CRIMINAL PROCEDURE – O’NEIL – SPRING 2018
Introduction / History.............................................................................................................................................. 4
General Notes.................................................................................................................................................. 4
Hypos .............................................................................................................................................................. 4
The Right to Counsel .............................................................................................................................................. 5
Right to Appointed Counsel in Criminal Proceedings ........................................................................................ 5
Hypos .............................................................................................................................................................. 5
Cases ............................................................................................................................................................... 5
Summary ......................................................................................................................................................... 7
The “Beginning” of the Right to Counsel: “Criminal Prosecution” and “Critical Stage” .................................. 7
General Notes.................................................................................................................................................. 7
Hypos .............................................................................................................................................................. 8
Cases ............................................................................................................................................................... 8
Summary ......................................................................................................................................................... 8
The Griffin-Douglas Equality Principle.............................................................................................................. 8
General Notes.................................................................................................................................................. 8
Cases ............................................................................................................................................................... 8
Summary ......................................................................................................................................................... 9
Waiver of the Right to Counsel: The Right to Proceed Pro Se ......................................................................... 10
General Notes................................................................................................................................................ 10
Cases ............................................................................................................................................................. 10
Summary ....................................................................................................................................................... 11
Performance of Counsel ........................................................................................................................................ 11
General Notes................................................................................................................................................ 11
Cases ............................................................................................................................................................. 12
Summary ....................................................................................................................................................... 13
Arrest, Search, and Seizure ................................................................................................................................... 13
General Notes................................................................................................................................................ 13
The Exclusionary Rule ...................................................................................................................................... 14
General Notes................................................................................................................................................ 14
Hypos ............................................................................................................................................................ 14
Cases – Origins & Applications .................................................................................................................... 14
Cases – Good Faith Exception ...................................................................................................................... 16
Summary ....................................................................................................................................................... 19
Protected Areas and Interests ............................................................................................................................ 19
Cases ............................................................................................................................................................. 19
Summary ....................................................................................................................................................... 23
Probable Cause.................................................................................................................................................. 23
General Notes................................................................................................................................................ 23
Hypos ............................................................................................................................................................ 24
Cases ............................................................................................................................................................. 25
Summary ....................................................................................................................................................... 27
Search Warrants ................................................................................................................................................ 27
General Notes................................................................................................................................................ 27
Cases ............................................................................................................................................................. 28
General Notes................................................................................................................................................ 29
Cases ............................................................................................................................................................. 29
Hypos ............................................................................................................................................................ 32
Warrantless Arrests and Searches of the Person ............................................................................................... 32
General Notes................................................................................................................................................ 32
Cases ............................................................................................................................................................. 33
Cases ............................................................................................................................................................. 34
Hypo .............................................................................................................................................................. 38
Summary – Raw Doctrine............................................................................................................................. 38
Warrantless Entries and Searches of Premises ................................................................................................. 38
General notes ................................................................................................................................................ 38
Cases ............................................................................................................................................................. 38
General Notes................................................................................................................................................ 41
Cases ............................................................................................................................................................. 41
Hypos ............................................................................................................................................................ 42
Warrantless Seizures and Searches of Vehicles and Containers ...................................................................... 43
Cases ............................................................................................................................................................. 43
Hypos ............................................................................................................................................................ 47
Stop and Frisk ................................................................................................................................................... 47
General Notes................................................................................................................................................ 47
Cases ............................................................................................................................................................. 48
Summary: ...................................................................................................................................................... 53
Interrogation and Confessions .............................................................................................................................. 54
General Notes................................................................................................................................................ 54
Cases ............................................................................................................................................................. 54
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The Miranda Revolution ................................................................................................................................... 55
General Notes................................................................................................................................................ 55
Cases ............................................................................................................................................................. 55
Hypos ............................................................................................................................................................ 57
Fourth Amendment Consent as Background on Miranda................................................................................. 58
General Notes................................................................................................................................................ 58
Cases ............................................................................................................................................................. 58
Applying and Explaining Miranda.................................................................................................................... 60
General Notes................................................................................................................................................ 60
Cases re waiver ............................................................................................................................................. 60
Cases re Custody ........................................................................................................................................... 61
Cases re Interrogation ................................................................................................................................... 62
Cases re What Can Happen after Invoking ................................................................................................... 63
Cases re Implied Waivers ............................................................................................................................. 66
Hypos ............................................................................................................................................................ 67
Summary ....................................................................................................................................................... 67
Miranda & Due Process / “Voluntariness” ....................................................................................................... 67
Genearl Notes................................................................................................................................................ 67
Cases ............................................................................................................................................................. 68
Cases re how to Define “offense” ................................................................................................................. 72
Hypos ............................................................................................................................................................ 72
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INTRODUCTION / HISTORY
General Notes
 Fourth Amendment
 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.
 A Criminal Procedure course is about the admission and suppression of evidence at a criminal trial
based on violations of the Fourth Amendment
 The loss of a Motion to Suppress often results in an appeal
 Post-trial because otherwise you’re NG and it’s moot
 The state can appeal only from an order or judgment that results in a dismissal so if the
suppression of specific evidence ends their case, they may appeal
 Federalism: Principle of constitutional division of power between the federal government and the states
 Big focus in Constitutional amendments on Criminal Law and Procedure
 24 Rights in 8 Amendments and 14 are focused on Criminal Law
 B/c England was taxing so heavily that many became smugglers so the framers had good reason
to fear criminal prosecution, made up warrants, etc.
 Criminal Justice was then sort of ignored by the federal system for awhile which was mainly concerned
with foreign affairs in part because the states were largely thought of as separate governments, less unity
 Once rights started being incorporated, criminal justice became even more relevant to courts
 Supreme Court Eras
 Warren Ct: 1950’s-1969 [Defense Victory]
 Burger Ct: 1969-1985 [Government Victory]
 Rehnquist Ct: 1985-2005 [Government Victory]
 Robert Ct: 2005 – present [Government Victory]
Hypos
 D charged w/ armed robbery, jury deliberating until 10:30 p.m., judge asks them whether they’d rather
break until tomorrow or will reach a decision, at that moment the division is 11-1 for guilt, judge gives
them 30 more minutes for the day, verdict 15 min. later of guilty
 Per USSC, automatic reversible error
 Based on a Federal criminal case and interpreting an act of Congress, thus applied in Federal
courts
 USSC holds that the 4th Am now requires A, B, & C in every state. I am a justice in IL SC and in IL
doing C is extremely difficult. Can IL reject that and require only A & B?
 No, the 4th is binding on the states based on Marbury v. Madison (USSC interprets the
Constitution) and on the Supremacy Clause
 Can IL require A, B, C, & D instead?
 Yes, a state can provide more protections for its citizens in a system of federalism
 But that also makes it harder on the state to prosecute crimes so they may not choose to
do so
 Can the IL SC interpret the US Constitution?
 Yes, they owe their loyalty to both the US constitution and IL constitution
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But any such opinion could be overruled by the USSC who has the final authority
So IL would say in its holding, “Under the US constitution, you must do A, B, C, & D”
which would mean it was an interpretation of their own state constitution and thus not
reviewable by the USSC
When a state says “on independent and adequate state grounds” it makes it unreviewable
THE RIGHT TO COUNSEL
Right to Appointed Counsel in Criminal Proceedings
Hypos
 You’re the defense atty and you’re before the USSC, what do you argue to the USSC in 1942 if your
client was denied an attorney and sentenced to death at a state level
 Look to the 14th amendment and the due process clause, but there are problems for you with
both Johnson and Powell, the cases on this issue at the time
 In Johnson we were in federal court and it was the 6th straight up so not really applicable
 And in Powell, we have IDEAS on how the concept of representation by counsel was
important in a death case and we should be able to use it, but they limited themselves in
their language so difficult to extend
 So the test is: whether you have special circumstances; the closer you are to Powell you
get an atty, closer you are to Betts, you do not
 Guy charged w/ misdemeanor and the judge refuses to appoint counsel for what could be a 6-month
sentence, he is convicted but only gets a fine, you are his Illinois attorney, what do you do?
 You know you lose under Scott v. IL
 See if IL constitution gives more rights
 It does, there is an IL statute that all misdemeanors trigger a right to counsel regardless of
sentence
 IL has rejected Scott v. IL and has provided additional protections
Cases
 Powell v. Alabama (1932)
 Facts: Scottsboro Boys, state case where young boys are all convicted of rape and given the
death penalty, only attorneys in town leave so their counsel is senile, also got arrested, tried, and
sentenced to death all within 12 days
 Issue/Holding: Whether they had a right to counsel / if their counsel was effective
 No, they had a right to counsel based on the special circumstances, in a case such as this,
the failure of the court to appoint counsel was a clear denial of due process
 Takeaway/The Point:
 First time the USSC used DP clause of the 14th Amendment to apply 6th Am (or any of
Bill or Rights) to overturn a state conviction
 But not technically incorporation, it was due to “special circumstances” of young
illiterate kids
 Right to counsel means right to effective assistance of counsel
 So, in certain special circumstances, states may be required to appoint effective counsel
to poor Ds
 Johnson v. Zerbst (1938)
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Factsthe 6th Amendment guarantees indigent federal defendants (at least felony Ds) a right to
appointed counsel
 In any federal felony case, a D has the right to bring in a paid atty and if he cannot afford one,
the govt. has the duty to appoint him one
 Prior to this case, there was only a right to retain counsel, not to have counsel appointed
Betts v. Brady (1942) OVERRULED
 Facts: D indigent, indicted for robbery in state court
 Issue/Holding: Whether 6th is so fundamental to DP of law that it must be incorporated into the
14th to apply to the states
 No, there are cases in which a trial could be fairly conducted at the state level without an
attorney, the D here is a man of reasonable intelligence with knowledge of the justice
system and this is not the same as Powell because it’s not a death case
 Rule/Takeaway:
 State trial court does not have to provide an appointed lawyer, really a thing because the
states don’t want to spend money
 Rejects total incorporation and the idea of appointed counsel in all criminal cases
Gideon v. Wainwright (1963)
 Facts: state court felony trial, requested but was denied a lawyer and was convicted
 Issue/Holding: Whether Betts should be overruled
 Yes, any person who is hauled into court and is too poor to hire a lawyer, cannot have a
fair trial unless one is appointed for him
 Constitution emphasizes that procedural and substantive safeguards are designed to
assure a fair trial in which every D stands equal before the law, if a poor man cannot have
a lawyer, that is not the case
 A lawyer in a criminal case is a necessity, not a luxury
 Rule/Takeaway:
 Selectively incorporated 6th am Assistance of Counsel Clause into the 14th am to apply
to the states
 Brining Johnson to the state level
 Holding only applies to felonies at the state level
 Overruled Betts
 22 states wanted Betts overruled and provided amicus briefs, they had provided
appointed counsel under their own laws already
 After Gideon, a D in a felony trial in the state level has the right to appointed counsel
Argersinger v. Hamlin (1972)
 Facts: State misdemeanor trial, possible sentence of 3 months he got 30 days
 Issue/Holding: Whether the rules applying to felonies should be extended to misdemeanors
 Yes, but only if liberty is at stake, i.e. jail time
 Rule/Takeaway:
 Absent a knowing and intelligent waiver, no person may be imprisoned for any offense,
whether petty, misdemeanor, or felony unless he was represented by counsel
 Even one day of imprisonment means the court must appoint counsel
Scott v. Illinois (1979)
 Facts: State misdemeanor with either a fine or jail time or both, he was convicted and fined with
no attorney
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Issue/Holding: Whether to extend Argersinger to offense where imprisonment is possible but
was not opposed
 No, the state can only not sentence to prison without an attorney, they can fine without an
attorney
 Rule/Takeaway:
 It is not the potential sentence that matters for purposes of appointed counsel at
misdemeanor level, only the actual sentence matters
 State prosecutor may want to take jail time out of consideration, so they don’t have to
appoint counsel
 Judge will know immediately whether jail time will be imposed based on whether
misdemeanor D appears with appointed counsel
 Nichols v. United States (1994)
 Facts: 3rd conviction triggers a harsher penalty, his first conviction was a misdemeanor where
he only got a fine and was not appointed counsel (which is fine at that stage)
 Rule/Takeaway:
 Un-counseled misdemeanor conviction that is valid under Scott may be relied upon to
enhance the sentence of a subsequent offense even thought that sentence entails
imprisonment
 Alabama v. Sheton (2002)
 A suspended sentence is a “term of imprisonment” within the meaning of Argersinger and Scott
even thought incarceration is not immediate or inevitable
 So if no attorney is present you cannot even be given a suspended sentence
Summary
 Felony Defendant
 Gets appointed counsel at federal level regardless of sentence, Johnson
 Gets appointed counsel at state level regardless of sentence, Gideon
 Misdemeanor Defendant
 Gets appointed counsel if even one day of jail time is on the table, Argersinger
 Even if suspended sentence you never end up serving, Shelton
 No jail time, no counsel need be appointed because it’s about liberty, Scott
 Can use a misdemeanor conviction under Scott as a sentence enhancement, Nichols
The “Beginning” of the Right to Counsel: “Criminal Prosecution” and “Critical Stage”
General Notes
 Analogy: Right to vote “attaches” when you register to vote, but the “critical stage” is election day
 When does the right to counsel end?
 When you are acquitted, or
 After sentencing
 Not “critical”
 Probable cause hearing
 Pretrial photographic ID procedures
 Alito’s Concurrence in Rothgery, defines the scope of the right to counsel in 3 ways:
 Who may assert it
 When it may be asserted (critical stages)
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 This is the only question Rothgery addresses
What the right guarantees (right to have assistance of counsel for defense)
Hypos
 You get a call at 2:00 a.m. from a client who just got arrested, he has been booked and is in a holding
cell, does the client have a right to an attorney?
 No, only attaches when some kind of criminal proceedings begin
 Let’s say he’s indicted, right has attached, he wants you to bunk with him to work on the case, do
you have to?
 No, even after it attaches, counsel only had to present during critical stages
Cases
 Rothgery v. Gillespie County (2008)
 Facts: Arrested, brought before judge for a “trial hearing” with no prosecutor present so not
appointed an attorney
 Issue/Holding: Whether right to counsel had attached
 Yes, if you are pulled before a judge, the 6th am attaches
 Rule/Takeaway:
 Right to counsel attaches at “the initiation of adversary judicial criminal proceedings”
 Does not mean that counsel had to physically be present (court did not address in this
case), this is when it attaches
 Counsel must be appointed w/in a reasonable time after attachment to allow for adequate
representation at any critical stage before trial
Summary
 6th Am attaches at “criminal prosecution”
 A formal charge of some kind, adversarial proceeding
 Indictment
 Information
 Complaint
 Brought before a judge, freedom curtailed in some way
 But lawyer only has to be present for “critical stages”
 In court at all
 Corporeal line up
 B/c appearing before victim, lawyer needs to be sure procedure is fairly followed, no
police hinting, etc.
 Police Interrogation
The Griffin-Douglas Equality Principle
General Notes
 In a Direct appeal, the court can only look at the 4 corners of the transcript, so if there is an issue that is
not contained within the transcript, it cannot be raised on direct appeal
 Only on a collateral proceeding, like habeas corpus
Cases
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 Griffin v. Illinois (1956)
 Facts: Could not afford a transcript for his direct appeal, lower court said too bad, we won’t
supply one
 Issue/Holding: Whether a D has a right to a transcript
 Plurality opinion, the majority agrees that a state cannot discriminate on the basis of
poverty, but does not agree on rationale or extent of the holding
 Rule/Takeaway:
 DP and EP clauses of the 14th require that all indigent D’s be furnished a transcript, at
least where there are allegations that manifest errors occurred at the trial
 A state is not required to provide a right to appellate review, but if the state does grant
appellate review, it cannot discriminate against some on account of poverty
 This case sets off a chain reaction of “access (to courts) cases” for indigent Ds
 Douglas v. California (1963)
 Facts: if a person could not afford a transcript, California court of appeals would look at the case
and then decide whether the indigent was entitled to an attorney, he requested counsel on appeal
and was denied
 Issue/Holding: Whether there is a right to counsel on appeal
 There is, based on the 14th amendment EP clause because rich people can use the system
one way that poor people cannot
 Not the 6th Am because “criminal prosecution” has ended
 Rule/Takeaway:
 If you have an appeal as a matter of right, then you have an absolute to an attorney for
that appeal
 Ross v. Moffitt (1974)
 Facts: State law provides attorney at direct appeal, but not discretionary appeal level
 Issue/Holding: Whether indigent has a right to appointed counsel to prepare petition for a
discretionary appeal
 No, there is no right because while a poor person may be somewhat handicapped in
comparison to a rich person, the nature of discretionary review in the state SC makes this
far less a handicap than that we dealt with in Douglas w/ appeals as a matter of right
 The fact that an attorney would benefit a person at the discretionary appeal level does not
mean that the service is constitutionally required, all must have adequate opportunity
 Rule/Takeaway:
 DP clause does not require the state to provide a respondent w/ counsel on his
discretionary appeal to the state SC
 The standard is that an indigent D has an adequate opportunity, not an opportunity
completely equal to that of a rich person
 Automatic right to counsel stops at the discretionary appeal
 Halbert v. Michigan (2005)
 An indigent D is entitled to appointed counsel if they are appealing a guilty plea or nolo
contendere plea
 b/c he is still at the first level – trying to get into the appellate court, not the state SC or
USSC
Summary
 State must waive fees for transcripts required at the direct appellate level based on DP/EP, Griffin
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 State must appoint counsel at the direct appellate level based on DP/EP, Douglas
 But not at the discretionary level because it’s about adequate opportunity to access courts, not
completely equal to all people everywhere access, Ross
Waiver of the Right to Counsel: The Right to Proceed Pro Se
General Notes
 Reasoning for allowing waivers
 6th does not only provide for an attorney, it also grants the accused the right to personally make
his own defense
 The right to defend is given directly to the accused for it is he who suffers the consequences if
the defense fails
 6th contemplates that counsel shall be an aid to a willing Defendant, but to thrust counsel upon
him violates his personal autonomy
 To force a lawyer upon a D would only lead him to believe that the law contrives against him
 The right to defend is personal
Cases
 Faretta v. California (1975)
 Facts: Wants to represent himself, judge tries to talk him out of it, he insisted so he asked him
tough legal questions, many of which he knew, judge still refused to let him be pro se
 Issue/Holding: Whether/when/how a D can waive his right to counsel
 A D can waive his right if he does so intelligently, knowingly, and voluntarily because
personal autonomy is extremely important, we cannot force attorneys on people
 Right to appear pro se exists to affirm the dignity and autonomy of the accused
 Rule/Takeaway:
 In order to represent himself, the accused must knowingly, intelligently, and voluntarily
forego those relinquished benefits
 He must be made aware of the dangers and disadvantages of self-representation
 But what judges can do, is appoint standby counsel who will be available if D chooses to
take them during trial
 A Faretta error is an automatic reversible error
 McKaskle v. Wiggins (1984)
 Facts: D waived right to counsel, judge thought it was a bad idea, allowed it but insisted on
appointing SBC
 Issue/Holding: Whether appointing standby counsel even over D’s objections violates the 6th /
Faretta
 It does not, Faretta left that option open, but it also limits the extent of standby counsel’s
unsolicited participation
 If D then elects to have counsel appear at some point in front of the jury, its presumed
that he acquires to their involvement until he unambiguously states his request to silence
standby counsel
 Rule/Takeaway:
 D’s 6th Am rights are not violated when a trial judge appoints standby counsel even over
D’s objection
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Pro se D must still be allowed to control the organization and content of his own defense,
make motions, argue points of law, participate in voir dire, question witnesses, address
the court, and the jury
 Limits based on logic of Faretta
 Pro se D preserves actual control over the case presented to the jury
 Standby counsel appointed w/o D’s consent must not destroy the jury’s perception
that the D is representing himself
 A judge can appoint Standby counsel but if the jury’s perception of the counsel was that
he was actually co-counsel or THE counsel, conviction reversed automatically
 Martinez v. Court of Appeal of California (2000)
 Facts: D is a paralegal convicted after proceeding pro se who wants to appeal pro se, 6th not
relevant here its an appeal
 Issue/Holding: Whether D must be allowed to proceed pro se at appellate level
 No, govt’s interest in ensuring the integrity and efficiency of the appellate system
outweighs the D’s interest in acting as his own lawyer in the appellate context
 Especially b/c the status of the D is so different at this level, there is no presumption of
evidence so the autonomy interest of Faretta is not as strong here
 Rule/Takeaway:
 Because there is no right to an appeal, a D does not have the right to reject appointed
counsel at the appellate level
 Takes a step back from Faretta even though its by Stevens, a defense-friendly justice b/c
arguably Faretta hurts the Defendant
Summary
 A D can waive his 6th am right to counsel if he does so voluntarily, intelligently, and knowingly,
Faretta
 A judge can still appoint Standby Counsel, Faretta
 Even if D objects, McCaskle
 But that Counsel cannot give the impression that D is not pro se to the jury, McCaskle
 You cannot waive counsel at the appellate level, Martinez
PERFORMANCE OF COUNSEL
General Notes
 Pre-Strickland
 Courts were on how to rule in Ineffective Assistance of Counsel Claims (IAC) using many
different tests
 Whether counsel’s performance was so poor as to reduce the trial to a farce or render it a
mockery of justice
 Whether counsel’s performance reflected the skills and diligence generally expected from
criminal defense attorneys
 Courts also divided on what level of “prejudice” must be shown
 In practice, Strickland cases are nearly impossible to win, court always jumps to the second prong and
concludes that the verdict would be the same, thus no prejudice, thus no need to analyze attorney’s
conduct
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 The only real time a court is willing to find a reversible error is in a death case, they are not reversing
the conviction, they are just sending back down for a new hearing on the death penalty issue (like if the
attorney did not bring up mental issues)
 Client controls decisions which are “fundamental” while counsel controls (w/o approval of client) those
that are “strategic”
 What decisions the client controls:
 To plead guilty
 To waive jury
 To waive right to be present at trial
 To testify on their own behalf
 To take an appeal
 What decisions the lawyer controls:
 Barring evidence
 Dismissing indictment on grounds of racial discrimination
 Wearing civilian clothes vs. prison garb
 Striking jury instructions
 Foregoing cross-examination
 Calling a witness to testify
 Providing discovery
Cases
 Strickland v. Washington (1984)
 Facts: Convicted of murder after ignoring his attorney’s advice, confessing, pleading guilty, at
sentencing the attorney spoke about how he was taking responsibility, did not have character
witnesses or experts there, believed the focus on admitting guilt was in judge’s favor, sentenced
to death
 Issue/Holding: Whether this attorney was ineffective
 Rule/Takeaway:
 Ineffectiveness depends on whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result
 A claim of ineffectiveness requires reversal if proves both:
 Performance was deficient
o Requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the 6th am
 That Deficient performance prejudiced the defense so that he did not receive a fair
trial
o Show errors were so serious that result of trial is unreliable
o D must show reasonable probability that, but for counsel’s errors, the
result would have been different
 A reasonable probability is a probability sufficient to undermine
confidence in the outcome
 Court presumes that the judge or the jury was acting according to
the law unless there is a reason not to
 The standard is that of reasonably effective assistance, an objective standard of
reasonableness considering all of the circumstances
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Judicial scrutiny of counsel is highly deferential
 Begin with presumption that conduct was reasonable
 b/c of the distorting effect of hindsight
 Reasonableness of actions is viewed at the time of counsel’s conduct
 Ake v. Oklahoma (1985)
 If D is able to make ex parte threshold showing to a trial court that his sanity is likely to be a
significant factor in his defense, due process requires access to a psychiatric examination on
relevant issues to the testimony
 Caldwell v. Mississippi (1985)
 Indigent D’s are not entitled to expert testimony by fingerprint experts, ballistics, etc. paid for by
the state
 But many states do have statutes providing funding for such experts or their public Defendant’s
officers do, it’s just not constitutionally mandated
 Florida v. Nixon (2004)
 Nixon’s attorney explained that he wanted to concede guilt in order to urge leniency in the
sentencing phase, Nixon did not specifically consent, but never rejected it either
 Held that the lawyer had acted properly b/c he still went through entire trial as his defense
attorney, it was not the same as a guilty plea and was a reasonable strategy
 Important that he did not reject or consent
Summary
 Under Strickland, D has burden to show:
 Reasonable probability that
 Sufficient to undermine confidence in outcome
 But for counsel’s unprofessional errors
 The result would have been different
 Court presumes lawyer acted reasonably and presumes that judge or jury was acting according to the law
ARREST, SEARCH, AND SEIZURE
General Notes
 Two Clause theory
 Fourth has 2 separate commands
 You cannot make unreasonable searches and seizures
 And separately, there is a rule about warrants
 Keystone is reasonableness
 “searches and seizures have to be reasonable, oh and by the way, here are the rules for warrants”
 Not every search requires a warrant, if its reasonable to get a warrant, then get one, but if it is not
reasonable, it’s not necessary
 Searches and Seizures must be reasonable
 One Clause Theory (Majority held)
 There is a presumption that a warrant is required
 In order for a search or seizure to be reasonable, it must be pursuant to a warrant
 Searches and seizures are only reasonable with a warrant (unless exceptions apply)
 Particularity Clause
 You have to be precise in a warrant clause as to what you have probable cause for
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 When the 4th was written, there were not police departments, so it is difficult to apply it to police
behavior
 Legislature issued back then
The Exclusionary Rule
General Notes
 Evidence obtained in an illegal search and seizure cannot be used against you
 USSC created the Exclusionary rule as a remedy for when there is an unreasonable search and seizure
 Justifications for the Ex Rule at its inception (not after Leon)
 Deterrence
 Officers will be upset when prosecutions don’t go forward so they’ll do it right the next
time
 The only way to compel respect for the constitutional guarantee of the 4th am is to
remove the incentive to disregard it
 Judicial Integrity
 Government should lead by example and play by the rules so that everyone else does, it
would simply be wrong to leave this evidence in
 From 1970 or so on – a govt. victory is likely in Ex rule cases, b/c Berger is not a fan of the Ex rule b/c
he thinks it lets too many people out
Hypos
 It is 1983, Pre-Leon: You bring an affidavit to a judge thinking there is probable cause, the judge says
it is sufficient and signs the warrant, after conviction, it turns out there was not actually probable cause
 Govt argues that the officer here was acting in good faith and the purpose of the Ex Rule is
deterrence where excluding evidence here would have no deterrent effect
 Defense argues judicial integrity from Mapp v. Ohio – we should keep the evidence out b/c the
govt. violated the law and the govt. is the teacher who must follow the rules
Cases – Origins & Applications
 Weeks v. United States (1947)
 Facts: Federal agents enter home without a warrant to take counterfeit money used as evidence
in federal trial
 Issue/Holding: Whether govt can use the evidence it obtained in violation of the fourth
 No, the govt. cannot use the ill-gotten evidence in a criminal prosecution pursuant to our
supervisory power over federal courts
 Rule/Takeaway:
 In a federal criminal prosecution, any evidence obtained in violation of the Fourth Am
should be excluded from trial
 Not extended to state law enforcement b/c the fourth am not yet incorporated
 The fact that this did not apply to states was known as the “silver platter doctrine” b/c
state police could hand it to the feds on a silver platter
 Wolf v. Colorado (1949) OVERRULED
 Facts: State police break into house and find drugs which they use to convict
 Issue/Holding: Whether a conviction at the state level denies DP of law required by the 4th am
(b/c it would be suppressed at the federal level under Weeks)
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In a state court for a state crime, the 14th am does not forbid the admission of evidence
obtained in an unreasonable search and seizure b/c the exclusionary rule is not a part of
the 4th am, it’s a judicial remedy
 Frankfurter, fundamental fairness guy looks at what the states think and at history, many
reject Ex rule and England did not use it either
 Rule/Takeaway
 Defense is relying on 14th am DP and at this time, there is a rift between total
incorporation and fundamental fairness
 Rationale for this decision is that the Ex rule is a remedy, not a right, it’s a USSC created
rule for federal courts
 Dissenters are total incorporation guys saying the only workable remedy is the Ex rule
Mapp v. Ohio (1961)
 Facts: Enter home without warrant, refused to let her attorney in, show her a fake warrant, find
obscene material on which she was convicted
 Issue/Holding: Whether to overrule Wolf and hold that states must exclude evidence seized in
violation of the 4th
 Wolf is overruled, in that case we found that the 4th applied to the states, but found that
the Ex rule does not and that makes no sense
 The idea of privacy in one’s home is implicit to the concept of ordered liberty and to hold
that state officers can violate the Fourth Amendment with no consequence
 To hold otherwise would mean the 4th is an empty promise
 Rule/Takeaway:
 All evidence obtained by searches and seizures in violation of the constitution are, by that
same authority, inadmissible in state court
 The principles of the 4th apply to the state through the DP clause
 Huge turning point in criminal justice because now the Ex Rule effects every police
department in the country
 And to murders and rapists, criminals who never see a federal court room
 At the time people feared this would mean that such criminals would get off
 And the 4th am is becoming about how police officers do their actual jobs, patrolling,
investigations, stops and frisks
One 1958 Plymouth Sedan v. Pennsylvania (1965)
 Facts: Forfeiture case (quasi-criminal, object is to penalize the commission of an offense)
 Rule/Takeaway:
 Ex rule applies to forfeiture proceedings
United States v. Calandra (1974)
 Facts: Grand jury is asking questions and the D realizes they must have search his house w/o a
warrant
 Issue/Holding: Should Ex rule be expanded to grand jury
 No, to apply it would not significantly further the goal of deterrence
 Rule/Takeaway:
 A grand jury witness may not refuse to answer questions on the grounds that they are
based on evidence obtained from him in an earlier unlawful search
 EX rule does not apply to grand jury hearings
 Stopped the expansion of the Ex Rule
United States v. Janis (1976)
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Facts: Federal civil tax trial
Issue/Holding: Should Ex rule be extended to civil suits
 No, a cop is not likely to be deterred by the “punishment” of loss of evidence in a civil
suit
 Rule/Takeaway:
 Ex Rule not extended to civil proceeding b/c cops are only interested in criminal trials
and deterrence is the purpose of the Ex rule
INS v. Lopez-Mendoza (1984)
 Facts: deportation case
 Rule/Takeaway: Ex rule not extended, not applicable in a civil deportation hearing
Pennsylvania Board of Probation and Parole v. Scott (1998)
 Facts: Illegally seized evidence was admitted at D’s parole revocation hearing
 Rule/Takeaway:
 Did not extend the Ex rule beyond the criminal trial b/c to do would hinder the
functioning of state parole systems while only providing a minimal deterrence benefit
Burdeuau v. McDowell (1921)
 Ex Rule does not exclude evidence in criminal cases that was obtained by private persons (b/c
4th only applies to govt.)
 But the 4th would apply to a private person who is acting as an instrument or agent of the govt.
 So, if the govt. is making it worthwhile for a private person to break into your house, you could
argue that there is a 4th am violation and try to exclude on that basis
United States v. Jacobsen (1984)
 Facts: private shipping company opens a package, finds drugs, calls the cops who then look in
the package
 Rule/Takeaway:
 This was a situation of cops without a warrant looking into an item but is not a search so
no Ex Rule application for the drugs b/c the private company destroyed the expectation of
privacy
Kerr / Frisbee Doctrine:
 You cannot suppress the body of a person because of an illegal search and seizure
 There is no such thing as a motion to quash an arrest
 Ex Rule only comes into play with evidence
 An illegal arrest cannot be suppressed because you cannot suppress the body / the person
himself
 Cops can always arrest you again later with a warrant
 it does not matter how you got arrested, once you are there, you can be convicted
 Instead, file a motion to quash arrest and suppress evidence found during the arrest
Cases – Good Faith Exception
 United States v. Leon (1984)
 Facts: Judge said there was probable cause for a warrant, but
 Issue/Holding: Should Ex Rule be modified to not bar evidence obtained when cops acting in
reasonable reliance on a warrant issued by a judge but later found to have been unsupported by
PC
 Yes, the only thing that matters is deterring cop behavior, not judge behavior
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Cost is preventing the use of evidence that may convict a person who did actually commit
a crime, bad guys get away and the benefit of excluding this evidence would not deter
anything, the police acted appropriately
 Especially relevant that a warrant was issue, the good faith exception does not apply in
warrantless situations
 B/c the warrant is a check by another branch of govt
 Rule/Takeaway:
 No more “judicial integrity” reason for Ex Evidence must be deterrence, must be a costbenefit analysis
 Ex Rule is a judicially-created safeguard designed to protect 4th am rights; not a
constitutional right itself of the person aggrieved
 4th does not have a provision stating that the use of evidence is a violation, the
4th is violating when there is an unreasonable search, not when there is evidence
at a trial
 Police reliance on the sufficiency of the warrant must be objectively reasonable
 Ex rule still applies if the judge was misled by the officer or it should have been
obvious to an officer that the magistrate had abandoned his judicial role or if the
officer presented such a lacking affidavit that he knew the judge should not have
signed it
 A fourth amendment violation is a necessary, but not sufficient factor in whether the Ex
rule is justified
 Good Faith Exception / Reasonable Reliance
 Whether the officer acted under a reasonable, objective belief that he is following
the law
 Four Exceptions to the Exception:

 Massachusetts v. Sheppard (1984)
 Facts: Decided same day as Leon, state cop on a homicide scene can only find the warrant form
for a controlled substance warrant, explains to the judge who tells him there is PC for the
homicide search and he’ll take care of, turns out the judge never corrected the warrant so
particularity clause was violated
 Issue/Holding: Whether Ex Rule should apply to this scenario
 Yes, the officer was relying on a judge and that is objectively reasonable so he acted in
good faith and excluding would not deter
 Rule/Takeaway:
 Expands good faith exception from not only PC issue (Leon) but to particularity clause
issues (if the judge says the warrant is legitimate)
 An officer is not required to disbelieve a judge who has just advised him that the warrant
he possess authorizes the search he has requested
 Illinois v. Krull (1984)
 Facts: IL Statute allows search of junkyard without a warrant b/c of legislative fear of chop
shops, while that statute existed, the search took place, the statute was then found to be
constitutional so the search was a 4th am violation
 Issue/Holding: Whether to extend a good faith exception in this scenario
 Yes, the officer’s reliance on the statute was reasonable and suppressing the evidence
would have little deterrent effect, legislature is not the focus of deterrence in the Ex Rule
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Rule/Takeaway:
 Unless a statute is clearly unconstitutional on its face, an officer cannot be expected to
question the judgment of the legislature that passed the law
 Good faith exception to the Ex Rule applies to statutes reasonably relied on by officers
 Grah v. Ramirez (2004)
 Facts: §1983 case, cop correctly states the items to seized in the attached affidavit, but
mistakenly entered it in the wrong section of the warrant, officer clerical error, judge did not
catch it and signed the warrant
 Issue/Holding: Whether the extend the good faith exception to this scenario
 No, this is not the same
 Unlike in Sheppard, where the officer was told by a judge that the judge would take care
of it, the officer here did it himself, so he was not relying on the Magistrate’s assurance
 Since particularity is in the text of the constitution, no reasonable officer could think that
this warrant was valid
 Rule/Takeaway:
 A warrant may be so facially deficient in failing to particularize the place to be searched
or the things to be seized that the executing officers cannot reasonably presume that it is
valid
 §1983 so not about suppression of evidence in a criminal trial, court may have held
differently if this was a case about whether to introduce a bloody knife at trial
 Hudson v. Michigan (2006)
 Facts: Police have proper warrant, announce presence at the home, but wait only seconds before
entering so alleged to have violated the Knock and Announce Requirement (part and parcel to
4th to knock and announce unless there is a valid exception like death, violence, destruction of
evidence)
 Issue/Holding: Whether to exclude evidence on basis of knock and announce violation
 No, 4th am was violated but exclusion is our last resort and there is a huge cost to society
so imposing this massive remedy of exclusion for a knock and announce violation would
lead to many difficult cases turning on whether cops waited long enough
 Rule/Takeaway:
 Ex rule is not applied where its deterrence benefits outweigh its substantial social costs
 Incentive to avoid a knock and announce violation is minimal, the cops had a proper
warrant with probable cause and their mistake was only in executing the search
 Arizona v. Evans (1995)
 Facts: Pulled over for running a stop sign, cop pulls up on computer system kept by the
courthouse, not the cops, and sees a warrant, arrest, search, drugs, turns out the computer was
wrong
 Issue/Holding: Whether to suppress
 Ex rule is about deterring police, not court employee, conduct
 The arresting officer was acting objectively reasonable when he relied on the computer
record
 Rule/Takeaway:
 Good faith exception extends to cover a clerical error by court system, cops relying on
judicial branch
 Extended it even though there was not really a warrant because it was reasonable for the
cop to think there was a warrant
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 Herring v. United States (2009)
 Facts: Same facts as Evans, but it’s the police running the database that had the warrant mistake
 Issue/Holding: Whether to suppress
 Ex rule depends on the culpability of the police, looking at the flagrancy of police
misconduct, their action was a simply clerical error
 This is just mere negligence, not enough to apply the Ex Rule
 Rule/Takeaway:
 Shift in the focus away from “deterrence” and into “culpability”
 Were the police blame-worthy?
 To trigger the Ex rule, police conduct must be sufficiently deliberate that ex can
meaningfully deter it and sufficiently cuplable that such deterrence is worth the price paid
by the justice system
 Ex rule serves to deter deliberate, reckless, or gross negligence or recurring or systematic
negligence
 Objective analysis
 Davis v. United States (2011)
 Rule/Takeaway:
 Affirms Herring
 Extends the good faith exception of the exclusionary rule to cover police conducting a
search in objectively reasonable reliance on binding judicial precedent
 Court will not apply the Ex Rule to suppress evidence obtained as a result of nonculpable,
innocent, police conduct
 Ex rule only applies to deter misconduct
Summary
 Exclusionary rule originally applied only to the federal government, weeks
 Because it’s a judicial remedy, not constitutional requirement of 4th Am, Wolf
 Then, Incorporation Doctrine, the 4th applies to the state through the 14th, so the Ex rule does apply to
the states, Mapp
 But there is a good faith exception b/c the entire purpose of the Ex Rule is deterrence, must weigh the
cost to society of suppressing against the benefit of deterring the action in question, Leon
 The analysis focuses on the reasonable reliance of the cop, Leon
 Good Faith Exception extends to reliance on a magistrate, Sheppard, reliance on a statute, Krull,
but not a facially improper warrant a cop should have noticed, Groh
 Roberts Trilogy shifts the analysis from reasonable reliance to culpability
 Excluding is our last resort, Hudson
 Relying on the court’s computer was not really the cop’s fault, Arizona
 Even if the cop’s themselves were in charge of the records, Herring
 Cops must be grossly negligent (or systematically or recurrently negligent), deliberate, or reckless,
Davis
Protected Areas and Interests
Cases
 Olmstead v. United States (1920)
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No trespass in wire tap because there must be some kind of entrance in order for there to be a
search
Katz v. United States (1967)
 Facts: Phone call from public phone booth, he shut the door, there was a device on top listening
 Issue/Holding: Whether this is a search
 Yes, the 4th protects people not places
 Subjective expectation of privacy because he closed the door and that was objectively
reasonable because phone conversations are so prolific and held to be private
 Trespass no longer required for something to be a search
 Rule/Takeaway:
 What a person seeks to preserve as private, even in public, may be constitutionally
protected
 Must have an expectation of privacy and that expectation must be objectively reasonable
(society prepared to recognize as reasonable
 Redefines what is a “search” : government impinging upon a person’s reasonable
expectation of privacy
Soldal v. Cook County (1992)
 Facts: did not pay assessments on trailer, cops literally take it, turned out he had actually paid, he
filed §1983
 Issue/Holding: Whether there is a search or seizure here
 There is no search here, they did not go inside
 But, there is a seizure
 Rule/Takeaway:
 Defines seizure as a meaningful interference with a person’s possessory interest in
property
 Other types of seizure later in arrest section
California v. Ciralo (1986)
 Facts: Think guy has weed so they rent a plane to take pictures and then get a warrant, D argued
he had an expectation of privacy b/c we built a fence, they did not have a warrant when they
searched, state says there is no search b/c they never entered his property
 Issue/Holding: Whether it’s a search
 Not a search b/c any member of the public who is flying could glance down and see
exactly what the cops saw
 Rule/Takeaway:
 D’s expectation of privacy was unreasonable b/c airspace is public and anyone could do
what the cops did
Florida v. Riley (1989)
 Facts: Tip that there’s weed in a greenhouse, some windows on top are broken, rent plane and
take pictures, then use pictures to get a warrant
 Holding: Not a search b/c any member of the public could do exactly what the cops did, rent a
plane and look through a window
California v. Greenwood (1988)
 Facts: Cops ask garbage collectors for trash and they give the garbage to them; they find
syringes.
 Issue/Holding: Whether this is a search
 No, G exposed his garbage to the public sufficiently to defeat his claim to 4th protection.
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D’s places their trash at the curb for the express purpose of conveying it to a 3rd party,
the trash collector, who might himself have sorted through the trash or permitted others,
such as cops, to do so.
 D could have no reasonable expectation of privacy in the inculpatory items that he
discarded.
 Rule/Takeaway:
 The cops cannot be expected to avert their eyes from evidence of criminal activity that
could have been observed by any member of the public
 what a person knowingly exposes to the public, even in his home or office, is not a
subject of 4th amendment protection.
 A person has no legitimate expectation of privacy in information he voluntarily turns
over to 3rd parties.
 United States v. Place (1983)
 Facts: P has a piece of luggage at the airport. The cops have a dog that can sniff and indicate if
there are drugs in the bag, indicates there are drugs in the bag, cops don’t have a warrant.
 Issue/Holding: Whether this is a search
 No, a person possesses a privacy interest in the contents of personal luggage that is
protected by the 4th amendment
 But, this is a binary search that only tells you drugs or drugs and a person does not have a
reasonable expectation of privacy drugs
 this is not intrusive like other examples when the cops open the bag, rummage through
and see other things that you do have an expectation of privacy in and thus not a search
 Rule/Takeaway:
 A canine sniff is a binary search = either there are drugs or there are not, does not expose
noncontraband items that otherwise would remain hidden from public view.
 United States v. Jacobsen
 Facts: Agents took substances and did a field test to determine if the substance was/was not a
drug; that is the only thing the test could indicate. It either says it is contraband, in which you
have no expectation of privacy, or it is not contraband.
 Issue/Holding: Is this a search
 No, because the only thing revealed (drugs) is not something a person has an expectation
of privacy in
 Rule/Takeaway:
 Here, as in Place, the likelihood that official conduct of the kind disclosed by the record
will actually compromise any legitimate interest in privacy seems much too remote to
characterize the testing as a search subject to the 4th amendment.
 Kyllo v. United States (2001)
 Facts: use heat detecting tool to tell whether there are heat lamps inside to see if he is growing
weed
 Issue/Holding: Whether this is a search
 Yes, all details inside the house are intimate details and the govt. used technology to see
what was going on inside the house
 Rule/Takeaway:
 We think that obtaining by sense-enhancing technology any information regarding the
interior of the home that could not otherwise have been obtained w/out physical
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“intrusion into constitutionally protected area” constitutes a search (at least where, as
here, the technology in question is not in general public use).
Bond v. United States (2000)
 Facts: Government agents go through a bus or a train, and here the agents were squeezing the
bags in the overhead bins; they are looking for drugs
 Issue/Holding: Whether squeezing the bags was a search
 It was, a passenger expects his bag might be moved but does not expect it to be squeezed
in an exploratory way
 Rule/Takeaway:
 A physical manipulation is more intrusive than a visual inspection
 That a traveler’s personal luggage is clearly an “effect” protected by the 4th; luggage =
effect.
United States v. Knotts (1983) & United States v. Karo (1984) (Beeper Cases)
 Beeper inside of chemical drum
 Not a seizure b/c it was not his drum when they put the beeper into it so he had no
possessory right and not a search because the beep conveys no content information
 Tracking his 20 mile trip via beeper
 Not a search: visual surveillance from public places along K’s route or adjoining K’s
premises would have sufficed to reveal all these facts to the cops
 Nothing in the 4th prohibited the cops from augmenting the sensory faculties bestowed
upon them at birth w/ such enhancement as science and technology afforded them in this
case.
 Using a beeper to tell whether the barrel is inside of the house
 Yes, a search because if they entered the house to see if the barrel was there, that would
be a search and the result is the same here
 But, if they had a warrant or probable cause this would not have been an unreasonable
search.
 Now we’re getting intimate details inside the house; there is a search then, which has to
be justified by a warrant or probable cause to justify the search.
United States v. Jones (2012)
 Facts: Attach GPS to car and track for 4 weeks
 Issue/Holding: Whether this is a search
 Majority focuses on the installation itself as being a “search” The gov’t physically
occupied private property for the purpose of obtaining information.
 Rule/Takeaway:
 Katz test added to, did not replace the trespassory test
 Concurrences
 Mosaic Test: the one trip is not a search but when you add all the pieces together,
it constitutes as a search.
 Short Term = reasonable
 Long Term = unreasonable
 Concurrence does not identify with precision the point at which the tracking of
this vehicle became a search, for the line was surely crossed before the 4-week
mark.
Florida v. Jardines
 Facts: dog comes up to house and sits on the porch indicating drugs in the house
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Issue/Holding: Is this a search?
 not a search and its acceptable for anyone to walk up on the curtilage of the land and the
drug dog is just a binary procedure
 BUT the defense wins and says the police can't go beyond the grounds of what a
neighbor or stranger would go and they were walking up to the house with the intent to
find drugs
Rule/Takeaway:
 the intent to get information to perhaps make a search is violation of the person's privacy
 So it is possible to argue that something is a search if it was an unlicensed intrusion with
the intent to get some kind of evidence
Summary
 A search is a trespassory invasion, Olmstead, Jones
 Or, a search is a governmental intrusion into a reasonable expectation of privacy, Katz
 If a member of the public can do exactly what the police did, there can be no reasonable expectation of
privacy, FL v. Riley
 A binary search revealing only whether you do or do not have drugs is not a search, Place
 Even though that search may have been of your effects, Jacobsen
 But, govt. cannot use technology to see what it otherwise would not be able to see without a warrant,
Kyllo
 And in the future, it’s likely they’ll hold that long-term surveillance without a warrant is a search, Jones
 To argue something is a search
 Use Katz test
 And/or say it’s an unlicensed intrusion with the intent to get evidence, Jardines
Probable Cause
General Notes
 Even if you do not need a warrant (i.e. an emergency situation), you still need PC
 There is no such thing as a PC exception
 PC is needed for warrantless searches and arrests
 “Stale” information
 Probable cause for search and arrest are different
 Search PC: must be a substantial probability that certain items are the fruits, instrumentalities, or
evidence of crime and that these items are presently to be found at a certain place
 Arrest PC: must be a substantial probability that a crime has been committed and that the person
arrested committed it
 For a search, PC has to do with the present location of certain objects so PC can be lacking
because the time of the facts relied upon is unknown or highly uncertain
 Cop Sources for PC
 Can believe a Citizen informant (unless they have a reason not to)
 Their own direct observation
 Or from official channels
 Horizontal:
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If you have a group of officers working together, it is the group collectively
working together to establish probable cause. If A yells “get that guy!” B can rely
on A; this is on the collective knowledge doctrine that cops can work together.
Vertical:
Hypos
 Assume there is a motion to suppress coke found in apt., D atty says there is no probable cause. How do
you begin to review this?
 If the D says no probable cause, then what should the prosecutor say?
 First bring up Gates, arguing that the judge has to look at the totality of the circumstances
and determine that there was a fair probability;
 the judge only needed to make a practical, common sense decision.
 Then you should argue that the suppression judge should give significant deference to the
issuing judge
 all they need is a substantial basis.
 even if the judge says no probable cause (4th violation), that’s when you rely on the Leon case.
 You say there is a good faith exception that deters bad police activity; the cop is allowed
to rely on the direction of the magistrate’s issuance of a warrant on probable cause.
 The “good faith” exception cannot be used unless you find a 4th amendment violation. So
if you lose on Gates, that’s when you use Leon and argue objective good faith on part of
the officer.
 Gates-Leon is like an insurance policy. It’s the Berger Court encouraging cops to get
warrants, if they do, they have the Gates-Leon insurance policy.
 cops goes to judge, cops wants warrants. They made a drug-buy from D a while back, and they wanted
2 things: an arrest warrant and a search warrant to search D’s house to look for more drugs. This
happened 9 years ago b/c the cop was doing all this undercover
 Why can’t the judge give an arrest warrant?
 You have to ask in your jurisdiction how far the SOL goes back. This is the an area
where an arrest warrant might be “stale.”
 There are some areas where a SOL never runs: murder, sex crimes.
 The issue then is in our jurisdiction how far does the SOL go? Assume its 10 years.
Assume the judge gives the warrant.
 For probable cause for arrest, there must be a substantial probability that a crime has been
committed and that the person to be arrested committed it.
 What about a search warrant?
 Assume the cop bought the drugs in front of the D’s house and the D said “lots more
where that came from.” Based on the totality of the circumstances, there is not a fair
probability that the drugs are still at the house.
 B/c probable cause for a search warrant has to do with the present location of certain
objects, it may be found to be lacking b/c the time of the facts relied upon is unknown or
highly uncertain.
 When the time of the facts is given probable cause will sometimes be lacking b/c that
information becomes “stale.”
 So this may support an arrest warrant, but not a search warrant.
 say the drug-buy was yesterday. Asked for arrest warrant to arrest the guy and a search warrant
to search the guy’s house:
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Arrest warrant: no problem, he did it yesterday.
Search warrant: “he said more where that came from, come to my house at X” in that
situation, then there would probably be probable cause. But just b/c there was only a buy,
does not mean there is probable cause. But once the magistrate makes his decision, it is a
deferential standard.
 let’s say cop goes to judge, and cop has info that there will be a huge drug delivery to a specific
house. Cop wants a search warrant so when the stuff gets delivered, we can make the search.
 What are the problems?
 It hasn’t happened yet. No fair probability that drugs are at the specified location.
 Affidavit contains LIES. What do you tell the suppression judge?
 IL used to have a 4-corners rule: as long as the judge signs off on the affidavit, and drugs were
found, then everything is alright.
 argue Franks v. Delaware. Must prove that the police were acting with reckless disregard for the
truth (or knowingly and intentionally). That is a difficult standard to show that the police lies
were an intentional, knowingly, conscious disregard for the truth.
Cases
 Maryland v. Pringle (2003)
 Facts: Officer stops car for speeding, searches, finds drugs and the passenger, Pringle, confesses
they are his
 Issue/Holding: Clearly there is PC to believe a crime was committed, but is there PC to believe
that Pringle has committed the crime
 Yes, the cash was in the compartment right in front of Pringle and he and the other 2 men
all had access to where the drugs were hidden
 thus, it is reasonable to infer that any or all three of the occupants had knowledge of and
exercised dominion and control over the cocaine
 thus, the officer could conclude there was PC to believe that Pringle committed the crime
either solely or jointly
 this is not a case of guilt-by-association, that would only apply if there was no reason to
suspect Pringle other than his being in a relatively public place, thus no 4th or 14th
violation
 The probable-cause standard is incapable of precise definition or quantification into percentages
 b/c it deals w/ probabilities
 and depends on the totality of the circumstances
 the substance of all the definitions of probable cause is a reasonable ground for belief of guilt
that must be particularized w/ respect to the person to be searched or seized
 Agular & Spinelli OVERRULED
 Test for PC to evaluate if info coming from an informant is reliable:
 the basis of knowledge (underlying circumstances); you would want to say that the basis
of knowledge of the informant is involved w/ the person; seen something and/or done
something with the target (placed bets with him); AND
 He’s creditable, reliable. Cops would show this by showing that the 10-12 other times we
relied on his person he was right
 Illinois v. Gates (1983)
 Facts: anonymous letter that a couple goes to Florida to meet dealers and bring drugs back, some
things they said in the letter turned out to be true so the cops got a warrant
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Issue/Holding: whether PC exists here
 Yes, there was probable cause because could verify everything in the letter about the trip
so it was reasonable to believe that the part about drugs was true as well
 It is enough that there was a fair probability that the writer of the anonymous letter had
obtained his entire story either from the Gates or someone they trusted and corroboration
of major portions of the letter’s predictions provides that probability
 it is therefore apparent that the issuing judge had a substantial basis for concluding that
probable cause to search the home and car existed
 Rule/Takeaway:
 Probable Cause: Fair probability
 Proper test For PC is a totality of circumstances test
 The task of the issuing magistrate is
o to make a practical, common-sense decision
o whether, given all the circumstances set forth in the affidavit before him,
 including the “veracity” and “basis of knowledge” of persons
supplying hearsay information
o there is a fair probability that contraband or evidence of a crime will be
found in a particular place
 And the duty of a reviewing court is simply to
o ensure that the magistrate had a “substantial basis for concluding” that
probable cause existed
 Gates made it much easier to get a warrant
 Florida v. Harris (2013)
 Held that a dog alerting can be the basis for probable cause if a bona fide organization has
certified the dog after testing his reliability in a controlled setting, the D may have the
opportunity to challenge such evidence of a dog’s reliability, either by cross-examination or by
introducing his own fact or expert witnesses
 United States v. Grubbs (2006)
 Facts: Warrant issued when a package containing child porn would be delivered later and that’s
when the warrant would be executed, anticipatory warrant
 Rule/Takeaway:
 For a conditioned anticipatory warrant to comply with the 4th am’s requirement of
probable cause, two prerequisites of probability must be met.
 It must be true not only that if the triggering condition occurs “there is a fair
probability that contraband or evidence of a crime will be found in a particular
place”
 but also that there is a probable cause to believe the triggering condition will
occur.
 Example: Must be PC to believe CP is going ot be inside of that package at that
particular home at that time and must also be PC to believe that the package is
going to be delivered
 Franks v. Delaware (1978)
 Facts: Situation when you look at the affidavit the cop made to get the warrant, and it’s flawless.
Cops get the warrant, make the search, and find drugs. But the D atty finds that the affidavit is
full of lies. In terms of the basis the officer gave for getting the warrant, it was all lies.
 Rule/Takeaway:
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The D may challenge an affidavit which is sufficient on its face. You are allowed to go
behind the affidavit and show that it is nothing but lies.
 D must make a substantial preliminary showing that a false statement knowingly and
intentionally or w/ reckless disregard for the truth was include din the warrant
 And then there is a hearing on PC and if D is successful, any lies are removed from the
affidavit
 But the lie in question must be relevant to the PC analysis (a material lie)
 This is a Leon exception
 Whitely v. Warden (1971)
 Facts: radio tells cops there was a warrant and they arrest, turns out there was no PC so the
warrant was bad and the evidence
 Rule/Takeaway:
 Vertical
 no probable cause to begin with. Everything the officers did was wrong, and we should
suppress the evidence.
 If there is no probable cause, it all falls down.
 State could argue Leon if the cop obtaining the warrant was acting in good faith, then the
arresting cop was also acting in good
 An otherwise illegal arrest cannot be insulated from challenge by the decision to rely on a
fellow officer’s work to make the arrest
 McCray v. Illinois (1967)
 When the issue is not guilt or innocence, but probable cause for an arrest or search, Police
officers need not be required to disclose the informant’s identity if the trial judge is convinced by
evidence submitted in open court and subject to cross-examination, that the officers did rely in
good faith upon credible information supplied by a reliable informant
Summary
 Probable Cause: Fair probability
 Proper test For PC is a totality of circumstances test
 The task of the issuing magistrate is
 to make a practical, common-sense decision
 whether, given all the circumstances set forth in the affidavit before him,
 including the “veracity” and “basis of knowledge” of persons supplying hearsay
information
 there is a fair probability that contraband or evidence of a crime will be found in a
particular place
 And the duty of a reviewing court is simply to
 ensure that the magistrate had a “substantial basis for concluding” that probable cause
existed
Search Warrants
General Notes
 Originally in Warren Court, big emphasis on the importance of warrants/warrant clause
 What do warrants provide:
 Keep officers honest
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 limit the search / what the govt. can do (particularity clause)
 check on separation of powers
 Ex rule as protection
Then in 1970’s there’s a shift and there is a willingness to find exceptions for search warrants
Movement form the Warrant clause to the “reasonable” aspect of the search from Burger until today
Burger court goals: Get less evidence suppressed in criminal trials
 Easier to get a warrant
 More ways to keep the evidence in
 Create more types of “reasonable” searches without warrant
Particularity Clause
 Must describe the place to be searched, the things to be seized
 But not how you enter the building, etc.
Issuance of the Warrant
Cases
 Coolidge v. New Hampshire (1971)
 Facts: State attorney general goes to murder scene, signs warrant and directs cops
 Issue: Can the chief law enforcer of the state issue a warrant
 No, you must have a neutral and detached magistrate and the state official is also the
chief investigator and potentially the prosecutor so his desire to solve or win the case
keeps him from being neural, all the same branch of govt. so no check
 Rule/Takeaway:
 A fundamental premise of the 4th (incorporated to the states through the 14th DP clause) is
the required for a neutral and detached magistrate
 The concept of the warrant should be the judicial checking in on the executive branch
 Shadwick v. City of Tampa (1972)
 Facts: City charter authorizes a municipal court clerk to issue an arrest warrant for a municipal
ordinance violation
 Issue/Holding: Whether the issuing magistrate must exclusively be a judge / lawyer
 No, this is OK because if he detached and works in the judicial branch, subject to the
supervision of a judge, he knows enough from his job to deduce where there is PC for
something minor like breach of the peace, trespass, other common ordinance violations
 Rule/Takeaway:
 Issuing magistrate must meet 2 tests
 He must be neutral and detached and
 Capable of determining whether PC exists for the requested arrest or search
 Groh v. Ramirez
 Facts: Warrant for homicide scene but only had available drug warrant, judge said he’d fix it and
it got in b/c of good faith exception, reliance on a judge kept it from exclusion
 Issue: Was there a 4th am violation - While the warrant was facially invalid, does the fact that the
attached affidavit had all the correct information save it from a particularity clause violation?
 No, the judge may have only found PC for parts of the affidavit and should have then
transcribed those parts onto the warrant itself
 The warrant is the order, the affidavit is just an application for a warrant
 Rule/Takeaway:
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
Courts will allow incorporation of other documents by explicit reference in the warrant
(not what happened in this case)
 Otherwise, it is the warrant itself that must have particularity or otherwise it is facially
deficient
 Maryland v. Garrison (1987)
 A warrant for a building must describe the particular unit to be searched
 but if the building appears to be a single-occupancy structure and neither the affiant or
investigating officers knew or had reason to know otherwise until execution of the warrant was
underway then the warrant is not defective for failing to specify a particular unit
 Focus on reasonableness
Execution of the Warrant
General Notes
 Time of the Execution is not in the 4th and the USSC has not definitively answered the question
 Depends on each state’s rules
 Some are 10 days, IL is 4 days
Cases
 United States v. Gerber (1993)
 Completing a search shortly after the expiration of a search warrant does not rise to the level of a
constitutional violation and cannot be the basis for suppressing evidence seized so long as
probable cause continued to exist and the govt does not act in bad faith
 Wilson v. Arkansas (1995)
 As a general rule, you have to knock and announce and then provide a reasonable amount of time
for the person to answer but exceptions:
 If the cops determine that a place to be dangerous
 If it is known or there is reason o believe that drugs / evidence will be destroyed
 A showing that a knock and announce will defeat the purpose of the search
 Richards v. Wisconsin (1997)
 Rejected the state’s law that there was not a knock and announce requirement if the search
warrant was for drugs
 Not a good idea to have a blanket exception
 Considerable overgeneralization
 Any reason for creating an exception in this instance could apply to many other instances
as well
 In order to justify a “no-knock” entry, the cops must have a reasonable suspicion that knocking
and announcing their presence, under the particular circumstances, would be dangerous or futile
or would inhibit the effective investigation of the crime (by, for example, allowing for
destruction of evidence)
 Courts look at individual circumstances of each case to determine whether the no knock was
reasonable
 United States v. Banks (2003)
 In the absence of exigent circumstances, the issue of how long to wait before entering depends
on whether the occupant’s failure to admit the police fairly suggests a refusal to let them in
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depending on whether it reasonably appears that the occupant would have had time to get to the
door
The crucial fact for whether there are exigent circumstances does not depend on how long it
would take to get to the door, but the particular exigency such as searching for cocaine which
could be kept by a sink and flushed very quickly
Seizure of persons on Premises
 Michigan v. Summers (1981)
 Facts: Cops have a legit search warrant to search the house, but they also search the guy who
owns the house after forcing him to stay there while the search happens, he moves to suppress
only the drugs found on his body, there is no warrant to arrest him
 Issue/holding: Was the seizure of the owner of the house reasonable, can cops force him to stay
during the search
 Yes, bc/ looking for contraband and he owned the house so if you found it, he
constructively owned the contraband, a seizure is a limited intrusion when compared to
the need to avoid flight in the event that evidence is found, minimizing the risk to the
officers
 Rule/Takeaway:
 This case focuses on the type of search and the reasonableness in the situation
 But after Mena was decided, there is a categorical right to control and seize the premises
when you have a warrant so the analysis would have been much simpler
 Muehler v. Mena (2005)
 Facts: Cops go into house with a warrant looking for deadly weapons, find 3 occupants and
handcuff them for 3 hours, find nothing in the house, this is a seizure case
 Issue/Holding: Whether the seizure, unauthorized by the search warrant, was a violation of the
4th am
 No, the search warrant does not per se allow cops to restrain people, but if they must in
order to conduct the search, that’s ok
 It was reasonable here because the governmental interest outweighed the marginal
intrusion, the situation was dangerous, looking for guns, and the use of handcuffs upon
finding multiple individuals that outnumbered the cops, kept everyone safe
 Rule/takeaway:
 Cops cannot do anything unreasonable, but as long as they are securing people they find
on the premises (any people who are there, regardless of who they are) they can seizure
the people
 When executing a warrant, the police are allowed to reasonably detain anyone while they
are doing a search, it is for the officer’s safety
 LA County v. Rettele (2007)
 Facts: Went into house looking for black suspects, white couple in bed naked, make them stand
naked, they were looking for the previous tenants who had moved out
 Issue/Holding: Whether the cops acted reasonably
 They had a right and a right to secure the premises, it does not matter if they were right,
they acted reasonably
 Rule/Takeaway:
 Police can secure anyone on the premises as long as its reasonable, even if they are
technically wrong
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 Bailey v. United States (2013)
 D was too far away when the search was happening for it to be reasonable to bring him back to
the house and detain him
Search of persons on the premises
 Ybarra v. Illinois (1979)
 Facts: Cops have PC to think bartender is dealing drugs, they have a search warrant for the bar
and an arrest warrant for the bartender, there is no allegation that he is doing his dealing to bar
customers, search Ybarra who is at the bar, find drugs and he wants to suppress
 Issue/Holding: Whether the search warrant for the premises justifies the search of Ybarra
 No, cops did not have PC to think he was involved or search him
 Rule/Takeaway:
 A person’s mere proximity to another person who is independently suspected of criminal
activity does not, without more, give rise to PC to search that person
 The police would need an individual reason to search that person
Search of the Premises
 Officers can only look in places in which the items on the warrant may be concealed
 State v. Schulz (2012)
 cocaine found during a search inadmissible because the search warrant was based on seeing three
guns and those guns turned out to be BB guns at which point the search should have stopped
 State v. Gilstrap (2014)
 3 approaches regarding searching visitors, not occupants who are on the premises during a search
 The possession test – officers may search personal items such as purses or clothing that
are not in the owners’ possession when police find them in executing a search warrant on
the premises
 The relationship test – question is whether the D had a special relation to the place
beyond that of a mere visitor or passerby
 The actual-notice test – police may search an item that may contain the object of a
premises warrant unless they are put on notice that the item belongs to a nonresident
Seizure of Items not Named
 Horton v. California (1990)
 Facts: Cop has PC to cause the premises, prepares the affidavit thinking there will be drugs and
TV’s, but he only includes dugs in the warrant, he goes in the house and finds both TVs and
drugs
 Issue/Holding: Can the officer seize the TV’s even though he did not include them on the
warrant?
 Yes, plain view doctrine applies as long as, objectively speaking, he was in a place he
was allowed to be and he saw the item, his state of mind is completely irrelevant
 Court sees no reason to force a subjective standard – if the cop has PC for one item and
only suspicion of another, he should not just be forced to ignore a blatantly stolen TV
 Rule/Takeaway:
 The plain-view doctrine is based on an objective standard
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If the scope of the search exceeds that permitted by the warrant (like looking in small
drawers when the warrant is for TV’s) then the seizure would be unconstitutional
Hypos
 Cops looking for flat screen tv’s and have a search warrant for such, go in the house, find them
 You can seize the TV’s
 What if you are looking for TV’s but you find drugs, can you seize the drugs?
 Particularity clause says you can only search for specific things where you say they’re going to
be, so if you are looking for large items, you cannot look in places where they would not fit
 You cannot go beyond the scope of the search, just b/c the cops can go into the house does not
mean that they can go nuts and look everywhere
 If the drugs were found in a small drawer, the cops could not seize them b/c there is no way a TV
would fit there
 What if the warrant is for drugs, but you walk in a see a flat screen tv that is stolen, can you seize the
TV?
 Yes, because of the Plain-View doctrine
 If the cops are in a place where they have a right to be and they see something that they have PC
to think was from a crime, they have a right to seize it
 This is a seizure doctrine, giving them the right to seize something that is not particularly spelt
out in the warrant
 Does not matter if the cop was surprised by the TV or sort of thought it might be there, it is an
objective test (was the cop allowed to be there? Was it in plain view? Then ok to seize)
 Cops go in with warrant for TV’s and sees the TV’s, then also sees balloons on the kitchen table and he
can tell there is something inside of the balloons, cops often see balloons used to transport drugs, can be
seize the balloons even though they are not listed in the warrant?
 Plainview Doctrine is a seizure exception – it is not a search exception so you do not necessarily
have to search and then see it (aka open the balloon and see the drugs), you only have to have PC
to believe that the item is drugs in order to seize it
 There is probable cause to think that a powder inside of the balloons is drugs so the fact that he
did not open and search the balloon and actually physically see it does not take away his ability
to seize it under the plain view doctrine
 This case is called Texas v. Brown
 Cops are walking down the street, notice a bunch of weed inside of a window of a house, can they use
the plain view doctrine to seize?
 No, the plain view doctrine is not about what you are seeing, It is about what you can seize
 Only applies if you are inside of a place that you are lawfully allowed to be
 They have no legal right to go into the house so seeing the drugs does not mean they can seize
them
 But, they could claim exigent circumstances and go into the house without a warrant, but that’s a
different section
Warrantless Arrests and Searches of the Person
General Notes
 Under the Warren court, there was a push by defense attorneys to require a warrant
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 Pushback by the police and prosecutors to try to do away with the warrant requirement, find exceptions,
give defense attorneys one less argument for why evidence should be suppressed
 Defense will argue that certain conduct that the police are engaging in is unreasonable because they are
doing it without a warrant
 The police and prosecutors are looking for categorical bright line rules instead of totality of
circumstances case-by-case analysis, police have to make split second decisions, let’s make it easy for
them to apply
 Defense will also try to focus on what is subjectively going on in the officer’s head (did he really pull
them over for a traffic violation or was it because there were minorities in the car) while the prosecutor
will want to look at it objectively
 Gerstein hearing does help if the police have the wrong guy, you can’t just hold a person for however
long you want before bringing them into court
 these cases essentially show that the vast majority of arrests are done without a warrant so we have the
Gerstein and McLaughlin protections
 to arrest you need PC and a warrant or a warrant exception – if you have that, is there any way of
finding that arrest as a violation of the fourth?
Cases
 United States v. Watson (1976)
 Facts: Reliable informant told cops about credit card thief, arrange meeting with cops, point him
out, he is arrested without a warrant
 Issue/Holding: whether a warrant is constitutionally required for an arrest
 No, it is clear form common law history that felony arrests in public did not require a
warrant and especially since congress has passed a statute that there can be a warrantless
public felony arrest, we presume constitutionally
 We may prefer warrants, but it is not necessary in this type of situation
 Rule/takeaway:
 When there is probable cause to make a felony arrest in a public place, there is no need
for a warrant
 Bright line rule that matters no matter what the facts are – no fourth amendment
requirement for a warrant for a public felony arrest
 Gerstein v. Pugh
 Facts: We have all of these warrantless arrests
 Issue/Holding: How are we checking the police officers’ work and how long can we keep this
guy in jail before going to a judge
 We’ll have a hearing after to determine if there was PC and it should follow the same
type of procedure as if it happened before the arrest
 Rule/Takeaway:
 Gerstein hearing is to determine if there was probable cause after the fact
 Essentially trying to equalize the person to the same place as if there had been a warrant
prior to the arrest
 Must be within a reasonable period of time
 And as extensive as a pre-arrest determination (so affidavit with warrant application to a
judge who makes the determination of PC)
 County of Riverside v. McLaughlin
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48 hours is presumptively reasonable amount of time to hold someone before they go before a
judge
 This is not in the constitution, but USSC realizes that law enforcement needs some guidance
 If it’s more than 48 hours, its presumed that the 4th amendment was violated, but the state could
overcome it in some instances
 Powell v. Nevada
 If you can prove that the state cannot explain why it took more than 48 hours, there is a 4th
amendment violation, but what can the defense attorney do about that?
 This case says maybe nothing
 In IL, the remedy was that any confession is excluded if there is a Gerstein violation, but
IL SC reversed this on the basis of Powell
 USSC has left this question very vague
 Tennessee v. Garner
 Determines when you can use deadly force to effectuate an arrest
 4th amendment says nothing about how an arrest should be made
 The use of deadly force to arrest a fleeing felon is sometimes unreasonable under the 4th
amendment
 It is better not better to let all felony suspects die than to let them escape
 Even if there is a warrant and PC, it can still be an unreasonable seizure if deadly force is used
 Can use deadly force if the suspect poses a threat of serious physical harm either to the officers
or others, but should still try to give a warning if feasible
 This case is important in §1983 cases, not really coming up in criminal cases
 Graham v. Connor (1989)
 Fourth Amendment Reasonableness standard re use of force
 Applies to all claims that law enforcement used excessive force deadly or not in the
course of an arrest, stop or other seizure of a free citizen
 Requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officer or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight
 Must embody allowance for the fact that police officers are often forced to make split
second judgments in circumstances that are tense uncertain and rapidly evolving about
the amount of the force that is necessary in a particular situation
 Asks whether the offers actions are objectively reasonable in light of the facts and
circumstances confronting them without regard to their underlying intent or motivation
Routine Traffic Stop Context
Cases
 Pennsylvania v. Mimms
 Facts: 2 cops see a car go through a red light, pull him over, driver and passenger, no suspicision
that they are dangerous
 Issue/Holding: Can you make them get out of the car?
 Yes, the intrusion of getting out of the car is de minimis and justified by the fact that an
officer could always potentially be the victim of an assault without much warning
 Rule/takeaway:
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Bright line rule that the police can always and everywhere make the driver get out of the
car because of officer safety
Maryland v. Wilson
 Facts: Same scenario as Mimms but with a passenger
 Issue/Holding: Can you make passengers and drivers get out?
 Yes, Same goes for a passenger because of the same basis, it’s even more likely that two
people, passenger and driver, could harm a police officer
 Rule/Takeaway:
 So, whenever an officer is making a car stop, the cop has the right to get the driver and
the passenger out of the car
United States v. Robinson (1973)
 Facts: Robinson pulled over on belief that he is driving without a license, in the state that carries
a jail sentence or a fine, cops did have PC to believe he was driving without a license but they
also searched him and found heroine inside of a cigarette pack inside of a pocket and he moves
to suppress that
 Issue/holding: Whether the police needed additional PC to search him incident to the arrest
supported by PC for driving w/o a license
 No, for the purpose of officer safety, a search can always be done incident to arrest
 Rule/Takeaway:
 A search incident to an arrest is a traditional exception to the warrant requirement of the
Fourth Amendment
 A custodial arrest of a suspect based on PC is a reasonable intrusion under the 4th, that
intrusion being lawful, a search incident to arrest requires no additional justification, it is
the lawful arrest that establishes the authority to search so it’s not only an exception to
the warrant requirement, it is also a reasonable search under the 4th
Gustafson v. Robinson (1973)
 Facts: College kid driving w/o license, says that he can prove he has a license he just left it in his
dorm, whether to arrest was discretionary, searched him and found drugs
 Issue/Holding: whether, when arrest is discretionary instead of mandatory as in Robinson, the
police can do a search
 The difference in the offense does not change the basis upon which we found the search
reasonable in Robinson
 Rule/takeaway:
 Even if it’s a discretionary offense, no matter how trivial the offense is, if you arrest a
person, you can do a full body search
Riley v. California
 Facts: Police arrest him, full body search under Robinson, find a cell phone and search the actual
data on the phone, moves to suppress
 Issue/Holding: Whether the search of the phone needed additional justification
 Should not have searched the phone, that is different, there is no possibility that the
digital data on a cell phone could be used as a weapon to harm the officer or to effectuate
the arrestee’s escape
 Rule/Takeaway:
 Not reasonable to search a cell phone incident to arrest, a warrant would be required to
search the phone even if it is lawfully seized incident to arrest
Knowles v. Iowa (1998)
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
Facts: Pulled over for traffic violation in a jurisdiction that gives discretion between ticket or
arrest, cop says I will give you only the ticket but I will search you first just to make sure you’re
clean
 Issue/Holding: Whether this search, when an arrest was possible but did not actually happen,
was reasonable?
 No, it was not, the justification for a Robinson search is a real arrest, there is less of a
threat to officer safety in this instance and there is no need to discover or preserve
evidence
 Rule/Takeaway:
 A robinson search can only happen incident to an actual arrest, not incident to a ticket
that the officer had the discretionary option of making an arrest instead
 Atwater v. City of Lago Vista (2001)
 Facts: soccer mom arrested when kids are not wearing seatbelts, eventually dropped and she
filed 1983
 Issue/Holding: whether an arrest for a trivial offense makes a search reasonable
 Yes, this is reasonable because it is still an actual arrest so the logic of robinson applies
 Rule/Takeaway:
 As long as there is an offense, no matter how minor, there is no fourth amendment
violation for a search because the search is reasonable
 Virginia v. Moore
 Facts: VA has added protections and so the police officer is violating state law when he pulls
someone over and searches them
 Issue/Holding: whether the violation of state law changes the reasonableness of the search
 Evidence would not be excluded because while the arrest was “unlawful” under state law,
it was not a violation of the 4th amendment because any offense can be an arrest-able
offense with search incident to the arrest
 Moore could still have a remedy in state law – state law might say that the evidence gets
suppressed if police violate that state law, just cannot challenge it under the 4th
amendment
 Rule/Takeaway:
 Do not change the calculus when of the 4th amendment when a state chooses to protect
privacy beyond the level that the 4th amendment requires because to do so would frustrate
rather than further state policy
 Something can be unlawful under state law but nonetheless constitutional
 “lawful” in “lawful custodian arrest” means constitutional
 Whren v. United States (1996)
 Facts: Cops in all white suburb pulls over black guy, he is a drug cop, not a traffic cop, he pulled
the black guy over for inattentive driving, pretty obvious pretext of pulling him over b/c he
wanted a reason to search him and see if he had drugs or was doing something else wrong
 Issue/holding: Whether the seemingly pretextual nature of this arrest makes the search
unreasonable
 It does not, if you have PC to pull someone over it does not matter if the real reason you
did it is because you are racist, we only look at the objective facts
 Rule/Takeaway:
 The decision to pull a car over is reasonable when the officer has PC to think that a traffic
violation has occurred
36







The officer’s motive is unrelated to the analysis of reasonableness
There is a warrant exception to searches incident to arrest and if there is a warrant
exception (or a warrant) and PC, that is the end of our analysis, does not matter what is
going on in the officer’s head
 Exceptions enumerated in Whren: When warrant (or exception) + PC exists, we should
still use a balancing test in certain circumstances
 Deadly force rules (Garner)
 Knock and announce requirement (Wilson)
 Physical penetration of the body (Winston)
Devenpeck v. Alford
 Guy is arrested for X, turns out there was no PC for X, but there was PC for Y but that’s not
what he was arrested for, So D argues, cop did not have PC for X and should not have searched
me
 USSC unanimously holds that the state wins, arresting officers state of mind (except for the facts
that he knows) is irrelevant to the existence of PC
 If A, B, and C leads to PC objectively, an arrest would be proper, even if he gets the offense
wrong
United States v. Edwards (1974)
 Facts: D arrested, booked, a day later they go realize the scene of the crime has paint chips all
over it, go back to station, search the guy’s clothes to see if there are chips
 Issue/Holding: Whether the time difference means this is not a search incident to arrest
 No, the result is the same regardless of when they searched, it was taken form him at the
arrest and then just searched later
 Rule/Takeaway:
 Once D is lawfully arrested and in custody, the effects in his possession at the place of
detention that were subject to search at the time and place of his arrest may be lawfully
searched and seized even w/o a warrant even though a substantial period of time has
elapsed between the arrest and the subsequent administrative proceeding on the one hand
and the taking of the property for use as evidence on the other
 “second look case” – cops have the right to take a second look even without a warrant b/c
we are moving away from a general warrant requirement and into a reasonableness
analysis
Schmerber v. California
 DUI pull over, blood test w/o a warrant
 Court holds the invasion was di minimis and there was an emergency here bc if they did not do it
quickly, the BAC would be gone so time was of the essence
Missouri v. McKneely
 Limits the holding in Schmerber, there is no across-the-board warrant exception for blood draws
in DUI’s, the rule is you need a warrant unless you can convince us that it is a true emergency
situation
Winston v. Lee (1985)
 Facts: Store owner shoots and hits robber, bullet is inside of the guy so cops want to do surgery
to remove the bullet for use as evidence
 The Def wins here even though under the general rule, you’d expect the state to win because they
had a court order (basically a warrant) and probable cause and it was still unreasonable
 The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach
37
Hypo
 Is it reasonable to pull you over and to hold you for 12 minutes while the cops check your ID, etc.
 Yes, as long as there is PC to pull you over
 Can the cop ask the driver to get out of the car?
 Yes, under Mimms
 What about a passenger?
 Yes, under Wilson
 There is a state law saying mandatory arrest for anyone driving a car that touches the center lane, cops
pull someone over, can you arrest?
 Yes, per Atwater you can arrest for anything even if its minor
 Can you search?
 Yes, per Robinson you can search incident to arrest always
 Per Atwater and Robinson, you can arrest this person, search them and then place them in a
holding cell for 48 hours
 Cop says you are under arrest even thought the state law says that what you did is not an arrestable
crime, can the evidence he discovered in the search be suppressed
 No, this is a violation of state law, not a violation of the constitution
Summary – Raw Doctrine




It is constitutional to arrest a person for any offense no matter how trivial it is (Atwater)
It makes no difference what my motivation for arresting this guy is which could even be race-based and
that is irrelevant as long as I have objective PC (Whren)
And if I can make this into an arrest I can do a complete search of that person including any containers
(Robinson)
Ex. Arrest someone for jaywalking just because they are black but as long as they were actually
jaywalking you can make a complete search of that person
Warrantless Entries and Searches of Premises
General notes
 Do you measure the Chimel area based on where the person is arrested at the moment of arrest or at the
time of the search itself?
 Can you cuff him, then search the area or do you have to do the search while he can reasonably
reach into those places?
 Objective versus subjective – what can he actually reach, or do we just define the area in that
way?
 Subjective test could encourage the police not to restrain the guy, so they can do the search
 This question is still unclear today
 Homicide Scene Exception
 Reporting to the scene of a homicide, the police can go inside without a warrant
 But that does not last forever, the right to go in eventually fades (time not specifically identified
by USSC)
Cases
 Chimel v. California (1969)
38

Facts: Police have a warrant to arrest Chimel for burglary, enter home and arrest him, then
search the whole house seize coins and other items, tries to suppress, final case decided by the
Warren court, they can search him under robinson, but what about his house
 Issue/Holding: whether police can search in the location where arrest is made w/o a search
warrant
 Arresting him in the house was ok but they could not search the rest of the house just
because of the arrest, they can search the immediate area, the “grabbing area” only
because the guy might destroy evidence he can reach or grab a weapon and hurt them but
there is no justification for the rest of the house
 Rule/Takeaway:
 When an arrest is made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter might seek to use in order to resist
arrest or affect his escape.
 Otherwise, the cop’s safety might well be endangered, and the arrest itself is
frustrated.
 In addition, it is entirely reasonable for the arresting officer to search for and seize any
evidence on the arrestee’s person in order to prevent its concealment or destruction.
 And the area into which an arrestee might reach in order to grab a weapon or
evidentiary item must be governed by a like rule.
 There is ample justification for a search of the arrestee’s person and the area w/in his
immediate control (construing that phrase to mean the area from w/in which he might
gain possession of a weapon or destructible evidence)
 Maryland v. Buie (1990)
 Facts: Arresting someone in the house, search around the rest of the house as well claiming it
was for their own protection to see if there were other people there
 Issue/Holding: when a protective sweep is permissible
 as an incident to the arrest the officers could, as a precautionary matter and w/out
probable cause or reasonable suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched (inside
the room).
 Beyond that, there must be articulable facts which, taken together w/ the rational
inferences from those facts, would warrant a reasonable prudent cop in believing that the
area to be swept harbors an individual posing a danger to those on the arrest scene
(outside the room)
 Such a protective sweep, aimed at the arresting officers, if justified by the circumstances,
is nevertheless not a full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found.
 The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and depart the premises.
 Rule/Takeaway:
 2 things you can do when arresting in house:
 Within the room - Protective search incident to arrest
o You can look anywhere in the room where there might be a person who
could attack you
o This is limited, you can look in the closet to see if someone is there, you
can’t rummage
39





Outside the arresting room – protective sweep
o You need a reasonable suspicion to do the sweep outside the arresting
room
 Hearing noises, cars in the driveway, etc.
o Still limited, you can look only for people, not for evidence so you can
only look in places where people could be
 Plain view doctrine comes into this too so if you are legally allowed to be there re a Buie
sweep and see something, you’re good to seize it
Arizona v. Hicks (1987)
 Facts: Doing a sweep looking for people, but they see expensive stereo equipment, thought it
was suspicious, out of place, so he turns the equipment around, calls in the serial number and
discovers it is stolen
 Rule/Takeaway:
 Evidence gets suppressed because the moving of the equipment was a search, he had PC
but he did not have a warrant and he was not turning the equipment to look for people
 O’Conner dissent argues this is so minor that we should uphold it, Scalia writes for the
majority and says it is a search or it is not a search, no such thing as a de minimis search
Vale v. Louisiana (1970)
 If you’re arrested outside the house the cops have no right to go into the house
 unless there are exigent circumstances but very specifically
Washington v Chrisman (1982)
 Facts: police follow kid to see his ID which is in his room, they see that his roommate is in there
rolling a joint
 Rule/Takeaway:
 exigent circumstances because if the officer left to get a warrant, the weed would be gone
 can also be argued that this is plain view doctrine, he had a right to be in the room
because he was shadowing the arrestee so the cop had an independent legal reason to be
there so he can seize it under plain view
 So it might be smart for a cop to say “why don’t you go back inside and get your coat or
make a phone call?” and if the guy says no, you’ve gotta leave, but if the guy says yes,
the cops can go inside with him and then the plain view doctrine would mean he could
seize whatever he saw
Illinois v. McArthur (2001)
 Facts: woman is moving out of trailer, cops are there and as she goes she tells them there is weed
inside, they wait outside watching him and not letting him go back in until the warrant is issue,
McArthur is essentially arguing that he has a right to destroy the evidence, may have motivated
the court to hold how it did
 Rule/takeaway:
 Cops can secure the premises to the extent they went to go get a warrant
 Because the cops could have claimed exigent circumstances and gone in but they did not
and courts want to reward the police for trying to go by the book and get the warrant
 Circumstances which have seemed relevant to courts include
 the degree of urgency involved and the amount of time necessary to obtain a
warrant
 reasonable belief that the contraband is about to be removed
40

the possibility of danger to police officers guarding the site of the contraband
while a search warrant is sought
 information indicating the possessors of the contraband are aware that the police
are on their trial
 the ready destructibility of the contraband and the knowledge that efforts to
dispose of drugs and to escape are characteristic behavior of persons engaged in
the narcotics traffic.
 Payton v. New York (1980)
 Facts: Cops had PC to believe P had murdered, go to house, no warrant, knock, no answer, go
inside and he is not there, but they find evidence and he wants to suppress
 Issue/holding: Whether cops with PC can enter the home to arrest a felon they believe is inside
w/o a warrant
 This would have been find if they had an arrest warrant b/c that would give them a
limited right to enter the home, but since there was no arrest warrant, they can only arrest
him in public
 Rule/Takeaway:
 If the cops want to arrest someone in their home, they need an arrest warrant
 They can sit outside and wait for the person to leave
 An arrest warrant founded on PC implicitly carries w/ it the limited authority to enter a
dwelling when there is a reasonable belief that the s
 uspect is inside the house
Exigent Circumstances
General Notes
 Def.: some kind of real and immediate and serious consequence if the officer has to wait for the warrant
 Common Examples
 Hot pursuit of a suspected felon
 Can follow a person into a home without a warrant, Warden v. Heydan
 One foot inside and one foot outside, ties go to the govt. you are “outside” and can be
arrested w/o a warrant, US v. Santana
 Imminent Destruction of Evidence
 Copes see weed in the window, can’t go in, but if the owner sees them and starts to
destroy it, they can go in without a warrant
 Emergency Aid
Cases
 United States v. Rubin (1973)
 test for what qualifies as exigent circumstances
 The degree of urgency involved and the amount of time necessary to get a warrant
 Reasonable belief that the contraband is about to be removed
 Possibility of danger to police officers guarding the site of the contraband while a search
warrant is sought
 Info indicating the possessors of the contraband are aware that the police are on their trail
41





The ready destructibility of the contraband and the knowledge that efforts to dispose of
narcotics and to escape are characteristic behavior of persons engaged in the narcotics
traffic
Bingham City v. Stuart (2006)
 Facts: see a fight happening inside, go in and see evidence that they seize under plain view but
arguably did not have a right to be inside, cop admitted at trial that he used the fight as an excuse
to go in b/c he wanted to search
 Rule/Takeaway:
 One exigency obviating the req for a warrant is the need to assist persons who are
seriously injured or threatened with such injury
 Accordingly, law enforcement officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from imminent
injury
 Subjective thought of the cop does not make a difference, we only look at what an
objective officer would have thought at the time (rule in Whren)
Michigan v. Fisher
 Cops say it’s an emergency but no one actually called for medical help
 Does not matter, all that matters is objectively, whether it seemed like medical help was required
Welsh v. WI (1984)
 Facts: Find car after a call reports drunk driving, go to the house on the registration, wife will
not let them in bu they go in anyway w/o a warrant
 Rule/Takeaway:
 Per Schmerber – we know that no warrant is needed for blood in a DUI if its an
emergency, the alcohol / evidence of crime will dissipate
 But D wins here b/c USSC is protecting the house, gravity of the offense does not justify
a warrantless entry to the home
 In 1984, DUI’s were less serious offenses, may be bigger deal today
 But – case provides the argument “Gravity of offense does not justify the warrantless
entry” which could be helpful today with something like weed
Steagald v. united States
 Facts: police have arrest warrant for R, know that R hangs out with S sometimes so go to S’s
house and see that S has coke so arrest him
 Rule/Takeaway:
 D wins, cannot go into the home where R does not live, could only go into R’s house and
only if they had a reason to think R was home
 No right to be there so Plain view does not apply and evidence suppressed
Hypos
 Cops have arrest warrant for R and think he might be at S’s house, Guy is delivering pizzas to S while
the cops are at S’s house looking for R and cops see pizza guy has drugs
 D will argue they had no right to be inside that house so suppress the evidence
 But, the 4th protects people, not places so even though they are violating S’s 4th am rights by
being in that house, they are not violating pizza’s rights b/c pizza has no expectation of privacy
 Only S could bring a motion to suppress evidence and only for evidence of his crimes
 This is “fourth amendment standing”
 Cops walk in to S’s house, see an overnight guest who does not live there with drugs
42
 USSC has held that overnight guests do have an expectation of privacy
 Another guy is there, he does not live there, but he is there to help S cut up some cocaine
 Guy has no expectation of privacy
 POINT: Cops have to show in a plain view exception that they have a right to be in that place per the
person complaining, they are in a place where they can be in per the pizza guy b/c he has no privacy
interest
Warrantless Seizures and Searches of Vehicles and Containers
Cases
 Carroll Doctrine (1925)
 As a general rule, cops have a right to search a car they have pulled over b/c cars are mobile and
b/c there is less of a privacy interest
 Still must have PC, this is a warrant exception, not a PC exception
 You must still stay within the scope of what you have PC for – if you have PC for a large item,
you can look in the trunk, not the glove compartment
 Maryland v. Dyson
 Car warrant exception is not an exigent circumstance, there is no need to show an emergency
situation, only need PC
 A state could have a law requiring exigent circumstances, but that would be challenged under
state law, not 4th am
 Coolidge v. New Hampshire (1971)
 Facts: Cops have PC to think C has evidence of murder in his home and car, search car parked in
his driveway without a warrant and try to justify it through the automobile exception
 Issue/Holding: whether to extend the automobile exception to cars parked on the curtilage of
someone’s home
 No, the police could have easily gotten a warrant in this situation, just because you say
“car” does not automatically mean there is no warrant requirement
 Rule/Takeaway:
 USSC refused to extend the automobile exception to car seized while parked in a
driveway
 The car was on the curtilage so it’s part of the house and a warrant is required
 Exception to the automobile exception – but limited to its facts, the cops knew that the
car was on the curtilage
 California v. Carney (1985)
 Facts: Guy is inside motor home which is parked in a parking lot, they know he is in side and
have PC to think he is trading drugs for sex, courthouse is right around the corner, but they do
not get a warrant, open door, see drugs and arrest
 Issue/Holding: Whether the automobile exception extends to motor home in question
 It does, the motor home here was readily mobile, licensed to be operated on public
streets, serviced in public places, subjected to extensive regulation and inspection
 It was so situated that an objective observer would conclude that it was not being used as
a residence, but as a vehicle so regardless of how he was using it, it’s a vehicle for the
purposes of the vehicle exception
 We refuse to create a rule that distinguishes between “worthy” and “unworthy” vehicles
for lower expectations of privacy, warrant exception
43

Rule/Takeaway:
 The privacy interests in an automobile are constitutionally protected; however, the ready
mobility of an automobile justifies a lesser degree of protection of those interests.
 Thus, when it is not practicable to obtain a warrant because the vehicle can be quickly
moved, that search may be reasonable
 the expectation of privacy within an auto is less than within one’s home or office and
because cars are always subject to government regulation as it moves through public
highways
 Cops can search a vehicle without a warrant as long as they have PC and the rationale is
no longer the focus on mobility, but the lesser degree of privacy
 United States v. Chadwick (1977)
 Facts: Police follow suspect on train, have PC to believe he has drugs in his footlocker, he puts it
in the trunk of a car and they open and search it finding drugs, did not have a warrant
 Issue/Holding: Whether there should be an exception for effects in public
 *Govt. could have argued the lower degree of expectation in a car, but they were
shooting for a much bigger win and hoping for an “effects in public exception” because
of mobility and lower expectation of privacy
 USSC rejected this argument b/c “effects” is in the actual text of the 4th
 Rule/Takeaway:
 A bag is an “effect” and to search an effect you must have
 PC & a warrant
 No exception to luggage even in public
 Govt. did not argue vehicle exception in this case (and may have won if they had as long
as the container was in the car and it was within the scope of their PC)
 United States v. Ross (1982)
 Overruled the previous idea that some containers in car were and were not “worthy” of
additional 4th am protection (AK v. Sanders, overruled)
 The automobile exception says that a cop has the right to search a car if they have PC without a
warrant
 This search is open to any and all containers within the car as long as the cops can show it was
within the scope of their PC
 This is the case that the govt. would argue a case like Chadwick under now
 California v. Acevedo (1991)
 Facts: Cops know a FedEx package has weed in it, guy comes and picks it up, they follow him, 2
hours later he comes out of his apartment with a brown paper bag about the same size as the
package of weed the cops had seen in the package, puts it in his trunk, cops pull over search car
without a warrant
 Issue/Holding: Whether the police were required to obtain a warrant to open the sack b/c they
did not have PC to search the car
 No, they had PC to believe the bag in the trunk contained weed and that PC allowed the
warrantless search of that bag of weed
 They did not have PC to search the rest of the car so such a search would have been
unreasonable under 4th am
 Rule/Other Notes:
 4th am does not require separate treatment for an automobile search that extends only to a
container within the vehicle
44





As long as a container is in the car and you have PC that there are drugs in the container
you can search without a warrant
 The moment a container enters a car, magic dust flies over the car that spreads PC over
the effect and the car can be searched including the item
 Item first and if that gives PC to search the car, they can also now search the car)
 If something is outside of the car, then it’s Chadwick (you need a warrant) but the second
it touches a car, you can open it without a warrant
Wyoming v. Houghton
 Facts: the passenger in the car’s purse is inside the car and searched without a warrant
 Rule/Takeaway:
 If a passenger’s personal belongings are in the car and police have PC to search the car,
they can search the passenger’s belongings
 Court is trying to make the job of the police easier by not forcing them to divide all
belongings inside the car before the conducting the search
 This holding could have been different had she actually been wearing the purse
Texas v. Brown
 Facts: Tied off balloons in house seized under Plain View Doctrine,
 Issue/Holding: Whether you also have the right to search the balloon i.e. open it
 Rule/Takeaway:
 If you have the right to take it under the Plain View doctrine (legally there + PC) then
you have the right to search it
 Could Argue Single Purpose Container Doctrine too
 If the only purpose of a container is to hold something illegal, the cops can open it
without a warrant (i.e. an Uzi only gun case in a state where Uzi’s are illegal)
Illinois v. Andreas (1983)
 Facts: Guy deals furniture and sends drugs with furniture shipments, cops unscrew table legs and
find weed, put it back and make the delivery (controlled delivery) guy accepts the box, cops then
search it, and he is arrested
 Issue/holding: Whether the police needed a warrant to open that container under Chadwick
 No, his privacy interest was lost the moment that a private person (FedEx) opened the
bag (like in Jacobsen) that privacy could reestablish itself after 2-3 days, but it had not in
this case
 Similarly, to the logic of plain view doctrine – cops had legal right to be there looking in
that box (searched it the first time b/c no privacy once the private party opened it) and so
the drugs were then in their plain view and available to be seized, process of putting it
back in the box did not magically create privacy expectation
 Rule/takeaway:
 There is a diminished expectation of privacy in the contents of a container that the law
enforcement authorities have already lawfully opened and found to contain illicit drugs
 Controlled delivery doctrine:
 Absent a substantial likelihood that the contents have changed, there is no
legitimate expectation of privacy in the contents of a container previously opened
under a lawful search
Arizona v. Gant (2009)
 Facts: Guy is arrested for driving with a suspended license, police handcuff him and search the
car, find cocaine inside of his jacket pocket which is inside of the car
45

Issue/Holding: whether this situation falls within a circumstance where a vehicle search incident
to arrest is permitted
 Not an automobile exception case because no PC for the car
 No, he could not have accessed the car to get a weapon or destroy evidence (he was
handcuffed) and there was no possibility of finding offense-related evidence (b/c all
evidence of the offense is the suspended license)
 Rule/Takeaway:
 This is Chimel in a car – the “Chimel” area is the passenger compartment of the car,
justified by cop safety
 You can search only if an arrestee is unsecured and only within the grabbing area of the
passenger compartment at the time of the search
 This is a very rare scenario, they’ll usually get him out of the car
 This provides some evidence that a “Chimel” search is not an objective area and only
exists while the person is unsecured
 Ex. the cops cannot arrest you in your living room, handcuff you, then search the
objective area in which you had been able to reach prior to being handcuffed
 They can only search that area prior to restraining you
 This case limits the right of police in searching the car when arresting someone
 Grabbing area for a weapon while unsecured
 Evidence of the specific crime might be in that area of the car
 Otherwise, a search of an arrestee’s vehicle is unreasonable unless the police have a
warrant or show that another exception to the warrant requirement applies
 Illinois v. Lafeyette
 Facts: Arrested person has a bag, they take it and open it to inventory it and find drugs, moves to
suppress b/c no warrant
 Rule/Takeaway:
 Police can open a bag for inventory purposes and that is not a search, justified by the
need for safety (no weapons inside) and protection against claims of theft (I had $300 in
that bag when I got here)
 Colorado v. Bertine (1987)
 Facts: Impounded car, did an inventory procedure of what items are inside of the car, no
warrant, no PC, find a backpack which they open and find drugs
 Rule/ Takeaway:
 Extends Lafayette to car inventory
 Cops do not need PC, a warrant, or reasonable suspicion to go through a car as an
inventory procedure for safety reasons and so someone cannot later claim that there was
something in the car that was stolen while it was impounded
 But they must show that they are operating under standard operating procedures
 It cannot be a procedure thought up on the spot so they can search the car, it must
be subjectively inventory based
 Thus, pretty much every police department in America has a procedure in writing
for this exact moment
 This is one area in which the subjective thoughts of the cops DOES matter
 Florida v. Wells (1990)
46



Facts: Inventory of a locked suitcase in a car, FL PD had no written policy that said “Cops must
open all containers in an inventory procedure” so they tried to suppress
Issue/Holding: whether the holding in Bertine meant that cops must have a policy either
mandating or barring the inventory of specific containers
 No, our holding was that the procedure itself must not be for investigatory purposes, if
the police believe they need to open something in the course of an inventory procedure,
they do not need to rely on a written rule that says what containers are and are not
inventoried
Rule/Takeaway:
 Cops have discretion in the way they conduct an inventory procedure, but there must be a
standard operating procedure
 Does not have to specifically say “open anything that is unlocked, but things that
are locked” more like “look in glove box, under seats, open all items inside”
Hypos
 Cops pull over for running red light, ask him to get out of the car (pursuant to Mimms) and a crack pipe
falls out of the car
 They have PC to search the car even though they do not have a warrant
 They have PC to arrest him without an arrest warrant
 They can search him incident to arrest (Robinson)
 They can search the car incident to arrest if its reasonable to believe evidence of the crime would
be in the car (Gant)
 What if they pulled him over and he confessed that the was high while still in the car
 They could search within the grabbing area while he remained unsecured (Gant)
 To determine whether a Terry stop was sufficiently limited
 Whether it is distinguishable from a full-fledged arrest
 Must be strictly tied to and justified by the circumstances which rendered its initiation
permissible so that the inquiry is whether it was reasonably related in scope to the circumstances
which justified the interference in the first place as judged by:
 Time, duration, length
 Scope, intrusiveness
 Only permissible to use a threat or show of force if the facts of the particular case show that the
decision was reasonable
 i.e. drawing a weapon, handcuffing, placing in squad car
Stop and Frisk
General Notes
 Support in history for ideas behind stop and frisk
 Inchoate offenses – attempt, solicitation, conspiracy – all criminalize behavior short of
committing an actual crime & all exist at common law
 So does “vagrancy” – walking from “city to city without a job” but such statutes start to get
voided in the 60’s and 70’s
 Terry carves out the ability to investigate in a search and seizure type of way without violating the 4th
 Justified by the protection of the officer
 How long can a Terry stop be?
47


No bright line rule for when a terry stop becomes a de facto arrest
Defined by : A restraint on freedom that a reasonable person would feel was an arrest
Cases
 Terry v. Ohio (1968)
 Facts: Officer sees 2 men acting suspiciously, casing the joint, he identifies himself, asks their
names, spins Terry around and pats him down, feels a pistol and removes it, Terry is charged and
convicted of carrying a concealed weapon and moves to suppress
 Issue/holding: Whether this was a search or seizure and if so, whether it was reasonable
 A stop and frisk definitely implicate the 4th am, its limited but definitely a search and
seizure since it is limited, we will not require PC, we will require a reasonable articulable
suspicion
 It was reasonable for him to stop him because his training had taught him that he may be
seeing criminal activity and that gave him reason to think the man might be armed so
dangerous so he was justified in stopping him to see what was going on and doing a
limited pat down to see if he had a weapon
 Court Quote of Rule: Where a police officer observes unusual conduct which leads him
to reasonably conclude in light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and presently dangerous; where
in the course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiries and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the 4th amendment and any
weapons seized may property be introduced as evidence against the person from whom
they are taken
 Rule/Takeaway:
 A terry stop is a limited seizure that implicates the 4th so officer must justify it through a
quantum of evidence called a reasonable articulable suspicion
 A Terry frisk is a limited search that can include the pat down of outer clothing that must
be supported by a reasonable articulable suspicion
 Whether a stop and frisk is reasonable depends on
 Whether it was justified at its inception and
 Whether it was reasonably related in scope to the circumstances that justified the
interference
 The goal of a terry stop is to determine whether the cops have PC and can arrest or do not
have PC and must let the person go
 If there is a reasonable suspicion, cop can seize the guy and ask questions, then can touch
him to make sure he does not have a weapon – only can be justified by officer safety so
search is only for a weapon
 United States v. Hensley (1985)
 Facts: Cop thinks he recognizes guy from the description of who committed a felony about 5
years ago and does a Terry stop
 Rule/Takeaway:
48






No difference if the crime is current or happened in the past as long as there is reasonable
suspicion to believe he committed the past felony
Florida v. Royer
 Facts: Cop in airport wants to ask Q’s, he agrees, eventually the cop starts getting suspicious b/c
he is admitting that he’s only flying for one day, has a bunch of cash, etc. asks him to come with
him into a separate room, asks to look in bag and finds drugs
 Issue/Holding: Whether this exchange implicates the 4th am
 They had RAS to justify the Terry stop that was happening in the airport
 But once he asked him to come with him into the room, a reasonable person would have
felt they were under arrest and he did not have PC so it was a seizure it was a de facto
arrest and the fruits of that illegal arrest should be suppressed
 Rule/Takeaway:
 The mere fact that a cop asks you a question does not implicate the 4th, a person can
always say no and walk away
 Only if the cop has a reasonable articulable suspicion can he make you stop
 If there is a de facto arrest, it must be supported by PC, not only RAS b/c you’ve
surpassed the limited levels of Terry
Mendenhall
 A seizure is when a reasonable person would believe they are not free to leave
 You must have a reasonable articulable suspicion at that moment in order to justify the
limited seizure
 Or PC if you are arresting
FL v. Bostick (1991)
 Test in Mendenhall added to: Whether a reasonable innocent person would feel free to decline to
officer’s request or otherwise terminate the encounter
US v. Drayton (2002)
 Facts: cops in bus going up and down the aisle asking Q’s, asks the guy whether he can search
his bag and the guy says yes and they find drugs, attorney argues that under Mendenhall this was
a seizure because a reasonable person with drugs in their bags would not consent to a search
 Issue/Holding: Whether this was a seizure that needed to be supported by either a RAS or PC
 B/c D’s freedom of movement was restricted (on a bus) the appropriate inquiry was:
Whether a reasonable person would feel free to decline the cop’s request or otherwise end
the encounter
 And a reasonable innocent person would have, he only freaked out and consented b/c he
was guilty, that does not make it a seizure so cops did not need RS to ask their questions
 Rule/Takeaway:
 A refusal to cooperate with the police (had he said no here) is not enough on its own to
constitution a RAS for a seizure
 there had been no seizure because there was no application of force, intimidation, show
of force, brandishing of weapons, command, authoritative tone of voice, and so if the
encounter had occurred on the street, it would have been constitutional
California v. Hodari D (1991)
 Facts: Hodari flees when he sees the cop car, they chase him, cop says “Stop in the name of the
law” he throws an object that later proves to be crack cocaine, his attorney argues that saying
stop was a show of authority that meant D could not leave and thus he was seized
49





Issue/Holding: Whether this was a seizure without PC or RAS and evidence should be
suppressed
 No, the officer had not even touched him when he discarded the evidence and there was
actual control or submission to authority
 there was a show of authority, but the subject did not yield so there was no seizure
 no reason we’d want to deter citizens from stopping when the police ask them to stop so
we should not exclude this evidence
 Rule/Takeaway:
 an arrest requires either physical force or when that is absent submission to the assertion
of authority
 There is no seizure until you touch the person or the person stops in response to your
show of authority
 The fact that someone is running is not on its own enough for a RAS but it may be one
factor that, when added with others, creates a RAS
Brendlin v. California
 Facts: Passenger in a car that is stopped illegally without RAS or PC, they found drugs
 Issue/Rule: Whether this was a seizure of the passenger
 It was, a reasonable person in the passenger’s position when the car stopped would have
understood that the cops were exercising control to the point that no one in the car could
leave w/o the officer’s permission
 Rule/Takeaway:
 When you stop a car, you seize all the passengers
Minnesota v. Dickerson (1993)
 Facts: Cops have RAS to do a pat-down, felt something in a pocket and then manipulated it to
feel whether or not it was a syringe, arrested
 Issue/Holding: Whether this exceeded the scope of the limited search of terry
 It did, Stop was justified and so was the frisk but the scope was not because he
manipulated the object, it was not just a pat down or “frisk”
 Rule/Takeaway:
 The limited search of Terry is only to feel for weapons, if there is evidence that you are
looking for drugs, that exceeds the scope
Arizona v. Johnson
 Facts: Cop pulls over a car for running a light, there are 4 people in the car, frisks the passengers
 Issue/Holding: Can you frisk the passengers
 Yes, but only for officer safety and it is not automatic, you must be able to point to
something that gives you a RAS that your safety is at stake, you were outnumbered, a
bulge in a pocket, etc.
 Rule/takeaway:
 You must have a RAS to frisk the specific person that you are frisking
Michigan v. Long
 Facts: Traffic stop of a car, sops think they see a knife, go into the car to check
 Rule/Takeaway:
 If a cop does a proper stop based on PC or RS that there is a weapon in the car, they can
“frisk” the inside of the car
50







The search of a car is limited to areas in which a weapon may be placed or hidden and is
only permissible if the cop possesses a RAS that warrants him in thinking the suspect
may be dangerous or may be able to gain access to weapons in the car
Dunaway v. New York (1979)
 Facts: Cops are rounding up the usual suspects for a crime, they do not think this guy did it, but
want to question them
 Rule/Takeaway:
 Just because cop says “you are just coming down for questioning” to a suspect does not
mean that it is not a seizure
 If someone is being forced to go to the station with you, that is an arrest and you need
PC, if you do not have PC, any evidence will be suppressed
US. v. Cortez
 When determining what cause is sufficient to stop a person, the totality of the circumstances
must be taken into account
 And based on that whole picture, the detaining cops must have a particularized and objective
basis for suspecting that particular person
US v. Arvizu
 Individual factors that the cops are pointing to are not relevant to the determination of whether
there is a RAS to justify a Terry stop, you put all the circumstances together and view it through
the eyes of a trained officer
US v. Sharpe (1985)
 20 minutes was still a Terry stop: 2 cars in pursuit and one is evasive so 20 minutes pass before
pulling over and actual investigation
 Valid because to determine if an investigatory stop is too long court looks to whether the police
diligently pursued a means of investigation to confirm or dispel their suspicions quickly during
which time it was necessary to detain the defendant
 the question is not whether there was some other alternative available but whether the police
acted unreasonably in failing to recognize or pursue it
US v. Place (1983)
 90 minutes was too long for the terry stop of the luggage
 The governmental interest in seizing the luggage briefly to pursue further investigation is
substantial and because seizures can vary in intrusiveness some brief detentions of personal
effects may be so minimally intrusive of 4th am interests that strong countervailing
governmental interests will justify a seizure based only on specific articulable facts that the
property contains contraband or evidence of a crime
 Fact-based, must be prompt
Adams v. Williams
 Facts: tip from a well-known informant that Williams had a gun, asked him to get out of car
 Rule/Takeaway:
 Because Williams did not step out of the car when asked to, the gun he allegedly had was
a greater threat
 Under such circumstances, the policeman’s action of reaching to the spot where the gun
was through to be hidden constituted a limited intrusion designed to insure his safety and
was thus reasonable
 It was reasonable to rely on the informant b/c they knew him to be reliable from previous
cases and so they had a RAS to support the Terry stop and to “frisk” the car to find it
51
 AL v. White
 Facts: Cops get anonymous tip that W is dealing drugs; anonymous tip gives her address and
outlines exactly what W will do; goes to motel. On W’s way to the motel, cops pull her over.
 Issue/Holding: do the cops have a reasonable articulable suspicion to pull her over at the point
they did; before she commits the violation?
 Court said this was close case and goes w/ the government
 there was enough corroboration here b/c when you’re looking at terry stop and frisk as
opposed to an arrest and search
 Rule/Takeaway:
 b/c the quantum of evidence shrinks from PC for an arrest to RAS for a Terry frisk,
everything else shrinks as well; you can corroborate evidence; you need less
corroboration w/ a less reliable tip and still lead to RS
 However, a court will find that an anonymous tip on its own does NOT lead to reasonable
suspicion
 FL v. JL (2002)
 Facts: anonymous tip that if they go to corner of state and Madison, there will be a person in a
white shirt who has a gun, cops go there, see that guy, frisk, and find gun
 Issue/Holding: Whether there was enough corroboration with the anonymous tip to support RAS
to frisk
 No, all the tip could describe is where the person was standing, that is not enough to
show that he has knowledge of criminal activity
 Rule/Takeaway:
 In the context of an anonymous tip that supported the initial terry stop, there must be
some kind of Indica of reliability, some sort of corroboration to equal RAS
 This might be different if it was a bomb and not a gun because RAS always depends on
the totality of circumstances
 Navarette v. California (2014)
 Facts: Anonymous tip described car driving erratically had run her off the run, pulled over, smelt
weed, searched and found drugs
 Issue/Holding: Whether the tip was enough to support Terry Stop
 Yes, stop was reasonable because the 911 call while anonymous was an eyewitness
account who reported it right after she ran off the road, she correctly named where the car
would be, it was a present sense impression and 911 calls are recorded so can be verified
and are less likely to be fake
 IL v. Caballes (2005)
 Facts: Guy is stopped for speeding, cop has a drug dog with him
 Issue/holding: Whether using the drug dog exceeded the manner of the Terry stop
 No, the only thing we care about when it comes to a Terry stop is time, as long as the dog
was there within an allowable time, it was OK
 Also, not a search b/c binary
 Rule/Takeaway:
 Within the Terry stop, as long as you do it quickly, you can ask the guy about anything
you want
 The scope of the Terry stop is not going to be questioned, it’s all about time
 This holding has been extended to other seizures – full arrests as in
 Mueller v. Mena
52
o search warrant to search premises; cops handcuff people during search;
this was OK, cops have right to secure premises.
o While Mena was handcuffed, the cops asked about her immigration status.
Issue was can the cops ask this person questions that is unrelated to the
scope of the search. Mena said it changed the manner.
o Court said this is OK, we’re only concerned about the time; they can ask
about anything.
 Rodriguez v. United states (2015)
 Facts: 7-8 minutes passed before a drug dog came and sniffed the car
 Violated the 4th b/c too long under Terry
 IL v. Warlow
 Facts: sees cops, turns and run, they catch him and frisk and find drugs
 USSC held that RAS cannot hang entirely on whether someone flees, but here he not only fled he
was also in a “high crime area” (which they did not define)
 Comm. V. Griffin (a state case)
 “high crime area” argument was used to say that he ran because he is black and fears cop racially
profiling him to show that flight may not be enough for RAS
Summary:
 When is it a seizure?
 Mendenhall works when someone is on a street, walking through an airport;
 Ask Whether a reasonable person would believe they can leave
 Or Bostick – a reasonable innocent person
 Drayton is when you’re in cramped corners;
 Ask whether a reasonable person would feel free to decline the cop’s request or otherwise
end the encounter
 Hodari deals when you pass Mendenhall (in public) but you still don’t feel free to leave (some
show of police authority)
 ask whether there was force or submission to authority
 When is it a De Facto Arrest?
 Royer once a person is moved from their original location or the duration goes on too long
 in order for it to be constitutional, the moment the de facto arrest occurs, there must be probable
cause
 even if there is voluntary consent, if it took place during a illegal seizure, then anything found
during the illegal seizure may be suppressed
 Factors to Consider for seizures / de facto arrests
 Location of the encounter; if it’s public then that’s OK, but what if in an alley…
 If the cops touch or physically restrain the D
 Did the cop have his hand on the gun, by the gun
 Did he touch the D?
 How many other cops were there
 Where were the cops?
 In plain clothes or uniforms
 Tone of voice
 How long did they hold your tickets?
 by holding on to that, it’s a better indication that a reasonable person was not free to leave
53
 Did the cops say you can leave
 what is reasonable suspicion?
 It’s not in the 4th it’s an elusive concept
 the cops need to have a particularized and objective basis
 the crucial thing is that it is a lot less than PC
 In evaluating, we’re going to look at the totality of circumstances
 Reasonable suspicion is a level of suspicion considerably less than proof of wrongdoing by a
preponderance of the evidence.
 Traffic Stops in and outside of Terry
 Stop based on Probable Cause
 Robinson
 PC that R was driving w/out a license
 This is a stop based on Probable Cause that supports an arrest, which supports a
search
 Stop based on reasonable suspicion
 Hensley- felony that occurred in the past
 Alabama v. White – tip of drugs corroborated by location, address, moves
 Hybrid - PC but only for a citation for not for an arrest
 Berkmer v. McCarty – the usual traffic stop is more analogous to a so-called terry Stop
than to a formal arrest
 Whether its justified at its inception
 Was there a reasonable suspicion - Would be b/c supported by PC for a traffic
citation
 Whether its reasonably related in scope to the circumstances justifying the interference
 Time – based on totality of circumstances
o 10 minute sot so to give a ticket, Too long = illegal seizure
 BUT ONLY TIME
o Can ask whatever they want
o Can use a drug dog
 Terry was originally a reactive procedure designed to let cops react to what they are seeing but it has
evolved into a proactive tactic where officers go out and find an excuse for a terry stop to see what they
can find
INTERROGATION AND CONFESSIONS
General Notes
 Originally judged by the standard of voluntariness, a general DP test dealing with coercion dating back
to England
 Were the police holding a gun to your head
 USSC adapted this voluntariness test and said its source was the 5th amendment
Cases
 Brown v. Michigan (1936)
 Facts: black man accused of raping white woman is tied to a tree and whipped until he confesses
 Issue/Holding: whether this violates the 14th am (pre-incorporation)
54

Yes, it does, the confession was involuntary and a violation nof the 14th DP clause which
contains a voluntariness test
 Rule/Takeaway:
 First time the USSC held that a confession in a state court case was involuntary and thus
inadmissible
 Escobedo v. Illinois OVERRULED
 Right to a lawyer once you are the focus of an investigation per the 6th amendment
 Def attorneys want to extend this to apply to people who do not know they can ask for a lawyer,
state attorneys are afraid that will happen
 USSC justices start looking for cases to resolve this tension which leads to Miranda where an
unsophisticated suspect not asking for a lawyer is being interrogated
 So everyone expected the case to be a 6th am case, but it was not
The Miranda Revolution
General Notes
 Justices are essentially searching for test cases after Escobedo v. Illinois leading to the consolidated
cases in Miranda
 Court used the Inbau & Reid manuals as its guide for what happens in police interrogations
 A famous police department manual
 Suggested reading in the ACLU’s amicus brief in Miranda
 Tactics described were focused on a specific person that cops had a reason to think was actually
guilty in order to get a confession
 Mutt & Jeff routine
 Name comes from a newspaper cartoon, but it was just 2 characters who were opposites
and was included in the manual
 “good cop / bad cop”
 Also included a reverse line-up description
 Put people in line up that are cops and have a cop pretend to be a victim and say “That’s
not the one who robbed me, but I did see that guy shoot someone else”
 In the hopes that he will confess to the lesser crime
 Entire point of this manual is an imbalance of power + psychological plays to create a
compulsion to talk
 Which is what Miranda is in response to
 After Miranda ruling, USSC has never found that a confession was involuntary
 They are not taking those cases, still taking Miranda-situation cases very often
 Lower courts address the issue of voluntariness all the time
Cases
 Miranda v. Arizona (1966)
 Facts: Consolidated cases in which D is questioned in a separate room and not given a full
and/or effective warning of his rights prior to interrogation and then confessed w/ statements
used as trial
 Issue/Holding: Whether statements obtained from a D w/o being given prior warnings while in
custody and deprived him of his freedom in a significant way are admissible
55


No, unless the prosecution can demonstrate the use of procedural safeguards to secure the
5th am privilege against self-incrimination, such statements are not admissible
 A person who is swept away into police custody, surrounded by antagonistic forces, and
subjected to the techniques of persuasion found in police handbooks is under compulsion
to speak
 In order to protect the fifth amendment right, the police must clearly tell the accused the
following prior to interrogation:
 right to remain silent
 anything you say can and will be used against you in court
 right to an attorney, one will be appointed if you cannot afford one
 These warnings are prerequisites to the admissibility of any statement made by the D
 No distinction is drawn between inculpatory statements and statements alleged to have
been merely exculpatory
 After such warnings are made, the individual may knowingly and intelligently waive
these rights and agree to answer questions or make a statement, but unless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as
a result of interrogation can be used against him
Rule/Other Notes:
 A Miranda warning is required when you have BOTH:
 Custody
 Would a reasonable person think they can leave?
 When first subjected to police interrogation in the station or otherwise
deprived of freedom in a significant way
 Interrogation
 Did the cop say something that compelled you to speak?
 Just because someone is confessing does not make it a Miranda situation,
the cops must be eliciting responses
 4 Choices a person can make after a Miranda warning
 Ask for an attorney (most protection)
 Say “I do not want to talk” / Remain silent
 Sign a waiver and agree to talk (about 80% do this)
 Say “I invoke the 5th amendment” (less protection)
 If you invoke your Miranda rights, the fact that you invoked cannot be said to the jury
because it would imply guilt
 After you waive, you can change your mind
 Answering some questions does not equal a waiver
 Court seems to be holding as such b/c of belief in the autonomy of individuals,
that people should make decisions themselves on what is best for them,
 but in reality people who waive almost never change their minds
 Miranda is intended to give a cooling-off period, time to think, a time out
 The compulsion inherent in custodial interrogations makes it so that no statement can
truly be the product of free choice
 A Miranda right is not a 6th amendment right to an attorney; it is a 5th amendment
Miranda right to an attorney
56

b/c the right to have an attorney present at the custodial interrogation is
indispensable to the protection of the 5th amendment privilege against selfincrimination in our current system
 The attorney must be present with you in the room, not just available to consult
 A Miranda warning is an absolute prerequisite in overcoming the inherit pressures
of the interrogation atmosphere
 Burden of proving waiver:
 “heavy burden” per Miranda – but we learn it is a preponderance of the evidence
 A waiver must be made “Voluntarily, Intelligently, and Knowingly”
 Just like when waiving right to counsel - Miranda quotes Johnson v.
Zerbst
 Griffin v. California (1965)
 Facts: D was convicted of FDM, did not testify at trial and JI the jury could take that failure to
testify into account to access guilt
 Issue/Holding: Whether comment on failure to testify violates the self-incrimination clause
(made applicable to the states via 15th)
 State argues – you had a right to testify and you chose not to, you were not compelled so
no violation of the 5th
 But USSC held that “compulsion” does not necessarily always mean “forced”
 The action here was more like a chilling effect b/c he was penalized for asserting his
right, thus making him or others not want to assert that right
 Rule/Takeaway:
 Illustrates the difference between compelled and involuntary
 Example of compulsion in violation of the 5th am even though the person is not saying
anything
 Which is the point in Miranda – custodial interrogation is inherently compulsion
Hypos
 Miranda warnings required?
 Scene of crime, cops ask you a question
 No, interrogation, but no custody
 Immediately upon arrest
 No, custody but no interrogation
 If your intent is to ask him Qs in the car, then it’s required
 But strategically, many cops do not ask questions in the car, especially to see if 2 suspects
arrested together will talk to each other in the back and reveal something
 Earl Warren’s wife is murdered and the police bring him in, start to give him Miranda warnings and he
says “oh I know, I wrote them” cutting them off, then he confesses, is the confession suppressed?
 Yes, he was in custody and in interrogation and he was not read his rights
 In Miranda – it does not matter what the Defendant knows or does not know about his rights, you
must tell them to him and he must waive
 Would letting this confession in at trial be a violation of the 5th am?
 Was he “Compelled” – is this the same thing as an involuntary confession?
 Compared to whipping in Brown, this is not really the same thing
57

In Miranda – an involuntary confession may not be “involuntary” in the
traditional sense of the term
Fourth Amendment Consent as Background on Miranda
General Notes
 Factors for whether consent to a search was voluntary
 What the police did
 How’d they ask
 How much time did they give you to reply
 Did they wait until you had replied?
 The person’s characteristics
 Intelligence
 Age
 Education
 Is he drunk or high?
 In some states, not constitutionally – Was he informed of his rights?
 Why do people consent when they have drugs?
 Sometimes the cops are stretching the truth of the situation a bit like the question might really be
“does that trunk open?” and the answer “yes” is taken as consent
 Consent trumps Fourth Amendment concerns
 4th tells us a search must be “reasonable”
 But if a person consents then the search is by definition reasonable
 No need to have PC or a warrant
Cases
 Schnekloth v. Bustamonte
 Facts: Cop pulls over car w/ 6 people, passenger is driver’s brother and consents to search,
evidence found and used against driver
 Issue/Holding: Whether the state must prove the consent was “voluntarily” given
 when the subject of a search is not in custody and the state attempts to justify a search on
the basis of his consent
 the 4th and 14th require that it demonstrate that
o the consent was in fact voluntarily given and
o not the result of duress or coercion, express or implied
 Does not have to be told that he has the right to say no to the search
 Voluntariness is a question of fact to be determined from all circumstances
 Thus, would be a clearly erroneous, not de novo standard of review of appeal
 While the subject’s knowledge of a right to refuse is a factor to be taken into account, the
prosecution is not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent
 Rule/Takeaway:
 Def argument is influenced by Miranda and by Johnson v. Zerbst
 Zerbst – VIK waiver – a judge tells you your rights prior to you waiving your
counsel, aka consenting to no counsel
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Miranda – takes that VIK standard of waiver from the court room into the police
department (b/c to do otherwise does not protect the Constitutional right)
 Def here argues – let’s take Johnson & Miranda and take them the VIK standard
of waiver to the streets
 USSC rejects this – only perquisite for a consent search not in custody is voluntary so no
warning before a search that the person can say no
 Essentially going back to Brown voluntariness / DP on that issue \
 5th or 6th waiver – VIK; 4th waiver – V only
 Court finds there is nothing “constitutionally suspect” In a person consenting to a search
 But this seems unrealistic- people are afraid of the police
 Court is likely motivated by wanting to help the police
United States v. Bostick
 Standard: a reasonable person would believe they are not free to refuse the search and then
consents
 Facts: consent to search of a bag containing drugs and Def attorney argues that if the standard is
pointed at a reasonable person
 what reasonable person would consent to the search of luggage containing cocaine if they
thought they could refuse
 the Court says it’s a “reasonable innocent person”
Bumper v. North Carolina (1968)
 Example of involuntary consent – Cops said they had a warrant, then she consented to the search,
but they did not actually have the warrant
 If there is coercion, there cannot be consent
 A search cannot be justified on the basis of consent given b/c the officer claims authority to do it
w/o consent
Florida v. Royer
 Facts: Terry stop case in the airport re de facto arrests
 Court held that the consent was voluntary, but still suppressed the evidence that resulted b/c it
was a de facto arrest and thus they needed PC which they did not have so illegal seizure
 Rule/Takeaway:
 If the consent was a part of an illegal seizure, the evidence will still be suppressed as the
fruit of the poisonous tree
Florida v. Jimeno (1990)
 Standard for the scope of consent: What would the reasonable person have understood by the
exchange?
 Objective reasonableness
 Ex: Can I search for TV’s? Yes means the cops can look wherever TV’s might be, they cannot
look in the fridge, it’s whatever a reasonable person would think they have just agreed to
United States v. Matlock
 Common Authority: Mutual use of the property by people having join access or control of the
premises
 If you have common authority, you can consent to a search
 Even if you are not the “owner” on a deed, etc.
Illinois v. Rodriguez (1990)
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Facts: Fischer had been beaten goes to police, they follow her to what she calls “our apartment”
she unlocks the door w/ her key and lets them in
 Issue/Holding: Whether she had “common authority” / Whether the search was reasonable
 She did not have common authority b/c she had moved out, did not pay rent, not on lease
 But it was still reasonable b/c the cops objectively had reason to believe that she had
common authority since she had a key
 Rule/Takeaway:
 If the police were objectively reasonable in thinking someone had common authority, that
search is reasonable even if it turns out they did not
 Thus, 3P consent is really more focused on apparent authority than actual authority
 This case cites Hill v. California
 Facts: Arrested wrong guy and did a search incident to arrest, later moves to suppress
 Did not exclude the evidence, it was reasonable for the cops to believe think it was him
b/c the two looked alike, the cops do not have to reasonable, they only have to be right
 Georgia v. Randolph (2006)
 Facts: 2 people are both home with common authority, guy says no to a search and wife says yes
to a search
 A tie goes to the “no” this is not consent
 B/c a visitor faced with the same scenario would not go in
Applying and Explaining Miranda
General Notes
 Based on the holding in Beckwith, a Terry stop would not be “custody” for purposes of Miranda unless
there are additional facts to show otherwise
 Miranda and Juveniles
 Juveniles seem to understand less, 90% confess and most within 15-30 minutes
 Possibly because Miranda is viewed as a formality before a suspect can talk
 Miranda and the mentally retarded
 Large study concluded that the mentally retarded do not understand the individual words,
complete warnings, legal significance, or consequences of confessing
 This applies to those that are functional, but have a lower IQ so the number of those for whom
Miranda warnings are meaningless is much higher than previously thought
 Raises questions about what kind of doctrine could support the constitutional rights of a mentally
retarded suspect
Cases re waiver
 State v. McKnight (1968)
 Facts: cops exploiting dumb criminals who waive
 Issue/Holding: whether intelligent waiver in VIK means that it’s a “smart” choice
 No, it just means that the person understood the basic legal right that he had and chose to
forgo it
 Rule/Takeaway:
 A man need not have the understanding of a lawyer in order to waive one
 Intelligent waiver does not mean wise waiver
 Duckworth v. Egan (1989)
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Facts: D signed waiver that said “we have no way of giving you a lawyer, but one will be
appointed for you if you and when you have to go to court” amongst the normal warnings
 Issue/Holding:
 Rule/Takeaway:
 Asking for a lawyer means that the questions stop, it does not mean that a lawyer is
immediately arriving, it’s only if they are interrogating
 USSC essentially says don’t ask us to tweak Miranda, we won’t
 Powell v. Florida (2010)
 Facts: State’s version of Miranda warning said “you have the right to talk to a lawyer before
answering questions” when really it should have said “during questioning”
 This satisfies Miranda b/c it’s close enough and again, USSC does not want to tweak Miranda
 Colorado v. Spring (1987)
 Facts: Guy is ATF asking weapons after a Miranda waiver then he switches and asks about a
murder, D argues it is out of scope of his waiver b/c not “knowing” of topics
 Issue/Holding: Whether D must know the scope of the questioning to satisfy “knowing” in VIK
 No, a Miranda warning is one size gits all, when a person makes a waive they are
opening themselves up to all interrogation
 Rule/Takeaway:
 Suspect’s awareness of all the possible subjects of questioning in advance of
interrogation is not relevant to determining whether the suspect voluntarily knowingly
and intelligently waived his 5th amendment rights
 Trickery of the police is not an automatic Miranda violation
Cases re Custody
 Beckwith v. United States (1976)
 Facts: guy is at home, IRS comes in and asks questions, he makes incriminating statements and
tries to suppress
 In Miranda, court had a footnote that the holding in Escobedo of “focus of criminal
investigation” was really meaning “custodial interrogation” in this case, they overrule that
entirely
 The mere fact that you are the focus of an investigation is not the point, you must show
something akin to arrest for it to be “custody”
 He was in his home, that’s not custody, no swear environment so no warning required
 Stansbury v. California (1977)
 Court held that the subjective view of whether the person is in custody is irrelevant
 Custody depends on whether a reasonable person would think they were in custody
 Based on the totality of circumstances
 Orozco v. Texas (1969)
 Facts: R in his bedroom, cops have guns drawn on him
 A reasonable person would think they were under arrest, this is a custodial interrogation if
questions are asked b/c he would definitely not feel free to leave
 Custody does not necessarily mean at the police station
 New York v. Quarles (1984)
 Facts: Grocery store arrest, handcuffed at gunpoint, they did not Mirandize, asked where the gun
was hidden inside the store
 A reasonable person would think he was under arrest so this is custody
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Evidence was not suppressed b/c of public safety exception
 If public safety is at issue, cops can forgo Miranda warnings to ask questions
Oregon v. Mathiason (1977)
 Not custodial if the suspect goes to the police station on their own (unless there are other facts)
 Just being in a station does not equal being in custody
California v. Beheler (1983)
 Not custodial when D agrees to accompany the police to the station if a reasonable person would
have understood that they could have said no
Berkemer v. McCarty (1984)
 Roadside questioning of a motorist during a traffic stop for speeding
 Not a Miranda situation, the mere fact that you are seized and interrogated does not mean it’s a
custodial interrogation
 A reasonable person would know they were not being arrested just b/c cops were asking
questions after pulling over
 The person here is not in a sweat factor situation, not a cornered animal
Howe v. Fields (2012)
 Guy was questioned in jail without Miranda warnings and confessed to having sex with a minor,
conviction was upheld because he was told he could leave and return to his cell at any time
 A prisoner is not always in custody for purposes of Miranda when he is isolated from the general
population and questioned about conduct that occurred outside the prison
 Generally, custody is an objective test – whether a reasonable person in the situation would
perceive their circumstances as custody
JDB v. North Carolina (2011)
 Facts: 13-year old taken in and questioned in a casual setting, no Miranda warnings, state argues
that he was not in custody
 Issue/Holding: whether age is relevant to the question of whether a person is in custody
 Age is relevant, but is only one factor in the totality of circumstances
 A reasonable child may feel subjected to police questioning and pressured to respond in a
scenario where an adult would not
 Rule/Takeaway:
 The mere fact that a child is seized is not an automatic custody but it is one factor that is
helpful in the analysis of whether a reasonable person would believe they are in custody
Cases re Interrogation
 Rhode Island v. Innis (1980)
 Facts: guy is arrested and asserts Miranda rights, cops are talking to each other say “it’s a shame
there are so many handicapped kids around here, one of them might find that gun” and guy
interrupts and admits where the gun is
 Issue/Holding: Whether this was an interrogation in violation of Miranda
 No, it cannot be said the officers should have known that he’d feel compelled to respond
 They had no reason to know that he was particularly susceptible to an appeal to his
conscience regarding handicapped children
 Rule/Takeaway:
 Miranda safeguards come into play whenever a person in custody is subjected to either
express questioning or its fundamental equivalent that the police should know are
reasonably likely to elicit a response
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Words or actions on the part of the police that the police should know are
reasonably likely to elicit an incriminating response form the suspect
 If they are not asking a questioning, the police can get away with sort of fishing around to
see what the suspect will react to
 Arizona v. Mauro (1987)
 Facts: parent suspect w/ homicide of kid says he wants a lawyer, cops leave, but they let the wife
go in and leave the tape recorder on and he makes an incriminating statement
 Issue/Holding: Whether this was an interrogation considering they left the recorder on and let
the wife in, possibly on purpose
 No, it is not an interrogation b/c there was no compulsion by the police, a suspect told he
can talk to his wife would not feel like he was being coerced to incriminate himself, any
compulsion was on the part of the wife and Miranda is about protecting against
government’s use of the coercive nature of confinement to elicit an incriminating
response
 Rule/Takeaway:
 There must be “Police Blue compulsion” – official compulsion, a situation where the
police are using their authority to bear down on you, make you sweat
 Illinois v. Perkins (1990)
 Facts: Undercover cop gets a confession from a guy
 Miranda does not apply b/c no police blue compulsion; the guy did not know that he was talking
to a cop
 Pennsylvania v. Muniz (1990)
 Facts: DUI arrested, confessed, booker center videotaped ensuing proceedings, no Miranda
warning, he was asked standard booking questions including what date was your sixth birthday
but he could not answer which was incriminating on its own, prosecutor asked about whether he
was slurring, not what he said
 Issue/Holding: Does this line of questioning mean the guy is testifying against himself?
 No, the fact that he could not answer the booking questions without slurring is not a
testimonial component of his response
 Rule/Takeaway:
 the 5th Amendment only covers testimonial evidence – extortion of information from the
accused, attempt to disclose contents of the mind, the accused’s consciousness of the
facts and expression of his mind
 Its fine to ask booking questions to determine biographical data
 Incriminating statements made during the sobriety tests were let in because the office was
simply giving him instructions not making statement that elicited responses
 “Booking question exception”
Cases re What Can Happen after Invoking
 Michigan v. Mosley (1975)
 Facts: Declined to talk, but did not request a lawyer, officer stopped questioning, two hours later
a detective brought him up for questioning on an “unrelated holdup murder” advised rights again
and he waived and made an incriminating statement
 Issue/Holding: Whether the cops can resume questioning after invocation of right to remain
silent
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The situation here was OK because the right to remain silent was respected, the second
questioning was after a significant period of time and actually related to a different crime
 Rule/Takeaway:
 Admissibility of the statements obtained after the person decides to remain silent depends
on whether his right to cut off questioning was scrupulously honored
 How to Scrupulously Honor the Right to Remain silent
 Immediately cease the interrogation after right to remain silent is invoked
 Suspend questions for a significant period
 Some lower courts require the questions be of a different offense
 Give fresh set of Miranda warnings at the outset of the second round of
questioning (and get a waiver or stop)
Edwards v. Arizona (1981)
 Facts: Guy is read Miranda, says he wants an attorney, cops ask him other questions later,
following the 3 steps in Mosley, but he did not remain silent, he said lawyer
 Rule/Takeaway:
 Once a suspect invokes the right to counsel he may not be subjected to further
interrogation until counsel has been made available to him unless she himself initiates
communication with the police
 A lawyer is a condition precedent – it must occur before interrogation
 How to scrupulously honor the right to an attorney
 Do not interrogate until counsel has been available
 Unless suspect initiates
Arizona v. Roberson (1988)
 Facts: guy invokes right to lawyer when he is brought in on crime A, bring him in the next day
on crime B
 Issue/Holding: Whether invoking right to lawyer is offense-specific
 No, invoking means “I cannot deal with any type of interrogation alone, I am putting you
on notice that if we are going to talk, I want a lawyer”
 Rule/Takeaway:
 Once a suspect invokes his Miranda-Edwards right to counsel, the police cannot initiate
interrogation about that crime or any other crime even if it is not the same as that which
he invoked the right for
 This (A person who asserts Miranda right to counsel cannot be questioned about
anything) is opposite to Colorado v. Spring – A person who says waives Miranda can be
questioned about anything
Minnick v. Mississippi (1990)
 Facts: Guy says I want a lawyer, then one week later, different cops question him w/o a lawyer
present
 Rule/Takeaway:
 It is not enough to make a lawyer available; Miranda means that no interrogation can be
done unless an attorney is sitting next to you during the interrogation
 When counsel is requested, interrogation must stop, and officials may not reinitiate
interrogation w/o counsel present whether or not the accused has consulted with an
attorney
Fare v. Michael (1979)
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Juvenile has rights read to him, asks for his probation officer, they said no but he could have an
attorney present if he wanted, he agreed to talk w/o one and made incriminating statements
 Statements admissible b/c requesting the officer was not a per se invocation of Miranda Rights, a
lawyer has a very specific role in the justice system that is not the same
Maryland v. Shatzer (2010)
 Facts: Invoked right to counsel, 2.5 years later cops came back to the prison and questioned him,
he waived this time
 Issue/Holding: Whether this constitutes a “break in custody” that ends the presumption of
involuntary if lawyer not w/ him
 It does, even though he is in jail, he had a chance to go back to what is “normal life” for
him in gen. pop.
 14 days is the new rule
 Rule/takeaway:
 14 days is enough for a suspect to get reacclimated to his normal life, consult w/ friends
and counsel, and shake off any residual coercive effects of his prior custody
 after 14 days have passed since custodial interrogation in which D invoked right to
counsel, the police can question again, starting form the beginning of the procedure and if
they get a waiver, that’s fine
Oregon v. Bradshaw (1983)
 Facts: Agreed to talk to officer re crash, but when he suggested that B was driving when a minor
died, B denied involvement and expressed desire to talk to a lawyer, officer terminated
conversation, minutes later, B asked “what will happen to me now” and officer told him that he
did not have to talk, B said he understood and they talked, B agreed to a polygraph, next day,
Miranda warnings given, takes and fails test, he admits he was driving when minor died and was
drunk
 Issue/Holding: Whether this was the guy initiated thus not subject to the rule in Edwards
 Held that under the circumstances, B could not avail himself of the Edwards rule b/c his
comment showed a willingness to discuss the investigation
 Rule/Takeaway:
 Initiating = evincing a willingness and desire for a generalized discussion about the
investigation
 State must show
 Guy initiated
 And given the totality of the circumstances, he waived his rights voluntarily,
knowingly, and intelligently
Smith v. Illinois (1984)
 Facts: cops said “you have a right to an attorney” and guy said “uh yeah, I’d like that” they
asked to finish reading warnings, he let them, then he waived
 Once a person makes an unambiguous invocation of Miranda right, interrogation ends and this
was unambiguous enough that he had invoked at that moment
Davis v. United states (1994)
 Facts: D is in the Navy, he waives his Miranda rights, then about 1.5 hours in said maybe I
should talk to a lawyer, detective said he would not keep asking questions if D wanted a lawyer,
D said he did not want a lawyer, he was reminded of his Miranda rights and the interview
continued, he said again, I think I want a lawyer before I say anything, questioning ceased,
 Issue/Holding: Whether this was unambiguous enough
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No, we are unwilling to create a third layer of protection to prevent police questioning
when the suspect might want a lawyer
Rule/Takeaway:
 To invoke the Edwards rule, the suspect must unambiguously request counsel, must
articulate his desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for an
attorney
 After a voluntary and knowing waiver of the Miranda rights, law enforcement officers
may continue questioning until and unless the suspect clearly requests an attorney
 In dictum, the court suggested there is no burden on the government to correct you or
clarify whether you are asserting your right to an attorney
Cases re Implied Waivers
 Tague v. Louisiana (1980)
 General rule is that a waiver is not established merely by showing that a D was given completed
Miranda warnings and still made an incriminating statement, but this does not mean that there
will never be times when there is an implied waiver
 The Q is whether the D knowingly and voluntarily waived
 Mere silence is not enough, but there are some situations in which the state may be able to prove
that a waiver was inferred from the actions or words of the person
 Berghuis v. Thompkins (2010)
 Facts: Cop read Miranda warnings, guy was completely silent, then they asked if he believed in
god and wanted god to forgive him for shooting that boy and he answered yes
 Issue/Holding: Whether remaining silent invokes the right to remain silent or whether he waived
that right
 Remaining silent is not enough because the invocation must be unambiguous and
remaining silent is not unambiguous
 He did waive his right to remain silent when answered the question
 He knew his rights, he was read them and he understood them, he knows English, and his
course of conduct in answering the question is a waiver
 Rule/Takeaway:
 In sum, a suspect who has received an understood the Miranda warning and has not
invoked his Miranda rights, waives the right to remain silent by making an uncoerced
statement to the police
 A waiver in Miranda can be less formal or implied
 Prior to this case, it was generally understood that there could be no interrogation until
after a person had waived their Miranda rights; After this case, it is clear that you do need
to get an actual waiver in order to begin interrogation, a person has to invoke in order to
end interrogation
 North Carolina v. Butler
 Facts: Refused to sign a waiver, but said he would talk
 Rights can be waived through less formal means than a waiver on the record in a courtroom
 Question is not one of form, but whether D voluntarily and knowingly waived his Miranda rights
which depends on
 whether he knew his rights and
 engaged in a course of conduct indicating waiver
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 Montejo v. Louisiana (2009)
 Facts: M is a murder suspect, waives rights and is interrogated, 3 days later he is in court and
gets appointed counsel, later that day, cops approach him, Mirandize, he waives and confesses
 Issue/Holding: Whether, since he had appointed counsel under the 6th am, he could not be
interrogated w/o counsel present
 No, the police can approach anyone, it is irrelevant whether they are a suspect or have
been charged, everyone is subject to custodial interrogation
 Rule/Takeaway:
 Even if the 6th am right to counsel has attached, police can approach and read Miranda
warnings
 You do not unknowingly pick up Miranda protection, you have to ask for it
 You can only assert 5th am right to counsel when it exists (in a custodial interrogation)
 Moran v. Burbine (1986)
 Facts: D waived his rights while his lawyer that his sister hires w/o his knowledge is calling and
cops are not letting her in
 Not a Miranda issue b/c counsel cannot invoke the Miranda right to counsel on behalf of his
counsel
 Events occurring outside of the suspect’s knowledge have no bearing on hiw decision of whether
or not to waive
Hypos
 Cop pulls over car w/ 4 guys in it, gets them out and handcuffs them, start asking whether they
participated in a robbery, Miranda warnings required?
 This is a terry stop which is a fourth Amendment situation and Miranda is a 5th am concern
 You can still have “custodial interrogation” in a Terry stop b/c these 2 different concerns
 You do not have to be in custody for the 4th amendment concerns, you do have to be in custody
for Miranda to apply
 Guns drawn and handcuffed – arguably does require Miranda warnings
Summary
 Edwards, Roberson, Minnick – “Edwards Trilogy”
 Miranda warning given and you say “I want a lawyer”
 No questions about that offense, Edwards
 Or any other offense, Roberson
 Or, even after you’ve consulted w/ a lawyer, only if lawyer is in the room, Minnick
 While the Warren court’s reason in Miranda seemed to be protecting the unsophisticated suspect,
it actually seems that what they’ve done is protect the sophisticated suspect
 State can escape the Edwards trilogy if it can show initiation, Bradshaw
Miranda & Due Process / “Voluntariness”
Genearl Notes
 “Interrogation” vs. “Deliberate elicitation”
 These terms are NOT interchangeable.
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Miranda is not implicated when the suspect is unaware that he is speaking to a law enforcement
officer or his agent because a “police-dominated atmosphere” and “compulsion” are not present.
Massiah can be implicated if a suspect has already been indicted even though he is speaking
freely with someone he believes to be a fellow inmate.
A person cannot be “interrogated” within the meaning of Miranda unless he is aware of it, but he
can be subjected to police efforts to “deliberately elicit” statements from him without being
aware of it
Cases
 Dickerson v. United States (2000)
 Facts: Congress enacted § 3501 2 years after Miranda, which laid down a rule that admissibility
of a custodial suspect’s statements should turn only on whether they were voluntarily made,
essentially attempting to overturn Miranda 2 potential Miranda problems: 1. USSC cannot force
the state to exclude evidence that violated Miranda but was not unconstitutional; and 2. Congress
passed this statute legislating around it
 Issue/Holding: Whether congress can effectively overrule Miranda, whether it’s a Constitutional
decision
 Congress could overrule Miranda if it was supervisory, but it is not, it’s constitutional as
shown by the fact that Miranda has applied to state courts and supervisory power only
applies to federal courts
 we held in Miranda that the voluntarily test was not sufficient to protect constitutional
rights and congress is trying to go back to that test that we found unconstitutional, stare
decisis weighs heavily against overruling Miranda ourselves and congress cannot
legislatively supersede because this is a constitutional rule so § 3501 is invalid
 Rule/Takeaway:
 There can be exceptions to Miranda even though it is Constitutional (like Quarles public
safety) b/c it is a prophylactic rule
 It overprotects, goes further than it constitutionally has to in order to protect a
Constitutional right
 This case essentially holds that Miranda is a constitutional decision without explaining
why
 This case really did not change anything
 New York v. Harris
 Can use statement after a Miranda violation for impeachment purposes
 After Dickerson, Def attorney’s thought they’d be able to challenge this rule b/c Miranda is
constitutional and a constitutional violation means suppression across the board like a DP
involuntariness violation
 But court disagreed b/c prophylactic & B/c the prosecution is doing no more than utilizing the
traditional trust-testing devices of the adversary process
 The shield provided by Miranda is not a license to use perjury w/o risk of confrontation w/
previous statements
 Involuntary confession cannot be used for any purpose whatsoever, but a Miranda violation is
different b/c its not necessarily an involuntary confession
 United States v. Patane (2004)
 Facts: police ask where is the gun is no Miranda warning and the guy answers, gun is found
 Issue/Holding: Are the words admissible? Is the gun?
68
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Miranda is a prophylactic against violations of self-incrimination clause, but the clause is
not implicated by the admission of evidence of the physical fruit of a voluntary statement
 Words are presumed to be compelled, but the physical evidence is not testimonial
 there is, with respect to mere failures to warn, nothing to deter. There is therefore no
reason to apply the fruit of the poisonous tree doctrine utilized in 4th am cases
 statements taken w/o sufficient Miranda warnings are presumed to have been coerced
only to protect the privilege against self-incrimination, we decline to extend it further
 Rule/Takeaway:
 Physical evidence is not suppressed under Miranda b/c it is not testimonial
 a mere failure to give Miranda warnings does not, by itself, violate a suspect’s
constitutional rights, unlike unreasonable searches under the fourth or actual violations of
the DP clause or the self-incrimination clause
 But if there is an involuntary confession, that is a violation of DP and the confession is
excluded, no impeachment use, or physical evidence obtained as a result
 This case explains why there is no need to reexamine the Miranda exceptions (Quarles,
Harris, or Muniz) after Dickerson
 USSC said Miranda is not a real constitutional violation in which you can use as a tree
that has poisonous fruit; it is a prophylactic exclusionary rule that excludes the words.
 We’re not going to let Miranda exclude derivitive evidence; also there is no constitution
violation in a quarles situation, so we can keep the exception.
 If you have a gun to the head, you exclude the gun and the words; this is a due process
violation
 Krane v. Kentucky (State case, do not directly cite)
 Even if you lose on involuntariness, you can still argue that while the confession is admissible,
you can introduce factors to argue to the jury how much weight to give the evidence
 Miller v. Fenton
 Facts: Cop lied to suspect (32, some high school education) saying victim was dead and that
whoever committed the crime must have mental problems, need his help, he only wants to help
whoever that is
 Issue/Holding: Whether confession was voluntary (Whether tactics were sufficiently
manipulative to overbear the will of a person w/ D’s characteristics
 It was voluntary b/ c his will being older and having some education is stronger than
another, he had also served a sentence before
 Good guy approach was permissible even though the suspect may have forgotten he was
speaking w/ an adversary, he may have implied he’d go easy on him but never actually
stated that
 Rule/Takeaway:
 Voluntariness depends on both objective and subjective factors
 The limits of permissible interrogation turn on a weighing of the circumstances of
pressure applied by the police against the power of resistance of the person confessing
 the confession was voluntary despite psychological ploys playing a role in his decision to
confess because the confession was still a product of M balancing competing
considerations
 Arizona v. Fulminante (1991)
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
Facts: confession was not made in a custodial interrogation, it was made to a police informant, F
was in jail and the cops sent in an informant who posed as an inmate and said “you’re as good as
dead if someone finds out you killed that girl” he made incriminating statements to him
 Issue/Holding: Whether confession should be suppressed
 Cannot suppress under Miranda b/c not custodial interrogation
 Can suppress as involuntary b/c state action (undercover agent of govt.) implied that F’s
life was in danger if he did not confess (gun to the head)
 Rule/Takeaway:
 If a person is a private person on his own (want to be a good citizen or doing it to cut a
deal with the gov’t); if he is acting on his own, then there is no state action at all. You
can’t have a constitutional violation when is it not the government.
 But if the guy is a gov’t agent, then we have state action.
 If the inmate is working on his own, there is no constitutional problem. But if the guy is
working for the state, then we do have a problem.
 what this case says is that the technique used by gov’t agent here is basically putting a
gun to the guy’s head; if you don’t tell me you’ll be dead. This was involuntary and
violated due process.
 Involuntariness is a Q of law (de novo review)
 Colorado v. Connelly (1986)
 Facts: Cop standing on street, C walks up says “god told me to confess, I killed that girl” Atty
argues he had severe mental problems - a literal disease that made his confession involuntary in
the dictionary sense b/c he could not help but obey the voices
 Previous informative cases: USSC had previously held that there was a “truth serum” category
of involuntary confessions – no control over statements so involuntary in dictionary sense
OVERRULED
 Issue/Holding: Whether “involuntary” requires a threshold holding of bad govt. action and/or
whether to suppress under Miranda
 Yes, it does, we mean “involuntary” as a term of art, not the dictionary definition, the
police did not do anything wrong here that would violate a right of the D under DP or
under Miranda
 Can’t suppress under Miranda either involuntary in standard (VIK) for waiver is the same
term of art
 Rule/Takeaway:
 A confession can only be involuntary w/ bad state action b/c otherwise there’s no DP
violation
 The term “involuntary” s contained in “voluntary, intelligent, & knowing” waiver in
Miranda is the same term and still requires government malfeasance
 Intelligent & knowing – told the rights, understood the rights
 Voluntary – police have gun to the head or not, not whether the voices made you
do it
 The burden for a showing of a waiver in Miranda is a preponderance of the evidence
 Massiah v. United States (1964)
 Facts: He was indicted, after that he makes incriminating statements to Co-Defendant who is
unknowingly to him cooperating with FBI and wearing a wire, not a Miranda situation b/c no
custodial interrogation / coercive environment
 Issue/Holding:
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
While he made not have been in custody or in a coercive atmosphere, he did not have a
reason to keep his guard up because he was not aware he was dealing w/ a fed. Agent
 held that after being indicted when he was clearly indicted to a lawyer’s help in an
orderly courtroom protected by all the procedural safeguards of law he had been
subjected to a completely extrajudicial police-orchestrated proceeding designed to obtain
incriminating statements
 Petitioner was denied basic protections of the right to counsel when there was used
against him evidence of his incriminating words which fed. Agents had deliberately
elicited from him after he had been indicted and in the absence of his counsel
 Dissenters argued there was no constitutional problem b/c he was not in custody and not
kept from talking to his lawyer whenever he wanted
 Rule/Takeaway:
 6th am is “offense-specific”
 Once there is an indictment, the 6th amendment has attached and provides a shield
around the Defendant (for the specific offense you were indicted for)
 If govt. has deliberately elicited statements through a police-orchestrated proceeding that
was designed to obtain incriminating statement, they have violated 6th am right to
counsel and such statements are inadmissible at trial
 United States v. Henry (1980)
 Facts: FBI instructed to find out what his cellmate has info on, he had a series of converstions
about the offense that led to info, but ever actually questioned
 You must be a “passive listener” to not fall w/in Massiah, you are not a passive listener if you are
eliciting statements, asking questions, etc.
 Fellers v. United States (2004)
 Massiah held that an accused is denied the basic protection of the 6th when there is used against
him at his trial evidence of his own incriminating words which the police have deliberately
elicited from him after he had been indicted and in the absence of his counsel
 Miranda is not implicated when the suspect is unaware that he is speaking to a law enforcement
officer or his agent b/c a police-dominated atmosphere and compulsion are not present
 A person cannot be interrogated w/in the meaning of Miranda unless he is aware of it but he can
be subjected to police efforts to deliberately elicit statements from him w/o being aware of it
 Do not need an interrogation for a Messiah situation – it’s just “deliberate elicitation” which
could also be a conversation
 Patterson v. IL (1988)
 If you waive your rights under Miranda, you waive your 5th am right to counsel and your 6th am
right to counsel
 an accused who is given the Miranda warnings has been sufficiently apprised of the
nature of the 6th rights and of the consequences of abandoning those rights so that his
waiver on this basis will be considered a knowing and intelligent one
 While there are differences between 5th and 6th rights to counsel, one is not greater than
the other,
 we require a more searching or formal inquiry before waiving at trial than waiving in
post-indictment questioning not b/c its less important than trial but because the full
dangers of self-representation at trial are less dangerous
 So a confession after an indictment in a custodial interrogation in which the Defendant
waived their Miranda right to counsel is admissible despite that indictment
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 Maine v. Moulton (1985)
 There is no good faith exception to Massiah
 Incriminating statements regarding pending charges are inadmissible regardless of whether the
police were investigating unrelated crimes
 Anything about the charge gets excluded and anything about the unrelated charge does not
 Ex. While an informant was questioning him about crime A, he confessed to crime B of his own
accord
 A statements would come in, but B would get suppressed
 Montejo v. Louisana
 Once the 6th am attaches, there are no limits to what the cops can try to do in a custodial
interrogation, they are always free to try
 they can do a custodial interrogation even on the charged offense
Cases re how to Define “offense”
 Blockburger v. United States
 Test for double jeopardy: where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the other does not
 Texas v. Cobb (2001)
 The Blockburger test is the test to use to determine whether 2 things are the same of different
offenses for purposes of Massiah
Hypos
 You are D attorney and you have a confession form a custodial interrogation w/ a Miranda violation and
it was a involuntary confession, how do you argue the case
 Argue Involuntary first
 DP violation
 Poisonous tree – exclude everything
 No physical evidence, no impeachment usage
 Look at jurisdiction to see what you have to prove, but remember that it is both objective
and subjective – things that the victim is going through that the cops may not even know
for example
 Also argue Miranda (as an alternative or if you lose on involuntary)
 Can’t use statements in case in chief, but impeachment and physical evidence are still OK
 What if a private party records a statement then approaches the police on his own and hands it over?
 No massiah problem b/c not police-orchestrated
 What if police said to a cellmate “listen to him” and he then overheard something and told them?
 No Massiah problem b/c no deliberate elicitation
 What if police said “ask him about a robbery” after he was indicted for murder?
 No Massiah problem b/c not on the charged offense
 Must have all 3:
 Govt. action
 Deliberate elicitation
 On info re the charged offense
 Are murder and robbery the same offense?
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

Blockburger test: proof of fact that the other does not
 Murder: Killing a person
 Robbery: Taking a thing
 So each requires a proof of a fact that the other does not and are thus 2 separate offenses
What about robbery and armed robber
 Robbery: Taking a thing
 Armed robbery: Taking a thing w/ a gun
 So both require showing of a fact that a thing was taken, there are no facts in robbery that
are not in armed robbery thus they are not separate offenses
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