a short break.
 The second statement is inadmissible where the post-warning statement is a virtual continuation of the pre-warning
one, and the D might not have understood that the pre-warning statement was inadmissible. The court may conclude that
the warnings were not effective to convey a choice regarding the second statement of whether to confess.
o HOWEVER, just because you have a deliberate two step strategy, it is not always the case that the mid-stream
Miranda warning will make the statement inadmissible:
 If the Miranda warnings were sufficient to convey a choice (significant break in time, different officer,
etc.) these might be enough to get the second confession in. Or, perhaps the officer makes a curative
statement such as “Your earlier confession is inadmissible, and you are free to invoke your 5th rights
now.” (Kennedy, concurring)
• Rule: If its done deliberately, BOTH statements are OUT unless one of two things occurs:
If there is a substantial break in time between the statements (must be enough time to give the person the chance
to think about what they have just done and maybe they need a lawyer). If there is a substantial break in time,
then it becomes Elstad.
A curative measure. Adding to the Miranda warnings that the fact that everything you said CANNOT be used
against the D.
This rule will ONLY apply when the police have a deliberate two step strategy to exclude Miranda. That is the
ONLY situation to which Seibert applies. You will NOT have a deliberate two step strategy in the Oregon Elstad
Summary of two-stage confessions:
1. Elstad: A general rule that where a pre-warning statement is followed by a post-warning statement, there will
be a presumption that the giving of the warning has dissipated any taint from the earlier statement, making the
post-warning statement admissible;
2. Seibert: A possible exception: where the post-warning statement is a virtual continuation of the pre-warning
one, and a reasonable person in the suspect’s position might not have understood that the pre-warning
statement was inadmissible, the Court may conclude that the warnings were not effective, in which case the
post-warning statement will be excluded.
Miranda summary: A statement obtained in violation of Miranda (warnings, waiver, right to counsel), may not be admitted
against the suspect at trial except in the following situations: The statement was voluntary, and either (1) the interrogation falls
within the Quarles public safety exception; or (2) The response is used solely to impeach the D’s testimony at trial, and not as
substantive evidence of guilt [Harris v NY]. Where a Miranda violation does not fall within either of the above, it cannot itself
be used at all at trial. Evidence derived from the statement (either physical or testimonial) will be admissible as long as the
statement was not coerced.
Miranda Right to Counsel and the 6th Right to Counsel:
Fifth Right to counsel:
 Comes from Miranda. Not in the 5th. But once the officer reads the rights, most people cannot determine if they can
determine if it is in their best interest to speak, and an attorney is needed to determine what's in the D's best interest.
Only applicable in the context of custodial interrogation
 What happens when a person invokes it under the 5th?
o Interrogation must cease, so long as the statement is unambiguous. But undercover officers may still question
 FOTPT: if there is a violation of the 5ht right to counsel, that is not a COTUS violation and FOTP applies as it would in
Elstad (first statement out, derivative statements analzied to determine K,IV.
Sixth right to counsel
 Comes from the COTUS itself.
 Original intent: D criminally charged can bring attorney to trial
 In Massiah, Ct took it out of the trial context and took it to the interrogation context as well. Once the right attaches
(indictment) the person walks around with that right. It attaches at the initiation of a judicial proceeding.
 Once the 6th right attaches, the police cannot deliberately elicit incriminating statements (messiah) (includes undercover
 FOTPT: Its a COTUS violation. So any direct statement is out and any derivative evidence is OUT unless there is an
exception to the FOTPT.
Offense-specific: Old rule of Michigan v Jackson: Prior to Montejo, the Ct had held that once formal proceedings had
started against a suspect by an indictment or comparable step, if the suspect requested a lawyer the police could not
subsequently initiate conversations with him outside of that counsel’s presence. Now, it’s offense specific. (McNeil)
Massiah took the 6th out of the courtroom and into the interrogation context. The issue that the overlap raises: What happens if
post-indictment, the person is taken into a custodial interrogation situation?
Patterson v Illinois: If the D is given his Miranda warnings, and does not ask for counsel, this will normally be treated as a
valid waiver of the right to counsel, even though the Miranda warnings do not refer especially to the 6 th post-indictment right
to counsel. In other words, even though Miranda warnings are designed only to protect against the D’s 5th right against selfincrimination, those warnings inform the D that he has the right to have counsel present during interrogation; if he declines
such assistance, and waives his right K,I,V, the police may treat this as a waiver and interrogate him even though the formal 6 th
right to counsel has attached.
 A showing that the D has been advised of and K,I,V, waived his Miranda rights (including right to an attorney)
suffices to establish a waiver under the 6th amendment as well
McNeil: McNeil represented by public defender at a bail hearing on charges of robbery. While in jail on that charge, he was
questioned by police about an unrelated murder. When he was subsequently charged with the murder, McNeil moved to suppress
the admissions, arguing that his invocation of right to counsel at the bail hearing prevented the police from any subsequent
questioning of him in the absence of counsel. Court disagreed.:
 The Sixth is offense-specific. It cannot be invoked once for all future prosecutions, for it doesn’t attach until the
prosecution in that case has commenced. Because the murder charges had not yet been brought against McNeil at
the time, questioning in the absence of counsel did not violate Massiah.
Waiver after pre-trial appointment of counsel: where suspect has been formally charged, and is represented by counsel
(retained or appointed); trial has not yet begun, and the police want to question the suspect outside the presence of counsel.
Montejo: D had a hearing, and was ordered to have counsel appointed. After the hearing, the detectives took him on a trip to
show him where the crime occurred. During the trip he wrote a letter (incriminating statement). D moved to suppress the
statements after this hearing.
 The Fifth Amendment's right to counsel attaches upon invocation (i.e. when an attorney is requested). The Sixth
Amendment's right to counsel attaches when adversarial proceedings begin (i.e. at the arraignment). The presumption
in Jackson attempted to analogize the Fifth Amendment's right against self-incrimination through Edwards v. Arizona
to the Sixth Amendment's right to counsel, essentially not allowing police interrogation after the right attached. Under
Montejo, in the case where the Defendant has not asserted his Fifth Amendment's right to counsel but rather relies on
his Sixth Amendment's right to counsel, police may reinitiate interrogation after his Miranda rights have been read.
However, if a Defendant has asserted his Fifth Amendment's right to counsel and adversarial proceedings have begun,
police may not reinitiate questioning without counsel present and waiver under Edwards, or unless the Defendant
initiates the conversation and police get waiver.
 Montejo’s overruling of Jackson means that the police can knowingly approach an indicted D outside of his
lawyer’s presence and freely interrogate him if he consents, as long as they don’t do so in custody.
Example: D is suspected of murder, taken into custody, and Mirandized. He asserts his right not to be questioned until counsel is
provided. Police do not provide counsel, and instead cause D to be arraigned. At the arraignment, magistrate grant’s Ds request
for counsel, and D is released on bail. Police come to D’s house next day and make clear that he is free to not talk or ask the
cops to leave. They ask if D is willing to talk about the crime, and Mirandize him. D signs a waiver of Miranda rights, and
confesses without ever consulting with the lawyer.
Under Jackson, the confession would not be admissible against D, because D did not initiate the conversation with
police his decision to waive right to counsel was ineffective.
Under Montejo, confession is admissible.
o Montejo wipes out Jackson’s presumption against the effectiveness of any police initiated waiver of the 6 th. So
long as D K,I,V, decided to speak with the police without first consulting with lawyer, D is deemed to have
waived his 6th rights.
o Although D’s failure to initiate the conversation means that Edwards blocks the admissibility of results of
custodial interrogation, the interrogation here was not custodial so Edwards doesn’t apply either, and D will not
have any constitutional rights violated.
§ 11.07 Comparison of Right to Counsel During Interrogations Under Sixth Amendment and Miranda
 The right to counsel under the Sixth Amendment and the Fifth Amendment Miranda decision differ in the
following ways:
(1) Timing – The Sixth Amendment right applies only after adversary judicial criminal proceedings have been
initiated against the accused; the Fifth Amendment right attaches once the defendant is taken into custody.
(2) Custody – The Fifth Amendment right does not attach unless the suspect is in custody; the Sixth
Amendment is not so limited, e.g., it applies when the accused has been released from custody on bail or on
his own recognizance.
(3) Nature of offense – The Sixth Amendment right is offense-specific; the Fifth Amendment right to counsel
applies to any and all offenses, once custodial interrogation commences.
(4) Focus of inquiry – The Fifth Amendment right to counsel applies when the custodial suspect is
“interrogated,” and focuses on the perceptions of the suspect (whether he believes he is in custody); the Sixth
Amendment prohibits “deliberate elicitation,” and focuses on the intentions of the police.
(5) Questioning by undercover agent or informant – The Fifth Amendment right to counsel is not invoked
when the suspect is questioned by an informant or undercover officer; the Sixth Amendment applies to
deliberate elicitation by overt and covert government agents.
(6) Fruit-of-the-poisonous-tree doctrine – The doctrine applies to Sixth Amendment violations; the doctrine
does not apply to violations of the Fifth Amendment right to counsel.
Due Process
E) Police Coercion
F) B) Involuntary under T of C
C) Custody
D) Interrogation
All approaches
A) Adversarial Proceedings
B) Deliberate Elicitation
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