Criminal Procedure Outline
I.
II.
Overview
a. Bill of Rights
i. Colonists afraid of the power of government
ii. Written to avoid tyranny of centralized government
b. Fourteenth Amendment
i. Applies the Bill of Rights to the States
ii. Approaches
1. Selective Incorporation
a. Only some provisions apply to the States
b. Fourth, Fifth, Sixth all incorporated
2. Full Incorporation
a. Entire BoR applies to the States
iii. States can regulate criminal procedure unless doing so offends some
principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental (Brown v. Mississippi)
1. Due Process Clause requires state actions to be consistent with the
BoR
Fourth Amendment
a. “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.”
b. Background
i. Who is protected?
1. “The People”
a. US citizens
i. In US (yes)
ii. Outside US (yes)
b. Persons illegally in US (undecided)
c. Foreign citizens outside US (no) (Verdugo-Urquidez)
2. Test
a. Part of a national community or
b. Developed sufficient connection with this country to be
considered part of that community
3. Lawfulness
a. Not addressed in the language
b. Lawful presence not enough to establish community
i. So not determinative of excluding community?
4. “The Fourth Amendment protects people, not places.” (Katz)
ii. What does it limit?
1. Government action
a. Does not apply to private citizens (Burdeau v. McDowell)
iii. What remedies are available?
1. Unspecified in the Const.
a. Exclude the evidence
i. Protects the guilty defendant
ii. Public policy interest in encouraging police to
intercede
iii. Sanctity of courts protected
iv. Practicality
b. Civil Suit
i. Protects the innocent searched
ii. Remedy at time BoR passed
iii. Separation between guilt of defendant and conduct
of law enforcement
iv. Issue: qualified immunity
c. Fed. R. Crim. Pro. 41(g)–(h)
i. Defendant can move for property’s return
ii. Defendant can move to suppress evidence
c. Standing
i. Who has the right to bring a 4th Amend. claim?
1. The person exercising the exclusionary rule must be the person
whose 4th Amend. rights were violated
a. No matter how heinous the violation, the violation must be
against the defendant not a third party (Payner)
2. Determined independently for each defendant (Alderman)
a. 4th Amend. is personal
3. When a defendant testifies in support of a motion to suppress, his
testimony can’t be used against him in trial unless he makes no
objection (Simmons)
ii. Rule
1. Person aggrieved by an unlawful search and seizure
a. Victim of a search or seizure
b. One against whom the search was directed
2. Proponent of motion to suppress has burden of establishing his
own 4th rights were violated
3. A person can have a sufficient interest in a place that is not his own
home such that the 4th protects him from unreasonable government
intrusion into that place
a. Legitimate expectations of privacy in the premises
i. Permissible use
ii. Keys to car/house
iii. Freedom of use
iv. Length of time of use
v. Dominion & control
b. Carter Factors
i. Purely commercial nature
ii. Relatively short period of time
iii. Lack of previous connection between respondents
and householder
c. Car Passengers do not have standing (Rakas)
d. Rental car without papers = standing (Byrd)
e. Overnight houseguests = standing (MN v. Olson)
i. “Everyday expectations of privacy”
f. Search of someone else’s purse = no standing (Rawlings v.
KY)
i. Right to access
ii. Right to exclude
4. Commercial properties treated differently than residential
properties
a. Less than that of a person’s home
b. Limited circumstances where worker can claim 4th
protection over workplace
i. Private office
5. Electronic Surveillance
a. If government agents unlawfully overheard that person’s
conversations
i. Regardless of where they occurred
b. If the conversations occurred on that person’s premises
i. Whether or not she was present or participated in
the conversations
d. Exclusionary Rule
i. Evidence obtained by violating the defendant’s constitutional rights may
not be introduced by the prosecution, at least for purposes of providing
direct proof of the defendant’s guilt
1. Applies to physical evidence and verbal statements (Silverthorne)
2. Federal Fourth Amendment Jurisprudence applies to States
a. Mapp v. Ohio
i. Overrules Wolf v. Colorado (Fourth Amendment
jurisprudence applies to States, but they do not need
to use the exclusionary rule as the remedy)
ii. Requires incorporation of Exclusionary Rule
3. Judicially created remedy/doctrine
a. Not directly part of the constitution
i. Creates more room for exceptions
b. The wrong is “fully accomplished” when the unlawful
search or seizure takes place
4. Reasoning
a. Deterrence of police misconduct
b. Judicial participation in the violation
ii. Balancing Test
1. Separate question from whether a 4th violation has occurred
2. Costs vs benefits of excluding the evidence under the
circumstances
a. As it relates to law enforcement
i. Deterrence (benefit)
ii. Loss of Evidence (cost)
iii. Fruit of the Poisonous Tree Doctrine
1. Government cannot make use of evidence obtained as a result of
an unconstitutional search and seizure.
2. Independent Source Doctrine (Murray)
a. Prosecution can use evidence obtained from an unpoisoned tree
b. 2 Types
i. When unlawful entry has given investigators
knowledge of x and y, but fact z has been learned
by other means
ii. When unlawful entry has given investigators
knowledge of z, but investigators have attempted to
rectify the unlawful search by obtaining z by lawful
means
c. Must be “genuinely independent”
3. Inevitable Discovery Doctrine (Nix v. Williams)
a. Prosecution can use evidence if the information ultimately
or inevitably would have been discovered by lawful means
i. Reduces deterrence rationale
ii. Inevitable = high standard
b. Preponderance of the evidence standard
c. Argument for when there is no means to lawfully
rediscover evidence like with the independent source
doctrine
4. Attenuation Doctrine
a. Prosecution can use evidence that has been sufficiently
purged of the initial taint (Wong Sun)
b. Totality of circumstances test
i. Brown Factors
1. Length of time elapsed between initial
illegality and seizure of fruit in question
a. Time points to free will
2. Flagrancy of the initial misconduct
a. More time needed for bad-faith
violations than for good-faith
violations
3. Existence or absence of intervening causes
of the seizure of the fruit
a. Example: lawful arrest warrant for
unrelated things out for person
detained (Utah v. Strieff)
4. Presence or absence of free will from
defendant in obtaining the evidence
c. Miranda warnings do not automatically wash away taint
(Brown v. IL)
d. When the poisonous tree leads to a live person/witness,
apply exclusionary rule with more reluctance than with
physical evidence (Ceccolini)
i. Witnesses could come forward of own volition at
any time
5. Steps of Analysis
a. What is the “tree”?
i. What is the constitutional violation?
b. What is the “fruit”?
i. What is the evidence the government wants to
introduce?
c. Is there a causal link between the “tree” and the “fruit”?
d. Are there facts that may justify the conclusion that the
“fruit” is no longer poisoned?
i. Independent Source
ii. Inevitable Discovery
iii. Attenuation
iv. Exceptions
1. Good Faith
a. Objective good faith standard
i. Warrants
1. Whether a reasonably well-trained officer
would have known that the search was
illegal despite the magistrate’s authorization
a. Builds in deference already given to
magistrate’s determination of PC
b. Places weight of warrant errors on
magistrates
i. No deterrence argument
accepted for them
c. Officers presumed to give great
deference to magistrates as well
d. Consider whether warrant rejected
by different magistrate
e. Did officers take all steps they
reasonably should have taken?
ii. Police Conduct Rule
1. Sufficiently deliberate that exclusion can
meaningfully deter it
a. Deliberate
b. Reckless
c. Grossly negligent
d. Systematic negligence
2. Sufficiently culpable such that deterrence is
worth the price paid by the justice system
iii. Retroactive Application
1. Reasonable reliance on judicial precedent
permissible (Davis)
b. Delineated exceptions
i. Reckless disregard of the truth (Franks v. DE)
1. Magistrate or judge misled by information in
affidavit
2. Affiant knew or would have known
information was false or misleading
ii. Issuing magistrate wholly abandoned judicial role
(Lo-Ji Sales)
iii. Reliance on warrant entirely unreasonable
1. Affidavit so lacking in PC that clearly no
warrant should have been issued
iv. Warrant facially invalid
1. Failure to particularize
2. Could not reasonably be presumed as valid
2. Knock-and-Announce
a. Does not trigger exclusionary rule (Hudson v. MI)
b. Suppression of evidence as the court’s last resort
c. Draws on concept of attenuation
i. Attenuation can occur when interest protected by
the constitution would not be served by suppression
of evidence obtained
3. Other
a. Does not apply in grand jury proceedings (Calandra)
b. Does not apply for civil proceedings (Janis)
c. Prosecutor can impeach a defendant’s testimony by
introducing evidence previously excluded (Walder)
i. Defendant cannot lie in a direct examination
ii. Applies to cross-examination testimony as well
(Havens)
e. Standards of Reasonableness
i. Probable Cause
1. Searches and seizures must be supported by probable cause
a. Use to get warrant or
b. If would have been granted a warrant
2. Rule
a. Facts and circumstances within the officer’s knowledge
b. Reasonably trustworthy information
c. Belief that
i. An offense has been or is being committed (arrest)
ii. Evidence subject to seizure will be found in the
place to be searched (search)
3. Totality of the Circumstances Analysis (Illinois v. Gates)
a. Key Factors
i. Basis of Knowledge
1. Where they got the information
2. Adequacy of the factual premises furnished
by the source to support its veracity
3. Notion of corroboration
ii. Veracity
1. Credibility and reliability of source
2. Truthfulness = history of source
b. Sliding scale
i. More reliable, less basis of knowledge needed
ii. Better basis, more reliability needed
4. Deference in review to magistrates granting warrants
5. Probability
a. Less than preponderance of the evidence
b. Does not have to be more likely true than not
c. Heightened privacy interests may require higher standard
of probability in order to make it reasonable under the
circumstances (Schmerber)
i. Blood samples
d. May still be lawful even if officer ends up being incorrect
6. Oath or Affirmation
a. Defendant can challenge the truthfulness of statements
made under oath in an affidavit supporting a warrant
(Franks v. Delaware)
i. False Statement
ii. Intent
iii. Necessary Information
ii. Reasonable Suspicion
1. Something more than a suspicion or hunch
2. Less demanding than probable cause
a. Does not have to be the only or best inference based on the
articulable facts
b. Only meant to be reasonable
c. Low standard
3. Tips
a. Corroboration of tip key
i. Predictive nature of tip key
b. Information doesn’t have to be as reliable as PC tips
c. 911 calls merit increased veracity
i. Caller ID
ii. Contemporaneous
iii. Eyewitness
iv. Predictive nature not required here
1. But must still contain articulable facts
4. Headlong Flight + High Crime Area = RS (IL v. Wardlow)
5. Reasonable Mistake
a. Mistakes of law are allowed
i. You can be reasonably wrong
f. Search
i. What is a Search
1. Trespass Analysis
a. Trespass into a constitutionally protected area for the
purpose of gathering information constitutes a search
(Jones)
i. Fourth jurisprudence tied to common-law trespass
b. Scope of Licenses (FL v. Jardines)
i. Area
1. Is there an implied license to enter into this
area?
ii. Purpose
1. What is the traditional purpose of the license
to enter this area?
2. Katz Analysis
a. Harlan Concurrence creates rule
b. Test
i. Actual expectation of privacy
1. Subjective
a. Issue: the less privacy you think you
have, the less you have => notice
implications
ii. Reasonableness of expectation of privacy
1. Objective
c. Evaluating Privacy
i. Third Party Doctrine
1. Sharing information with a third party
reduces privacy interests and is not a search
2. Applies to conversations with informants,
recorded conversations, overheard
conversations equally (White)
3. Police are allowed to send out “false
friends” to encourage conversations (Hoffa)
a. Undercover agents okay
4. Companies can count as third parties and
share your information with the police
without creating a “search” (Smith v. MD)
a. Phone numbers are not content that
can be protected
b. Police can contact phone company to
use pen register without getting a
warrant
5. Third party needs to be in on it for wiretaps
to be okay
a. Explains Katz verses White outcome
6. Exposure to the public as falling under this
a. Placing garbage out on the street (CA
v. Greenwood)
b. Readily accessible
c. Visual limit
i. Tactile observation too
invasive and would constitute
a search even in a public
space (Bond)
7. Applies to sharing live cell phone locations?
(Carpenter)
ii. Open Fields Doctrine
1. Police entry of an open field does not
implicate the Fourth (Hester)
a. Property not listed in Fourth
b. Distinguishes between the home and
the property as a whole
2. Exception: Curtilage
a. The closer you get to the home, the
weaker the open fields doctrine
b. Whether the area in question is so
intimately tied to the home itself that
it should be placed under the home’s
umbrella under the Fourth
c. Dunn Factors (non-exclusive)
i. Proximity to the home
ii. Inclusion within an enclosure
around the home
iii. Natural uses to which area is
put (porch, pool, patio)
iv. Steps taken by resident to
protect the area from
observation by passersby
(hedge, fence)
d. Trumps automobile exception
(Collins v. VA)
e. Aerial surveillance of curtilage
generally not a search (CA v. Ciralo,
FL v. Riley)
i. Sight from permissible
airspace as equivalent to
naked eye from street
ii. Naked eye limitation?
iii. Undue noise limitation?
iv. Undue wind/dust limitation?
v. Undue threat of injury
limitation?
iii. Binary Search Doctrine
1. There is no reasonable expectation to
privacy regarding the existence of illegal
contraband
2. Dog sniffs that reveal whether or not
contraband exists in a specific location is not
a search
a. Less intrusive than typical search
i. Manner
b. Information obtained is limited
i. Content
c. Sui generis (unique)
iv. Common Themes
1. Manner of search (intrusiveness)
2. Content of search (information revealed)
3. Location of search (exposure to public)
3. Technology
a. Wiretapping a phone booth (Katz)
i. Constitutes a “search”
ii. Violation of Fourth when done without warrant
b. Thermal imaging device (Kyllo)
i. Constitutes a “search”
ii. Violation without warrant
c. Beeper tracking device (Knotts)
i. Did not constitute a “search”
ii. Essential that tracking stopped outside the home
d. Factors for evaluating new technology
i. Access of General Public
1. Police don’t have to be worse off than the
public
ii. Could the information be obtained without physical
intrusion into a constitutionally protected area
without the technology?
1. Visual surveillance always been lawful
without a warrant
iii. Firm line at the home
1. Home contains intimate details
2. Home kept from prying eyes
3. Exceptions allowing warrantless search of
the home should be extremely narrow
4. Steps of Analysis
a. Trespass
b. Katz
i. Reasonableness
1. Actual expectation of privacy
2. Reasonable expectation of privacy
ii. Search Warrants
1. Warrantless searches are per se unreasonable (Katz)
a. Subject to “specifically established well-delineated
exceptions”
2. Approaches to the warrant requirement
a. Get a warrant unless you can’t
b. Per se unreasonable subject to specific exceptions
c. Focus should be on reasonableness of search
3. Elements
a. Specificity
i. Fourth specifically written to prevent general
warrants of 18th Century
ii. Cannot be sweeping or open-ended (Lo-Ji Sales v.
NY)
iii. Must be read in fair context
1. May limit to search for certain crime only
(Andresen v. MD)
iv. May cross-reference other documents but other
documents cannot be used to validate a warrant that
is insufficiently particular (Groh v. Ramirez)
b. Neutral Magistrate
i. Cannot allow oneself to become member of police
operation (Lo-Ji Sales v. NY)
4. Execution
a. Knock-And-Announce
i. Implicit common law requirement (Wilson v. AK)
1. May not be required in every circumstance
a. Would induce destruction of
evidence
b. Would help someone escape
2. Judge its necessity based on the
circumstances
ii. No Knock permissible when…
1. Reasonable suspicion that knocking and
announcing would
a. Be dangers or futile
b. Inhibit the effective investigation of
the crime
i. Destruction of evidence
iii. Not enough alone to trigger exclusionary rule
(Richards v. WI)
iv. Can forcibly enter after 15–20 seconds without
response (Banks)
1. Allowed to damage premises during forcible
entry so far as necessary
b. Freezing the Scene (Illinois v. McArthur)
i. Officers are allowed to freeze the scene while
waiting for a warrant
ii. Factors
1. Probable cause to believe scene contains
evidence of a crime and/or contraband
2. Reason to believe that destruction of
evidence would occur without restraint
3. Reasonable efforts made to reconcile need to
search with privacy interests
4. Restraint for a limited period of time
c. Scope of Search
i. Cannot search where the evidence could not be
1. Important for containers
ii. Limited to items described
1. Exception: probable cause to believe items
not described in warrant are
a. Fruits of crime
b. Instrumentality of crime
c. Evidence of crime
d. Contraband
iii. Limited to location described
1. Must stop searching once you realize you
are in the wrong place
2. Does not include permission to search those
present without some other basis for the
search (Ybarra)
a. May detain those present for the
duration of the search (MI v.
Summers)
i. Limited to immediate vicinity
iv. Additional information
1. May require officers to cease or narrow
search notwithstanding what is said in the
warrant (MD v. Garrison)
iii. Warrant Exceptions
1. Standard
a. Burden on the police to justify the warrantless search
b. The scope of the search may be no larger than the
justification
c. Tied to the circumstances
i. If the circumstances justifying the warrantless
search no longer exist, the search must cease until a
warrant is obtained
d. Balancing Test
i. Degree to which it intrudes upon an individual’s
privacy
1. Degree of privacy interest
a. Amount of information
b. Type of information
2. Degree of intrusiveness
a. Blood Test v. Breathalyzer
ii. Degree to which it is needed for the promotion of
legitimate governmental interests
2. Exigent Circumstances
a. Reasonableness Test
i. When the exigencies of the situation make the needs
of law enforcement so compelling that a warrantless
search is objectively reasonable under the Fourth
b. Hot Pursuit
i. Probable cause to believe person pursued is in
house
ii. “Fleeing felon” concept
1. Practicality
a. Why stop chasing felon to get
warrant then search for felon again
iii. Applies to minor crimes as well as felonies (Stanton
v. Sims)
c. Destruction of Evidence
i. Blood-Alcohol Levels
1. Breathalyzer v. Blood Test
d. Emergency Aid
i. Render emergency assistance to an injured occupant
ii. Protect an occupant from imminent injury
e. Police-Created Exigency
i. Police cannot gain entry to premises by means of an
actual or threatened violation of the Fourth (KY v.
King)
3. Search Incident to Lawful Arrest
a. Person
i. The physical person of the accused (Weeks)
b. Place
i. Area in control of the arrestee (Carroll)
ii. Area from within which he might gain possession of
a weapon or destructible evidence (Chimel)
c. Reasoning
i. Officer Safety
d.
e.
f.
g.
h.
i.
1. Need to look for weapons
ii. Destruction of Evidence
1. Prevent concealment or destruction
Scope of search must be strictly tied to and justified by the
circumstances which rendered its initiation permissible
(Terry)
i. Does not include contents of cell phones (Riley)
1. Amount and intimacy of information
a. No third-party exception for the
Cloud
2. Available protective measures for evidence
on phone
Does not require probable cause to believe arrestee has a
weapon or criminal evidence on his person (Robinson)
i. PC to arrest alone is enough
Applies to optional arrests (Gustafson v. FL)
i. Implied exigency in arrests due to the volatility of
the situation
ii. Applies to minor misdemeanors (Atawater v. City of
Lago Vista)
iii. If officer chooses not to arrest, search not
permissible (Knowles v. Iowa)
1. Applies to search of car for traffic citation
Arrest Inventories
i. Any person who will be incarcerated for any period
of time undergoes an arrest inventory
ii. Occurs without a warrant
iii. Justifications
1. Protection of arrestee’s valuables
2. Reduce risks of false claims of theft by
arrestee
3. Ensure contraband and dangerous
instrumentalities are not smuggled into jail
iv. Must follow standardized procedures of jurisdiction
1. If procedures dictate to open containers, it
does not violate Fourth to open them
“Lawful” Arrest
i. Lawful under the Fourth Amendment (i.e. PC)
1. Violation of state law in custodial arrest
does not mean SILA was Unconst. (VA v.
Moore)
Pretextual Stops
i. Subjective intentions play no role in Fourth analysis
(Whren)
1. We only look at objective evidence of
probable cause to assess reasonableness
4. Automobiles
a. SILA
i. Contemporaneous search of the passenger
compartment of an automobile permissible upon
lawful custodial arrest of its occupant (NY v. Belton)
1. Includes containers found within passenger
compartment
2. Applies when arrestee was only a “recent
occupant” of the vehicle (Thornton)
ii. SILA of automobile not permitted when arrestee
has been secured and cannot access the interior of
the vehicle (AZ v. Gant)
1. Unsecured
2. Reaching distance of passenger
compartment
3. At time of search
iii. Can search when reasonable to believe evidence of
offense of arrest might be found in vehicle
1. Reason to believe standard meaning?
iv. Chimel Principles
1. Officer safety
2. Destruction of evidence
v. Temporal Limit (Chadwick)
1. Cannot search car when search is remote in
time or place from arrest or when no
exigency exists
a. Do not conflate with auto exception
2. When federal agents have exclusive control
of a container and exigency does not exist,
cannot search
b. Automobile Exception
i. Automobiles can be searched without a warrant as
long as there is probable cause (Chambers v.
Maroney)
ii. Probable cause based on belief that the contents of
the automobile offend against the law
1. Does not need to be probable cause to arrest
a. Whereas SILA is PC to arrest but
doesn’t need PC to search
iii. Permits search of entire car
1. Not limited like SILA auto search
iv. Timing
1. Made immediately without warrant
2. Seize car until you get warrant
3. Once you have PC, can search car at the
scene or later (UNLIKE SILA)
a. May become an issue with extended
seizure or repeated searches
(Coolidge v. NH)
v. Reasoning
1. Reduced privacy interest
2. Occupants alerted to potential searches
a. Highly regulated by government
3. Moveable
4. In public space
vi. Mobile homes count as automobiles (CA v. Carney)
1. Moveable
2. Highly regulated
3. Travels public areas
a. What if this never happens?
c. Administrative Searches (SD v. Opperman)
i. Inventory searches do not violate the Fourth as long
as use standard operating procedures and standard
inventory form
1. Must be sound operating procedures (FL v.
Wells)
ii. Cannot use inventory search as pretext
1. Could not change procedures of inventory
search because you discover something
suspicious (can’t expand the search)
2. Can use arrest as pretext for inventory
search that follows sound, set procedures
5. Consent
a. Elements
i. Voluntary consent
ii. Individual possessing apparent authority
1. Reasonable mistake permissible (IL v.
Rodriguez)
a. Would facts available to the officer
at the moment warrant a man of
reasonable caution in the belief that
the consenting party had authority
over the premises
i. Age (children lack authority)
b. Voluntariness
i. Prosecutor has burden of proof
ii. Totality of circumstances test
1. Characteristics of the accused
a. Age
b. Experience
c. Education
d. Power dynamics
2. Details of the interrogation
a. Questions asked
b. Tone used
c. Duress or coercion may be express
or implied
3. Knowledge of right to refuse non-essential
(Schneckloth v. Bustamonte)
a. But can be used as factor
b. Applies to knowledge of right to
leave (OH v. Robinette)
iii. Balance between need for search and assuring
absence of coercion
iv. Lying about having a warrant is coercion (Bumper
v. NC)
1. Tells occupant they have no right to resist
(false)
c. Limits
i. Scope
1. What would a reasonable officer understand
the scope of consent given to be (FL v.
Jimeno)
a. Objective standard
ii. Temporal
iii. Withdrawal
1. Must be clearly given
d. Co-Tenants
i. Present
1. Physically present co-tenant’s stated refusal
to permit entry makes entry unreasonable
(GA v. Randolph)
ii. Not Present
1. Consent of present party with common
authority is valid against the absent, nonconsenting person (Matlock)
2. Cannot remove someone who has denied
access and then ask again (Fernandez v. CA)
iii. Common Authority
1. Not derived from property rights
2. Based on shared social expectations
a. Mutual use of property
b. Joint access and control
3. Like third party doctrine
a. You take the risk of sharing space
iv. Containers
1. SILA permits the search of containers on the arrestee’s person
(Robinson)
2. Cell phones cannot be searched as a container (Riley)
3. Officers can search all containers within an automobile for SILA
(Belton)
4. Auto exception applies to containers (Acevedo)
a. Containers lose protection once they are placed in a car
b. When container is placed in a car, it’s protection level
lowers to the standard for an automobile
5. Court will not distinguish between types of containers (Ross)
v. Plain View Doctrine
1. Exception to the general rule that warrantless seizures are
presumptively unreasonable
a. Relies on justification for the officer being in the location
where they see the item seized
i. Public space
ii. Warrantless search exceptions
iii. Probable cause
2. Rule
a. Object
i. Incriminating character immediately apparent
ii. Requires PC for seizure
1. Must be type of object that can be seized
b. Officer
i. Right of physical access
1. To place where seeing object
2. To access object
a. Could not enter a home because you
see contraband from the street
i. Return to search PC rules for
home entry
b. Officer cannot physically manipulate
or move anything (AZ v. Hicks)
ii. Inadvertence not required (Horton v. CA)
3. Plain Touch Doctrine
a. Incriminating character and identity of item immediately
apparent (MN v. Dickerson)
b. Limited by extent of search authorized
c. Continued manipulation of touch not allowed
g. Seizure
i. What is a Seizure?
1. Meaningful interference with an individuals’ possessory interest in
that property (Karo)
2. Depends on what is reasonable under the circumstances
a. Time element
ii. What can be Seized?
1. Contraband
2.
3.
4.
5.
a. Evidence that may not be lawfully possessed by a private
party
Fruits of Crime
a. Objects acquired in consequence of a criminal act
Instrumentalities Used in the Commission of an Offense
a. Weapons; get-away car
Evidence
a. Item of value to the police solely because it will help in the
apprehension or conviction of a person for an offence
Persons
a. Arrests
b. When officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen
i. Temporary detentions short of arrest count
iii. Arrests
1. Probable cause always required
2. Warrantless
a. Per se unreasonable under the Fourth
b. Entry of the Home
i. Cannot enter the home to arrest without a warrant
ii. Would need exigent circumstances
iii. Based on rules that would allow entry to home to
search
1. Hot pursuit of a fleeing felon
2. Imminent destruction of evidence
3. Need to prevent suspect’s escape
4. Risk of danger to police or other persons
inside or outside the dwelling
 Assess factors in light of the
circumstances (MN v. Olson)
o Gravity of crime
o Likelihood they’re armed
o Risk of danger
c. Permissible in public
d. Gerstein Hearings
i. Amount of time you can keep an arrestee in custody
without a judicial determination of probable cause
ii. Jurisdiction must provide a probable cause
determination within 48 hours after a warrantless
arrest
1. Exceptions
a. Bona fide emergency
b. Extraordinary circumstances
e. State legislatures can authorize custodial arrest for minor
misdemeanors (Atawater v. City of Lago Vista)
3. Warrant
a. Entry of the Home
i. Warrant + Reasonable Belief Arrestee Lives There
+ Reasonable Belief Arrestee Is Inside
ii. The Steagald Principle
1. Arrest warrant does not justify entry of a
third-party home to find arrestee
h. Terry Stops
i. When Applicable
1. Reasonable suspicion of crime in progress (Terry)
2. Reasonable suspicion of a completed crime (Hensley)
3. Stop & Identify Statutes
a. Reasonable suspicion still needed to stop
ii. Balancing Test
1. Need for search or seizure vs. Invasion which search or seizure
entails
a. Nature and extent of governmental interests
i. Crime-prevention
b. Interests of police officer
i. Self-protection
c. Nature and quality of intrusion on individual rights
i. Severity
ii. Brevity
2. Officer must point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion
a. Objective standard
i. Would the facts available to the officer at the
moment of seizure or search warrant a man of
reasonable caution in the belief that the action taken
was appropriate
iii. Seizure
1. Consequences of illegal seizure
a. Subsequent search is invalid, and evidence can be
suppressed
i. Subsequent consent to search also invalid
2. When Occurred
a. Freedom of Movement constrained
i. Physical Restraint or
1. Physical contact component
2. Applies even if person escapes
ii. Show of Authority + Submission
1. Would a reasonable person understand act of
police officer as a show of authority that
they are required to stop? (Mendenhall)
a. Number of police officers
b. Exposure of weapons
c. Public or private area
d. Presence of uniforms
e. Intimidating actions
i. Language
ii. Tone of voice
f. Show of badges
g. Summons vs. Requests
iii. Totality of the circumstances test
1. No bright lines
b. No Seizure
i. When officers come onto a bus to conduct a
“suspicionless sweep” drug search (Drayton;
Bostick)
1. Riders confined by their own choosing
a. Physical confines not determinate
2. Could leave at any time
ii. When ununiformed DEA agents without weapons
stop someone on a concourse at an airport
(Mendenhall)
1. Request not order to accompany agents
2. No threats or show of force
3. She had her tickets and ID if she wanted to
leave
iii. When officers approach youths who take flight
(Hodari D.)
1. Not physically touched
2. No submission to authority
c. Seizure
i. Traffic stop is seizure of all in automobile (Brendlin
v. CA)
1. Unintended person may be object of
detention
2. As long as detention is willful
3. Duration
a. Contextual
b. Officer must show they are trying to move things along
i. 20 minutes is not necessarily too long (Sharpe)
ii. Officers must diligently pursue means of
investigation
iii. Are the officers acting in a swiftly developing
situation?
iv. Existence of another option does not mean they
acted unreasonably in failing to recognize or pursue
this alternative path
c. During a traffic stop, an officer can order everyone (driver
and passenger) out of the car without further justification
(PA v. Mimms; MD v. Wilson)
i. Both passenger and driver are seized
ii. This is too minor an intrusion to outweigh police
safety
4. De Facto Arrests (Dunaway v. NY; FL v. Royer;)
a. If the person is essentially under arrest, PC is needed
instead of RS, because it has surpassed the scope of a Terry
stop
i. Was it indistinguishable from a traditional arrest?
1. Length of detention
2. Location
3. Movement
iv. Search
1. When Allowed
a. Reasonable suspicion to believe suspect is armed and
dangerous
i. Need not be absolutely certain
ii. Related to whether officer believes his safety is in
danger due to presence of a weapon
iii. Allowed reasonable inferences in light of officer’s
experience
iv. If not, need probable cause
2. Scope
a. Reasonably related to the circumstances which justified the
interference in the first place
b. Plain Touch Doctrine (MN v. Dickerson)
i. Search permissible if the pat-down leads to
1. Readily apparent
a. Need PC to believe what you’re
touching is evidence
2. Contraband
ii. Must occur within scope of the pat-down
1. Pat down must be to look for a weapon
2. Extra manipulation is not allowed
c. Traffic Stops (IL v. Caballes; US v. Rodriguez)
i. Temporary detention on a traffic violation + dog
sniffs
ii. Permissible as long as the stop is brief
1. Cannot be prolonged
a. How much time does the sniff add to
the stop?
b. Were all stop procedures completed
before dog arrived?
v. Post-Terry Spectrum
1. Nothing
a. Need consent
b. Search defined by scope of consent
2. Reasonable Suspicion
a. Of crime; of armed
b. Brief + limited search
3. Probable Cause
a. Full 4th protection
b. Warrant requirement + exceptions
vi. Steps of Analysis
1. Seizure
a. Did a detention occur?
b. Did the officer have reasonable suspicion for the detention?
2. Search
a. Did a search occur?
b. Did the officer have reasonable suspicion to believe the
suspect was armed & dangerous?
i. Yes
1. Search reasonable
ii. No
1. Return to Dickerson analysis
2. Need probable cause
vii. Alternate Applications of Terry Balancing Approach
1. Protective Sweeps (MD v. Buie)
a. Officers do not need reasonable suspicion or probable
cause to search spaces immediately adjoining place of
arrest from which an attack could be immediately launched
i. Chimel/SILA implied here
b. Need reasonable suspicion that the area to be swept harbors
an individual posing a danger to those on the arrest scene
i. Applies to areas beyond SILA
c. Limits
i. Cannot be full search of the premises
1. Can be cursory inspection of spaces where a
person may be found
ii. Temporal
1. Can last no longer than necessary to dispel
the reasonable suspicion of danger
2. Cannot be longer than it takes to complete
the arrest and leave premises
2. Seizure of Property (Place)
a. Property can be seized with reasonable suspicion under
Terry
i. Can hold a container to get PC + warrant to search
ii. Limited in time
1. Totality of circumstances
2. Cannot be more than a brief seizure
3. Car Frisks (MI v. Long)
a. Officers can conduct a Terry frisk of the passenger
compartment of an automobile
i. Limited to those areas in which a weapon may be
placed or hidden
b. Whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of
others was in danger
i. Requires reasonable belief suspect is dangerous and
may gain immediate control of weapons
1. Time of day
2. Rural/Isolated area
3. Behavior of suspect
4. Visible presence of weapons
a. May suggest more weapons
c. Strong deference in favor of police safety
4. DNA Testing of Arrestees (MD v. King)
a. Lawful arrests followed by a cheek swab of arrestee’s DNA
lawful under 4th
i. Minimally intrusive
ii. Cheek swabs only taken for serious violent felonies
iii. Accuracy as tool of identification
i. Special Needs Cases
i. When a perceived need, beyond the normal need for criminal law
enforcement, makes the warrant and/or PC requirements impracticable or
irrelevant
ii. Automobile Inventories
1. Special inventory exception to warrant requirement
iii. Administrative Searches
1. Closely Regulated Industries
a. Warrantless administrative searches
b. Closely regulated industries
i. Junk yards
ii. Gun stores?
iii. Dispensaries?
2. Schools
a. Neither the warrant requirement nor probable cause applies
to searches by public school officials
b. Public school teachers/admin can search students without a
warrant when:
i. Reasonable grounds for suspecting search will turn
up evidence student has violated
1. Law
2. Rules of the school
a. Lower than PC
ii. Once initiated, search was not excessively intrusive
1. Age and sex of student
2. Nature of infraction
3. Reasoning
a. Privacy interest of owner weakened
b. Government interests in regulation increased
iv. Border Searches
1. At the border and its functional equivalents, a person may be
stopped, and her belongings searched without a warrant and in the
absence of individualized suspicion of wrongdoing
a. Sovereignty
b. Protection of citizens
2. Roving
a. Reasonable suspicion always needed
3. Fixed
a. Reasonable suspicion not needed
i. Not discretionary
ii. Less intimidating to the public
4. The farther from the border, the more attenuated the reasoning, the
weaker the argument for the search
v. Check Points
1. Sobriety Check Points (MI Police v. Sitz)
a. Constitutes a permissible seizure
i. Short length of delay
ii. Need to address drunk driving
iii. Effective method
b. Balancing Test
i. State’s interest in preventing accident caused by
drunk drivers
ii. Effectiveness of sobriety checkpoints in achieving
that goal
iii. Level of intrusion on an individual’s privacy caused
by the checkpoints
2. Drug Check Points (Edmond)
a. Constitutes a violation of the 4th
i. Not specific enough purpose
1. Would essentially be to detect ordinary
crime
ii. Unreasonable in the absence of individualized
suspicion of wrongdoing
3. Informational Check Points (IL v. Lidster)
a. Stops to elicit information regarding a recent fatal hit-andrun accident in that area was permissible
i. Gravity of public concern
ii. Minimal stop
vi. Drug Testing
III.
1. Suspicionless drug testing upheld in various circumstances
a. Federal officers
i. Carrying weapons
ii. Involved in drug interception
b. School athletes
c. Students in extracurriculars
2. Cannot be too closely tied to an arrest
a. Must relate to a special need
Self-Incrimination
a. 5th/14th Amendment Due Process Clauses
i. Theory
1. Why coercion is bad
a. Reliability
i. Want to exclude false evidence
b. Moral rightness
i. Officers have to live with themselves after
c. Police must obey the law while enforcing the law
2. What is due process
a. Fundamental fairness essential to justice
b. Acts that prevent a fair trial deny due process
i. Coerced confessions
ii. Rules
1. Whether a confession is sufficiently free and voluntary to be
competent testimony is a question of law decided by the court
(Hector)
2. Coercion requires a state action (CO v. Connelly)
a. Suppression would serve no purpose in enforcing
constitutional guarantees
i. Would not deter future violations
b. A third party may compel a confession
i. Mental illness may be such a third party
ii. Turn to rules of evidence to deal with admissibility
of such evidence
c. A non-government actor may be treated as a government
agent if acting on behalf of police (AZ v. Fulminante)
3. Denial of due process is the failure to observe that fundamental
fairness of the justice system (Lisbena v. CA)
a. Totality of the circumstances
i. Protracted repeated questioning
ii. Ignorant/untutored
iii. Police power magnified in D’s mind
iv. Danger of mob violence
v. Held incommunicado
vi. Deprived of the advice of counsel
vii. Threats or acts of physical violence
viii. Location can matter
b. Fear of physical violence absent promised protection may
indicate coercion (AZ v. Fulminante)
i. Evaluate credibility of the threat of physical
violence
4. When intent to secure a confession is patent, confession must be
examined with “most careful scrutiny” (Spano v. NY)
a. Totality of the circumstances
i. Refusal of council request
ii. False friend pressure
iii. Leading questions from skilled interrogators
iv. Age
v. Education
vi. Prolonged repeated questioning
vii. Emotional instability
viii. Open vs. closed style of questioning
5. Initial violation of due process of law may not taint later
statements (Lisbena)
6. 5th Amendment is not violated until trial
a. 14th may be violated at the interrogation
b. 5th Amendment Self-Incrimination Clause
i. “No person shall be compelled in any criminal case to be a witness against
himself”
1. Confessions must be free and voluntary
2. Any degree of influence requires exclusion (Bram)
a. Doubts must be resolved in favor of the accused
ii. 5th Amendment rights triggered upon police-dominated custodial
interrogation
1. Fills gap before 6th Amend. rights are activated
iii. Miranda
1. Prosecution cannot use statements stemming from custodial
interrogation unless it demonstrates the use of procedural
safeguards effective to secure the privilege against selfincrimination
a. Must tell rights
i. Right to remain silent
ii. Right to an attorney
b. Must tell consequences of waiving rights
i. Anything said can and will be used against you in
court of law
ii. If indigent, attorney will be appointed
2. Custodial interrogation
a. Questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his freedom of action in any significant way
b. Does not apply to encounters between suspects and
undercover officers (IL v. Perkins)
i. Lacks the power structure of police-dominated
custodial interrogation
3. Must stop when person wants to exercise rights described
4. Congress cannot overrule Miranda (Dickerson)
a. Miranda is the floor
b. Laws can raise the bar above Miranda
5. Applies to misdemeanor or traffic offenses (Berkemer v. McCarty)
iv. Fruit of the Poisonous Tree
1. Applies to 5th but not to Miranda
a. Violation of Miranda may not mean violation of 5th
2. Defendant may be impeached by statements taken in violation of
Miranda (Harris)
3. Defendant may not be impeached by statements taken in violation
of 5th Amend. (Portash)
a. Compelled statements
4. Miranda warnings are prophylactic (Tucker)
a. Balance the value of deterrence against the value of having
all relevant and trustworthy evidence presented to the
factfinder
v. Exceptions
1. Public Safety
a. An officer can justify failure to provide Miranda warnings
based on public safety (Quarles)
i. Miranda is a tool to protect rights but not a right in
itself
b. Does not evaluate motivation of individual officer
c. Cannot apply post hoc findings
d. Evaluate kaleidoscopic situation officers face
i. Reasonable officer under the circumstances test
2. Post-Arrest but Pre-Miranda Space (Elstad)
a. Does first statement in violation of Miranda taint
subsequent post-Miranda statements?
b. Arrest
i. What would a reasonable suspect think under the
circumstances?
c. Derivative evidence from Miranda violations are okay
i. Return to voluntariness evaluation
ii. Miranda creates presumption privilege against
compulsory self-incrimination has not been
intelligently exercised
iii. Subsequent Miranda warnings could cleanse
subsequent statements of initial taint
d. Operative inquiry is whether warning conveyed rights as
required by Miranda (Seibert)
i. Whether it would be reasonable to find that in these
circumstances the warning could function
effectively
1. Completeness and details of questions and
answers in first round of interrogations
2. Overlapping content of the two statements
3. Continuity of police personnel
4. Timing and setting of first and second
interrogation
a. Break in time
5. Degree to which interrogators treated second
round as continuation of first round
e. Steps of Analysis
i. Did law enforcement deliberately employ tworound interrogation strategy to sidestep Miranda?
1. If no, end of inquiry
2. If yes, next question
ii. Is this situation more like Elstad or Seibert?
1. Apply factors
iii. Did the interrogators take any curative measures?
vi. Custody
1. Test
a. Formal Arrest or
b. Reasonable Person Standard
i. “Freedom of action curtailed to a degree associated
with formal arrest”
1. Number officers
2. Handcuffs
3. Brevity
4. Domination & Control
5. Seclusion
6. Maybe age (JDB v. NC)
a. Only subjective factor
2. Routine traffic stops are not custodial interrogations (Berkemer v.
McCarty)
a. Temporary and brief
b. Circumstances such that motorist does not feel completely
at mercy of police
i. Exposure to public
ii. Less police-dominated
c. Relies on Terry analogy
3. Imprisonment does not necessarily mean custody (MD v. Shatzer)
a. Constitutes “normal life” for those incarcerated
vii. Interrogation
1. Questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom
of action in any significant way
2. Measure of compulsion above and beyond custody alone
3. Questioning (RI v. Innis)
a. Any actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating
response from the suspect
i. Focus on perceptions of the suspect
1. Intent of police may matter
a. Knowledge of unusual susceptibility
of a defendant to a particular form of
persuasion
b. Police practice designed to elicit an
incriminating response
ii. Extends only to actions police should have known
were likely to elicit a response
b. May include more than just direct questions
i. Non-express questions should be construed
narrowly
4. Routine Booking Exception (Hiibel)
a. Asking for suspect’s identity
b. Sobriety tests
viii. Waiver & Invocation
1. Standard of review
a. Preponderance of the evidence
i. More likely than not
b. Presumption against waiver
2. General Rules
a. Failure to ask for a lawyer does not constitute waiver
b. Waiver cannot occur until accused has been informed of
rights
c. Silence does not automatically constitute waiver
i. Totality of circumstances to evaluate whether
silence in that situation was waiver
d. No one can invoke your rights for you
e. Miranda is not crime-specific (CO v. Spring)
i. Invocation of right to remain silent or right to an
attorney is not crime-specific either
3. Requirements of waiver
a. Voluntariness
i. Product of free and deliberate choice
ii. Lack of intimidation, coercion, deception
b. Full Awareness
i. Knowing
1. Nature of right
2. Consequences of abandonment
ii. Intelligent
 Miranda fulfills this prong
4. Express v. Implicit Waiver
a. Express written or oral statements are strong proof of
validity
b. Implicit waiver
i. Defendant’s silence +
ii. Understanding of rights +
iii. Course of conduct indicating waiver
1. Focus of inquiry is on the arrestee not
outside circumstances (Moran v. Burbine)
2. If you act contrary to a right, the court
assumes you have relinquished that right
5. Invocation of Right to Counsel (Edwards)
a. Must be unambiguously invoked
i. Black and white (invoked or not)
b. Invocations must be unequivocal
c. Interrogation must cease until attorney present
i. Right to have attorney in the room with you
d. Cannot reapproach without attorney present
i. Unless the accused himself initiates
ii. Have to wait at least 2 weeks to reapproach without
accused initiation (MD v. Shatzer)
1. Longer impact than right to remain silent
2. Must be given time to reacclimate to normal
life and shake off the custodial relationship
3. Invocation of right to lawyer indicates
inability to deal with the custodial
relationship alone
6. Invocation of Right to Silence (Edwards)
a. All interrogation must cease
b. Can reapproach as long as they “scrupulously honor” right
i. Exception if accused himself initiates
1. Generalized discussion relating directly or
indirectly to investigation enough to
reinitiate (Bradshaw)
a. Routine incidents to custodial
relationship not enough
c. Steps of Analysis
i. Miranda
1. Invoked Silence
a. Triggers Scrupulously Honor
ii. Reapproach
1. Miranda
a. Waiver
i. Coercion?
b. Coercion/Voluntariness?
i. Due Process Violation?
iii. Factors
1. Different crime
2. Different time
ix. Steps of Analysis
1. Custodial interrogation?
a. Has Miranda been triggered?
2. Were Miranda warnings provided?
3. Has suspect validly waived rights?
4. Do any exceptions to Miranda apply?
th
c. 6 Amendment
i. Right to Counsel
1. Meant to help you with your interactions with the government once
the adversarial relationship has solidified
2. Triggered when the adversarial relationship has solidified
a. Charges
b. Indictment
c. Arraignment
d. Preliminary Hearing
e. Information
3. Once triggered, requires waiver for police to contact defendant
without lawyer present
a. Applies pre-trial (Massiah)
4. May overlap with 5th Amend.
a. Post-indictment custodial interrogation
5. Statements taken in violation of Massiah can be used to impeach
the defendant’s testimony (Ventris)
a. Cannot use rights as a sword to lie to the Court
6. Offense-specific (McNiel v. WI)
a. Key difference from 5th Amend.
b. Could be reapproached for a different crime (TX v. Cobb)
i. Blockburger Test for Different Crimes
1. Lesser included offense approach
a. By proving 1 offense, you’ve by
definition proved another
ii. Standard for Violations
1. “Deliberate elicitation” (Henry)
a. Merely having an informant passively listen is not enough
(Kuhlmann v. Wilson)
b. Having an informant arrange a face to face meeting and
recording telephone calls is enough (Moulton)
iii. Fruit of Poisonous Tree Doctrine
1. Miranda Fruitless
2. 5th Fruitful
IV.
3. 6th Fruitful
iv. Waiver
1. Decision to waive does not need to be in itself counseled
a. Knowing
b. Voluntary
c. Intelligent
2. Express Waiver
3. Implied Waiver
a. Totality of circumstances test
i. Right not waived by simply talking to the police
(Brewer v. Williams)
b. Burden on the state to prove an intentional relinquishment
or abandonment of a known right or privilege
i. Courts indulge every reasonable presumption
against waiver
ii. Defendant doesn’t have to request this right
4. Informed of rights (Patterson v. IL)
a. Miranda is sufficient to inform defendant in manner to
waive 6th rights
i. Essence of both rights is right to counsel
ii. Waiver limited to the conversation at hand
1. Does not constitute waiver generally
5. Importance of counsel varies at different points in proceedings
a. Greater inquiry required for waiver at trial than during
post-indictment questioning
i. Fewer dangers associated with self-representation
here
6. No Edwards-equivalent anti-badgering rule (Montejo)
a. Government allowed to reapproach
Entrapment
a. Government agents may not originate a criminal design, implant in an innocent
person’s mind the disposition to commit a criminal act, and then induce
commission of the crime so that the Government may prosecute.
b. Criminal Law Defense
i. Results in bar on the prosecution of the defendant
c. Standard of Review
i. Proof beyond a reasonable doubt the defendant was disposed to commit
the crime/act prior to being first approached by the govt
1. Analysis begins at first approach
d. Test
i. Predisposition to Criminal Act
1. Conduct and predisposition of the accused
2. Do not need to know act is a crime to be predisposed
a. Evidence did act when it was legal is not dispositive of
predisposition to commit act now that it’s illegal
3. Factors
V.
a. Types of crimes committed
i. Same crime
ii. Nature of crime
ii. Creative Activity
1. Origins of idea to commit crime
a. Verses simply affording the opportunity or facilities to
commit the crime
2. Conduct of government agent
3. Factors
a. Repeated requests
b. Initial avoidance
c. Manner of communication
i. Pen pals
ii. Subscriptions
iii. Advocacy pieces/persuasive forms
e. Outrageous Conduct
i. No ruling from USSC on whether this would violate due process
1. Have considered it in the past
Eyewitness Identification
a. Post-Indictment Corporeal Lineups
i. Triggers 6th Amend. Right to Counsel
1. Critical Stage in the Prosecution
a. Riddled with dangers that could impede fair trial
ii. If violative, strike the in-court identification
1. Exception: Proof in-court identification was not based on the
observations of the suspect at the violative lineup
a. Standard of Review
i. Clear and convincing
b. Attenuation of taint concept
c. Factors
i. Prior opportunity to observe alleged criminal act
ii. Existence of any discrepancy between pre-lineup
description and defendant’s actual description
iii. Any identification prior to the lineup of another
person
iv. Failure to identify the defendant on a prior occasion
v. Lapse of time between alleged act and lineup
b. Post-Indictment Photo Lineups
i. No right to counsel
c. Pre-Indictment Lineup
i. Due Process Clause
1. Forbids unnecessarily suggestive and conducive to irreparable
mistaken identification
ii. Police not implicated in circumstances causing suggestive identification
1. Must rely on traditional rules of confrontation and trial
a. Counsel at post-indictment lineups
b. Cross examination
c. Rules of evidence
d. Jury instructions
2. Steps of Analysis
a. Did police use an unnecessarily suggestive identification
procedure?
b. Did the improper identification procedure so taint the
resulting identification as to render it unreliable and
therefore inadmissible?
3. Totality of the Circumstances Test
a. Suggestive
b. Unnecessary
c. Create a substantial likelihood of misidentification
4. No due process violation when only person shown to witness was
defendant and he was handcuffed and surrounded by police (Perry
v. NH)