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.
Only applies to
Governmental
Actions
● The Action Must be a Search or Seizure
● Remedy = Evidence Excluded
● “the exclusionary rule”
A Search
● Occurs when the government intrudes into an area where an
individual has a reasonable expectation of privacy
The Two Prong
Test for an
expectation of
privacy
● Subjective- the Person have exhibited an actual expectation
of privacy
○ What were they thinking
● Objective- that the expectation be one that society is
prepared to recognize as “reasonable.”
○ A reasonable persons test
The Third-Party
Doctrine
● An individual has no reasonable expectation of privacy in
information or items voluntarily conveyed to a third party.
○ Smith v Maryland- A person has no legitimate
expectation of privacy in information that the person
voluntarily turns over to third parties.
The Open Fields
Doctrine
● The home and the curtilage the “open fields” has no 4th
amendment
● Courts consider 4 factors to distinguish curtilage from open
fields:
○ Proximity to home
○ Whether it's within an enclosure surrounding the
home
○ Nature if uses (what it's used for)
○ Steps taken to protect area from observation
Aerial observation
● Aerial observation of an area within the curtilage of a home
from a helicopter at an altitude of 400 feet is not a search
1
requiring a warrant under the terms of the Fourth
Amendment.
Informant/govern
ment agent
● No Fourth Amendment search and seizure when the person
the defendant is speaking with is secretly a government
agent or an informant wearing a wire and recording what is
being said.
○ The defendants assume the risk when they confide in
others about their illegal activities
● Corroborated statements by an unknown informant can
amount to probable cause. If they give predict information
Advance-Tech
knowledge
● Kyllo v. United States Law enforcement's use of senseenhancing technology to see details of a private home that
would not be discoverable without physically entering the
home constitutes a Fourth Amendment search.
○ Government’s warrantless placement of a GPS
device on Jones’s vehicle constitutes an unlawful
search in violation of the Fourth Amendment.
Dog Sniff
● Dog sniff discloses only the presence or absence of contraband
for which a suspect has no legitimate expectation of privacy
Probable Cause & Warrant Requirements
1. First consider whether the government had probable cause and a warrant before you consider
exceptions.
2. Logically speaking, if there was probable cause and a warrant, the search would not violate
the Fourth Amendment even if an exception does not apply.
Seizures
● A seizure also occurs when the government takes someone's
property, does not search it, but instead waits to obtain a
warrant to authorize a search of the property.
● Probable cause is required for an arrest. If the arrest is
conducted in public, an arrest warrant is not required. If the
arrest is conducted in one's home, an arrest warrant is
generally required.
○ An arrest is one example of a seizure.
Probable cause
● Evidence which would ‘warrant a man of reasonable
caution in the belief that a [crime] has been committed
[and] must be measured by the facts of the particular
2
case.”
● Specific evidence of a crime will be found and This
evidence will be found in the place that is searched
Probable cause to
arrest = 2-part
analysis (Arrest):
1. Did the officer have probable cause to believe that a crime
was committed?
2. Did the officer have probable cause to believe that the
suspect committed the crime?
a. PC must be linked to a particular individual
Totality-of-thecircumstances
approach
● A standard that considers all of the relevant facts and
circumstances, rather than a few specific factors.
Executing Search Warrants/ No Knock
Valid Warrant
1. It must be supported by probable cause.
2. Second Affiant or the person applying for a warrant must affirm
under oath that the facts in the affidavit are true.
3. The warrant must state with particularity the place to be searched
and the items or persons to be seized.
a. The execution of the warrant must also be reasonable
Cases on Executing
a Warrant
●
●
●
The 3 justifications
are:
(Garrison)- A search made under an otherwise valid warrant
containing a mistake does not violate the Fourth Amendment if the
police acted reasonably.
Whether the seizure of the contraband was prohibited by the Fourth
amendment
(Richards v. Wisconsin)- While the general rule is that the police
must knock and announce their presence before a warrant can be
executed, whether or not this rule should in fact be followed in a
specific instance must be determined on a case-by-case basis at the
time the warrant is being executed.
1. Officer safety,
2. Hot pursuit of a suspect who is fleeing,
3. The risk that evidence will be destroyed.
In Public:
No Warrant Required to Arrest
At Home:
Warrant Required to Arrest
Incident to Arrest
3
United States v.
Watson
Requirements for
search incident to
arrest = Lawful
arrest
Police may arrest a suspect without a warrant if there is probable cause to
believe the suspect committed a felony. The United States Code expressly
authorizes postal inspectors to make warrantless arrests if there are
“reasonable grounds” for believing the suspect committed a felony.
●
●
In home, arrest warrant based on PC + a lawful custodial arrest
In Public, only PC cause +
Searches incident
to arrest are
limited in scope to:
●
●
The arrestee’s person (body)
The arrestee’s wingspan
○ any containers that are on their person
○ At the time of arrest
Why is this
allowed?
1. Officer safety
2. Preservation of Evidence
What else can be
searched? (Home)
● Closets and other spaces immediately adjoining place arrest,
from which an attack could be launched
● Can conduct limited protective sweep of house to look for
people if there is reasonable suspicion of danger to the
officers or others containers
● Immediately adjacent rooms/closets may be viewed to prevent
a surprise attack (no justification required, but no containers
may be searched)
● A protective sweep of the entire house may be conducted IF
there are specific facts that lead officers to suspect (reasonable
suspicion standard) there is a danger (i.e. of someone hiding).
What if the
individual is
arrested outside the
home?
● Cannot search house incident to arrest if arrest is conducted
outside the home.
● Timing: Search must be “substantially contemporaneous with
arrest.”
Searches in Vehicles (These rules apply to occupants or recent occupants of vehicles)
If lawful custodial
arrest, police may
search:
1. The person arrested;
2. The area within the person’s immediate control (“wingspan”)
3. Closets or areas immediately adjacent to room arrested if place
where someone could be hiding to launch an attack
4. Protective sweep of entire house if specific facts to show reason to
4
believe danger
a. If the arrestee is secured (i.e. handcuffed and in
patrol car), the passenger compartment of the vehicle may
only be searched under this exception if police have reason
to believe there is evidence of the crime of arrest in the car.
b. The search includes containers in the passenger
compartment.
(New York v.
Belton)-
●
Incident to a lawful arrest, the police may search the area within the
arrestee’s immediate control.The passenger area of the car is under
the immediate control of a recent occupant now under arrest, and is
subject to lawful search by the arresting officer.
●
Police may search a vehicle after a recent occupant’s arrest
only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is
reasonable to believe that crime-related evidence is located in
the vehicle.
(Arizona v. Gant)-
BUT... search of
passenger
compartment only
allowed if:
1. Arrestee unsecured and within reaching distance of passenger
compartment at time of the search &/or
2. Officers have a reason to believe evidence relating to a crime might
be found in the vehicle.
Riley v. California:
●
Under the Fourth Amendment, the government may not conduct a
warrantless search of the contents of a cell phone seized incident to
an arrest absent exigent circumstances. Police officers generally
must secure a warrant before conducting a search of the contents of
a cell phone seized incident to an arrest.
The Automobile Exception
Automobile
exception rule-
●
Vehicle Search
Incident to Arrest
● Requires lawful arrest of occupant or recent occupant of
vehicle
○ No warrant & no probable cause needed
○ Scope of search limited to: Person & containers on
personIf restrained: no search of interior or containers in
interior unless reasonable to believe evidence of crime
arrested for will be found inside.
○ If unrestrained, search of passenger compartment
If probable cause justifies the search of a vehicle, it justifies the
search of every part of the vehicle and all the property inside,
including any closed containers that could contain the object of the
search.
5
allowed if within grabbing distance at time of search
Automobile
Exception
(Warrant w/ PC)
●
Under this
exception
●
California v.
Carney- (Mobile
Homes)
● There, the Court recognized that the privacy interests in
an automobile are constitutionally protected; however, it
held that the ready mobility of the automobile justifies a
lesser degree of protection of those interest
● Mobile Homes- Factors: Location, readily mobile or
elevated on blocks, licensed, connected to utilities, access
to road
California v.
Acevedo
● The dichotomy dictates that if there is probable cause
found therein-may be searched without a warrant, but if
there is probable cause only as to container in the car, the
container may be held but not searched until a warrant is
obtained
Wyoming v.
Houghton
● We upheld as reasonable the warrantless search of a
paper bag and leather pouch found in the trunk of the
defendant’s car by officers who had probable cause to
believe that the trunk contained drugs
●
●
Requires stop on highway OR vehicle that is readily capable of use
on a highway (i.e. readily mobile)
No warrant required, but probable cause IS required for search
Scope limited by probable cause Containers may be searched if the
evidence police have PC to search for may be found inside.
The entire vehicle may be searched, including the trunk
and any containers, IF the item law enforcement has
probable cause to believe they will find would fit into the
space and IF there is probable cause to believe the item is
in that area.
○ For example, if there is only a PC to believe a paper
bag containing drugs is in the trunk of a vehicle, the
trunk is the area that can be searched.
○ A passenger's containers may also be searched
under this exception.
Terry v. Ohio Stop and frisk, both a search and seizure
6
Terry Stop
● When an officer observes unusual conduct that
reasonably leads him to assume that criminal activity is
afoot and that the people he is interacting with are armed,
the police officer may conduct a limited search for
weapons.
○ Whenever a police officer accosts an individual and
restrains his freedom to walk away, he has “seized”
that person
Warrant
preference view
●
●
●
A search without a warrant is presumptively unreasonable
Reasonableness view
The Fourth Amendment requires reasonableness, not necessarily
warrants.
"pat down search"
●
●
Limited search of the outer clothing in order to discover weapons
“That criminal activity may be afoot and that the persons
Plain-field-
●
that is immediately apparent to unlawful
Reasonable
Suspicion:
●
Minimal level of objective justification supported by articulable facts
Not reasonable
Suspicion:
●
Unparticularized suspicion or hunch not supported by specific Fact
Florida v. J.L-
●
An anonymous tip that a person may be carrying a gun does
not justify a stop and frisk under the Fourth Amendment
unless there is additional corroboration to ensure that the tip
has "sufficient indicia of reliability" to create reasonable
suspicion justifying a stop.
Illinois v.
Wardlow-
●
A police officer may stop and frisk a citizen on the street when he
has reasonable suspicion that the person is armed and may pose a
threat to the officer.
○ The flight of a suspect in a high crime area can amount to
reasonable suspicion and justify a lawful stop and frisk by the
police.
Plain View Doctrine
7
“Seizure”
●
Of property occurs when there has been some meaningful
interference by the government with an individual’s possessory
interests in the property
Under the plain
view Doctrine-
●
Police officers may search or seize items they see in plain view
during the course of a lawful search even if they have not secured a
warrant in advance for those items as long as they comply with
certain requirements
Police may search
or seize items in
plain view IF:
1. Lawful government intrusion
a. A lawful vantage point means that the officer has a right to be
in a particular location,
b. Whereas a lawful right of access means that the officer has a
right to look in certain places while in that location.
2. (Inadvertent discovery)- not resulting from or achieved through
deliberate planning.
3. Incriminating nature of the object immediately apparent
a. Probable cause that item is contraband or evidence of a
crime required in order to seize under this exception.
b. Once seized, the evidence must be dealt with pursuant to
other relevant 4th Amendment standards that are beyond the
scope of this lesson.
Arizona v. Hicks-
●
For a warrantless search or seizure to be reasonable under the
Fourth Amendment, the plain view doctrine can only be invoked to
search or seize evidence if the police have probable cause of the
evidence’s incriminating character.
○ The plain view doctrine demands that probable cause exist
before an officer may search or seize a piece of evidence.
Minnesota v.
Dickerson-
●
A police officer performing a patdown search for weapons may not
seize other contraband detected during the search if the identity of
that contraband is not immediately apparent.
Racial Profiling
Ponce-
●
Officers on roving patrol may stop vehicles only if they are aware of
specific articulable facts, together with rational inferences from those
facts, that reasonably warrant suspicion that the vehicles contain
aliens who may be illegally in the country
Factors that
involve reasonable
suspicion:
●
●
●
●
Appearance mode of dress and haircut
Proximity of the border, traffic patterns.
Recent border crossing, experience with migrant traffic
Erratic driving, station wagons with large components
○ Many passengers, some trying to hide
Whren-
●
Can a police officer use the Vehicle Code as an excuse to pull
someone over based on a hunch, or based on an otherwise unlawful
8
reason (such as race or ethnicity)? Yes
When there is
probable cause
that a traffic
offense has
occurred, the
officer’s subjective
motives for
detaining the
motorist do not
invalidate the
officer’s actions
under the Fourth
Amendment.
Factors to look at:
1.
2.
3.
4.
5.
High drug area
Dark Pathfinder with temporary plates
Youthful occupants
Driver looks into lap of passenger
Stops at stop sign for 20 seconds, then turns suddenly without
signaling and speeds of
Seizures
Seizures
“seizes” an individual in violation of the Fourth Amendment if he uses
physical force, or by show of authority, to restrict the liberty of the
individual or if a reasonable person in the same situation would have
believed that the individual was not free to leave the presence of the
officer.
Free to Leave Test
1. A person is seized when a reasonable person would not have
believed they were free to leave, based on the totality of the
circumstances surrounding the incident including:
a. The threatening presence of several officers
b. The display of a weapon by an officer
c. Some physical touching of the person of the citizen
d. Language or tone of voice indicating that compliance with
officer’s request might be compelled
A seizure occurs
when an
individual’s
liberty is
restricted either
by:
Florida v. Bostick-
1. Submission to an officer’s show of authority; or
2. An officer’s use of physical force
A police request for identification and consent to search private
belongings does not amount to a seizure when the police inform the
subject of the right to refuse consent to questioning and search.
9
CONSENSUAL
ENCOUNTERS
●
Encounters where a reasonable person would feel free to disregard
police & go about their business
SEIZURES (TERRY
STOPS)
●
Encounters where police convey a message that compliance with
requests is required
Court implies if a gun had been pointed at him would be different.
●
Correct
standard is
●
Florida v.
Royer-
1. (1) Under the Fourth Amendment, police officers cannot move a
suspect to another location during a Terry stop without a legitimate
law enforcement purpose, such as ensuring the safety and security
of the officers and the suspect.
2. (2) Under the Fourth Amendment, a suspect's consent to a
warrantless search is invalid if the suspect was illegally detained at
the time it was given.
3. An investigative detention must be temporary and last no longer than
is necessary to effectuate the purpose of the stop.
Police Use of
force as a
seizure
●
Tennessee v.
Garner-
●
Under the Fourth Amendment, a police officer may not use deadly
force to stop an unarmed suspect from fleeing unless the officer has
probable cause to believe the suspect poses a significant threat of
death or serious physical injury to the officer or others, and the
deadly force is necessary to prevent the suspect's escape.
○ Deadly force is only reasonable if officer believes suspect
committed felony + poses threat of safety of officers or is a
danger to the community
○ What is reasonable?- Balance nature and quality of the
intrusion against the importance of government’s interest
Graham v. Connor-
●
A court should analyze excessive force claims that involve an
officer’s use of force during an investigatory stop, arrest, or other
seizure under the Fourth Amendment’s reasonableness standard.
○ Balancing test: Severity of crime, Whether suspect poses
immediate threat to safety or officers or others, Whether
actively resisting arrest or attempting to evade arrest.
○ Qualified Immunity- A doctrine that shields officials from
lawsuits related to actions taken while in office that do not
violate clearly established statutory or constitutional rights.
●
●
whether a reasonable person would feel free to decline officers’
requests or terminate the encounter
Police use of force (deadly or excessive) = a seizure under the 4th
amendment
4th amendment prohibits unreasonable search and seizures
Justifiable force does not violate the 4th
Consent
10
Requirements:
Valid consent by a person with actual or apparent authority to consent
Rationale/Scope
●
●
Ease for police; individual’s free choices
Scope: As broad as the consent
Third party
consent
doctrine
●
Police may search property without a search warrant if they obtain
consent of a co-occupant with “common authority” over those
premises or that property
○ Others who live there
○ Not landlord
○ Or housekeeper
○ Not if another person with actual or apparent authority is
present and objects
○ Landlords can’t because they don’t use the apartment
Consent exception
●
●
●
With valid consent, the individual gives up their 4th amendment right
No gov’t justification required for search
No probable cause or reasonable suspicion needed
Key issues
●
●
●
●
Was consent given only after an unlawful seizure?
Was consent voluntary?
Was search limited to scope of consent?
Was consent by the right person?
Waiving your
rights?
Some
relevant
factors
● Due process requires that a waiver of constitutional rights is
knowing & voluntary
● The Supreme Court explains why consent to search is not a
waiver of rights. Why?
1. Manner of questioning
2. State of mind of person giving consent
3. Whether person knew of right to say no
a. Whether given Miranda warnings before
4. Schooling & intelligence
5. Use of weapons (i.e. if weapons drawn)
6. Time of day
7. Location
a. When is it coercive?
i.
Needs to be a Question, and not a command
11
ii.
If gun pointed at person, pretty clearly not
voluntary
Scope
1. Only the location/area consented to may be searched under this
exception
2. Test= what a reasonable person would understand scope to be
Schneckloth v.
Bustamonte-
●
If officers conduct a warrantless search of a subject not in custody,
the prosecution can meet its burden of proving that consent to the
search was freely and voluntarily given by looking at the totality of
the circumstances.
Illinois v.
Rodriguez-
●
Under the Fourth Amendment, the police may enter a home without
a warrant if they reasonably believe the person who consents to their
presence has the authority to do so.
“Common authority” rests “on mutual use of the property by persons
generally having joint access or control for most purposes…”
●
Who can give
consent to search
● The target of the search
● A third party with common authority over the property
○ Others who live there
○ Not landlord or housekeeper
○ Not if another person with actual or apparent authority is
present & objects (rule from Georgia v. Randolph)
○ A third party with "apparent authority" over property
○ One owner is yes other says no, No wins (unless
warrant)
Exception to the warrant & Probable cause requirements: Exigent Circumstances
12
Administrative
search exception
● Inventory Search- A routine search performed by police before
taking a person or property into custody, performed for
administrative rather than investigative purposes.
○ No warrant or PC needed for admin search
○ Applies when there is a “special need” for an
administrative search (cannot be fighting crime)
■ Balancing test: government’s interest v. privacy
■ Example: Drug testing railroad employees after
major accident
○ Border checkpoints: weapons, drugs, lethal toxins
○ DUI Checkpoints: Highway safety, preventing accidents
○ Drug testing high school students: Youth safety
Exigent Circumstances
Exigency
Emergency aid
doctrine
●
●
Reasonable belief evidence will be destroyed
Reasonable belief suspect will avoid capture (i.e. "hot pursuit")
Reasonable belief entry needed to protect people or property from serious
imminent injury or harm
Limits to Exigent
● Scope: May only search places where subject of exigency could fit.
○ Example: If fleeing suspect, can’t search a small box a person
couldn’t fit inside)
● Duration: Once exigency ends, may not continue see
○ Probable Cause Required- emergency aid doctrine applies
(to protect people/property)
Factors
1.
2.
3.
4.
5.
6.
Seriousness of offense
Whether suspect armed
Probable cause "plus"
Strong belief suspect inside
Suspect will escape unless apprehended
Reasonableness of officers' conduct
13
7. Time of entry
8. harder to get warrant at night
Hot Pursuit
Doctrine-
A subset of the exigent-circumstances exception to the warrant requirement
that applies if an individual who has committed a serious crime (generally a
dangerous felony) flees to evade capture and enters a home or other private
place, requiring immediate law enforcement action to apprehend him.
Officers may enter the premises without a warrant to search for and arrest
the individual, but only while they are in immediate or continuous pursuit.
Cases of Exigent
● Welsh v. Wisconsin- The exigent circumstances exception to
the Fourth Amendment does not allow warrantless entry into a
home to make an arrest for a minor offense.
○ The Fourth Amendment prohibition of unreasonable
searches and seizures protects the home against
warrantless entry. Warrantless entry to search a home
or make an arrest is only permitted in cases of
emergency, or exigent circumstances.
● Brigham City, Utah v. Stuart- Police may enter a home
without a warrant if there is an objectively reasonable basis for
believing an occupant is injured or in immediate danger.
● Warrants are generally required to search a person’s home or
his person unless ‘the exigencies of the situation’ make the
needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the 4th amendment
Exclusionary
Rule-
●
A rule that excludes or suppresses evidence in a criminal proceeding
where that evidence was obtained in violation of an individual’s
constitutional rights.
Policy arguments
●
In favor of an expansive reading of the exclusionary rule, and
opposing policy arguments in favor or a narrow reading of the
exclusionary rule.
good Faith
Exception-
●
Where objectively reasonable actions by law enforcement that turn
out to be Fourth Amendment violations will not trigger the
exclusionary rule (i.e. a search warrant turns out to be invalid (Leon);
●
A police officer knowingly or recklessly provides false or misleading
information in the affidavit supporting the request for the warrant;
Where a magistrate abandons their judicial role (i.e. becomes part of
law enforcement team);
an arrest warrant
was no longer
outstanding but the
database said it was
(Herring); or a law
●
14
that justified an
arrest is later
invalidated, and a
search incident to
arrest was
conducted.
But, the good faith
exception does not
apply when:
●
●
Where the warrant is based on an affidavit so lacking in probable
case that official belief in the existence of probable cause is
unreasonable (i.e. no specific items listed or only PC is that there are
4 phone lines in a house with 4 bedrooms);
Where the warrant is so facially deficient that executing officers could
not possibly presume it is valid.
Fruit of the Poisonous Tree Doctrine
Fruit of the
Poisonous Tree
Doctrine
When evidence is obtained as a result of a previous Constitutional violation
by the government, the evidence must be excluded because it is the “fruit” of
the unlawful actions
Test
Was the evidence obtained because of the exploitation of the illegality?
Exceptions
Independent
Source Doctrine-
Evidence can be admitted at trial when it was initially obtained illegally but
later obtained lawfully and independently. Evidence that is discovered
legally, pursuant to a valid warrant, can be admitted at trial even when the
police initially entered the premises unlawfully.
Inevitable
Discovery
Exception to
Exclusionary Rule-
●
If prosecution can establish by a preponderance of the evidence that
the information inevitably would have been discovered by lawful
means, then the evidence should not be excluded.
Attenuation-
●
Evidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has
been interrupted by some intervening circumstance, so that “the
interest protected by the constitutional guarantee that “the interest
protected by the constitutional guarantee that has been violated
would not be served by suppression of the evidence obtained
The attenuation
exception
●
The exclusionary rule admits evidence seized in violation of the
Fourth Amendment if lack of flagrant impropriety, lack of temporal
proximity, or an intervening circumstance attenuated the chain
between police misconduct and the seizure.
15
Factors to
consider-
●
●
●
●
Temporal proximity of officer’s illegal conduct & search;
Presence of intervening circumstances;
Purpose and flagrancy of official misconduct;
Act of free will by defendant resulting in seizure
Interrogations & Voluntariness
Involuntary
Confession-
An admission of guilt by a criminal suspect that would not have been offered
in the absence of coercion, inducement, or deceit.
1. An admission of guilt by a criminal suspect that would not have been offered
in the absence of coercion, inducement, or deceit.
Miranda warnings
required for
custodial
interrogations
●
Right to Counsel &
Interrogations-
1. Attaches at indictment or when judicial machinery signal a
commitment to prosecute
2. Applies when government “deliberately elicits” incriminating
statements
3. Offense-specific
4. Right may be waived
5. Remedy: Exclusion in case-in-chief, but may still be used for
impeachment
●
Rules- Voluntariness is assessed based on the totality of the
circumstances
In order to comply with the due process requirements of the Fifth and
Fourteenth Amendments, a confession must beDue ProcessNo
person shall be deprived of life, liberty, or property, without due
process of law.
Miranda Rights
Miranda Rights
Two Prong Test
The prosecution may not use statement, whether exculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege against selfincrimination
●
●
Were they in custody
Was there an interrogation
When given?
Custodial interrogations
Miranda is enacted when suspect’s freedom of action is curtailed to a
“degree associated with formal arrest
How does the
court define
Otherwise deprived of his freedom of action in any significant way.
16
custody
What must the
The interrogation must cease, Rights can be invoked at any time (even if
government do if
waived rights, can re-invoke them).
the person
indicates they want
to remain silent?
What must the
The interrogation ceases until a attorney is present
government do if
the person
indicates they want
to consult with an
attorney?
What is required in
order for an
individual to waive
their rights after
being informed of
them?
The privilege is waived if the individual answers some questions or gives
some information on his own prior to invoking his right to remain silent when
interrogated
Interrogations and Miranda Rules: Waiving Miranda Rights
Basic
Requirements for
Waiving Miranda
Rights
1. Waiver must be knowing, intelligent & voluntary.
2. Government bears the burden of showing knowing, intelligent &
voluntary by a preponderance of the evidence.
3. Express waiver not required.
Can you infer a
waiver?
●
●
●
Silence
Understanding of rights
Course of Conduct
A waiver can be
inferred when
●
●
●
Miranda warnings given +
Suspect understood Miranda rights +
Suspect makes an uncoerced statement
○ Equates “course of conduct indicating waiver” with making a
statement
Lineups
United States v.
Wade
●
A post-indictment witness identification of a criminal suspect,
conducted without notice to and in the absence of the suspect's
counsel, violates the Sixth Amendment right to the assistance of
counsel. D and attorney must be notified of lineup & attorney must
be present (or Wade must have waived his right to counsel)
○ Pretrial identification excluded.
17
○
Factors to
consider
●
●
●
●
Manson v.
Brathwaite-
Possible that in-court identification is still admissible.
Depends if the in court identification has an independent
source. Factors to consider
Prior opportunity to view
Discrepancies between pre-lineup description and defendant’s actual
descriptionIdentification of another person prior to lineup
Failure to identify defendant on a prior occasion
Lapse of time between crime and line-up identification
Where a defendant claims that his right to due process of law has been
violated because of the manner in which he was forced to confront a
witness, the court must look to the reliability of the identification to determine
whether it is admissible.
Per Se approach
●
If indemnification procedure unnecessarily suggestive, the
intensification is excluded even if it is reliable
Totality of the
circumstances
approach
●
Even of the identification procedure was unnecessarily suggestive,
the identification is admissible if it is reliable.
Pretrial
Identification- Due
Process Rules?
(when is it
reliable?)
●
●
Police procedures unnecessarily suggestive?
Substantial likelihood of mistaken identification?
Assess reliability
based on the
following factors,
and balance
against the
corrupting effect of
the identification.
●
●
●
●
●
Opportunity to view at time of the crime
Degree of attention
Accuracy of prior description
Level of uncertainty demonstrated at initial identification
Time between crime and initial identification
18