Review Session Notes
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Do 4A exceptions of exclusion apply to 5A violations? Probably---Nix v. Williams
o Just do your best to apply some reasoning and doctrine. If we apply this, then
this will happen
There will be a policy question: could be normative, could be about rationales, what
would be a good outcome.
2 issue spotters and 1 policy question
Policy themes?
o Needs of law enforcement vs rights to privacy
o Categorical rule vs. reasonableness? Can we even make distinctions?
o Race
Massiah still applies but Escobedo is pretty much gone
Maryland v. Bui (within Chimel) expands what can be searched
After 14 days, you need to re-read Miranda
RS and PC are both TOC test
o JL did not have reasonable suspicion
o Illinois v. Gates was about TOC and it was satisfied
If terry stop, need RS that criminal activity afoot
o Then they can do Terry frisk if there is RS of danger
o Can go beyond a certain point to an arrest—then need PC
Relevance of plurality opinion for Siebert???—trace differences in approach but they
will usually come out the same way
FOPT for Miranda????
Undercover officer doesn’t have to read Miranda (Perkins)
o No inherent coercion when they think it’s an inmate
Exceptions to search warrant:
o Incident to arrest
o Exigent circumstances
o Administrative searches
o Automobile exception
o Plain view
o Consent
o Terry stop
Fourth Amendment Protection
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Was this a search? (4th Amendment)
o IF NOT A TRESPASS (US V. JONES), Apply the Harlan test:
 Subjective expectation of privacy?
 Site of the call in Smith did not affect whether she had SEP
o Court thinks people know companies record this info?
 In CA v. Greenwood, D had a SEP because they put the trash in a
bag.
 If there was, was it reasonable? (reasonable expectation of privacy=REP)
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Courts can look to:
o Look at legislation?
o Look at common sense?
 “What a person knowingly exposes to the public, even in his own
home or property is not subject to 4A protections” (Katz)
 No REP when party turns over info to a third party (Smith v.
Maryland)
o In Smith, she dialed numbers on a phone, knew that the
company records this info
o Third-party doctrine is partly justified because you assume
the risk that the third party can give the info to anyone
(dumb)
 Marshall dissent thinks this is dumb because it isn’t
really voluntary to use a phone
 No REP when you put trash in a bag onto the street (CA v.
Greenwood)
o Animals, rummagers, and kids can get in?
o The purpose of this is to give this to a third party—but
dissent points out that this is weird because you have to
get rid of the trash and this is a limited third party thing
(just to the garbage man).
o Here, the police altered the process—you expected just to
give to the garbage man.
 No 4A REP for open fields or property beyond curtilage (FL v.
Riley)
o Greenhouse hidden from the street, police used
helicopters
o No REP because planes fly over the area all the time
o Anyone else could have just flown over and it would have
been legal
o Keep in mind the drone debate
 Government using cell phone tower to get location records for a
long period of time does violate Harlan test (Carpenter)
o Government said that they disclosed this info to a thirdparty
o SC says no—this was a search because people do have a
REP in their cell phone and location records.
o SPECIAL RULE FOR HOUSES (KYLLO) AND ELECTRONIC SURVEILLANCE (JONES)
 Can’t apply the reasoning of Katz, because helicopter would be a search.
Court needed to get around it, so special house rules.
 Technology that is not in general public use, used to get info from the
interior of the home = search
 Sense enhancing tech
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 Information about interior of the home
 Not generally in public use
 Jones explicitly says that Katz is not the ONLY test for 4A
 IF IT IS A TRESPASS (liberal use of trespass), THEN IT IS A SEARCH
 Physical intrusion in Jones of placing a GPS device on the guy’s car
 This would fail Katz test because anyone can watch someone
drive around
 Is there a difference between something you disclose to others
and something you have no choice but to do (driving)?
o Dog search at airport is not a search (US v. Place)
 Traffic stop sniff is okay (Illinois v. Caballes)
 In Jardines, Scalia goes back to trespass—the officers comes onto the
porch with the dog (this is curtilage)
 No invitation to stay on porch—long history of just knocking and leaving
(this is fucking funny)
If SEARCH, was there a valid WARRANT?
o 3 requirements for search warrant?
 Supported by PC (see below)
 Neutral magistrate
 Affirmed by oath—affidavit in application
 MUST state with particularity the place to be searched and the items or
persons to be seized
 Mistakes are okay, but general searches are not (Maryland v.
Garrison)
o SC focuses on whether the info was “particular” based on
their knowledge when they applied for the warrant—but
this basically allows for non-particularity
o It was reasonable for them to walk around the other
apartment based on “third floor apartment”
o Policy goal?
Arrest Warrants
o No arrest warrant needed for felony arrest in public (Watson)
 Just need PC when in public to arrest (tradition and statutes)
 Need warrant to search though, concurrence thinks there should be more
protection for arrest, or at least the same
o If in home, you need a warrant—unless exigent circumstances—(Payton)
 Also, if it is just a normal arrest, you cannot go in an search
o Seagald v. US
 Arrest warrant for Lyons—go to house and find two guys that arent him
 They enter the house without consent and find drugs
 This violates 4A
Probable Cause
o Is there PC for a search warrant?
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Fair probability and a substantial chance?
 Can be satisfied with less than preponderance but more than a
hunch
 Persuade a person of reasonable caution and prudence
 Totality of the circumstances test from Gates:
 Basis of knowledge—how does this person know the info?
 Veracity, reliability etc.
 Self-verifying info
 Some corroboration of future behavior
 Reasonable belief (lower than a preponderance of evidence)
 Fair probability?
o In the letter, it says right side and the warrant says right, so can you search left?
o In Illinois v. Gates, was the letter corroborated?
 Details were fairly specific, but some details were not correct and Court
still said that it was corroborated
 So if the letter gives info, it can be corroborated even if only some of the
letter was correct (fluid and flexible)
 SC agrees that the letter on its own is NOT enough, need corroboration
 Veracity, basis of knowledge and reliability is a sliding scale and very
flexible
 Veracity: do I know who this is? Has the informant given me good info in
the past?
 The letter says the people will do some things that are not crimes—so
because they were right about some non-crimes that means the letter is
corroborated about the crimes?
o PRINGLE
 They found drugs in the car with a lot of people in it
 Did they have PC to arrest everyone?
 Evidence points to a bunch of different people, but what about this
specific person?
Search Incident to Arrest (exception to needing a warrant, but you need PC for the
arrest)
o IF HOUSE
 You can search the person the grabbable area around the person but not
the entire house (Chimel v. CA)
 Closets and spaces adjoining the space of arrest—protective
sweep
 The search is okay because it is protecting the officers and serves
and evidentiary function
o Can only sweep the house “if it is substantially contemporaneous with the arrest
and is confined to the immediate vicinity of the arrest”
 In Vale, the guy is outside the home going back and forth
 Arrested outside but close by
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 Cannot search the house
o US v. Robinson
 Did the officer have a reason to look inside the cigarette box? Protection
or evidence?
 Custodial arrest gives rise to authority to search
 Doesn’t matter that the officer did not have a subjective fear or suspicion
that the guy was armed.
 Lawful search came upon the box, entitled to inspect it.
o If in a car—keep in mind that this is SILA....different rules apply to simply
automobile exceptions (see road map)
 Officers can search within the area, even though there is no danger or
evidentiary concern (NY v. Belton)
 This is broader than Chimel—allows for search of passenger
compartment
 BELTON NARROWED: Circumstances unique to the vehicle context justify
a search incident to arrest when it is reasonable to believe evidence
relevant to the crime of arrest might be found in the car (Arizona v. Gant)
 If not for this, Belton would have been illegal
 This narrows Belton categorical rule—now we need more details
of the circumstances and reasonableness
 In Gant, no connection between the arrest for driving without a
license and evidence.
 What about a trunk?
o Reachability? NO.
o Connection between evidence and crime? Harder to say.
o NEED a search warrant for a phone even when it is found incident to arrest (Riley
v. CA)
 The “incident” arrest was registration and suspended license and that’s
when the phone was found.
 Gant said vehicle is unique. Here, the data cannot be used as a weapon
and the data cannot be destroyed (evidence)
 Cell phone privacy is different than cigarette packet on your person?
Terry Stops
o “Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a seizure has
occurred” (Terry v. Ohio)
o For a Terry stop: REASONABLE SUSPICION of criminal activity “afoot”
 An anonymous tip is not enough to support a RS (Florida v. JL)
 Even if the description is accurate
 The tip must be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person
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Flight alone is not enough for a RS of criminal activity, but flight in a high
crime neighborhood can be a FACTOR amidst the totality of
circumstances that giver rise to a RS (Illinois v. Wardlow)
 Flight is not “going about one’s business”?
 This gives rise to different rules for where someone is—police can
search you more often if you are black or poor
o What do you need for a Terry “frisk”?
 RS armed and dangerous
 RS of crime of violence=frisk
 More than a hunch
 Hunch<RS<PC<50%
 Articulable facts
o Plain View and Plain Feel—exception of PC for seizure
 Things of incriminating nature can be seized if (Arizona v. Hicks)
 Officer observes from a lawful vantage point
 Independent right of physical access to the object
 This CANNOT be a search exception---need warrant or independent
search exception
 Michigan v. Long--Officer can do a limited search of the passenger
compartment in areas where a weapon may be hidden if:
 The stop is lawful and
 Officer has RS based on specific and articulable facts that the
occupant or recent occupant of the vehicle is dangerous and may
gain immediate access to weapons in the car
o RS that he was dangerous:
 intoxicated?
 Driving erratically?
 They saw the knife
 He was already out of the car, but he can go back
and grab the knife?
 Seizure is some meaningful interference by the government with the
individuals possessory interests of the property in question (Arizona v.
Hicks)
 In some circumstances, police may seize evidence in plain view
without a warrant
o If the initial government intrusion was lawful
o The incriminating nature of the object is immediately
apparent.
 Moving of the stereo was search because it was not related to
the crimes—action unrelated to the objectives of the authorized
intrusion, which exposed portions of the apartment of its
contents, did produce a new invasion of the respondent’s privacy”
 PC is required to invoke plain view doctrine
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PLAIN FEEL: An officer may seize non-threatening contraband during a
protective pat down search as long as the incriminating nature of the
object is immediately apparent to the officer (Minn. v. Dickerson)
 But cannot go back to something that was merely suspicious
before
 This is a reasonable officer standard—can he reasonably articular
that there were weapons in the cigarette box?
Racial Profiling/Discrimination
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4A searches must be reasonable (Brignoni)—race can be a factor
o Officers can consider relevant factors to suspicion (with Mexican appearance as
one of them, but can’t be dispositive): proximity to border, usual patterns of
traffic on particular road, previous experience with alien traffic, recent illegal
border crossing in the area, driver behavior, aspects of the vehicle
o BP officers violated 4A because they didn’t have specific articulable facts with
rational inferences that reasonable warranted suspicion.
o If RS that a vehicle contains undocumented immigrants, can stop briefly to
investigate
o Is this a Terry stop?
 Criminal activity afoot?
 Articulable facts?
Except with inventory searches and admin inspections, when PC of illegal conduct exists,
officer’s true motives for searching or detaining a person does not negate the
constitutionality of the search or seizure (Whren v. US)
o As long as officer has PC to believe a traffic violation has occurred it is reasonable
for the officer to stop the vehicle
o Inventory search: no need for PC or warrant to believe crime committed by
individual as long as the officers are following standardized procedures that limit
their discretion and are not using inventory as a pretext to search for evidence of
a crime
o If D thinks he was targeted because of race, remedy is EPC not the 4A
Consensual encounters transform into a seizure when, under the TOC, a reasonable
person would have believed that he was not free to leave (INS v. Delgado)
o But who is this reasonable person? US citizen? Undocumented immigrant? Black
person?
o In Delgado, ICE came to factory and asked if they were illegal aliens—some
officers at door and some just walking around. If they suspected them, they
asked for papers.
o Never said you can’t leave or forced anyone, but they were at work?
Even when officers have no basis for suspecting a particular individual, they may
generally ask questions of that individual: ask to examine the ID or search the luggage—
so long as the officer’s do not convey a message that compliance is required (Bostick)
o Would a reasonable person have felt free to decline the officer’s request or
terminate the encounter?
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o On a bus and a black guy with history with police? Bus doesn’t matter here?
o Zipper pouch with gun? Showed the badge?
Consensual encounter or Terry stop can transform into an arrest (Florida v. Royer)
o original talk was consensual but then they took him into a room
o So when was he stopped?
o Factors:
 Whether there were less intrusive methods available (dog?)—this is gone
 Length of detention (15 minutes here
 Manner in which detention was effectuated
o Arrested once they had his ticket, his luggage, and didn’t say he could leave the
rule
o Not a categorical rule
Exception to warrant: Consent is valid when it is voluntary (doesn’t have to be
knowing)—government has the burden and it is RP standard
o 3rd party consent is permissible is the 3P has actual or apparent authority (GA v.
Randolph—this is about a common area that police can reasonably believe the
person has authority over
 BUT if one says yes and the other says no, there is no consent
 Warrantless search of a shared dwelling over the express refusal of
consent by a physically present resident cannot be justified as reasonable
on the basis of consent given by another resident
 Fine line with “present”
ADMIN/INVENTORY searches do not need RS or PC (Colorado v. Bertine)
o For inventory search to be valid, it must be conducted in accordance with
routine or standardized criteria that limit the discretion of the officers and the
officer must not use the inventory as a pretext to get evidence of a crime---this is
for someone in booking or custody
o ADMIN: Airports, DUI checkpoints, etc
o Subjective intent DOES matter
o DUI stop, impound and search the car
 This is okay because it complied with local procedures (even if some
limited discretion)
 Cannot be investigative
Exigent Circumstances—exception to warrant but still need PC
o Emergency circumstances that make it impractical or unreasonable for the
officer to get a warrant
o The scope of the search must be limited by the exigency that justifies the police
action
o PC is still required
o Important factor to consider is the gravity of the underlying offense (Welsh v.
Wisconsin)
o Under the emergency doctrine, officers may enter a home without a warrant to
render emergency assistance to an injured occupant or to protect an occupant
from imminent injury if the objective facts justify such action (Brigham City v.
Stuart)
Exclusionary Rule
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Exclusionary rule is a judicial creation derived from the 4A—not in the text (Wolf v.
Colorado)
Now, states must use the exclusionary rule (Mapp v. Ohio)
o Other remedies don’t work
o Deterrence
o Healthy federalism requires consistency
Good Faith Exception: Exclusionary rule does not apply in cases where an officer
reasonably relies on a search warrant later found to be defective (US v. Leon)
Main Takeaways for Exclusionary Rule
o Remedy designed to deter unlawful police conduct (searches/seizures)
o Illegally obtained evidence cannot be used in case in chief, but can be used to impeach a defenda
o Good Faith exception = no exclusion if officer reasonably relies on SW (or arrest warrant) later fo
Attenuation doctrine/fruit of the poisonous tree
o Factors to consider:
 Length of time between initial illegality of seizure of fruit
 Flagrancy of initial misconduct
 Existence or absence of intervening causes of the seizure of fruit.
 Presence or absence of act of free will by the D resulting in the seizure of
the fruit.
o Whether, granting establishment of the primary illegality, the evidence to which
instance objection is made has come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint??
(Wong Sun)
 Blackie Toy gives statement at time of arrest but this was unlawful entry
and arrest (this statement and the drugs found subsequently are
excluded AGAINST TOY)
 Police use Toy’s info to go to Yee’s house, where they find the drugs (that
are excluded because the 4A violations against Toy)
 Yee gives statement that leads them to Wong Sun—they arrest him
illegally without PC—then he goes and gives voluntary statement
 So what is excluded?
o Statement is in because voluntary
o Drugs found in Yee’s house are in because Toy’s illegal
arrest did not violate Wong Sun’s rights
o Inevitable discovery can mitigate fruit of the poisonous tree (Nix v. Williams)
 Prosecution has burden to prove by a preponderance that it’s not fruit of
poisonous tree
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If legal means would have inevitably led to evidence about the body’s
condition, it’s okay.
o Discovery of a valid arrest warrant breaks the causal chain between an unlawful
stop and discovery or drug-related evidence? NO (Utah v. Streiff)
Takeaways for FOPT
o If initial police action was illegal, evidence that has come about as a result of
exploiting this illegality will be tainted, unless the evidence can be shown to be
sufficiently distinguishable from the primary taint. Subsequent evidence is FOPT
is the subsequent action relied on the initial illegality
o This causal chain can be broken by:
 Attenuation
 Independent source
 Inevitable discovery
To get standing, need to show that the evidence was obtained from violation of her
rights, not from violations of co-D’s rights
6th Amendment (once you are arrested basically)
First, when do you get a lawyer?
 When is counsel provided?
o Protections at “critical stages”
 Post-indictment
 Arraignment
 PX
 Trial
 Appeals as of right
o But no counsel for grand jury or habeas
 14A incorporates 6A right to counsel to the states (Gideon v. Wainright)
o “fundamental and essential to a fair trial”
o Overrules Betts
o This takes the next step after Powell v. AL said that right to counsel is
fundamental (but limited to its facts)
o Constitutional right to fair trial includes an advocate who knows the legal system
 6A and 14A require that no indigent D be sentenced to a term of imprisonment unless
the state has afforded him the right to assistance of appointed counsel (Scott v. Illinois)
o Actual imprisonment remains the proper line for defining the constitutional right
to counsel
 Defendant charged with any offense has a right to counsel if actual imprisonment is
imposed (Argersinger and Scott)
 If state creates appeal process, right to counsel.
 If discretionary appeal, then no.
 Effective assistance of counsel (Strickland v. Washington)
o Performance must fall below an objective standard of reasonableness
o Prejudice: Reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different
o Strategic decisions are not deficient performance
Fifth Amendment DPV
Interrogations – Due Process Voluntariness and Right to Counsel Approach
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Main takeaways of DPV under the 5A
o A confession passes the DPV if it is made:
 Freely, knowingly, and voluntarily
o Courts evaluate voluntariness in light of the totality of circumstances
 They can look at the characteristics of the D:
 Age, education, mental functioning, substance abuse history,
other factors
 They will also take into account the conduct of police:
 Police deception is generally not grounds by itself to make a
confession involuntary
 In rare cases, however, police “subterfuge” can make the
confession inadmissible. In such cases, that is because the nature
of the subterfuge makes the resulting confession
unreliable/untrustworthy, often because the methods create in
the mind of the D some hope of gain if they confess
o No hard and fast rules, except that a confession as a result of beatings, torture,
or threats of physical abuse is involuntary (Ashcroft v. Tenn)
 Relay interrogations are generally frowned upon
o For a confession to be involuntary under the DP clause, a confession must
involve the use of coercive police activity (Colorado v. Connelly)
 D’s mental illness is not enough on its own
o When police (through use of their agent) DELIBERATELY ELICIT incriminating
statements, after indictment and without counsel, he was denied 6A right to
counsel (Massiah v. US)
o When investigation is no longer general inquiry into an unsolved crime but has
begun to focus on a particular subject—the accused has been denied assistance
of counsel under the 6A (Escobedo v. Illinois)—this is sort of swallowed by
Miranda now
 Shift from investigatory to accusatory---purpose to elicit confession—
needs lawyer
Fifth Amendment—Miranda
In custody?
 Main takeaways for custody:
o For Miranda, determine whether suspect is in custody by asking whether the
suspect would have a reasonable expectation that he is not free to leave?
(Berkemer)
o Custody is more than a traffic citation (Berkemer)
o Custody is more than a Terry stop
 If violate voluntary DP under 5A: prosecution can’t use in its case in chief or
impeachment
 If 6A Massiah violation, no case in chief but they can use for impeachment—same for
Miranda
 No evidence obtained from immigration can be used for case in chief unless Miranda
warnings are given and the suspect waives his rights (Miranda)
o Prosecution has the burden of proving a valid waiver—court says it is a “heavy”
burden but it’s really just preponderance of the evidence (50% plus 1)
o Silence can never be a waiver
o Cannot trick or cajole into waiver
o Individual can assert the right to remain silent or right to counsel at any time
during interrogation—can answer some questions and then stop
 Miranda applies to misdemeanors (Berkemer v. McCarty)
o Doesn’t apply to traffic stops b/c not custodial
 Limited subject, less coercive, in public
 Temporary and brief—“not completely at the mercy of the police”
o Reasonable person test: would the RP in the suspect’s situation have thought he
was in custody or that he’d been deprived of his freedom of action in any
significant way?
 Age can be considered as part of custody analysis if the officer knew of the age at the
time (JDB v. NC)—consider inherent racial biases regarding age
If it is custody, then we ask whether there is interrogation?
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Must be interrogation or it’s functional equivalent
o Explicit questions? (Rhode Island v. Innis)
 Routine questions are okay—name, age, DOB, where you live
o Acts or words that police SHOULD KNOW REASONABLY LIKELY TO ELICIT
INCRIMINATING STATEMENTS?
 Mere possibility that the D would make incriminating statements
(“hoping”) is not enough to satisfy Innis (AZ v. Mauro)
 Here, they even let his wife into the room with the officer and
tape recorder
 Miranda DOES NOT apply to conversations between an inmate and an
undercover agent (Illinois v. Perkins)
 No inherent coercion, no reason to think that the undercover
officer had legal authority or could affect future treatment
 6A right to counsel not violated because no charges filed yet
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o 5A interrogation is an objective standard: no evidence of what the person
thought—triggered by custody and interrogation
 COMPARED TO 6A deliberate elicitation (Massiah):
 This is about what the officers actually felt, were they trying to
elicit info?
 Triggered by formal adversarial proceedings, no attorney
 Subjective—D must demonstrate that the police and their
informant took some action, beyond merely listening, that was
designed to elicit incrimination
Even if Miranda does not apply, do the 5A DPV analysis (factors)
BUT what if you invoke Miranda and then they try again?
 The admissibility of statements obtained after the person in custody has decided to
remain silent depends under Miranda on whether his right to cut off questioning was
“scrupulously honored” (Michigan v. Mosley)
o Look at the facts: he was read his rights, invoked right to silence, brought in for
questioning on a DIFFERENT crime, re-read rights and then he gave incriminating
statement
o This is a bit weird b/c purpose of being able to cut off questioning is about the
coercive nature of relay questioning
 6A right to counsel is offense specific, but Miranda right to counsel is not (Mosley)
 If suspect invokes right to counsel, he cannot be subjected to further interrogation until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police (Edwards v. Arizona)
o What is initiation?—indicating a desire to open up a more generalized discussion
relating to the investigation (Oregon v. Bradshaw)
 Who initiation?
 If D did, did he waive his right to counsel knowingly and intelligently?
 Here, guy says “what is going to happen to me now?” right before he was
being transported
 Suspect must UNAMBIGUOUSLY request counsel (Davis v. U.S)
o It either is an assertion of right or it is not
o Requirements for valid waiver from Berghuis v. Thompkins (expansion of Davis)
 Miranda warnings were given
 And D understood the warnings
 And the confession was uncoerced
o Can it be that one has to speak in order to assert the right to be silent?
 If you’re silent, then confess, no waiver
 Sitting silently for 2 hours is not invoking right to silence
 Implied waiver even though they asked him questions about God
 Invocation of Miranda right to counsel lasts 14 days (Maryland v. Shatzer)
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o Guy in prison for molestation, question him, release back to general population,
then come back 2 and a half years later to ask about a different crime. This is
okay.
o Do we think this time is enough to shake off the residual coercive effects?
An explicit statement of waiver is not invariably necessary to support a finding that the
defendant waived the right to remain silent or the right to counsel guaranteed by
Miranda (NC v. Butler)—implied waiver
o Waiver can be inferred by actions and words of a person, even if waiver is not
explicit
Failure to inform the D of the attorney’s efforts to reach him does not deprive D of
information essential to his ability to knowingly waive (Moran v. Burbine)
o Do not have to supply a suspect with a flow of info to help him calibrate his selinterest in deciding whether to speak or stand by his rights
A suspect does not need to be made aware of all the crimes (or possible subjects) about
which he may be interrogated in order to knowingly and intelligently waive his rights
(Colorado v. Spring)
Waiver outline generally
o Voluntary:
 no coercion
 Physical or other deliberate means calculated to break his will
 Factors for concern
 Duration and conditions of detentions
 Attitude of police toward defendant
 D’s physical or mental state
 Pressures that try to break D’s self-control
o Knowingly and intelligently
 Full awareness
 Nature of the right being abandoned
 Consequences of the decision to abandon it
 TOC
 All circumstances
If there is an exigency requiring immediate action by the police to protect public safety,
officers can ask question without giving Miranda, and any statements will be admissible
(NY v. Quarles)
Is Miranda the law? Does it really mean anything?
 Miranda is constitutional, not just an exercise of the Court’s supervisory powers
(Dickerson v. US)
o But it is prophylactic, so the Constitution would not preclude legislative solutions
that differed from the prescribed Miranda warnings but which were at least as
effective in apprising accused persons of their right of silence and in assuring a
continuous opportunity to exercise it
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No violation of 5A when physical fruit of a voluntary statement is admitted into
evidence (US v. Patane)
o Introduction of evidence doesn’t implicate self-incrimination
o So when does the violation occur? When police get the statement or when it is
used at trial?
o This is different than DPV because there you exclude physical and testimonial
fruit (this is a REAL constitutional rule)—4A also excludes physical and
testimonial
o For Miranda, fruit gets in. Statements before warning are excluded except to
impeach the D if he takes the stand.
No warrant for presuming coercive effect where the suspect’s initial inculpatory
statement, though technically in violation of Miranda, was voluntary. Relevant inquiry is
whether the second statement was also voluntarily made (Oregon v. Elstad)
o So the voluntary statement before Miranda does not taint the rest of the
interview
o The first unlawful interview doesn’t automatically render the second one
inadmissable
o No cat out of the bag rule, doesn’t matter that this might have psychological
effects
o Here, they didn’t read him Miranda and then he gave incriminating statement—
then they read it. This is okay, he can still waive his rights.
 Even though they had a warrant—when determining custody and
interrogation we look at RP in D’s circumstances. What did he know?
Didn’t know there was a warrant.
Confession from a second interrogation is not admissible unless the Miranda warnings
functioned effectively and reasonably conveyed to the suspect that he had a real choice
about giving the statement (Missouri v. Siebert plurality)—this is about the intentional
two-step method
o Breyer concurrence wants a good faith test, Kennedy wants it to be about
whether police deliberately used the two-step (exclude post-warning statements
unless curative measures)
o This is different than Elstad because of the questions, the answers, overlapping
of statements, and the timing
o So, here, the warning did not effectively and reasonably convey to the suspect
that he had a choice (though Kennedy and Breyer say a bit different)
6A Right to Counsel and when is stuff suppressed?
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FOPT for 4A but not 6A?
o 4A is about physical evidence and testimonial
o Miranda is not const. it’s prophylactic
o Coercion and involuntary is DP, not Miranda (Aschroft)
Suppression?
o If 5A DPV violation, testimonial and physical fruit is suppressed.
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o If 5A Miranda violation, testimonial fruit is not suppressed except in a Siebert
case. Physical fruit never suppressed.
o 6A right to counsel violation is unclear about suppression
6A violation when there is:
o Deliberate elicitation of incriminating statements
o In the absence of counsel
o After the attachment of 6A right to counsel
DE different from interrogation insofar as:
o DE is subjective standard (what were the officers actually thinking)
o Interrogation is objective (were the actions reasonably likely to elicit
incriminating statements
o 6A is offense specific
Initiation of adversarial proceedings are:
o Formal charges (complaint, indictment, information) preliminary hearing, grand
jury, arraignment, arraignment on arrest warrant.
Police did violate 6A right to counsel if they can’t prove an “intentional delinquent or
abandonment of a known right or privilege” (Brewer v. Williams)
o Guy did not waive 6A right to counsel by telling them about the body while
driving in the car because the adversarial process had begun
o They didn’t preface the effort with telling him his right to counsel
o IF this was Miranda, we would use the interrogation standard.
o But here we use DE standard---subjective on the officers
Offense-specific means that your right to counsel is about the specific crime you have
been charged with (adversarial proceedings)
o To determine whether 6A right to counsel attaches, need to know what is
charged and the content of questions
o So they can ask about other crimes w/o attorney—but still can’t violate Miranda
of DPV
Statements to an informant?
o Intentionally creating a situation likely to induce Henry to make incriminating
statements without counsel, the government violates the 6A right to counsel (US
v. Henry)
o Agent told snitch not to ask any questions
o No need for Miranda b/c unaware that he was police.
o BUT 6A is not violated when it is luck or happenstance (Kuhlmann v. Wilson)
 This is different because no questions and only listened to unsolicited
statements
6A violation because your lawyers sucks
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When you have 6A right to counse?
o Federal: actual imprisonment
o CA: beyond, any offense
Two part test for violation b/c bad lawyering (Strickland v. Washington)
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o Deficient performance: must show counsel’s performance was deficient
 Strong deference to attorney
 Must identify acts or omissions
 In Rompilla v. Beard, failure to investigate was deficient
o Prejudice: must show that the performance prejudiced the defense
 Would have made a difference in the outcome—strong probability or
reasonable probability
Deficient performance is shown if the law of deportation is clear and the attorney fails
to advice his client of the deportation consequence or gives erroneous advice (Padilla v.
Kentucky)
o Also deficient if the law is unclear and the attorney fails to warn client of the
risks
o Have to give general advice about potential consequences if law is unclear
o Court here does not adopt difference between direct vs. collateral consequences
 But this is a narrow holding because immigration is so close to criminal
o Just have to show that he wouldn’t have plead guilty to show prejudice
Deficient performance to put an expert on the stand who says some racist shit (Buck v.
Davis)
o Apply to other experts?
Jury Selection –Equal Protection
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Steps to show voir dire violation (Batson v. Kentucky)
o Discriminatory intent
 Person is part of a cognizable racial group
 Person was stricken because of that (inference—low standard, less than
preponderance)
 Point to strikes—say it was racist
o Second, burden flips and they have to give a race-neutral reason for the strike
o Third, TOC test to determine whether it was motivated by race
A single race based strike violates the Constitution (Swain v. Alabama)
Marshall concurrence is concerned that this is easy for prosecutors to offer pretextual
reasons
o Acceptable level of discrimination?
o What about implicit bias?
o Wants to bad pre-emptory strikes altogether.
Batson applies to gender (JEB v. AL)—need evidence of Prosecutor intent (newspapers)
o Foster v. Chapman had notes from trial
o Now applies to ethnicity, sexual orientation in the 9th circuit, religion, teetotaler
status, postal employee, hunter status of spouse, teachers
Is this about harm to defendant?
o Do we know it would have turned out differently?
o Or is it harm to juror? Or society?
o Batson implies a certain level of prejudice
Prosecutor’s responsibility
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A Brady violation occurs when the prosecution suppressed favorable, material evidence
(Brady v. Maryland)
o Favorable=helps defense in guilt or penalty at trial
o Material=reasonable probability of a different outcome if the evidence were to
be disclosed—same as Strickland standard
o Suppressed=failure to disclose anything “known to others acting on the behalf of
the government in this case, including the police”
Brady is self-executing, don’t need to request (US v. Bagley)
Prosecutor has a duty to learn of any favorable evidence. Whether her succeeds or fails
in meeting this obligation (whether the failure to disclose is in good or bad faith), the
responsibility for failing to disclose known, favorable evidence is inescapable. (Kyles v.
Whitley)