Holly Boggs: Criminal Procedure
{Gabriel}
REMEMBER: Watch out for state v. federal and dates
REMEMBER: Even if can do something under Federal law at a given time, state law might prohibit (allowed to expand, but
cant restrict indiv rights)
REMEMBER: can be DP even if not BOR if so over the top (fundamentally unfair)
Warren Court (1953-until 1969)- Appointed by Eisenhower. Both republican and democrat. Incorp BOR and
Brown v. Board. Terry. Eisenhower appointed lots of justices
Roberts Cout- (2005)- Montejo and implied waiver by silence cases. Pres Bush appoint. Tilt to law
enforcement.
5th- Trial/procedural right- viol when admit at trial (inherent exclusion of testimony) (ie. torture not viol, but intro statement
from torture is)
 Miranda is viewed as a prophylactic
th
4 - substantive right and procedural (warrants clause)- viol at time person/home/security viol (exclusion is not
in constit)
6th- Substantive right- right to counsel violated when interrogate wo lawyer; right to counsel at trial viol wat
trial
For exclusionary rule- If trial right/constitutional violation occurred in admitting at trial—CANT ADMIT
 BUT if it is a substantive right (viol occur before trial) and exclusion is just a remedy- can BALANCE
o Deterence v. cost of eclusion
Intro
 Crim law v. crim pro:
o Constitutional crimpro rules: Fundamental, only changed constit twice (1868 or 1791), political
(SCOTUS make up laws), RIGHTS AGAINST GOV
o Criminal Law: RIGHTS AGAINST OTHERS, can be changed
 Methods of Interpretation:
o Plain language Rule (If clear on its face, done)
 Strict interpretation- Some think lang of constit sacrosanct and so leave it to states to
amend constit (ie. add sthing about computer searches)
o Original Intent Rule (intention of the drafters- what did founders MEAN. Maybe diff in who
ratified v. who drafted)
 Issues in interpreting judicial decisions:
o Security v. indiv freedom
o Federalism
 To what extent should fed cts be telling states what to do?
o Racism
o Accuracy v. fairness
 Amendments:
o 4th- Unreble search and seizure; Warrant clause
o 5th- self incrimination; Federal DP
o 6th- Right to counsel
o 7th- Cruel and unusual punishment
 Trendo Since Nixon war on drugs, increase in length sentence and number convictions
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
o Greater in S
o Greater for minorities
Amendments:
o 4th: “The Right of People to be secure in their persons, houses, papers, and effects, against
unreble searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath and affirmation, and particularly describing the place to be
searched, and the persons of things to be searched”
o 5th: “No person shall be held for a capital or otherwise infamous crime , unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia,
when in actual service in time of War or public danger; nor shall any person be subject to the
same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private prop be taken for public use, without just compensation.
o 6th: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial juy of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; the be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsil for his defense.”
o 8th- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted”
o 14th- “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of the life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of its laws.”
14th amen DP violation (Brown v. MS- torture)—NOT BOR but viol of fundamental principle of liberty and
justice
Incorporation
I.
Incorporation: which amendments should apply to the states
II.
Due Process means AT LEAST notice and hearing (told in advance you are going to be deprived of a
right and you get a hearing about it)
III.
Early years:
a. 1791: Constitution- more power than the Articles of Confederation to the feds but state govs
resisted.
i. Needed the creation of the bill of rights
1. Some of These rights are criminal procedure rights (rights of the individual)
a. 5th- self-incrimination, trial, and jury
b. 6th - right to counsel and confrontation, indictment (know what charges
are against you), right to subpoena witnesses.
c. 8th- against cruel and unusual punishment and reasonable bond
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d. 4th- not crim-pro per se, but privacy- probable cause for search and
seizure
i. Others aren't crim-pro but do protect the liberty of individuals
ii. The bill of rights controlled federal courts, but the states retained control of their judicial
practices
1. Barr v. Balt. - held that the BOR didn’t restrain state governments
a. Baltimore took Barron's land without just compensation which is required
by the BOR
b. The BOR was a protection of for the states and individuals against the
Federal government, so the states weren’t constrained by its provisions
b. 1868: Then amendments were made during the civil war to restrain the states powers (13, 14, 15)
i. 14th am. – State can’t violate due process or equal protection.
1. Apply DP (5th amen) to the states.
2. made it sound like the constitution now applies to the states
ii. 14th am limits state actions (4 separate clauses)
1. Decided all persons naturalized or born here are citizens of the US and the state
where they reside
2. Can't abridge a citizens privileges or immunities
3. Can't deprive life liberty or property w/o due process
4. Can't deny equal protection
c. 1872: Slaughterhouse cases- interpreted the 14th amen Privileges and Immunities clause
narrowly and found they did not incorporate the protections of the BOR
i. Early courts said no incorporation because of state sovereignty, the intent behind the
amendments, and the substantial procedural and substantive differences between federal
courts and the state courts
ii. 5th amen (coercion to incrimination): 1907- Barington v. Missouri- sweat box confession
was voluntary bc didn’t viol Mizzou constit and 5th amen didn’t apply to state
1. Direct contradiction to Bram v. US (invol confession when unfair infl put on
prisoner)- Fed Case
iii. 90 yr postpone application of BOR to states- abandon post Civil War promise of fed
protection of indiv from abusive practices of local political power structures
1. Rely on DP to get around for a whiled. 1930s-1960s- Fundamental Rights Theory- 14th AMEN DUE PROCESS CASES:- not
limited to BOR
i. DP Requires Notice and Hearing (told in advance going to be deprived of a right and get
a hearing about it)
1. What does notice and hearing include?
a. Right to counsel that you can consult with (Powell)
b. Right against tortured confessions (Brown)
c. Right to trial by jury (Duncan)
i. But unanimous verdict not required (Apodaca)
ii. And number of jurors not required
ii. 1936: Brown v. MS- (NOT INCORPORATION) 14th AMEN DP TO CONSTRAIN
STATE ACTION (plain lang of text).
1. Facts: confessions extorted through violence and trial lasting one day- violate due
process
2. Reason for intervention:
a. At this time, alternative to trial in south was lynching
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IV.
b. If not lynching, mob-dominated trial
3. Rule: SC said the state can control the process the way they see fit as long as it
doesn’t violate due process
4. Not incorporate BOR, but say this viol DP
a. Due Process= State action must be consistent with Fundamental Principles
of libery and justice which lie at the base of our civil and political
institutions
i. Here, not being tortured is a fundamental principle
ii. Cant have mob forced confession, cant deny right to attorney, cant
have trial as pretense to use coerced confession
5. Twining v. NJ established that the right against self-incrimination does not apply
to the states.
a. But the SC says that is not the issue at hand here; they had a right to call
the defendant at trial not compel a confession through violence.
iii. 1932: Powell v. AL- (NOT INCORPORTATION) 14th AMEN
1. DP hearing requirement: In a capital case where D is unable to employ counsel or
incapable of making own defense, ct required to assign counsel
a. Right to counsel in capital case both at trial and in time leading up to
(consultation and preparation)
2. Facts: TJudge didn’t give D chance to secure counsel or appoint counsel. No
counsel until morning of trial and trial lasted a day
3. In capital case, DP require right to hearing, right to counsel, and ability to consult
and prep a defense
4. Central to adversarial sys to have defense counsel develop facts
iv. Robert Clark Case- Inaccurate but fair trial
1. Identification issues: Vic saw him outside, saw him in pics, saw him in line-up
and image of perp in her mind replaced by image of Clark
2. Problem: Clark was the only person in the lineup from the pictures the police
showed her- DP violation???
3. Trial consistent with DP, but inaccurate
4. DP concerns trial stage normally
v. 1968- Duncan v. LA- (NOT INCORPORATION) 14th AMEN
1. Right to trial by jury in “serious” crim cases (More than 6 mo punishment)
required by DP
2.
3. The right to trial by jury is necessary for criminal defendants to prevent
oppression by the government and to provide safeguards against corrupt or
overzealous prosecutors or compliant, biased, “eccentric” judges
vi. 1952- Rochin v. CA- Pump stomach of guy to get evidence of narcotics- shocks the
conscience
1. Exclusionary rule was not a remedy for states to 4th amen viol at the time- but is
one for DP viol
e. 1960’s- Selective Incorporation
Three Historical Incorporation Doctrines
a. Total Incorporation – Justice Black (Strict interp guy and southerner (probably liked states
rights, but adhered to strict interp). 14th amen priv and immunities means ALL the BOR applies
to the states, BUT creates no other right other than BOR- limiting and expanding theory)
i. 14th Amendment encompasses the entirety of BOR
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V.
VI.
1. If it applies to federal government, it should apply to states as well
2. All BOR restrictions apply to states
ii. Never been accepted- right to grand jury indictment, 7th amen jury in civil cases, bail
clause of 8th amen, 2nd amen bear arms
b. Fundamental Rights Theory (prevailed form 1930s-1960s)
i. Only rights that are considered fundamental are made applicable to the states
ii. Could exceed the BOR protections; BOR is not an exhaustive list of fundamental rights
1. Ex: size of jury could conceivably be a fundamental right
iii. Source: 14th Amendment’s DP clause
iv. Court decides what is fundamental: "immutable principal of justice" (Powell v. Alabama)
1. Case by case analysis
c. Selective Incorporation (predominant approach today)
i. Certain (selective) provisions within the BOR are necessarily so fundamental that they
should be incorporated to the states through 14th Amendment DP clause
1. No longer case by case
ii. Looks at the abstract right and decides on its face whether the right fundamental
1. It is a threshold question
iii. If fundamental  totally incorporated
Retroactively
a. Retroactivity principles determine the extent to which the Court’s decision will have an effect on
activity occurring before the date of the decision.
b. 3 Rules:
i. Court has always given the benefit of the new rule to the litigant who establishes it.
ii. A new rule is applicable to all cases that are still under court review.
iii. If a decision is important enough to be called a “constitutional decision” it is arguable
that it ought to benefit all those who suffered the conduct now found to be wrongful.
Harmless error
a. In cases where a constitutional violation does not go directly to the essence of what makes a fair
trial, after a violation has been established, the burden shifts to the prosecution to prove beyond a
reasonable doubt that the error did not produce a different result (harmless). If the prosecution
cannot prove the error was harmless, then a new trial is granted (most common scenario).
6th Amendment- Right to Counsel
I.
Appointing Counsel
a. NOTES:
i. THERE IS NO LAWYER OFFERED- get a new trial
1. EXCEPTION: Sometimes lawyer in room but might as well not be= Gideon
approach
a. Ie. Powell- appointed day of trial= effectively no lawyer
b. Ie. Alzheimers or drunk lawyer (no mental abil)= effectively no lawyer
c. Ie. Lawyer who sleeps through trial
d. Ie. non-licensed lawyer
ii. Ignore originalism to make decision about 6th amen bc at CL, entitles to counsel for
misdemeanor, bur not felony (perverse)- rejected
iii. not need to show not having counsel prejudice result bc Constit viol of such dimension
that prejudice presumed
iv. Not explicit in constit that must be appointed counsel or that must be able to deny
counsel, but flow from right to counsel
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1. DP (Gideon- fundamental to all other trial rights/adversarial sys to have defense
counsel)
2. Equal protect (only really used in Douglas [appeal as right case] then end after
Ross) [indigent- discriminate against some D’s bc of their poverty]
a. Note- there is no Fed equal protection (it is read into Fed DP as being
fundamental)
3. 6th amen is about individual rights (all for the benefit of the indiv) as a whole and
can waive indiv rights
b. Timeline:
i. 1920’s out of luck
ii. 1932- only if capital case (Powell)
iii. More states in meantime began requiring appointment of counsel
iv. 1938’s if in fed ct- appointment (Johnson)
v. 1942 discretion of state judges (Betts)
vi. 1963 right to counsel
c. 1932- Powell v Alabama STATE CTS- CAPITAL CASES- require appoint counsel to indigent.
held that the right to counsel is fundamental. At the time, Powell was limited to its facts (capital
cases). However, what it said about the fundamental nature of the right to counsel is important.
d. 1938- Johnson v. Serras- FEDERAL CTS- Right to counsel so imp to adversarial sys and
protecting all other rights that appoint counsel to indigent regardless
e. 1942- Betts v. Brady- STATE CTS-NON CAPITAL CASES- NO BRIGHT-LINE RULE.
OVERRULED BY GIDEON.
i. Test= would fail to appoint counsel offend fundamental sense of fairness?
ii. Case-by case- determination whether to appoint lawyer
1. Factors: Seriousness of charge, capability of D (education, literacy)
th
f. 1963- 6 Amen Right to counsel incorporated to state
i. Gideon v. Wainright- ALL CTS- ALL CASES THAT CARRY POTENTIAL OF
SUBSTL PRISON AND INDIGENT D- BRIGHT-LINE RULE. Unanimous.
1. Fundamental right incorporated into DP
2. D, accused of a felony, asked the judge to appoint counsel but under state law, the
court could only appoint counsel in capital cases.
3. The court ruled that the state law was unconstitutional because the right to
counsel was “fundamental and essential to a fair trial.”
a. Defendants have the constitutional right to a fair trial and this requires
having an advocate present who knows the intricacies of the legal system.
b. Rule: So cases that carry the possibility of substantial prison time require
a counsel for indigent D unless properly waived by the defendant
g. In what cases must the court appointment counsel?
i. Rule: Defendant cannot be sentenced to CONFINEMENT (imprisonment) unless the
state has afforded him the right of appointed counsel.
1. Lots of punishments worse than prison (ie. license suspended, deportation)
2. Note they do not have to use that counsel, but must be appointed if wanted.
3. Also, this doesn’t mean that if the “possible punishment” is imprisonment then D
must be afforded the right to appointed counsel (this is rule dissent in Scott
wanted)
a. Judge would need to look forward and see if he would impose prison
i. This is inefficient.
b. Fiscal/practical implications and sensiticity to state resources
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i. Ie. GA- speeding max 12 mo in jail
4. CTs consider a suspended sentence a confinement sentence (ie. probation bc can
revoke and sentence to jail) (AL v. Shelton 2002- couldn’t go to jail after break
probation bc not appointed lawyer in orig case)
5. Current loophole- pre-trial jail time is not a sentence (Ferguson problem)
6. 1972- Argersinger- Even if misdemeanor, entitled to counsel
7. 1979- Scott v. Illinois
a. Rule: The Sixth and Fourteenth Amendments require only that indigent
defendants be appointed counsel when imprisonment is actually imposed.
b. The states deal with many more criminal cases than the federal courts,
especially petty crimes, requiring counsel whenever a crime can result in
imprisonment extends the right too far.
c. Facts: Scott (defendant) was convicted of shoplifting without being
appointed counsel. The maximum penalty for such an offense is a $500
fine or one year in jail, or both.
i. Hold: The judge was not required to appoint D counsel because
actual imprisonment remains the proper line defining the
constitutional right to counsel not its possibility.
1. However once the judge did not appoint counsel he would
not be able to impose a prison sentence.
d. Dissent: Other judges think that the judge making a sentencing decision
before knowing the facts is inefficient, and whenever a D is afforded the
right to a jury trial he should also have the right to be appointed counsel.
ii. Rule: During an appeal as a matter of right, an indigent defendant has a right to have
counsel appointed. However, an indigent defendant is not entitled to appointed counsel
for discretionary (Re: after first) appeals.
1. Problem: No right to appeal in constitution- some argue this means no right to
counsel for appeal
2. 1963- Douglas v. California (same year as Gideon)- COUNSEL FOR APPEAL
AS RIGHT
a. D’s requested the assistance of counsel on appeal but their requests were
denied. The California court procedure was to look at the facts of the case
and materials provided and the court will decide if the defendants need
counsel on the appeal.
b. Hold: Ct said that during an appeal as a matter of right, an indigent
defendant has the right to assistance of counsel.
i. In Griffin v Illinois the SC held that a state court cannot grant
appellate review is a way that discriminates against some
defendants because of their poverty (must give free transcript on
appeal in that case)
ii. Fundamental fairness is violated when the success of someone's
legal defense is dependent on their wealth
iii. The court does note that absolute equity in the judicial process is
not required
1. This shows a kind of combo of the due process and equal
protection clause of the 14th.
3. 1974- Ross v. Moffitt- NO COUNSEL FOR DISCRETIONARY (RE: after first)
APPEAL
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a. NOTE: NIXON CT NOW
b. D was convicted of criminal charges in two separate cases. D was
represented by a court-appointed attorney at trial and on the first appeal,
but was not given assistance with preparing his petitions for review by the
State and US Supreme Courts.
c. Hold: Ct held that an indigent defendant is not entitled to representation at
state expense for discretionary appeals.
i. Due process requires that the state provide representation to all
defendants during mandatory trial proceedings.
ii. Just because the state allows an additional appellate review
(discretionary) doesn’t mean they have to provide counsel
d. The state is not required to provide appellate review, but when it does it
must be fundamentally fair
i. Some mandatory review and council for that review meets this
burden
e. Also they would already have all the hard work done from the first appeal
4. Halbert v. MI- Even if discretionary appeal, if it’s your first appeal, can get
counsel
a. EX: If a state didn’t give a mandatory first appeal but a discretionary
appeal after a guilty plea, the Ross rule wouldn’t apply same because that
Defendant has not had counsel prepare the initial appeal
h. Right to decline counsel:
i. Rule: Ds have the constitutional right to represent themselves at trial if they so
choose, but waiver of counsel must be competent and intelligent. (often reached if
competent)
1. 1975- Faretta v. California
a. Faretta requested that he be able to represent himself at trial. The judge
later decided that Faretta did not have sufficient legal knowledge to
represent himself.
b. NOTE: DOES NOT EXTEND TO APPEAL- no right to rep self in appeal
(no right to appeal in constit so if want to impose lawyer, in better pstn to
do that)
c. Hold: The court said that Defendants have the constitutional right to
represent themselves at trial.
i. First, such a right is implied in the Sixth Amendment 
“assistance”; second, history supports the position that states may
not impose counsel on unwilling defendants; finally, forcing
counsel on an unwilling defendant could actually hurt his case.
d. Arguments for ability to waive:
i. Individual right
1. Structural arg: 6th amen as a whole is about indiv rights as a
whole and can waive
2. Plain lang arg: “assistance”- indiv is the one who has the
right (all for benefit of indiv)
3. Autonomy (most fundamental of all rights and reason for
all the BOR)
ii. Originalism
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II.
1. CL had a federal statute (Judiciary Act of 1789) said could
individually rep
2. Dissent: Why need this if right already existed in Constit?
3. COUNTER: So fundamental that didn’t think needed to
spell out
4. Dissent: Then why spell out in Judiciary Act of 1789?
2. Judges and opposing counsel don’t like pro se bc don’t know the rules.
a. Often appoint Standby Counsel (ie. Jamie Hood case in Athens)
i. Cannot dictate anything on strategy- client has all decision-making
capability
3. What does it take to competently waive counsel?
a. Waiving lawyer for pleaing guilty- Competency std of just standing
trial (no higher) (Godinez v. Moran)
i. 1.) Sufficient present ability to consult with lawyer w reble degree
of rational understanding and
ii. 2.) Whether has a rational as well as factual understanding of the
proceedings against him
b. Repping self at trial and taking to trial- higher std of competency
required (Indiana v. Edwards)
i. Not whether know how to be lawyer, but whether understand
enough to waive right to have lawyer
i. How indigent defense counsel is delivered
i. Appointment system - judges appt individual counsel in individual cases
ii. Contract - contract btw lawyer and the system to do a certain number of cases for a
particular amount
1. Counsel normally does this alongside their traditional practice
iii. Defenders office- county or state employees that work completely on indigent defense
Ineffective assistance of counsel:
a. NOTES:
i. THERE IS A LAWYER OFFERED- HAVE TO GO ALL THE WAY THROUGH
TRIAL TO BRING THIS AND PROVE PREJUDICE- MUST BE CASE BY CASE
(not systemic problem)
ii. Harmless error analysis- initially controversial whether harmless error should ever apply
to constit viol
1. Results-oriented evaluation of fairness (as long as get to right result, unfairness
doesn’t matter)
Originalist
approach- assistance of counsel AT TRIAL
iii.
1. CT ignore bc now reality that 97% cases resolved outside of trial
a. If not apply to this stage, right is meaningless and not original intent for
this right to be meaningless
b. Rule: For a convicted defendant to show that his counsel was deficient he must show (1) the
lawyer did not act as a reasonably competent attorney, and
i. TEST: Counsel rep fall below objective std of rebleness
1. Almost always reble- After thorough invest, have a range of evidence and theory
of case using extrinsic evid and made reble selection based on menu of
possibilities
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2. Sometimes okay not to investigate (ALWAYS LOOK AT POTENTIAL
DOWNSIDE TO PUTTING EVIDENCE OUT THERE AND LETTING JURY
SORT OUT)
a. Inconsistent with teory of the case
i. Hypo- shoot wife and gun notorious for going off unexpectedly
1. Okay not to pursue if theory of case= didn’t do it, self
defense, accident
b. Reason to believe evid wouldn’t hold up to cross-examination
i. Not want to draw attn. to something by objecting
ii. There is a strong presumption that an attorney has acted reasonably.
iii. REBLE UNDER PREVAILING PROFESSIONAL NORMS
iv. ABA stds relevant but not binding
1. USUALLY SOME DUTY TO INVESTIGATE NO MATTER WHAT
2. In GA, duty to conduct investigaition regardless of client wish to admit guilt
3. MITIGATION EVIDENCE- Sentencing now should include all efforts to
discover all rebly avail mitigating evidence. Extensive investigation into
mitigating defenses (mental capability, past history, witnesses) (But see
Strickland)
a. Medical history, Family and social history, ed history, military service, etc
4. Duty to communicat with cleint
v. Conflict of interest
1. If have 400 cases- is that a conflict of interest? Duty to say no when too many?
vi. When making a strategic decision, it has to be reble (if not hurt your theory of case, etc.,
not reble to exclude evid)
1. If taking an additional route would not be inconsistent with strategy, must explore
it
a. Wiggins v. Smith- D counsel had strategy of placing blame on the person
who pulled trigger during sentencing, but didn’t investigate D’s past
b. In trial record, there was mention of troubled history and D said so
i. Putting on evidence of troubled history would not have been
inconsistent with strategy
ii. Unreble- unexcusable not to do more research based on troubled
history knowl
vii. Dissent in Strickland- leaving D stuck with prevailing norm in their area
c. (2) that he was prejudiced by the deficiency (Reble proabability that but for counsel’s
unprofessional errors, result of proceeding would have been diff)
i. Prejudice  reasonable probability that, but for his attorney’s incompetency, the result of
the proceeding would have been different.
ii. BOP=D
iii. Std= Reble/substl probability to undermine confidence in the outcome (Lower than 50%)
1. BELOW PREP OF EVID, ABOVE PC
iv. Results-oriented test of fairness (as long as get to right answer, fair)
d. Extends to sentencing, guilt/innocence phase/plea bargain
i. Extends to Plea Bargains/ guilty pleas (rebly compotent advice to clients)
1. Reasoning to extend to plea bargaining:
a. 97% of cases so imp to adversarial sys
b. Almost all lawyer work is in negotiation process
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2. If there’s a reble possibility jury might find client not guilty- strategic decision CT
wont look into
3. Not reble to give wrong/incorrect advice
a. Laffler- told client jury could not find guilty of attempted murder bc didn’t
shoot above waist
i. Dissent: Had a fair trial so wipe away mistake of counsel
b. Padilla- Told pleading guilty to weed will not lead to deportation
4. Duty advise on collateral consequences when consequ SO great (legal consequ+
Predictable) (Padilla)
a. Maybe don’t need to advise wont be hirable
5. Duty to tell client of plea bargain
a. Missouri v. Frye- Problem though with 2nd prong
6. 2nd Prong- Not sufficient to show D’s decision would be diff, but also that judge
would have accepted and pros would have kept deal open
e. 1984- Strickland v. Washington TOTALITY OF THE CIRCUMSTANCES
i. D went on a ten-day crime spree during which he committed three groups of violent
crimes, including multiple murders, kidnapping and theft.
ii. D was appointed an experienced criminal attorney for sentencing hearing
1. Against his lawyer’s advice, D later confessed and pleaded guilty and allowed the
judge to go forward with sentencing. The trial judge sentenced D to death.
iii. Q1: Act rebly compotent attorney?
1. WAS IT REBLE FOR LAWYER NOT TO INVESTIGATE MITIGATION
DEFENSES?
2. What did the lawyer do? Was it strategic to do it the way he did (reble do that way
and not this)?
3. Was decision not to investigate reble?- enough info to pick from alternatives
a. Attorney didn’t call ANY witnesses for D or investigate witnesses
i. Goal in sentencing hearing= not rebut guilt, but shift focus to
explanation (this not the sum of who I am)
b. Not bring someone to testify to mental/emtl disturb or have psych eval
done
c. Strategy= put D on stand and say sorry
i. Was this reble?
4. CT: Reble, BUT would probs come out diff now bc std of prac change
iv. Hold: Ct said that D did not show that counsel did not act as a reasonable competent
attorney or that the result would have been different but for his incompetency
1. There is no set of rules that will establish whether an attorney acted reasonably.
Instead, all of the facts, as they existed at the time counsel made his decision,
must be considered.
a. There is a strong presumption that an attorney has acted reasonably.
v. Addressing the second element, the burden is on the defendant to prove that he that there
is a reasonable probability that absent the attorney’s errors, the outcome would have been
different. (must have been for favorable end)
1. Here, Counsel’s decisions were all professionally reasonable and there is no
reasonable probability that the D’s issues would have changed the outcome.
f. Note: Lawyer bringing up a conflict of interest to the judge (representing co-defendants) and the
judge failing to address it is a 6th amendment failure, so ineffective counsel
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III.
i. Lack of adequate counsel and prejudice will be presumed when there is an unaddressed
conflict issue
1. But the conflict has to be brought to the attention of the judge. If it isn’t the
defendant would have to prove the failure of performance (unreasonable) and
impact the of the failure (prejudice)
g. Strickland's reasonable test in action:
i. Failure to perform pretrial discovery and see that the pros's main evidence was procured
through a 4th amendment violation was counsel that fell below the Strickland standard.
ii. Failing to advise the defendant that pleading guilty to drug charge would lead to an
automatic deportation, was ineffective counsel under the Strickland std.
1. Ct normally won't go as far to say that counsel was ineffective when they fail to
advise on collateral consequences
h. Prejudice standard:
i. Rule: D needs to show that the outcome of the case with a reasonable attorney would
have been different
ii. Need to show more than "would not have plead as I did"
1. EX: you got to trial on advice from counsel that "they can’t find you guilty of
attempted murder for shooting someone in the leg" (this is legally wrong). You
lose at trial and get a strict sentence.
a. D would need to prove that with good advice there would have been a
different result (something like a plea deal you passed up to go to trial
based on the atty's shitty advice.)
iii. In practice, this kills most cases that get past the reasonableness prong
i. Counsel is called effective 97% of the time when challenged
i. Strickland Test sometimes called the foggy mirror test  if you can put a mirror in front
of council and it fogs up then they are “effective”.
Complying with Gideon:
a. 3 Systems:
i. Apt specific defense lawyer on specific case (not typical)
ii. Contract System- Contract with private firm to do bulk of work
iii. Specialized office (Defenders office)- Counterpart to pros offices
b. Caseload Limits?
i. Wilmont v. City of Mount Vernon- Evaluated under Gideon- systematically deprive
assistance of counsel (attorney-client rel)
c. Resource disparity with the stte
4th Amendment:
I.
4th 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. First part is the “reasonableness clause”
b. The rest is the “warrant clause”
c. No remedy stated in lang
i. Exclusionary Rule- Controversial bc its relevant evid and impedes gov ability to enforce
law
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II.
III.
1. Unstable- various versions of cts make diff rulings about
Language of the Amendment
a. “persons”: our bodies
i. External body, blood, saliva, etc. ii. clothing, pockets, socks
b. “houses”
i. house, garage, curtilage, office space, lodging (hotel)
c. “papers”
i. Letters, tax returns, computer printouts, etc.
d. “effects”
i. virtually anything else
1. Car, computer, wallet, purse, luggage, etc.
General Rule: 4th Amendment only protects against those searches and seizures which are unreasonable
a. Who is protected by the 4th amendment?
i. "The people" = class of persons who are a part of the national community or have
sufficient connection with this country to be considered a part of the national community.
1. Applies to U.S. citizens and permanent resident aliens
2. Unresolved: non-citizens residents here on a temporary basis
b. What happens if the 4th Amendment is violated?
i. Normally, the Exclusionary Rule applies  requires that evidence seized in violation of
the Constitution be suppressed at trial.
Searches, Seizures, and the Reasonableness Inquiry under the 4th Amendment
I.
Incorporationa. Intro:
i. 
1. Judicial integrity- wo exclusion- cant have faith in sys not respecting its own laws
2. Amen ineffective if cant enforce in this way
3. Deterence- can still search and seize just have to have PC or warrant
ii. 
1. Federalism
2. Reliable results
b. 1914- Weeks v. US: Exclusionary rule applied to seizures by fed, but not state officers (4th amen
not apply to state)
i. Some states at the time, though, did have exclusionary rule
ii. EXCEPTION: Silver Platter Doctrine/Agency Theory1. when collaboration btw fed and state officers, apply fed law (Byars v. US)
2. OR when fed get private indiv to do sthing
3. Only works if solely an individual’s act and they turn it over to police (Constit not
apply to private actors)
c. 1949- Wolf v. CO- INCORPORATION OF 4th, but not exclusion
i. 4th amen apply to states under incorporation theory (Fundamental right) BUTTTTTT
exclusionary rule not apply to states
1. States need a remedy, but it doesn’t have to be exclusion
2. Federalism: State gov laboratory to experiment and maybe diff needs
d. Sometimes used DP to get exclusion (Rochin v. CA- 1952, pump stomach to get narcotics)
e. 1961- Mapp v. Ohio- INCORPORATION OF EXCLUSIONARY RULE
i. Reasoning:
1. Counting method- Most states apply it
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II.
III.
IV.
a. Dissent: Some don’t so cant be as fundamental as to apply under DP if
reble minds can disagree
2. Judicial Integrity (Don’t want to go against constit- cant have faith in sys not
respecting own laws)
3. Amen ineffective if cant enforce in this way
4. Deterence- not completely tie hands, but have PC or warrant
ii. J Black Concurrence- rationale for exclusionary rule hinges on tying 5th amen (right
against self-incrim) and 4th amen (right of privacy). Not compelled to give evid against
self. Closer to constit text
iii. Harlan dissent1. Def of fairness only directed at getting to the more reliable answer
2. Federalism- look at it as the federal gov winning
a. COUNTER: It’s the individual who wins
Threshold Question: what is a “search or seizure?” /protected area
a. Unreasonable searches and seizures are prohibited, but if the government activity is neither a
“search” or “seizure” then it is not regulated by the 4th Amendment
ARGUE PROPERTY AND KATZ THEORY
a. NOTE: Some: Even tho 4th descend from TP (property law), TP (property law) not control the
line of 4th anymore (ALITO)
i. Ie. Katz- not TP, but 4th viol. AND Open Fields Doctrine (Oliver- No trespeassing sign)can be TP, but no 4th viol
1. No TP sign etc. express your intention to make sthing private (subj prong), but
still fail rebleness prong
b. BUT others: TP still imp, if not a TP then look at Katz (Kyllo- house and that’s it) (Jones- GPSTP) (SCALIA)
c. Others still:
d. Not use word privacy- use word security
Modern Test: Does the government action infringe on a citizen’s reasonable expectation of privacy?
a. If so then the action constitutes an unreasonable search or seizure under the 4th amendment
b. 1967- Katz v. United States: Police put a device on the outside of a phone booth so they could
listen into D’s conversation. D discussed illegal gambling and the evidence was used against
him.
1. 4th protects people not places
a. Move awat from property right theory
2. Before this case, the test was whether there was an intrusion into a
constitutionally protected area, and the lower court held that the speech wasn’t
protected because D wasn’t in a constitutionally protected area.
3. Now, what a person rebly seeks to preserve as private, even in an area accessible
to public, may be constitutionally protected
4. The SC held that there was a 4th Amendment violation here because the search
violated the defendant’s reasonable expectation of privacy. (overruled the trespass
requirement for 4th am. violation)
a. The ct reasoned that the 4th Amendment protects people, not places
5. Here, D had a subjective belief the conversation was private (belief), and society
would accept this expectation of privacy (reasonable).
6. After Katz, What a person knowingly exposes to the public, even in his own
home or office, is not the subject of 4th Amendment protection. But, what he
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seeks to preserve as private, even in an area accessible to the public may be
constitutionally protected.
7. Two prong test from Katz to determine if there was a search:
i. Whether the person at issue has exhibited a subjective expectation
of privacy, and
ii. Whether that subjective expectation is one that society accepts as
reasonable
1. Ie. Private home convo; Cf. home convo with a lot of
roommate maybe
8. Reasoning:
a. 4th amen protects people, not places
b. Dissent:
i. Originalism- founders were familiar with eaves dropping, but
didn’t add that
ii. Tangible v. non-tangible- conversations are not tangible
V.
VI.
Katz applied:
Knowing Exposure Rule/Third party rule: If give info to 3rd party and they give it up, cant rely on
2nd prong of Katz. Things knowingly exposed to the public do not have a reasonable expectation of
privacy. BRIGHT LINE RULE
i. Telling someone about a drug deal, who then tells the cops, is not protected. (EX: “false
friends” cases - Katz is talking to Moe on the phone, and Moe goes to the police. Katz
doesn’t have a reasonable expectation of privacy under the 4th Amendment because what
you knowingly expose to the public is not protected by the 4th amendment.)
1. But police eavesdropping would could be a violation of expected privacy
ii. 4th amen only apply to gvt action so if no agency rel at time btw gvt and informant- no
viol
b. 1971- United States v. White
i. Rule: The Fourth Amendment right against unreasonable searches and seizures does not
protect people from their misplaced expectations of trust. Once release something to 3rd
party- anything downstream not priv again (ie. friend telling or broadcasting convo or
recording it) AS LONG AS MEMBER OF CONVO CONSENTS
1. Therefore there is no Fourth Amendment search/seizure when the person the
defendant is speaking with is secretly a government informant wearing a wire and
recording what is being said. (even tho technically eaves dropping as if hiding in
closet)
ii. At trial government agents testified to conversations that the D had with a government
informant in the D’s home heard using a wiretap.
1. Here, unlike in Katz, the defendants assume the risk when they confide in others
about their illegal activities.
a. If the gateway to the information for the gov is the person/entity that you
voluntarily share the info with, it is not going to be a violation.
2. Court noted that recording surveillance is just the modern day eavesdropping, and
this was voluntary mistrust in another, not a recorder hidden from the D.
3. Note the “reasonable test” trumping the property analysis again.
4. Reasoning:
a. Enhances accuracy- Accuracy of finding guilt/innoc imp in advererial sys
5. Disssent:
a. Electronic surveillance need sep rule
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VII.
b. Gvt surveill will change human interactions
c. 1979- Smith v. Maryland
i. Rule: A person does not have a reasonable expectation of privacy in the phone numbers
he dials and evidence obtained through the use of a pen register is admissible in trial.
ii. He may have had subjective expectation but was it reasonable? (Remember to go through
the 2 prong test from Katz)
1. The ct says that it is public knowledge that the phone company keeps records of
people’s outgoing calls so when people make a call they are voluntarily making
public who they call.
2. Says in phonebook that the company may use your dialed numbers to identify
troublesome callers
a. So in the number you call there is no reasonable expectation of privacy
iii. Smith made the phone call in the privacy of his home, however the ct says that he only
had a reasonable expectation that his conversation would remain private, not that the
number he called. (again with property v. reasonable expectation analysis)
iv. Note: No reasonable expectation of privacy  Police don’t need to get a warrant
v. Reasoning:
1. The fact that there’s no content of convo in the pen registers makes a diff to
majority
d. US v. Miller- Unreble expect bank wouldn’t give up info of your finances
e. Searching Trash
i. California v. Greenwood
1. Ct said that searching through trash was not an “unreasonable search” under the
4th am because a person doesn’t have reasonable expectation of privacy in
garbage
a. Rule: What is accessible to the public is not reasonably expected to be
private
b. Fails the US v. Dunn Factors for curtilage if away from the house
2. Turned over to 3rd party (Trash collector) so no longer prop interest in it AND no
longer privacy interest bc turned it over to 3rd party
3. n
Open Fields Doctrine
a. TP RULES ARE NOT THE SAME AS 4th AMEN (may have to answer in TP, but not 4th viol)
b. Plain lang of constit not cover open field//area outside home w fence
c. Rule: There is no 4th Amendment protections for open field or other areas that are publicly
exposed
i. In Oliver v. US court held that pot found in field was not the product of an illegal search,
even though the cops trespassed to find it, because the search was not a search of a
person, house, paper, or effect.
1. Property Theory: This is the wording of the 4th amendment (old analysis)
d. Post-Katz the court still ruled that search in open field/public place wasn’t a 4th am “search”
i. It is expected for the 4th am to protect the home but not the outside land; there is no
societal demand for protection of crops and open land (not reasonable)
1. one could always survey from the boundaries or air
2. D may argue that the objective prong has changed, since Katz but reasonableness
is not all about property anymore, it is often about what is exposed to the public
ii. Note: Even with “no trespassing” signs and fences (anything you do to manifest an
expectation of privacy) the 4th amendment doesn’t protect “open fields.”
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VIII.
Curtilage
a. Note: There is an implied license for anyone to go up to a door and knock, but not allowed to do
things owner wouldn’t want (ie. search, case house, dog sniff) (FL v. Jardines)
b. Rule: In a line of cases the SC develop part of one’s property, outside the home, that is protected
by the 4th amendment.
i. US v. Dunn- 60 miles from house, wi a fence, no TP sign, police had obj data not used for
home
ii. The SC called this area “curtilage.”
iii. However, there is no set distance from the house, it can include other structures on the
property and mostly depends on different factors
iv. More prop theory than Katz
v. Reject originalism where framers lived in the country so concept of home included
outbuildings etc.
vi. Intimate activity associated w home
vii. 4 factors from U.S. v. Dunn to determine if an area is protected:
1. proximity to the home,
2. whether the land is in an enclosure,
a. Surrounding the home
3. the nature of the uses of the area, and
a. Ie. if obvious by looking at it that it’s not used for home
4. the steps by the resident to protect the area or shield from public view
a. In Dunn, ½ mile from road
c. Florida v. Jardines
i. Rule: Physical intrusion of the curtilage to observe/collect evidence is a 4th am search.
1. So the property-based intrusion rule and the reasonable expectations test coexist
ii. Held: The use of a trained dog to detect drugs inside the immediate surroundings of the
home was a search under the 4th am.
iii. The porch is inside the curtilage of the house and gets the same protections
1. The 4th am right would be of little practical value if the State’s agents could stand
in a home’s porch or side garden and trawl for evidence with impunity
2. Test: What is curtilage easily understood by our daily experience
iv. Since it was in a protected area, you have to consider if there was a physical intrusion to
determine I fit was a search.
1. it is undisputed that the detectives had all four of their feet and all four of their
companion’s firmly planted on the constitutionally protected curtilage
v. State argues no reasonable expectation of privacy therefore no search
1. The ct ruled that the Katz reasonable-expectations test “has been added to, not
substituted for” the traditional property-based understanding of the Fourth
Amendment.
d. EXCEPTION: Rule: PLAIN VIEW CONCEPT-Even if within the curtilage, if the object is
otherwise observable from a public vantage point (a place one is allowed to be) then observation
is not a search under the 4th Amendment.
i. AERIAL1. California v. Ciraolo – Curtilage doesn’t matter for aerial surveillance- even if
specifically chartered plane!! Police could see pot growing from a plane, but
couldn’t see it over fences surrounding the property. With photos form the air, the
police got a warrant. The issue was taking the pictures an unreasonable
search/seizure?
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a. SC held that aerial observance of a backyard where marijuana was being
grown was acceptable because it was not reasonable to think what can be
seen by public airspace plane was private.
b. Here, the first prong of the Katz test was met by showing the D had a tall
fence, however, the reasonable prong was not met.
c. Links the protection of curtilage to the connection to intimate details of the
home
2. Florida v. Riley
a. Helicopter used to see narcotics being grown in a greenhouse with open
sides did not constitute a 4th Amendment search
b. Ct reasoned that it was lawful to use helicopters to fly over the land and
surveilling from that point didn’t interfere with the property
c. Limit:
i. Would have been a violation if the surveillance interfered with the
intimate details of the home
ii. Must not viol air traffic regulations (dicta)
1. Inconsistent with idea in Open Fields that TP rules in
themselves don’t govern
IX.
Limited Searches
a. General Rule: Acts are not 4th am. searches if they do not reveal legal activity or particularly
target illegal activity.
b. No privacy interest in things that are illegal
c. Not penetrate inside of bag, odor is outside of bag
d. Dog sniffing – Okay as long as dog is not TP-ing on 4th protected grounds (ie. curtilage)
i. NOTE: Stimes dogs unreliable which can get in the way of PC (Defense likes to crossexamine, develop error rate, etc.)
ii. In Place 1983 (dog sniff in airport) and Caballes 2005 (Dog sniff traffic stop) the court
has ruled that dog sniffs aren't searches at all.
1. They are limited in both the information obtained and the content of the
information reveal (i.e. they don’t reveal the contents just alert the presence of
illegal substances)
2. Also there isn’t enough interest in protecting people from dog sniffs to make it a
constitutional violation
iii. FL v. Jardines- It was a viol of 4th bc wi curtilage sniff. Even tho license to go up to door
and knock, license is implied for people to do things that resident would want them to do.
If dog on sidewalk and smell, that’s fine.
1. However in Florida v. Jardines the court ruled that the dog sniff was a search
when it intruded into a constitutionally protected area
2. The interest there is higher
e. Chemical testing of drugs
i. This is not a search for same reason with dogs in Place
1. The test particularly targets an illegal activity. (determines if it is a drug or not)
ii. United States v. Jacobsen
1. A chemical test that merely discloses whether or not a particular substance is
cocaine does not compromise any legitimate interest in privacy
a. However, it could be a seizure under the 4th amendment b/c the testing
process destroys the sample
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i. This seizure is reasonable under the 4th amendment b/c only a
minimal amount is destroyed
X.
XI.
XII.
Financial Records
a. General Rule: No reasonable expectation of privacy in financial records
i. Banks are a 3rd party, and there is no reasonable expectation of privacy where you turn
over information to a 3rd party.
ii. Also there is a strong likelihood that the prosecution could argue that they would have
been able to obtain this evidence from another source (inevasible discovery)
Investigative activity conducted by private citizens
a. Rule: Government actor/action is necessary to implicate the 4th Amendment
i. Private or foreign conduct that is facilitated by the Government can implicate the 4th
Amendment
ii. But if a private actor works on behalf of the government, then it constitutes a search
Modern technology and the expectation of privacy
a. Sensory enhancing devices
i. Rule: Using devices that merely enhance already observable things is not a search.
ii. EX: Binoculars, flashlights, cameras, etc. have been held not to be a search.
b. Aerial Surveillance
i. Rule: normally not a “search” because it is observation from a public vantage point
ii. Dow Chemical
1. Ct said agents using a very expensive camera while flying over a business to take
pictures of incriminating evidence was not a 4th Amendment search
c. Location Beeper PROP THEORY
i. Rule: Planting a GPS beeper is not a search if it is providing information that is otherwise
publically observable
1. If beepers move into protected zone- viol
2. Property interest
3. Tracking movement on public street = no search because one knowingly exposes
this information to the public
4. Tracking movement within a home/business = search bc the police could not have
legally observed this movement without the help of the technology
ii. U.S. v. Karo
1. Facts: Gov. installed a beeper on cans of ether which enabled to gov. to determine
that the cans were inside of the defendant's residence, moved to an associate's
residence, then moved to another residence.
2. Hold: Placing the beeper was not a search, however the monitoring of the beeper
which revealed information about activity inside a private residence was a search.
a. The government could not have otherwise obtained the information
provided by the beeper without a warrant (this was not exposed to the
public so expected to be private)
iii. U.S. v. Knotts (contrast w/ Karo)
1. Facts: police placed a beeper inside a container of chloroform before defendant
picked it up. Container was placed in car. Officers monitored the movement of the
container in the car until it came to rest at a particular residence.
2. Hold: No search under the 4th Amendment because the movement of the car could
have been visually observed by the police.
a. The government could have technically observed the driving around town
with their own eyes. (The beeper just helped facilitate)
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d. GPS
i. 2012- Jones v. U.S. – PROP THEORY v. REBLE EXPEC
1. Rule: Putting a GPS tracker on the D’s “effect” by trespass within an intent
to gather information is a “search.”
a. But could be future sit where use phone GPS (techly not TP)- not decided
here
2. Facts: There was a warrant to place GPS on car, but didn’t execute wi time frame
or geog location authorized
3. Held: Unanimous decision on behalf of D, but 3 different concurrences
4. PROPERTY/TP THEORY: Scalia (Narrower ruling). (SOTOMAYOR?)
a. TP onto 4th amen property +attempt to find sthing= search (4th amen
protected)
b. Not reject Katz- just says doent apply here
c. Automobile=effect (like carriage, etc.)
5. NO PROP THEORY EVER ANYMORE: Alito- Katz replaced prop theory
6. Decided on narrower ruling (prop) bc:
a. GPS now not need to be installed- so would apply to hacking into phones
b. This might necessitate overruling Smith v. Maryland bc voly disclosure of
info through our phones
c. Don’t have to decide what is reble
7. Court does not address the issue of reasonable expectation of privacy on public
roads. (Katz was intended to supplement the trespass theory not replace it.)
a. Note: Trespass and intent to gather is still sufficient to determine search
b. Could cause issues bc there are times where the reasonable expectation of
privacy may be infringed with no trespass. (EX: getting data from phone
company is not a trespass, so not a search)
8. Dissent argues that legislative bodies should take measures to gauge public
attitudes and draw appropriate lines to balance privacy and public safety in a
comprehensive way.
a. So a technical trespass is no longer necessary nor sufficient for a 4th am
violation; Instead it should be connected to societies expectation
e. Heat-measuring instruments
i. Kyllo v. United States- Scalia – PROPERTY THEORY
1. Facts: Officers are on a public street, aim an expensive heat imaging device at a
house to gather information about heat from house. Cops believed marijuana was
being grown in the house
2. Rule: Ct ruled that people do not have a reasonable expectation of privacy in
things freely observable by the public, but
a. Rule: The use of technology to view otherwise private details of the home
would be a search.
b. Hold: Thus, the use of a thermal imaging device constitutes a search under
the Fourth Amendment.
3. The device was used to determine what was happening in his home.
a. The core of the 4th am is the protection is the home
b. Heat can be innocuous- not just read contraband
c. To hold that the use of such a device does not constitute a search leaves
homeowners at the mercy of advancing technology.
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4. Don’t need to consider the reasonableness as much here because intrusion
into the property is more substantial. IF IT’S IN THE HOMEPROTECTED!!!
5. Note: Regular observation as a police tactic is safe bc it’s not intrusion and
observable area is not reasonable expected to be private
Warrants
I.
Katz said searches and seizures that are conducted w/o a warrant are per se unreasonable
a. General Rule: To perform a search government agent need to obtain a warrant
i. However, we are only protected against searches that are unreasonable,
ii. Rule: A search may be performed without a warrant if it is reasonable.
b. Johnson v. United States - We don’t want to leave it to cops to determine if a search is
warranted, we want the courts to do their job.
i. but in reality, this isn’t completely true b/c of so many exceptions
c. Requirements to obtain a warrant: 4th Amendment requires that certain prerequisites be
satisfied before issuing a warrant
i. Oath Requirement:
1. Oath to a neutral and detached magistrate
ii. Particularity and Specificity Requirement:
1. Must particularly describe the place to be search, person to be seized, and
evidentiary items that are believed to be on the cited premises
iii. Probable Cause:
1. Facts that make a reasonably prudent person believe illegal activity is occurring
d. Some Exceptions to the warrant requirement:
i. Exigent Circumstances
ii. Fleeing suspect
iii. Moving vehicle
iv. Possibility of evidence being removed or destroyed
v. Particular location noting the governs heightened interest to search and the defendants
lowered expectation of privacy (EX: Border search and search incident to arrest)
e. 3 Common issues:
i. Whether the warrant was issued by neutral and detached magistrate?
ii. Whether it particularly describes the person and place to be searched/seized?
iii. Did the officer articulate enough evidence to give the court probable cause to search?
iv. Note: Warrants are rarely turned down, but if they are the government can simply gather
more evidence and resubmit because there are no statutory limits on warrant applications.
1. However, before warrant is issued, gov. agent must take an oath that the
information presented is true to the best of the officer’s knowledge
II.
Obtaining a Search Warrant (Elements of a search warrant)
a. Probable Cause Requirement:
i. Rule for Arrest: Probable Cause exists where the facts and circumstances within the
officer's knowledge, developed from reliably trustworthy information, are sufficient to
make a reasonable man believe that an offense has been or is being committed by the
person suspected.
1. Don’t have to be right (ie. find cocaine in car with 4 ppl- can arrest all 4; But
maybe not for a bus w 16 ppl)
2. Test for Searches: Is there is a “fair probability” that contraband or evidence of a
crime will be found in a particular place”
a. It does not require a judicial “belief” of at least 50%
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3. Court examines the facts from the perspective of a reasonable police officer
a. objective and subjective – the court will consider subjective factors (such
as an officer’s subjective beliefs based upon his experience as an officer)
b. Source of Information on which PC is based
i. Rule: First hand observations are generally afforded greater weight
1. The main concern with first-hand police observation is whether sworn facts are
sufficient to meet the PC threshold
ii. When a cop is relying on someone else, there are additional determinations:
1. Who is the source? If the source reliable? What is the basis of the knowledge?
Can the information be verified in part or in whole?
iii. Probable Cause based upon observations of third parties: FLUID RULE
1. If anonymous source, need prediction and verification of future act that wouldn’t
be known to just anyone (can be innocent facts- ie. fly down to Miami and drive
back)
2. 1969- Spinelli v. United States:
a. Rule: Affidavit must explain both why an informant is reliable and how
informant came to his conclusions to provide the necessary probable cause
for a search warrant.
i. In Gates rejects this for a less strict totality of the circumstances
test.
b. The ct in this case says that the information from a confidential informant
could not form the basis of a warrant because a warrant application must
set forth the underlying circumstances necessary for the magistrate to
judge the validity of an informant’s conclusions, so it must establish that
the informant is credible and the information is reliable.
c. Two-Pronged Test: Basis of knowledge & Reliability of the source
i. Basis of knowledge: what basis of knowledge does this
information have?
1. Government has to present evidence that demonstrated how
this outside source was aware of the information being
conveyed.
2. Note: There is a strong correlation between detail and
likelihood it is correct
ii. Reliability: how reliable is this source?
1. More open analysis than basis of knowledge (often
verification)
2. Can do this by showing: the informant has been reliable in
the past; a past Relationship with officers; or the
Information is someway verified by police
d. Both prongs must be satisfied before either a search or arrest warrant
could issue.
3. 1983- Illinois v. Gates: Totality of the Circumstances, rejection of Spinelli (still
relevant factors- but not rigid)
a. Rule: A warrant application satisfies the Fourth Amendment probable
cause requirement so long as it establishes a substantial basis for
concluding that a search will uncover evidence of wrongdoing.
i. The Sponelli 2-prong approach is too technical, forcing judges to
look at issues separately when it would be more reasonable to
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III.
consider them together by applying a totality of the circumstances
test. (Test)
1. So don’t need to prove basis and reliability to get a warrant
a. Ex: if informant is really reliable, then can still
grant a warrant, even if there isn’t a good basis for
the knowledge (like if he had heard it from a rumor)
b. In this case, an anonymous letter told police that D would be traveling to
get drugs. Police verified the facts of the letter and most of the tips turn
out to be true. (RELIABLE INFORMANT BUT NO BASIS OF
KNOWL)
i. Hold: Ct said that considering the totality of the circumstances the
letter predicting future acts plus the verification of the police was
enough to establish probable cause for the warrant.
4. Accomplices: confession of a co-participant is enough to establish probable cause.
No corroboration required. (U.S. v. Patterson).  Self-incriminating statement is
more trustworthy.
Other elements to a search warrant: Neutral/Detached Magistrate and Particular Description (NO
GENERAL WARRANTS)
a. Rule: A warrant must be issued by a neutral and detached magistrate, based upon probable
cause, supported by an oath or affirmation, and it must describe the place to be searched and the
person or thing to be seized.
b. Rule: A warrant must particularly specify what searching for and seizing (otherwise
general warrant)
i. If police want search phone bc drug dealers use phones a lot- look more like a general
warrant
c. Rule: Magistrate needs to be neutral (not look like another member of police force/engaged in
competitive enterprise to ferret out crime)
i. NOTE: It is read into constit that warrants need be issued by judge
ii. No bribes, etc.
iii. Not in executive branch of gov (ie. AG)
iv. Not read warrant (decision actually made by police then)
d. Lo-Ji Sales Inc. v. New York
i. An investigator believed D’s videos violated state obscenity laws. So he showed the films
to the town justice who issued a warrant authorizing the search of D’s inventory and
seizure of “the following items” but no specific items were listed.
1. The justice accompanied the investigator to the store to determine whether there
was in fact probable cause to believe other items violated state law. After the
search of the store, the warrant was amended to include all the items that were
seized and the town justice signed the amended warrant.
ii. Hold: the warrant was invalid and the search/seizure was unconstitutional
iii. First, the warrant contained an open-ended statement of what was to be seized and it was
only after the search that it was amended to include the specific items confiscated.
1. So the warrant fails
iv. Second, there must be probable cause of criminal activity before a warrant is issued.
1. When this warrant was issued there was only probable cause that the original two
films violated state obscenity law.
v. Third, the town justice was not a neutral magistrate. He acted in a law-enforcement
capacity when he accompanied the police to the store to execute the invalid warrant.
23
IV.
e. Hypo: Warrant covers the “whole house” but the house turns out to be 3 apartments, then this
warrant doesn't give right to search all three apartments.
i. The officers should consider the changing information while determining the purpose of
the warrant. If purpose was to search D’s room in house; can only search D’s apt.
1. Officers have to continually consider the validity of the warrant considering fluid
circumstances
Execution of a search warrant:
a. Rule: Similar to the execution of an arrest warrant, a search warrant’s execution must be
reasonable
b. If bystanders, can detain BRIGHT LINE (MI v. Summers) and can use force to do so (Muehler
v. Mena- handcuffs)
i. Officer safety
ii. NO AUTHORITY TO SEARCH THEM UNLESS PC THOUGH (Ybarra)
c. Can only search where rebly can find what looking for
i. Ie. if looking for drugs- anywhere. If looking for TV, not jewelry box.
d. Change in determination of PC DURING search
i. Garrison- Search for person on 3rd floor of bldg. (mistake bc 2 apts on 3rd floor)
1. Once realize wrong place, must narrow scope of search notwithstanding what
warrant says
2. Q: What If something in plain view before realize wrong
e. KNOCK AND ANNOUNCE RULE
i. Richards v. Wisconsin CASE BY CASE ANALYSIS
1. Rule: reasonableness requires that police entering a home must knock and
announce their identity and purpose before attempting forcible entry, unless
exigent circumstances exist.
a. When the police went to the hotel to execute the warrant, they hid their
true identity and did not knock/announce before kicking door down.
b. State SC held that cops didn’t have to knock and announce for felony
drug cases because they’re dangerous and evidence can be destroyed.
c. Hold: SC ruled that whether the knock and announce rule applies in a
specific instance must be determined on by balancing people’s Fourth
Amendment rights with the interest of law enforcement. (per se rule
inappropriate)
i. Based on that test, the Court finds that under the circumstances, the
officers acted reasonably by choosing not to knock and announce
their presence bc D saw the officers and they need to act quickly
ii. Did they execute knock rebly?
1. Need to give reble amount of time to answer
iii. EXCEPTION: No-knock provision
1. Std= reble suspicion
2. Must prove
3. 1.) Likelihood evid will be destroyed,
a. Need more than just drug offense
b. If need to get warrant may detain someone or post someone at house while
getting warrant if reble (MacArthur)
i. Consider how long detention will be, what can rebly done to
preserve status-quo
4. 2.) Risk of harm to persons
24
V.
VI.
a. Ie. Seen with gun, history of violence, gang affiliation
5. Need particularized reasons
f. Note: Cops are not allowed to search someone in the area to be searched (an occupant) just
because they are there
i. They can detain occupants of a search area and use reasonable force to secure the
detainees, Can ask questions, and only if independent probable cause is found can they
can search the occupant.
ii. Different rules for person in a car.
g. Note: You can always attack a search as unreasonable in two ways:
i. A search or seizure was unreasonable (w/o warrant)
ii. The manner that the search was conducted was unreasonable
Arrests in public ONLY NEED PC
a. General Rule: Officers can make an arrest in public without a warrant, however it must be done
reasonably.
i. STILL NEED TO GET A WARRANT (judicial branch finding of PC) WI 48 HOURS
AFTER ARREST (Gerstein)
ii. United States v. Watson: warrantless arrest in public
1. Rule: Police have authority to make warrantless arrests based on probable cause,
even if they have time to get a warrant
a. It doesn’t matter if the cop may be wrong; A court will review the arrest
2. In this case, D was arrested w/o a warrant in a public place for possessing stolen
credit cards. Officers had time to get a warrant and there were no exigent
circumstances
3. Hold: SC held that officers had the right to arrest individuals in public places
absent a warrant
a. A contrary ruling would result in endless litigation regarding what
constitutes exigency, feasibility of obtaining a warrant, and suspect flight
concerns.
4. Note: the arrest must still be carried out in a reasonable manner, even though
there is a presumption of reasonableness
b. Chase:
i. Rule: Giving chase is reasonable when the government interest in stopping the suspect
outweighs risk of injury to innocent bystanders and the suspect.
ii. If officers were not allowed to continue pursuit, criminals could avoid arrest simply by
speeding away
c. Excessive/Deadly Force : FACT SPECIFIC
i. Rule: The 4th Amendment restricts the use of deadly force to circumstances where such
force is necessary to apprehend suspect and probable cause exist that the suspect poses a
serious public safety threat
1. Factors: type of felony, armed?, rebly feble crim will be harmed
2. Should try to USE THREAT OF FORCE FIRST (ie. drawn firearms)
3. Maybe makes a diff if know their address and could arrest later
ii. Eric Garner- suffocated while being arrested
iii. Scott v. Harris- Rebleness under circum Reble when tap bumper and run off road
iv. Tennessee v. Garner- Man fleeing burglary unarmes and shot. EXCESSIVE FORCE
Arrest in the Home: The Payton Rule NEED PC+WARRANT
a. REMEDIES: CANT USE EVID OBTAINED AS RESULT OF ARREST (ie. shell casings in
home, testimony while under arrest) AGAINST HIM
25
VII.
b. Rule: in general officers need to obtain an arrest warrant to make an arrest of someone in their
home
i. Contrast to making arrests in public, which can be done without a warrant.
c. Payton v. New York BRIGHT LINE RULE
i. Rule: Absent exigent circumstances an officer must obtain an arrest warrant before an
individual may be arrested within his home.
ii. In this case police believed they had probable cause that Payton was guilty of murder. So,
without obtaining a warrant, the police went to his apartment at 7:30 in the morning to
arrest him. (NY statute allows police to do this) When he did not answer the door, they
broke into the home and found a gun that was used against Payton at trial.
iii. Hold: The SC said that the NY law allowing the warrantless intrusion into Payton’s
home was unconstitutional
1. Lang of constit- “the home”
2. Originalist- Home is one’s castle
3. Home is easy place around which to draw bright line (epitome of zone of priv)
4. Dissent: J Reihnquist (Conservative- int that argue against house being sacro
sanct)
a. Not want bright line rule- want sliding scale (how much dignity/priv viol
is it and how much diff make to go get warrant and come back?)
i. COUNTER: Ct shouldn’t make subj judgment of how much priv is
worth to an indiv
b. Originalist- true intent= exclude gen warrant that were used at the time
c. Protect people not places
5. The common law rule for arrest in public is clear; arrest in the home is murkier so
consider the policy of the 4th am.
iv. Therefore, it is presumptively unreasonable for the police to enter a home without a
warrant for the purpose of searching the premises and seizing certain items.
1. The pros may be allowed to enter the house if there were exigent circumstances or
consent of the home owner
d. What constitutes a home?
i. Ct has included residential homes; apartments; hotel and motel rooms occupied by paying
customers; Office spaces; storage units
ii. Home of third party:
1. Arrest in someone else’s home does not require warrant if the person has no priv
int in it (Stegald v. US)
a. Ie. Maybe overnight guest v. next door watching football
iii. Motor Home:
1. Rule: all mobile vehicles don’t have the same protection of the home because it is
parked/driven publically and gives criminals too much protection.
EXCEPTIONS to Warrant Requirements
a. Exigent Circumstances STILL NEED PC- NOT NEED WARRANT
i. Reasoning:
1. BALANCING TEST:
a. Degree of intrusion on indiv privacy
i. Ie. is it going into someone’s home- high intrusion
b. v. degree needed to promote legit gov interest
i. Ie. is it just a DUI (misdemeanor)- not high interest
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ii. BUT fact that minor crime is not dispositive of whether aprop to
enter house in hot pursuit (Stanton v. Simms)
ii. Rule: Searches without warrants are per-se unreasonable, however the government may
perform a search or seizure w/o a warrant when exigent circumstances exist
1. Rationale: it would be impractical to obtain a warrant in these circumstances
2. To search under exigent circumstances the officer needs probable cause (1) of
illegal activity to justify the search and (2) that the exigent circumstances existed
to justify forgoing the warrant.
3. Also, the search and seizure must be performed reasonably
iii. Brigham City Utah v. Stuart1. Facts: Loud party and see thru window someone hit another (No Q of PC)
2. Safety to indiv threatened at that time
iv. Exigent factors:
1. 1.) Safety to police citizen (Brigham City)
a. Needs to be on-going activity (see- throwing punches; cf. druk driver who
already home [Wlesh])
2. 2.) Prevent destruction of evid (King)
v. Police cannot create exigent circum by 1.) actual or 2.) threatened violation of the
constitution
1. Ie. If an officer says “open this door or we’ll break it down”- threatened violation
of 4th amen
2. Would avg reble officer under the circum do this?
a. Viewed OBJECTIVELY (officer intent/bad faith not matter)
3. King Case- Police follow someone, lose track which room he in, smell weed in
one room (PC). Knock on the door and hear scuffle
a. Knocking on door not enough to create exigent circum
b. Police like any other citizen- occupants can answer door and tell to go
away
b. Hot Pursuit
a. Rule: An arrest or search may be excused without a warrant if police are in “hot pursuit” of a
suspect and reasonably believe that the suspect may escape prior to the attainment of a warrant.
b. If lose the person pursuing and don’t know whether he in one door or another, cant just take a
guess
c. Rationale: The suspect in a hot pursuit is aware the police are seeking his apprehension, and
will be much more likely to seek escape, destroy evidence, or create a threat to public safety
d. Hypo: Police are chasing the suspect, he runs into his house and closes the door
i. Normally cops need a warrant to enter a home to make an arrest
ii. Here, the cops are in hot pursuit, don’t need one
c. Search incident to arrest NOT NEED WARRANT ORRRRR PC
i. Rule: A cop can search the person of an individual incident to his arrest without a
warrant, suspicion of evidence, exigency, exc. because it is per se reasonable.
1. Justification: preserve evidence, officer safety, decreased expectation of privacy
2. Robinson BRIGHT LINE RULE: No need PC or RS to search after arrest
a. Facts: Revoked drivers license and cigarette packet (couldn’t contain evid
related to arrest or weapon)- doesn’t matter. Can search!
3. Riley v. California
a. Rule: Cops may not search information in D’s phone incident to arrest
w/o a warrant
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b. Balancing Test: Way more intrusive (personal). Not protect officer safety
likely not destruction of evid. (already under arrest and it will be in evid
locker)
4. Arrest must have PC (be lawful under the 4th amen), but doesn’t matter if it is
unlawful under state law (ie. arrest prohibited for minor crimes)
a. Virginia v. Moore- If PC, doesn’t viol 4th amen just because state law
doesn’t allow custodial arrest
i. Facts: Arrested on suspended license, but state law prohibited
arrest for this offense- still not viol 4th
ii. Cant reconcile reliance on changing state law
ii. Searches of a Home/Grab Area Incident to Arrest
1. Rule: The reasonable search incident to an arrest includes the areas of the
arrestee’s person and the area within his immediate control. (person, pocket, small
containers on them, grab zone)
a. Evidence doesn’t have to be connected to the offense; search is per-se
reasonable
2. Chimel v. California: immediate grab area
a. Rule: Officer may to search an individual's immediate vicinity incident to
arrest.
b. Facts: Officers had an arrest warrant for defendant but not a search
warrant. They arrested the defendant in his house and then searched the
defendant's entire house.
c. Hold: SC held that a search of the entire house was not permissible under
the 4th amendment, but an officer may search the immediate vicinity
incident to arrest.
i. Case by Case basis of what defines "immediate vicinity" (no
concrete definition)
1. Not an automatic search of an entire room
ii. Considerations: Mobility of suspect (age/health); Location of
arrest; Proximity of the areas/effects searched
iii. Reasoning:
1. There is an inherent exigency whenever you arrest
someone
2. Access to weapons (concern for officer safety)
3. Access to evidence (we don't want evidence being
destroyed)
3. Hypo: Police follows D, waits to arrest him on purpose until he is in his house,
then does a grab area search and finds drugs.  This would be reasonable.
iii. Searches of an Automobile Incident to Arrest
1. This is made up of a series of rules
2. Old Rule: Belton Rule: officers are allowed to search the passenger area of the
vehicle (including the glove compartment) where the individuals are seated
incident to arrest.
a. Trunks are excluded if the trunk is separated.
b. Police could also open any containers that are found in the passenger area
3. 2009- Arizona v. Gant: limits Belton
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a. Facts: Cop searched the D’s vehicle and found cocaine in the jacket
pocket of a jacket located in the backseat of a car, after the defendant had
already been arrested, handcuffed, and locked in the patrol car.
b. Hold: SC held that the 4th amendment prohibited an officer from
searching the passenger compartment incident to arrest where the suspect
has been secured and cannot access the vehicle's interior.
c. Rule: Now, only 2 ways you can search the passenger compartment
incident to arrest:
i. When the suspect is not secure
1. Considering Chimel and Belton together, the ct holds that
police can search a vehicle after the occupant’s recent
arrest only when arrestee is unrestrained and within reach
of the passenger compartment, and objects within it.
2. Think of it as: D has access at the time of the search
ii. Officer has a reasonable belief that evidence relevant to the crime
of the arrest might be found in the vehicle.
1. Ie. DUI arrest- may search for alc in car; cf. drive on susp
license. Iffy if person has gun on them (bc legal under 2nd
amen so probs need more)
2. much more commonly used to justify searches
3. Allowed even if the suspect was secured before the search
4. This is inconsistent with Chimel because suspect cannot
access a weapon and there is no threat that evidence will be
destroyed. (But Chimmel= house, most protected area)
iii. Dissent (Scalia)- Police already trained in belton rule
iv. Justify birght-line Rule:
1. Reduce court future workload
2. Elim inquiry into subjective motives
3. Bright line easier to apply in spur of the moment
d. So, with this rule, as opposed to Belton, we do care what the cop is
thinking or what they believe (similar to Terry level of suspicion; PC is
not required)
iv. Pretextual Stop and Arrests IF HAVE PC- CT WONT LOOK INTO REBLENESS BY
BALANCING (unless in execution of search and seizure- ie. excessive force or knock
and announce)
1. No balancing bc pass constit lang (reble search and seizure) and too hard to det
reble officer
2. Equal protection clause not protect here bc stop not based solely on race (PC)
3. RULE: As long as officer has PC that the subject violated a statute that
allows arrest, there is not an unreble seizure, regardless of personal intent or
uniform enforcement
a. Atwater v. City of Lago Vista
i. Facts: D arrested for viol seatbelt law.
ii. Held: not unreble. PC existed that D violated statute which allows
for arrest
b. Reasoning: 4th amen applied on the spur- need to draw simple std
1. Rule: Pretext does not matter; there is no violation as long as the officer has
reasonable basis for the initial stop
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a. Subjective intent of the officer doesn’t matter
b. Whren v. United States
i. Cops pull D over for failure to use signal after following a car.
When the cops approach D has drugs in his hands. D argues that
cops normally don’t pull people over for a traffic violation like
this, and that it was just a pretext to do a search. COPS ADMIT
PRETEXT.
ii. Held: As long as PC to stop, that’s enough
d. Movable Objects/Automobile Exception- NEED PC (diff from search incident to arrest), NOT
NEED WARRANT
i. Rule: Police may search an automobile w/o a warrant, as long as they have probable
cause to believe it contains evidence of criminal activity
1. This is the Carroll Doctrine
ii. Vehicles movable so not practical to get warrant (exigent circumstances, destroying evid)
iii. Balance- gov need v. intrusion on indiv
1. Less intrusive to indiv to let go ahead and search
iv. Less Expectation of privacy in vehicle (regulated by gov.,
v. Chambers1. Rule: In addition to searching on the spot, as in Carroll, The police may seize a
car and search at the police station without a warrant if they have probable cause.
a. even though prior to the search the occupants had already been arrested
and placed in police custody
2. Ct said there was no difference in searching the car on the scene and searching the
car at the police station
a. The probable cause that the car contained evidence of criminal activity at
the scene is transferred to the police station
vi. EXCEPTION TO CARROLL:
1. Coolidge- (one yr later)a. If the car is not mobile and the nature of the search is unreasonable, then it
may require more than just PC.
b. Facts: Police search of a vehicle after it had been seized from D’s
driveway and towed to the police station. Then searched for fibers for over
a year.
c. Hold: SC refused to uphold a warrantless search of the vehicle, but it was
a plurality.
i. the automobile exception did not apply to these facts b/c the car
was not mobile when they searched it
ii. Also the search was unreasonable in scope/duration
d. Ct reasoned that just bc it’s a car doesn’t mean no 4th am
i. Still need to search in a manner that’s reasonable and seize for a
time that is reasonable
ii. Need some immediate need; car at home has less need to seize and
search than one on the road
1. Both the immediate need and the gov influence with cars
was decreased when it is towed out of D’s driveway
vii. Diff btw automobile and home:
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1. Motor homes: California v. Carney
a. Facts: After the youth left he told the agents D had provided him with
marijuana in exchange for sexual contact. The agents then conducted a
warrantless search of the motorhome and found marijuana and other
incriminating evidence.
b. Holding: the search was valid pursuant to the automobile exception.
i. Does the automobile resemble a car or a home?
ii. Automobile exception rationales:
1. Mobility
2. Diminished expectation of privacy (much less than a
home or office)
a. Often in the open, on public land, gov’s need to
regulate roads, registered, exc.
c. Rule: Clearest line is if it can be mobile, therefore creating an exigency
and implicating its level or privacy, then it can be searched w/o a warrant
when there is PC.
d. Would be different If the motorhome is hooked up to utilities or sitting on
blocks in a motor home residential park
2. Factors: Location, vehicle licensed, connected to utilities, access to public roads
viii. Automobile Inventory Exception
1. When a car has been impounded it is reasonable to inventory the car without a
search (South Dakota v. Opperman)
a. NONCRIMINAL CONTEXT so no PC required “the std of PC is related
to crim invest. Not routine, non-crim procedures”
b. Need to protect the owners property; need to protect from disputes from
lost property; need to protect officer safety
c. Maybe can help identify the owner of the car; help police respond to the
infraction that got it towed
d. If you are willing to let your car get towed then there is a less exp. of
privacy
2. The inventory search needs to be the product of a policy; a set routine for
searching (FL v. Wells)
a. Can't be just a pretext for an investigatory search
3. Dicta- if can prove pretext, might negate exception (seems contrary to Wren)
4.
ix. Containers in Cars
1. Basic Rule: The Fourth Amendment permits warrantless searches of containers
found in automobiles provided the police have probable cause that the container
contains contraband.
a. Just as officers can search a car without a warrant when police have
probable cause that the car contains contraband.
b. California v. Acevedo:
i. Rule: Officers can search any containers while searching a vehicle
pursuant to the automobile exception that are found in the vehicle
during the search. Place in car + car starts moving
ii. Facts: Officers had probable cause to believe that defendant had
marijuana in a bag that was located in the trunk of his car (tracked
brown pkg to house and D leave from house w pkg). Officers
31
stopped the car, opened the trunk, and found the marijuana. (car
had been mobile)
iii. Holding: Police may search an automobile and the containers
within in where they have probable cause to believe contraband or
evidence is contained within that car or vehicle.
iv. Having two different rules for the search of a car and the container
would be too complex
v. Note: that once the probable cause is gone the search cannot keep
going. Because the probable cause was based on the container in
this case, once the container is recovered and the drugs are found
within the police cannot continue and search the whole car.
1. EX: if the police had PC that the bag had drugs, they can
stop and search the bag w/o a warrant, but if they didn’t
find drugs, they couldn’t keep searching.
vi. Concurrence (Scalia): Police couldn’t search while walking to car,
but could once in car
c. PC TO SEARCH WHOLE CAR: If PC to search the ENTIRE car- can
search any container in it (even passenger stuff)
d. PC TO SEARCH ONLY STHING/SOMEWHERE IN CAR: If only PC to
search a bag in the car, must stop search after find no bag (if do find bag,
maybe this creates PC to keep looking)
2. Hypo: Cops have PC to believe evidence is in your car, but not in your bag. You
are walking to your car from the street
a. Police can’t search the bag
b. But, what about when you put the bag into your trunk, and the trunk is still
open?
i. Still protected,
can’t search
c. When you get into the
car?
i. The car still a heightened protection
d. BUT – Once the bag is in the car, and it’s a moving car, it’s a car
search and it’s not a container search, and there is a diminished
expectation of privacy
i. This allows a search of any part of the car, not just the grab area:
1. Cop can get into the trunk, etc.
a. If cop has PC to believe there are drugs in the car, there is no reason to
restrict the search to just the passenger area, can search trunk, etc.
2. Compare to search incident to arrest (Belton rule)
a. W/ search incident to arrest the officer does not need PC of illegal activity
beyond the charge they are being arrested for
b. Here, cop needs to have PC, but is able to search entire car
3. Technically the search can only extend to the area where you have PC to believe
evidence is, but in reality that extends to entire car 99% of the time
a. Ex: the court held that the police may not cut a lock to open a suitcase in
the trunk
32
b. Plain View and Plain Touch- ALWAYS WORKS IN CONJUNCTION WITH ANOTHER
RATIONALE
I.
Rule: PC is required for plain view searches. THE INCRIMINATING NATURE
OF THE ITEM MUST BE READILY APPARENT and must have warrant or other
exception to warrant to search
a. The officer must be justified in being where the object was seen/touched.
b. “It was in plain view and seized it” is not a justification. (Unless if the thing
seen is illegal then you would have PC to search/seize)
i. Warrant, search incident to arrest, these are all enough to search/seize.
But just plain view not enough
ii. Plain view + exigency, warrant, probable cause, exc = justified
II.
Three elements for plain view doctrine to kick in
a. Observation from a lawful vantage point (lawful to be where are when see)
b. Lawful access (lawful reason to be in home etc.)
c. Incriminating nature had to be immediately apparent (CANNOT MOVE TO
FIGURE OUT IF INCRIMINATING)
III.
Hypo: Elephant stolen from circus and see elephant in window of someone’s house.
Cant seize. Although lawful vantage point and incriminating nature immediately
apparent, no lawful access. Could be argued PC, but bc this home- need a warrant.
IV.
Arizona v. Hicks
a. Rule: Probable cause of the evidence’s incriminating character is necessary to
invoke the plain view doctrine to search/seize evidence. So, an officer taking
action to bring incriminating evidence into view is not allowed.
b. Cops are in an apartment investigating a shooting and see a ton of stereo
equipment that seems out of place (too nice for this apartment). The cop
moved the equipment around to see the serial numbers. Using the numbers the
cop learned that they were stolen
c. Court rejects this search, says that it fails to meet the third prong (immediately
apparent)
i. The incriminating nature must be immediately apparent, can’t touch it
to then later find out if they were stolen
ii. Because the officer lacked probable cause that the equipment was
stolen he may not move the equipment to see the numbers.
d. Note: if the search is reasonable, plain view isn’t measured at the start of the
search, but includes anything that comes into plain view during the course of a
lawful search.
V. Plain Touch Doctrine
a. Same concept as plain view
b. Recall w/ Terry: can frisk someone if there is reasonable suspicion that
someone is armed
i. Can pull evidence out if its immediately upon touch you can tell that it
is evidence of a crime
c. Allows someone to seize evidence during a frisk if
i. (1) officer immediately reognizes the incriminating nature of the item
ii. (2) officer has a right to be where he is located
iii. (3) officer has a right to be doing the frisk
VI.
Note: With plain-view and plain-touch doctrines reasonable mistake is okay.
e. Consent- DON’T NEED PC ORRRR WARRANT
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i. Voluntary consent: A search based on voly consent reble
1. No oblig to tell D don’t have to consent to search
ii. Consequences of Refusing Consent
1. A person cannot be penalized for exercising his or her right to refuse to consent to
a search
2. An officer is not permitted to consider a refusal to permit consent as evidence of
guilt that might lead to probable cause
iii. Impact of Custody
1. Rule: Voluntary consent can be obtained from a subject in custody
2. United States v. Watson
a. A person's custodial status is a relevant factor to whether consent was
voluntary but is not dispositive
b. Custody does make consent less voluntary (intimidation), but in general
consent can be obtained while D is in custody
iv. Totality of Circumstances Test for Consent
1. Rule: The prosecution must look at the totality of the circumstances to prove that
consent to a warrantless search was freely and voluntarily given. (look at subj
factors too- HS graduate? Young and black?)
a. Voluntariness is considered to be a lack of express or implied coercion.
2. Totality means the more factors lending to coercion that are present, the more
ammo D has to say that consent was not voluntary
a. Was D already under arrest? In handcuffs? In the squad car? Intimidation
language?
3. Schneckloth v. Bustamonte –
a. In performing a totality of the circumstances test, one factor would be if
the person was aware that they could refuse the search, but (Rule)
knowledge of refusal is not a required element of voluntary consent to a
search
i. To determine voluntariness the court should consider whether
there was implied or express coercion that made the confession not
truly voluntary.
b. So the prosecution needs to prove that there was no express or implied
coercion.
i. Unlike Miranda issues, often asking someone to consent to a
search does not reach the level of coercion.
4. United States v. Mendenhall:
a. Consent to accompany D.E.A. agents and have purse and person searched
found to be voluntary where she was asked not threatened to go with
agents; No physical force; Told she was free to decline consent
b. Non-exclusive/non-dispositive list of relevant factors:
i. Voluntariness of defendant's custodial status
ii. Presence of coercive police procedures
iii. Defendant's education and intelligence
iv. Threats of Action if Consent is Refused
v. Officers lie about in the process of getting warrant/right to search
v. Third-party consent
1. Rule: Third party can consent to the search of your property
34
a. Apt hypo: Two roommates, each has its own room. Each one can consent
to areas of the apartment with join access
i. Each roommate has actual authority to consent to search common
areas and own bedroom
2. Co-inhabitants:
a. Rule: Generally can give consent to search an area that one inhabits; the
police need not obtain consent from every person that lives there
b. Exception: If an inhabitant presently objects, the police cannot search
based on the other’s consent
c. Georgia v. Randolph
i. Rule: The police may not enter a home without a warrant to search
for evidence where they obtain consent from an occupant but a cooccupant is present and objects to the search.
ii. Facts: Randolph and wife are separated. Wife leaves and comes
back two months later and calls the police saying that Randolph
used drugs. Cops come to the home, Wife says they can search,
but Randolph says they can't search.
iii. Hold: B/C husband was physically present and didn't consent, the
officers could not lawfully search without a warrant.
iv. No hierarchy of cohabitants
1. But the person objecting has to physically be there to
refuse consent (Matlock- arrested in cop car outside
house- can still search)
a. Objecting later does not invalidate the consent
2. Officers can wait until they know the person who will
object will not be home and then obtain consent from a
roommate
a. Randolph holding is very narrow
3. Apparent authority
a. Rule: Mistake of fact is okay if rebly believe the consenter has auth
i. So if the officer searches after consent based on the reasonable
belief that the person has the authority to consent, then the search
is valid
b. Age is relevant to legal auth- Q: Was it reble to think the person had auth?
i. Toddler- less reble bc obvious at sight
ii. 12-13- not often they so young often
4. Scope of Consent
a. Space and time limitation to consent and can withdraw consent at any time
i. Hypo: If ask mind if I search your car? Sound like only giving
consent to search passenger container of car
b. Interpretation: Context of larger convo (if ask about drugs and want search
car- can imply consent to search anywhere drugs might be), Reble
meaning of words
5. Originalism
a. Stevens- Not like originalism here bc in 1700s wife had few rights in prop
law. This is absurd so shouldn’t adhere to originalism
35
b. COUNTER: Scalia- Rules about auth over prop evolved and interp in
context of changing rules
Searches and Seizures on Less than Probable Cause: Stop and Frisk (Terry):
I.
Originalism- not necessarily consistent here. BC in 1791, not have large law enforcement admin
II.
Stop and Frisk Established
a. 1959- Frank v. MD: 4th amen read to secure only when search in cnnx with CRIMINAL proceed
b. Camara v. Municipal CT: Overrule Frank- 4th purp to protect priv against arbitrary gov invasion
even in non-crim. Rebleness for admin search= PC.
c. 1968- Terry v. Ohio
i. Rule: To stop someone, police need a reasonable suspicion that they had or will commit a
crime (less than probable cause)
1. If after this the officer still believes a threat to himself or others exists, the officer
may conduct a limited search for weapons.
ii. Facts: McFadden on patrol, observed Terry and another man standing on the corner. They
took turns walking up and down the street and looking into a store window. Each did this
five or six times. A third man then joined then but then left and traveled up a certain
street. Terry and the other man then also left and traveled up the same street.
1. McFadden then approached then men, identified himself, and ask the men to
identify themselves. After Terry gave an incoherent response, McFadden grabbed
Terry, spun him around, so they were both facing the other men, and patted Terry
down outside his clothing. He felt a pistol inside of Terry's overcoat
iii. Did stopping and frisking Ds implicate the 4th Amendment?
1. Hold: Yes but SC said limited investigatory stop was reasonable because the
officer has reasonable suspicion
a. Then searching and seizing was reasonable after he felt the gun
iv. In this case, based on their behavior, it was reasonable for the officer to suspect the two
men were planning a robbery.
1. Furthermore, the officer’s pat-down was reasonable because his concerns were
not abated by what the two men had to say.
v. Dissent: Want create rule which not invite discretionary decisions based on race
1. NY Civil Liberties Union- 2% of time found weapon when stop and frisk (2% is
well below Terry Std.)
a. Normally if no arrest, no paperwork so maybe even less reliable than this
b. Indicate stopping wo RAS
c. More black than white (get more weapons out of whites than blacks tho)
d. Reasonable Articuable Suspicion Standard
i. Def: a reble articuable suspicion that the particular individual is engaged in wrongdoing
(or about to engage in wrongdoing)- Need INDIVIDUALIZED suspicion
1. Below probable cause - B/C a stop is less intrusive than an arrest, it can be
justified on a lesser showing of proof than probable cause required for arrest
ii. Wardlow- running away after seeing police in a high crime area [note: litigated at trial
what is a high crime area] is RAS (location + flight)
1. Flight v. walk away (right to go abt biz)
iii. Can stop if acting susp even if not know what crime will be (Wardlow)
iv. Objective- a reble person in the circum
1. As long as other reasons, race is fine reason bc not look into subj (accommodate
abusive discretion bc neither good faith nor bad faith is the test)
2. Area can be a factor- but need individualized suspicion as well
36
b.
c.
a.
b.
c.
3. Mexican appearance along border can be a factor, but alone not enough
(Brignoni-Ponce)
a. Now relevant too for terrorism
v. Test: The court should consider a totality of the circumstances to determine if a
reasonable officer in the officer’s position would suspect criminal wrongdoing.
1. Some courts have defined reasonable suspicion as a fair-possibility = "possible
cause"
Frisk Std
i. Officer must believe
1. 1.) armed and
2. 2.) Dangerous
ii. CANNOT frisk bc think have drugs
iii. CAN if see bulge that look like gun maybe (but 2nd amen makes this wried)
Ordering Out of Cars BRIGHT LINE RULE
i. In ord traffic stop, can always make driver (PA v. Mimms) and pass out of car (MD v.
Wilson)
1. In getting out of car, if see bulge and think weapon- auth to frisk
2. Concern officer safety trump int (over time, data that stops can lead to shooting)
3. Has to be legit stop
4. Already stopped car is the major intrusion so asking for this bit more is minor
Length and Scope of Terry Stop
i. Rule: Terry stop can only last as long as it takes for an officer to confirm or dispel the
reasonable suspicion
1. In traffic stop, auth for seizure end when task tied to traffic viol completed or
rebly should have been completed (Q: did officer unrebly slow traffic stop)
ii. Has to be limited/brief  The longer it is, more likely it is to be unreasonable
iii. EX: Illinois v. Caballes - dog sniff during a routine traffic stop. The stop had nothing to
do with drugs, so D challenged the dog sniff as a 4th am violation
1. Walking dog around is not a search under 4th
2. But the ct said that was fine as long as the dog sniff didn’t unreasonably extend
the stop
3. They had probable cause to stop and ticket for the traffic offense, so the additional
look isn't a violation because the dog is not violating your privacy and the stop is
not unreasonable.
i. Rule: Not permissible to fundamentally arrest someone under Terry (ask them to come
for questioning- Dunaway)
1. Reduced std allowed bc level of intrusion minimized (brief and temporary) and
taking from home to station not fit that
Note: It's helpful to consider these detentions as tier 1, tier 2, and tier 3 analysis
i. Go through the evolution of the search/detention
ii. Then go through the suspicion required for each one
1. Then consider the factors of the case to see if they meet the required level of
suspicion for that tier of detention
iii. Last consider if the all actions are consistent with what is allowed at that level
iv. EX: If someone runs from a tier 1 stop it wouldn't be obstruction, but if someone runs
from a tier 2 stop then it’s disobeying a lawful order aka obstruction.
Levels of encounters after Terry
i. Citizen interaction/Encounter (no need for suspicion)
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I.
1. Police can asks questions
2. Police can follow
3. Police can drive behind you
ii. Terry Stop/detention (need reasonable particularized suspicion)
1. WHAT IS ENCOUNTER V. DETENTION? See below
2. Brief Detention
3. Ask more questions
4. Police can make a limited frisk to ensure safety
a. REQUIRE: believe 1.) armed and 2.) dangerous
iii. Arrest (need probable cause)
1. Can detain and arrest
2. Handcuffs, detain, full search, interrogate
iv. Can shift up as develop RAS and PC. Can shift down as someone show you license for
firearm, etc.
Line between a police encounter and a Detention/seizure/Terry stop.
a. Detention (RAS) v. Encounter (No RAS) Test: A Fourth Amendment “seizure” occurs when
considering a totality of the circumstances, a reasonable person would believe that he is not free
to leave (decline request or terminate encounter- Drayton) under the circum.
i. REQUIRE SOME USE OF PHYS FORCE OR SHOW OF AUTH and SUBMISSION
TO AUTH (not seizure if person is running away!!!- need to be stopped firs [Hoordari]t)
ii. And the subject must either submit to the officer or be restrained
iii. Reble person std
1. Someone who knows rights and knows can assert (insulting to assume otherwiseDrayton)
2. Not take into account whether black and feared would be hurt if didn’t obey etc
3. Subjective motive of police not matter (ie. not matter if he WOULD have stopped
her if tried to leave unless comm this with D)
4. DIFFERENT FROM CONSENT TEST: Consent looks at subjective factors- if
uneducated, young, race- maybe consent wasn’t voly
a. Voliness in totality of circum
b. Q: 1.) Was consent given? 2.) Was it voly?
c. Indiv charac of D are relevant
d. Note: If detained unlawfully, consent doesn’t matter
b. DETENTION AND CONSENT (voly go into room or voly search) CASES:
c. United States v. Mendenhall: (no seizure)- woman in airprt strip search case
i. Facts: Defendant got off of airplane that arrived in Detroit from L.A. and was approached
by D.E.A. agents who suspected her of narcotics trafficking based on her profile.
1. The agents testified that they decided to question Mendenhall because she was
behaving in a way typical of people illegally transporting drugs.
a. This is a good example of the problems and abuses of the "drug courier
profile" (set of charac or behavior that lead to conclusion contraband)legit basis for RAS if legit profile (TCT decide legit profile)
ii. D gave the agents her driver's license and ticket. The license had the defendant's name
while the ticket did not. After some questioning, Defendant was asked to go with agents
into another room for question. She did and there she consented to a search of her person
and handbag where the agents uncovered heroin.
iii. Issue: Was the defendant seized (reasonable suspicion required for a terry stop) or was
the interaction with the police merely an encounter (no level of suspicion required)
38
iv. Test: Free to leave test is the general test when deciding whether something is an
encounter or a Terry Stop
v. Holding: The interaction with the police was an encounter not a Terry Stop because a
totality of the circumstances would not lead to a reasonable person thinking they were not
free to leave
vi. Factors to consider to determine if a reasonable person would feel free to leave:
1. If try to leave and told cant
2. Location of the initial stop/questioning
3. Threating presence of several officers
4. Display of a weapon by an officer (and how it’s displayed)
5. Physical touching of the person
6. Use of language/tone indicating that compliance would be compelled
vii. Here the court found that no seizure had occurred so her later consent was voluntary and
the evidence obtained is valid (voly even tho uneducated, black, woman)
d. United States v. Drayton: Bus case
i. Insulting to assume indiv not aware of rights and don’t know they can say no
ii. Rule: Officers may ask to search anyone, without suspicion, and it is not a seizure if a
reasonable person would feel free to leave.
1. The setting (i.e. a bus) may be a factor in if a person would feel free to leave, but
it is not dispositive deciding if there was a 4th am violation.
iii. Facts: Ds were riding a greyhound that had made a scheduled stop. Cops got on board for
a routine drug and weapons search. Officers were in plain clothes but had concealed
weapons and visible badges. One officer stayed at the front of the bus while the other
went down the rows questioning the passengers. Officer asked Ds if he could search their
bags. They consented to the search and narcotics were found.
iv. The court said this was not a seizure because the officer's gave no reason to believe that
the D’s were required to comply
1. Spoke to passengers in "quiet/polite" voice; No force; No blocking of exists (but
officer was stationed at the front)
2. Totality of the circumstances indicates that D’s were not in custody, thus consent
was voluntary, and searches were therefore reasonable
v. Also, After one D was searched and drugs were found, that doesn’t mean the second D
automatically felt coerced to consent to the search Note: this measure is by a “reasonable
innocent person”  so arguing “there is no way the D’s didn’t feel compelled to let them
search because they would not have allowed the search knowing they had drugs
otherwise” fails
e. Note: Often this analysis looks like: Was this a detention (free to leave)?  Was there
justification for a detention?  Did the brief detention evolve to custody?  Was the custody
justified?  Did the subject consent/Was it voluntary?  Was the search reasonable?
f. Rule: For it to be a “seizure” the subject must either submit or be physically restrained
i. California v. Hodari D.
1. Facts: suspect refuses to submit to a show of authority (unlike the consent given
in Mendenhall and Drayton) Two police officers were on patrol, saw kids, and the
kids ran. Just before one officer caught up with him, D tossed the crack cocaine
he had been carrying.
2. Ct said that a Fourth Amendment seizure occurs when:
a. a citizen submits to a show of police authority or
b. A citizen is physically restrained by an officer.
39
I.
3. So, where an officer engages in a non-physical show of authority, it must be
such that a reasonable person would (1) not feel free to leave, and (2) the
citizen must actually submit.
a. This adds too Mendenhall “free to leave” rule in that the person must
comply. (otherwise they are not “seized”)
b. Hold: Therefore, when Hodari D. was fleeing the police, he was not yet
subject to a Fourth Amendment seizure, and D discarding the drugs was
not a fruit of that seizure.
4. Also we don’t want to incentivize people to not comply with police orders by
giving them the same protection from searches.
Line between terry stop and Arrest
a. Florida v. Royer
i. Rule: During a Terry Stop the officers cannot move the suspect to another location without a
legitimate law enforcement purpose.
1. Moving the suspect to interrogate requires probable cause as a detainment, and a
suspect's consent to a warrantless search/seizure is invalid if the suspect was illegally
detained at the time it was given.
ii. In Terry, there was a forcible movement -the officer told the men to go inside the store after
he found the first gun and patted the rest of them down
1. But that had a safety and containment interest. (EX: Officers are allowed to ask
driver/passenger to get out of the car after a stop to ensure safety.)
iii. In this case Royer was asked questions by customs agents after they suspected him of
trafficking drugs (encounter)
1. They had reasonable suspicion for a brief investigatory stop (Terry Stop)
2. But then they took him to an interrogation room for no legit purpose (detainment)
a. This is more than a short investigative detention under Terry
i. So the consent given during the unlawful detainment was invalid
iv. There would have been no issue if the stop was short and he was free to leave, but here the
circumstances would make a reasonable person feel like he was being detained.
1. Terry Stop must be temporary and last no longer than is necessary
a. Dunaway v. New York
v. Rule: Police need PC to bring a suspect into formal police custody and interrogate him, bc
that action is beyond the scope allowed by a Terry Stop.
vi. A police detective received tip that D committed crime (only had reasonable suspicion). Cops
requested that D come in for questioning, and D complied. D was not under arrest, but he
was read his Miranda warnings, and would have been restrained had he tried to leave.
Eventually, D made incriminating statements.
vii. Hold: Ct excluded the evidence because to lawfully bring a suspect into formal police
custody and interrogate him at the police station, the police must have probable cause.
1. The detention at that point moved away from a brief stop to protect the officer or as
an information gathering tactic
2. The rule in Terry does not extend to situations where the suspect is brought into the
police station. (this is too great an intrusion)
b. What is reasonable suspicion:
i. Suspicion based on specific and articulable facts, taken together with rational inferences
from those facts that the specific individual is involved in criminal wrongdoing.
1. Objective standard considering a totality of the circumstances
40
II.
ii. Rule: Flight after seeing police in a high crime area likely will raise a reasonable suspicion
justifying a brief detention
1. Illinois v. Wardlow
a. Facts: Officers were patrolling a high crime area (common police
justification) in Chicago and observed the defendant standing near a building
holding a bag. When the defendant saw the officers he fled. Officers pursued
the defendant and stopped him. A search revealed the presence of a loaded
gun in the bag.
b. Holding: While unprovoked flight is not conclusive of criminal activity it did
raise reasonable suspicion to justify a Terry Stop in this case
i. Not a bright-line rule; consider the totality of the circumstances test
ii. Flight, the bag, and the high crime area is suggestive of crime
c. In Florida v. Royer the Court held that a person who is stopped by an officer
without reasonable suspicion or probable cause may ignore the officer and
continue on his way. But running is not exercising this right, it is suspicious.
d. Note: perfectly innocent explanations does not negate reasonable suspicion
for a terry stop
iii. Note: Failure to cooperate is not alone a valid basis for reasonable suspicion, but the way in
which you do not cooperate may be
Corroboration of Anonymous Tips Under Terry: (Anonymous diff from CI or concerned
citizen- quality of info matter more)
a. Alabama v. White – Part. Person leaving apt at time in station wagon with broken
taillight and go to motel (stopped b4 got to motel). Enough bc PREDICTION ABOUT
FUTURE BEHAVIOR (more reliable)
i. Rule: Officers should measure the reliability of a tip considering a totality of the
circumstances.
1. An anonymous tip that is "significantly corroborated" by police provides
reasonable suspicion for a stop.
a. Factors to test the tip: veracity, reliability, and basis for knowledge
ii. Hold: When the police stopped White’s car, the informant’s tip had been sufficiently
verified to support reasonable suspicion and the stop was lawful.
iii. Test: Under the totality of the circumstances does the tip to the officer give
particularized reasonable suspicion of illegal activity
1. Anonymous tip's ability to predict future behavior is important b/c it
demonstrated inside information that the general public would not know.
b. Florida v. J.L.- Tell police young white man in plaid shirt carry gun. NOT SUFFIC INFO bc
NO PREDICTIVE VALUE
i. The ct said that this wasn’t a lawful detention bc the tip was not predictive enough to
justify the reasonable suspicion needed to detain.
ii. In an analysis you should look at the verifiability of tips and the credibility of the
tipster
c. Hypo: Same facts as Florida v. J.L. but tipster indicates that the man is going to shoot a
school.
i. This tip is treated differently because of the gravity of the situation (dicta in J.L.)
d. Note: A face-to-face anonymous tip is presumed to be inherently more reliable than an
anonymous telephone tip b/c officers have the opportunity to observe the demeanor and
perceived credibility of the informant.
i. Also if the officers have a relationship with a CI would be more reliable
41
Administrative Searches-PURPOSE OF SEARCH MAY NOT BE TO OBTAIN EVID OF CRIME (4th amen
still apply but to determine rebleness- apply balancing test)
III.
Analysis
a. Q1: Non-criminal law enforcement interest?
i. Subjective motivations make a difference
b. Q2: TEST: Balance gov int (need some kind of justification/special need) against degree of
invasion of an indiv’s reble expec of priv/ interest (diminished expec of priv; how intrusive?)
IV.
Safety Inspection of Homes- NO PC
V.
Admin Search of biz- NO PC OR WARRANT
a. Burger- Must be Closely regulated industry so less reble expec of priv. And more gov
interest
VI.
Roadblock – By def suspicionless search (net even RAS or PC)- Justify: Gov int in public safety
a. Rule: Checkpoint cannot have the primary purpose of gathering criminal evidence. Need
immediacy of public safety (diff btw DUI [immed] and drug roadblock)
b. Have to have a policy- no discretion to indiv officers (must stop every car and do same
things)
c. Can have secondary purp (can ask other Q’s as long as not extend length of stop)
a. City of Indianapolis v. Edmond:
i. Facts: City set up road-blocks in an effort to find unlawful drugs.
ii. Primary Purpose Test: The court has never upheld a checkpoint whose primary purpose
was to detect evidence of ordinary criminal wrong-doing
1. The Primary Purpose of the drug-checkpoint was to detect evidence of ordinary
criminal wrong-doing and therefore the checkpoint violated the 4th Amendment
iii. Distinguishable from Michigan Department of State Police v. Sitz (getting drunkdrivers off the road) and Furete (border safety)
1. These are circumstances were a check-point whose primary purpose was
reasonably targeted or limited to stopping a particular activity (others: Terrorism,
Catch a dangerous criminal)
2. A search of seizure is ordinarily unreasonable “in the absence of individualized
suspicion of wrongdoing.”
iv. Note: only examines primary purpose, if secondary purpose was to stop crime, that may
be ok
II.
Inventory searches and Towing
a. Rule: Police are allowed to tow vehicles and conduct inventory searches
b. Towing has a community interest; inventory protects the owner's property interest; protects the
police against claims of lost or stolen property; and protects police and public from potential
danger.
c. Note: If they find contraband, can use that as evidence
VII.
Special Needs
a. Searches of students- ENFORCING SCHOOL RULES, NOT CRIM LAW [want to not
have officer do search etc.]
i. Rule: Student can be searched with reasonable suspicion, but the search must be
reasonable considering the level of suspicion.
ii. New Jersey v. TLO
1. student searched who was reasonably suspected of possessing an item that
violated school rules (cigarettes)
2. Ct said that reasonable suspicion standard to justify search was sufficient to
protect the student's diminished expectation of privacy in the school setting.
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a. LIMITATION: Search must be performed reasonably (cant be
excessive)
i. Safford- Strip search for ibuprofen and no reason to believe in
underwear. Need reason to believe need to go that far also not
danger to peers here
3. Diminished expectation of privacy v. gov.'s need for safety and educational
atmosphere
4. Std here= reble grounds
iii. What if student had weed in her purse?
1. Same result
iv. What if they had PC to believe that bubblegum was in her purse, and it was against
school regulation?
1. Same results: school rules and lowered expectation of privacy
b. Drug-Testing Employees
i. Rule: warrantless drug testing of employees as long as it is reasonable considering
the employment and purpose of the testing creating a special need to test.
ii. Skinner v. Railway Labor Executives' Association
1. SC upheld warrantless drug-testing of all railroad personnel involved in
certain accidents
2. Individual liberties v. promotion of legitimate gov. interest.
3. Slightly intrusive and the governments interest of regulating the conduct of
railroad employees to ensure safety presents "special needs" beyond normal
law enforcement.
iii. National Treasury Employees v. Von Raab
1. Facts: Program by U.S. Customs which mandated the drug testing of
employees seeking a transfer or promotion to positions involving drug
interdiction, firearms, and classified documents.
a. A positive result without explanation could result in dismissal from the
service.
2. SC upheld the program as reasonable b/c these classes of employees had a
diminished expectation of privacy b/c the positions uniquely depended on the
employee’s judgment and dexterity.
a. And preventing the elevation of drug users to these sensitive positions
was compelling and constituted a special need.
c. Drug-Testing Politicians
i. Rule: to justify the warrantless search the exigency must constitute a “special
need”/evidence this is a problem
ii. Chandler v. Miller
1. SCOTUS struck down a GA statute requiring politicians to get a drug test 30
days before qualifying for nomination or election
a. State failed to make a demonstration of "special need"
i. Easy to avoid drug test bc not random so not prevent anything
and no evidence this is a problem
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d. Drug-Testing Schoolchildren
i. Rule: In come contexts the diminished expectation of privacy combines with a
special need to create an exigency.
ii. Board of Education v. Earls
1. Facts: BOE required all students that participated in any extracurricular (not
just athletics) submit to drug testing.
2. Holding: SC held that the program was reasonable under the 4th Amendment
as student's have a diminished expectation at school and the government has
an interest in battling the war on drugs
a. Testing procedures respected personal dignity
b. Students went into this with their eyes wide open
e. Drug-Testing of pregnant women
i. Rule: The exigency should be divorced from regular criminal investigation
ii. Ferguson v. City of Charleston:
1. SC struck down a program administered by a South Carolina hospital that
required pregnant women who were suspected cocaine users to submit to a
drug test.
a. Unlike special needs asserted in other cases the state's interest here
was not sufficiently divorced from criminal law enforcement.
b. Here, the goal was to generate evidence. The program included police
notification and arrest procedures and warned that in the event of a
positive test a women could be criminally prosecuted
Remedies for Fourth Amendment Violations
I.
Exclusionary Rule
a. CT justify by original intent (not derive from constit)
i. Dissent: Cant apply something within supervisory power of indiv cts to states
b. Justification:
i. 1.) Deter police viol of 4th
ii. 2.) Judicial integrity
c. General Rule: when there is a constitutional breach (breach of rights) the evidence that is a
byproduct of that breach is excluded because without exclusion the constitutional protection
would be meaningless
i. This is just in theory. There are lots of exceptions
d. Weeks v. United States:
i. Court ruled that evidence obtained in violation of 4th Amendment must be excluded in
federal court
1. Reasoned that the Fourth Amendment’s protections against unreasonable searches
and seizures would be unenforceable if evidence obtained in violation of the
amendment were still permitted to be entered into evidence.
e. Wolf v. Colorado: (2 important rulings)
i. Rule: The 4th am violation is the search/seizure not inclusion of its evidence, so evidence
from the search/seizure need not be excluded from state criminal proceedings
ii. It is a violation of the Due Process Clause of the Fourteenth Amendment for state actors
to gather evidence through unreasonable searches and seizures,
iii. But such evidence need not be excluded from state criminal proceedings.
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II.
1. So right to be free from unreasonable search is a fundamental right, but the
inclusion of evidence from such a search does not violate that fundamental right
f. Exclusionary rule not apply to grand jury (Calandra)
i. Balance: Not much deterent effect
g. Mapp v. Ohio: (Ct Overruled Wolf v. Colorado)
i. Rule: Evidence obtained through an unreasonable search and seizure in violation of the
Fourth Amendment is inadmissible in state criminal proceedings.
1. This has since been riddled with exceptions
ii. Ct said that excluding such evidence was the only way to vindicate the rights guaranteed
by the Fourth Amendment.
iii. Exclusion deters flagrant government abuse of 4th Amendment rights and ensures
Judicial Integrity because nothing can destroy a government faster than its failure to
observe its own laws, or worse, its disregard of the charter of its own existence
iv. Open up 90% criminal proceedings to BOR
h. Modern Rule: Exclusionary rule will be applied where it serves the policy reasons supporting
exclusion, which is to deter from bad-faith police violations.
i. Test: Is the police misconduct so bad that it warrants the harsh effects of the exclusionary
rule? (balancing test)
ii. Note: normally the exclusionary rule doesn’t apply with grand juries, in civil cases, for
impeachment
1. Wouldn’t exclude evidence that isn’t fruit from the poisoned tree, from an
independent source, r would have been inevitably discovered
Exceptions to the exclusionary rule:
a. Basic Rule: If the excluding the evidence does not fulfill policies behind the exclusionary rule
(deterrence), then the court will not exclude relevant and probative evidence.
i. Need to compare the policy of exclusion to the social cost of excluding
b. EXs:
i. Good-faith
ii. Attenuation
iii. Causation
iv. Independent Source Doctrine
v. Inevitable Discovery Doctrine
c. Good Faith NOTE: In GA, no good faith exception (Gary case)
i. Deterence= only policy reason for exclusionary (not acct for judicial integrity)
ii. Rule: When an officer reasonably relies on decisions of magistrate issuing warrant,
statute, computer system, or other police officials then exclusionary rule does not apply
1. Generally, if officer was acting in good faith evidence shouldn’t be excluded
2. The purpose of exclusion is to punish negligent cops, but to deter
3. OBJECTIVE GOOD FAITH- only matter if reble officer would think valid (not
matter if subjvly knew warrant was bad)
iii. United States v. Leon
1. Rule: Evidence will not be excluded when officer is acting in good-faith on a
warrant issued by a magistrate
2. In this case warrant was issued, but it was later found to be unsupported by
probable cause. But on its fact the warrant looked valid and the police executed it.
3. Ct allowed the evidence because penalizing an officer for magistrate's error does
not further the purposes of the exclusionary rule, namely deterrence
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4. Dissent: Amendment directly contemplates that some reliable and incriminating
evidence will be lost to government violation of the amendment
iv. “Exceptions” to the Good Faith Exception (from Leon)
1. Affidavit submitted to the magistrate contained false information that the affiant
knew was false (or had reckless disregard for the truth)
2. Magistrate abdicates judicial role
a. If they aren’t neutral (like being paid for the warrants)
3. The warrant is so facially deficient, based on the circumstances, that the executing
officers cannot reasonably presume it to be valid
a. Ex: failing to particularize the place to be searched or things to be seized
v. Arizona v. Evans: Clerical Errors
1. Police relied on an error in the computer system which stated that defendant had a
warrant for an arrest where no warrant actually existed and during a search
incident to arrest drugs were found.
2. Evidence was not excluded bc the error was with the court clerks not the police so
excluding the evidence would not serve the police misconduct deterrence
rationale of the exclusionary rule
vi. Herring v. United States: Isolated Negligence
1. Facts: cop pulled D over, thought he was sketchy so he looked him up. The
computer system said he had a warrant out. Officer then arrested him, and a
search incident to arrest revealed drugs and a gun. Later it turned out that the
computer was wrong and there was no warrant (basis for the arrest then search)
a. Unlike Krull and Leon in this situation the error was with the cops
2. Holding: Evidence still not suppressed,
a. Fault was with police, but it was the result of negligence
3. With isolated negligence there is no appreciable deterrence obtained by exclusion
a. To trigger the exclusionary rule, the police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it and the misconduct
must be sufficiently culpable that such deterrence is worth the price paid
by the justice system
b. Court suggest that reckless/deliberate error would reach this level
4. Genera rule: if fault is with the police but it is merely negligence, exclusionary
rule doesn’t apply
d. Attenuation Exception
i. Rule: Evidence that has been acquired through illegal police conduct is admissible when
it has been so far removed from the illegal action that the taint of illegality has dissipated.
ii. Wong Sun v. United States
1. Facts: Cops obtained statements from D1 after arresting him w/o probable cause
(which should be excluded) then D1's inadmissible statements led cops to D2
whose statements led cops to D3.
a. D3 was then arrested and released (arrest was the fruit from the poisoned
tree from the wrongful arrest of D1)
b. Several days after D3 was released, D3 voluntarily returned and confessed
2. Holding: Arrest of D3 (Wong Sun) was illegal, but his statements made after he
left and returned were admissible b/c the taint of the illegal arrest had sufficiently
dissipated
a. It is clear that the confession would not have occurred but for his arrest,
and it is likely a byproduct of his arrest. But, the court did not suppress the
46
statements because several days had passed and the connection between
his unlawful arrest and his statement had become so attenuated as to
dissipate the taint of illegality.
iii. Hypo: If illegal stop but then shot at- attenuation btw stop and shooting
iv. Intervening time or conduct to decrease amount of cause
e. Causation exception
i. Rule: Even if there is a violation, the Court will allow evidence that is not found But-For
the violation
ii. Hudson v. Michigan: Knock and Announce
1. Cops had a warrant, practically ignored the knock and announce requirement, and
during the search found guns and drugs
2. Holding: evidence shouldn’t be suppressed because the violation was not a but-for
cause of the police finding of the evidence.
a. If the cops had waited 20 seconds, the evidence would still be found
b. This rule doesn’t go both ways. Must be but-for to suppress, but just bc it
is was found but-for of the violation doesn’t mean it need be suppressed
3. In addition, the exclusionary rule only applies where its ability to deter police
misconduct outweighs the cost to society of letting criminals go. (Test)
4. Suppression is a last resort not a first impulse bc of its high social costs
5. Little deterrent effect here and civil suit does better to deter
iii. Dissent: no exclusion destroys practicality of the requirement.
f. Independent Source
i. Rule: Evidence will not be excluded if it could have been obtained independently and
without reliance on any illegal police activity.
1. TEST: Remove part that unconstit and if ehat’s left is enough for PC- indep
source
ii. Murray v. United States
1. Facts: Cops entered a warehouse where they had PC of illegal activity then go get
warrant, but not base on information gained during the illegal entry of the
warehouse the cops got a warrant to search the warehouse and found marijuana.
2. Hold: If you have an independent source from where you get the evidence other
than the constitutional breach then the evidence will not be suppressed
3. If we suppressed the evidence, we would be putting police in a worse position had
they not committed the constitutional breach, and we want to put the police in the
same position
a. Really this just allows the police to verify their suspicions before going
through the whole process (efficiency > principle)
b. No deterrent effect of excluding bc the info from the search couldn’t be
used w/o getting a warrant and going back
g. Inevitable Discovery
i. Rule: Evidence will be admissible if the gov can show that the illegally obtained
evidence would have been discovered through legitimate means independent of the
official misconduct
1. One step removed from independent source
ii. Hypo: Lawful stop and arrest for seatbelt violation followed by an illegal search under
Gant. During search drugs are found.
1. Even though it is a bad search the car would have been towed and the evidence
would have been found pursuant to an inventory search.
47
III.
iii. Nix v. Williams- Cant find body. Interrog violating 4th but find body from it. State prove
given the search was wi a couple of hours of finding anyway- could use evid from the
body.
Standing to have evidence excluded
a. CT completely adopt individual approach to 4th (The people= the indiv)
b. Back to prop rights theory a lot of times (esp with house guests)
c. Rule: The only people who have standing to challenge the search is those whose 4th Amendment
rights were violated
i. So the D must have had a reasonable expectation of privacy in the area that was searched.
d. Rakas v. Illinois
i. Petitioners were passengers in a car that was subject to a search. Found gun in car both of
these things were not D’s but implicated D’s.
1. Argue: Search of vehicle wrong bc no PC.
ii. The court said that these passengers did not have standing to claim a 4th am. violation
iii. The correct inquiry for standing is: whether the criminal defendant had a legitimate
expectation of privacy in the place/item that was searched or seized. (spouse, children,
etc. might have priv int in car)
1. Just because someone is "legitimately on the premises" is not enough
iv. Note: Every case where someone claims a 4th am violation they need to show standing
v. Dissent: It is unreasonable that however unlawful a stop and search of a car is, absent a
possessory or ownership interest, no passenger can object. Reb;e expec of priv, not just
prop int
vi. Everyone has reduced expec of priv in car and so pass’s almost drops out
e. Note: Ownership of property gives standing to object if property is seized b/c seizure by
definition is an intrusion upon ownership
i. However, ownership of item does not in itself confer a reasonable expectation of privacy
in the area the item is in.
f. Guests:
i. Olson- Robbery murder suspect is overnight guest in home
1. Enough of guest to have reble expec of priv
ii. Minnesota v. Carter
1. Facts: Ds were using another person's apartment to package drugs for a few hours
f
2. Majority: The court said that this was not enough to give the defendant a
reasonable expectation of privacy giving the defendant standing to claim a 4th
amendment violation
a. You have a reasonable expectation of privacy where you live and
overnight guests also have a reasonable expectation of privacy in the area
in which they stay
3. Scalia: Guests don’t have a reasonable expectation of privacy
4. Kennedy: Social guests have standing. But, defendants here were not social guest
they were business guest and business guests do not have standing
5. Breyer: D's did have a reasonable expectation of privacy but it was not violated
a. Police stood outside and looked into the window. This is not an illegal
search under 4th Amendment so the D's lose
6. Ginsburg: If you share a similar enterprise with someone living in the home then
you have a reasonable expectation of privacy So, D's had an expectation of
privacy in the home of their business associate
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iii. Considerations: CONNECTIONS TO OWNERSHIP
1. How long stayed there
2. Engage in commerce
3. Have a key
4. Stayed overnight in past
5. Paid to stay there (right to posses as strong as owner’s)
The Fifth Amendment
NOTE: THERE IS MIRANDA ARG THEN THERE IS VOLINESS ARG AND DP
I.
II.
III.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a grand jury, … nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor shall private property be taken
for public use, without just compensation."
General principle: the government can’t force you to provide certain types of information, and then use
it against you in criminal proceedings
a. When Rule: D allowed to assert 5th Amendment privilege whenever there is a reasonable chance
that the government will use the utterance against you in a future criminal proceeding
i. So you don’t have to be the one on trial.
b. Who Rule: This is a personal privilege applying only to “natural individuals” and the only right
is to not incriminate yourself
c. But of course, there are lots of exceptions:
i. Ex: Applies only to criminal cases
1. Government can compel you to give info for use in a civil case
ii. Ex: Only applies to information that the government forces/compels you to give them
1. It doesn’t apply to things you voluntarily tell them
2. CO v. Connerley- being told to confess by voices in head- not gov coercing
d. Waiver of the 5th Amendment Privilege
i. If you choose to answer questions then that choice must be made knowingly and
voluntarily, and courts have required certain procedures for the gov to follow to ensure
that interactions are free from coercion.
ii. A defendant who elects to testify at trial, more often than not, is found to have made a
knowing and voluntary decision to waive this privilege.
e. TRIAL RIGHT
i. Torture is not necly 5th amen viol (14th amen DP viol instead)
1. Note: 8th amen cruel and unusual “PUNISHMENT” means sentencing- so torture
to get info pre-trial not fall under
2. Chavez- shot in face and refused pain meds at hospital until speak with police but
never prosecuted- no 5th amen viol.
Due Process: Involuntary Confessions and the Due Process Clause
a. Confessions
i. 3 constitutional issues
1. 5th Amendment Privilege against Self-Incrimination
a. Was privilege knowingly and voluntarily waived?
b. “must be a witness”- needs to be some trial/criminal process for this right
to kick in. Procedural right
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IV.
2. 5th Amendment Due Process
a. Was the statement involuntary (coercion)?
3. 6th Amendment Right to Counsel
a. Was the person withheld proper counsel?
ii. Note: Sometimes you can get statements that are just not voluntary separate inquiry from
self-incrimination.
1. This would be the result of coercive methods
a. Ex: gun to head, beat the person
b. This would be a violation of 5th Amendment Due Process
b. Interrogations
i. More invasive than 4th amen collecting evid bc searching someone’s mind, personal
interactions inherent, last for a long time
Voluntariness Review and the 5th and 14th Due Process Clauses
a. Rationale for voluntariness:
i. Security interests- protect people from morally wrong being compelled
ii. Reliability of statement
b. The Emergence of the Due Process Voluntariness Review
i. Brown v. Mississippi: Court. adopts due process framework for analyzing voluntariness
1. Confession through violence violates the defendant’s fundamental right to due
process under the 14th am.
a. Ct didn’t go through the 5th amendment bc that didn’t apply to the states
2. Due Process is still the primary constitutional basis for excluding involuntary
statements, excluding Miranda issues.
c. Voluntariness Test
i. Lisbena v. California
1. Rule: Coerced confessions violate due process and may not be admitted at trial.
But confessions are admissible when they are voluntary considering all the
evidence of the confession.
a. Violation of state law or ethics by police do not reach a due process
violation
2. D was indicted for the murder of his wife. During interrogation, D confessed.
3. In this case, the police acted illegally when one officer hit D, denied counsel and
when they failed to promptly bring James before a magistrate.
a. However this was not a violation of due process and therefore the
confession need not be excluded as evidence at trial.
i. This illegal conduct does not amount to a denial of James’ due
process rights because the acts he complains of did not affect the
fairness of the trial.
b. No evidence that the confession was not freely and voluntarily given.
ii. if a confession or implication was voluntary considering the totality of the circumstances
1. Mental state / capacity of the D
2. Age/education of the D
3. Does the D know who they are being questioned by
4. How they are asked questions (tone of voice)
5. Are they threatened
6. Are they physically harmed
7. Are they promised anything
8. Does the questioner leverage any personal knowledge of the defendant
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V.
9. If there is an attorney present
10. Length of interrogation
11. time of interrogation
12. Knew nature of offense
iii. 1959- Spano v. New York
1. Rule: A coerced confession made after hours of interrogation without counsel
present is not made voluntarily and is therefore inadmissible at trial
2. D turned himself in for killing someone in a bar fight. Numerous police officers
interrogated for hours. D didn’t answer and made repeated requests for his
attorney. Friend who was a cop played to D’s sympathies. The friend finally got
him to confess by D answering the prosecutor’s leading questions.
a. The court ruled that considering a totality of the circumstances this
confession was not voluntary because the tactics violated D’s fundamental
rights
b. Factors: He invoked his right to remain silent and they kept questioning;
denied him his right to counsel; used his friend against him; used extended
periods of questioning to wear him down; multiple officers were used;
cops used leading questions for the confession
c. Length of time, individual characteristic (education, age, mental ability,
intox), methodology
iv. AZ v. Fulminate
1. Facts: In prison and informant says Ill protect you if you tell me
2. Held: Coerced confession bc making promises in exchange for confession
3. Dissent: This was not an official interrogation
v. 1897- Bram
1. Coercion= direct or implied promise or threat however slight
a. Law cant msr force of infl on mind of prisoner
b. Now, more autonomy and free will assumed
The Miranda Rule
a. Checklist:
i. NOTE: If sttmt invol by gov coercion- Miranda irrelevant bc 5th amen violation
(compelled to give evid against self) and DP (Brown v. MS)
ii. 1.) D in custody?
iii. 2.) Interrog?
1. How
2. And by whom
iv. 3.) Police inform of Miranda right?
v. 4.) Waive rights?
vi. 5.) Waiver voly and knowingly?
vii. 6.) If no Miranda- exception that relieve of oblig?
viii. 7.) Even if no excep- is evidence admissible bc
1. Fruit of poisonous tree doctrine
2. In gvt’s case in chief
3. Impeachment of D if testifies
b. Basically, in a custodial interrogation, the government has to advise you on your 5th am rights
c. Rationale:
i. Psychological coercion (want to undermine will to resist/undermine voliness)- create
more level playing field
51
d.
e.
f.
g.
h.
1. Note: deception is okay
ii. Hard to know exactly what happen in interrogations
iii. Dissent: Fear shut down abil to take confessions; creating law and stepping beyond
judicial role bc this not in constit
Rule: Prior to the commencement of custodial interrogation, an individual must be warned prior
to any questioning that he has the right to remain silent, that anything he says can be used against
him in a ct. of law, that he has the right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to questioning if he so desires
i. Applies to misdemeanors and felonies as long as they are
1. (1) in custody
a. Note: Undercover police questioning is not Miranda bc no custody
2. and (2) interrogated
ii. For enforcement of this rule, any statements obtained by virtue of custodial interrogation
in the absence of Miranda warnings will be deemed involuntary
1. WAIVER
a. Note: diff from 4th waiver (4th- don’t have to tell rights[Drayton]- Too
complicated to explain)
b. Custodial suspect may waive his Miranda rights if he does so knowingly,
intelligently and voluntarily (waiver must be express)
c. It is the individual suspect who must insist invoke this right clearly.
Two requirements for Miranda Rule to apply
i. In custody: Suspect must be in custody, Under arrest, or tantamount to arrest (can show it
is basically an arrest)
1. Test: Taken into custody or otherwise deprived freedom of action in a significant
way
2. Terry stop doesn’t count
3. Traffic stop is being detained (Terry), but not arrest, so no Miranda right
ii. Interrogation: Officer must be asking questions
1. If these two requirements are met, suspect must be given his warnings
1966- Miranda v. Arizona
i. This was a combination of cases where defendants were arrested, never informed of their
right to either counsel or incrimination, and then convicted based on their statements
ii. Hold: Custodial statements obtained from defendants who are held incommunicado in a
police dominated atmosphere and who were not informed of their constitutional rights
violate the 5th Amendment were inadmissible.
1. Ct. concerned with the respectability of police interrogation
iii. Ct. concludes that adequate protection devices must be imposed to combat the
compulsive atmosphere that is an integral part of such custodial settings
1. Miranda rights are constitutional protections (not rights) and must be recited to a
suspect
a. requirements to conform to the person’s 5th am rights, not rights
NOTE: McNabb-Mallory Rule- only apply to FED cts.- exclude sttmte if not brought to
magistrate b4 unnec delay (6hour rule)
Is Miranda a Constit rule or a prophylactic to protect potential constit viol [if you aren’t taking
steps, doesn’t mean you have the disease just risk higher]?
i. 1968- Dickerson
1. Overrule Omnibus Crime Control and Safe Streets Act 3501
a. Makes reading rights a factor, but NOT dispositive
52
VI.
b. If prophylaxis- this fine, if not- this unconstit
2. Miranda is a constit rule that cannot be overruled by statute
ii. Some want prophylactic to not apply exclusionary rule if not deterrent enough
iii. NOTE: Miranda just says states need to do sthing and can do sthing else if something just
as good or better (suggest not constit)
iv. Note: Miranda didn’t say that the officer had to list these 5th amendment guarantees; just
that they must inform the person questioned. So states can devise the best system
(read/sign exc.)
i. LIMIT: Seibert- warnings have to be given in such a way that effective
Custody Requirement:
a. Test: In light of the circumstances surrounding the interrogation, would a reasonable person
have felt that he or she was not at liberty to leave
i. Note: Cop doesn’t have to utter the magic words “you are under arrest”
b. Courts consider the totality of the circumstances:
i. This includes the location of interrogation; weapons displayed; handcuffed; Was suspect
informed of his arrest and/or his freedom to depart; Duration of the detainment; allowed
movement; treatment by officers; lang used
c. Objective, “reasonable person” test for if a person felt like they were in custody
i. Subjective characteristics are irrelevant to the analysis except the court held that in
instances where the minor child’s status is plainly apparent then age can be taken into
consideration (JDB v. NC)
d. Contexts of Miranda
i. Police Station Interviews
1. Not custodial if you arrive at the police station voluntarily and are not under arrest
when interrogated
ii. Non-Police Department Settings
1. Bedroom interrogation where suspect was told that he was under arrest was
custodial for Miranda purposes
2. Interrogation in a residential dining room during daylight hours was not custodial
for Miranda purposes
3. Probation office where probationer was interviewed by his probation office was
not custodial (Minnesota v. Murphy)
a. A custodial arrest is different bc it conveys to the suspect that he has no
choice but to submit the officer’s will and to confess
4. When the suspect is already in jail it depends on circumstances
a. In Howes v. Fields: Ct. found that prisoner was not in custody for Miranda
purposes as he was informed he could return to his cell, he was not
restrained nor threatened, and he was treated well
iii. 1984- Berkemer v. McCarty
1. Rule: a motorist temporarily detained on the side of the road after being pulled
over by an officer is not “in custody” for the purpose of Miranda.
2. Custody test: a person is in custody when their freedom of action or
movement is constrained in any significant way "to a degree associated with
a formal arrest" where the concerns of Miranda are implicated.
a. ONE NOT BEING FREE TO LEAVE IN AND OF ITSELF IS NOT
ENOUGH
b. New test focuses on the concerns of Miranda which is an environment that
the person would be compelled to incriminates
53
VII.
VIII.
3. Here D made statements incriminating himself while being stopped on the side of
the road and after being brought in for a DUI. Miranda was never given and D
wants to exclude both.
4. Ct says that a motorist is not subject to custodial interrogation when he is
questioned during a routine traffic stop. So Miranda warning isn't required during
a traffic stop.
a. Miranda should only be faithfully applied to those situations where the
concerns that powered Miranda are implicated and that is not routine
traffic stop.
b. Looking at the compulsion ability of the officer, a roadside stop is
generally temporary and brief and at a stop the police officers’ intimidate
is less than would be at the police station.
5. However, once the officer brought McCarty to the police station, McCarty knew
he was no longer free to leave and the police should have read him
his Miranda warnings. Therefore, McCarty’s statements while at the police
station are inadmissible.
Interrogation Requirement
a. Two options
i. Express questioning: posing questions designed to elicit incriminating responses, or
ii. Functional equivalent: the words or actions on the party of the police cause a reasonable
police officer to know that his words or actions are reasonably likely to elicit an
incriminating response from the suspect.
1. Officer’s knowledge of particular traits or susceptibilities of an interrogated
individual remains a relevant consideration.
2. Ie. Would a reble person be moved by poss handicapped child would shoot
himself?- CT: No.
b. Arguments: Non-verbal Q, Response to what Q/what would he even say, how lengthy was
discussion, but not need Q one can answer, saying “youre a liar” after showing pics to wit (but
then what expect D to say- yes I am)
c. Std to overturn these= clearly erroneuous (so deference to TJUdge)
d. Rhode Island v. Innis
i. Rule: Words that the police should know are reasonably likely to elicit an incriminating
response from the suspect is an interrogation requiring a Miranda warning
1. Test: Miranda therefore applies when a suspect is subject to intentional
questioning or its functional equivalent.
ii. Officers while transporting prisoner talking to each other about a child finding and
pulling trigger of D’s shotgun about D’s victim was not an interrogation.
1. Ct says the police didn’t not reasonably know the statements would elicit an
incriminating response. (wouldn’t know his conscious would be effected) (a few
off-hand response and no indiv knowl of D’s susceptibility)
e. Booking EXCEPTION
i. Rule: Routine booking questions are exempt from Miranda
ii. Pennsylvania v. Muniz: such questions do not satisfy the Innis interrogation standard
given that they are no designed to elicit an incriminating response
iii. Det booking: Subj matter (need know for purp of housing)
iv. Drawing blood and handwriting analysis is not testimonial
The Sufficiency of Miranda Warnings and Waiver
54
IX.
a. The government always has the burden to prove the sufficiency of the Miranda warning, and
that the waiver was knowing and voluntary
i. Defendant on the other had has to show that he clearly invoked his privilege
b. Sufficiency of Warnings
i. Substance of warnings must be effectively conveyed—“verbatim recitation is not
needed”
ii. Rule: If not clearly conveyed, the statement can still be thrown out even if the confession
as unquestionably voluntary.
iii. Recidivism idea – May be less with D’s that know rights; If the D knows the warning
already, gov just needs to prove they conveyed the idea adequately
Waiver
a. STATE BOP ON WAIVER (PREP OF EVID)
b. Require:
i. Knowingly BRIGHT LINE RULE
1. To waive, only need to know what right is, not the facts on the ground
surrounding it (don’t need to say could have had attorney)- very obj test
a. Oblarado- Sis call police station and say has lawyer for bro, but they not
tell him- still waiver.
ii. Voly
c. Invocation
i. ONCE INVOKE STOPPPP unless D initiate convo then still need waiver (Edwards v.
AZ)
d. Silence- Not enough for waiver (but close- Know rights+ Fail invoke+talk voly= imply waiver
[Berghuis]). Not enough for invocation.
e. Waiver
f. Johnson v. Zehberst- “Intentional abandonment of known right or priv”
i. CT indulges every reble presump AGAINST waiver constit rights and not presume wo
affirmative waiver
g. Rule: Gov. must show by a preponderance of the evidence that waiver was done knowingly,
voluntarily, and intelligently
i. Totality of the circumstances standard
ii. If D had invoked, Gov must show that D initiated the contact and changed their mind
h. Factors to consider:
i. subjective physical/emotional/intelligence traits of suspect
ii. the conduct/number of officers
iii. the environment of the interrogation
iv. Must have some affirmative evidence that suspect waived rights
1. But it need not be an express statement
i. North Carolina v. Butler
i. Rule: A suspect need not make an express statement waiving his right to counsel. Waiver
may be implicit through words or conduct.
ii. D was arrested and was given his Miranda warnings. D was given a form with the rights,
said he understood them, but wouldn’t sign that he waived them, after that D agreed to
talk to the agents and made self-incriminating statements.
iii. The court ruled that a suspect may implicitly waive his 5th am. rights through his actions
and words.
1. Whether or not a suspect has effectively waived his right depends on whether the
suspect knowingly and voluntarily waived his rights under Miranda.
55
X.
a. This is a “heavy burden” on the prosecution
2. Ct must look at the particular facts and circumstances surrounding a case and the
suspect’s waiver to determine if it was knowingly and voluntarily made.
a. Knowing doesn’t mean they know exactly what the charge is
iv. In this case, D was fully informed, he said he understood, and his waiver was therefore
knowing and voluntary
j. Berghuis v. Thompkins:
i. Rule: Where a defendant fully understands his Miranda rights, and does not invoke his
right to remain silent, he implicitly waives his Miranda rights by making a voluntary
statement to police.
1. So, waiver may implied by a defendant’s failure to clearly invoke his rights where
his course of conduct indicates a knowledgeable waiver.
ii. D was read his rights, and he remained silent for almost 3 hours only responding with 3
“yes” answers to questions about God. Those “yes” statements were used against him.
iii. The Court found that he waived his right to remain silent by knowing his rights, not
invoking them, and voluntarily answering
1. Staying silent does not invoke the right to remain silent because. This argument
fails because a defendant must invoke his Miranda rights unambiguously.
2. On the contrary, Waiver need not be express; an implicit waiver is enough.
3. His responses to the questions constituted a “course of conduct” that indicated
that he waived his right to remain silent
iv. Also, the police are not required to get a waiver prior to questioning. The burden is on the
suspect to invoke his Miranda rights,
1. In effect Berghuis Imposed an affirmative obligation upon custodial suspects to
speak up and invoke their right to remain silent if they in fact desire not to be
interrogated and not to speak with the government
v. Dissent: Irony of remain silent and having to speak to invoke
k. CAN Q WO WAIVER OR INVOCATION
Invocation of Miranda Rights
a. Rule: D must be the one to invoke his Miranda rights; Needs to be unambiguous and clear
b. Invocation specifically of the Right of Counsel  Once you invoke this, the wall comes down on
questioning: no more questioning
i. Exception: if there is a break in custody that extends beyond 14 days, they can remirandize you
ii. Davis v. United States
1. Rule: D does not invoke his Miranda right to counsel unless his request is
unambiguous
a. Unambiguous  sufficiently clear that a reasonably police officer in the
circumstances would understand the statement to be a request of the
attorney
2. Here, D said "Maybe I should talk to an attorney." Ct. found this language to be
equivocal. Police clarified and said didn’t want lawyer. (CT doesn’t require
clarification)
3. Dissent: ppl speak indirectly when feel powerless
iii. “Im not gonna talk about nothing” “I just don’t think I should say anything” “I don’t
wven wanna talk about it ya know what Im sayin” “I ask you guys to go ahead and lock
me up” “I don’t really want to talk about it”- unwilling talk about some subj but not
56
others “If youre saying I did it, I don’t wish to answer any more Q” (conditioned)—ALL
AMBIGUOUS
c. IF INVOKE RIGHT TO ATTORNEY- Invoking right to have attrny PRESENT, not just speak
to (Minnick v. MS- said come back Mon when I have attorney- inadmissible bc attorney wasn’t
present when came back)
d. Questioning After Invocation of the Right of Counsel:
i. Edwards v. Arizona SSCRUPULOUSLY HONOR INVOCATION; ANTIBADGERING RULE
1. Anti-badgering- If invoke and continue badger- invocation meaningless.
a. Try change balance of power in room- want D to be able to shift power in
room
2. Rule: An individual who properly invoked Miranda right to counsel cannot be
interrogated further until counsel is present unless the suspect personally initiated
communications with police.
a. Even if the suspect initiates contact, the prosecution must still prove that
the suspect knowingly and voluntarily waived the right he earlier invoked
b. Gov also has burden of proving suspect initiated the contact
3. Here the police re-initiated after D invoked, so there is no waver.
ii. AFTER INVOCATION 2 ways to re-initiate:
1. D initiate
a. Test: If inquiry can be fairly said to rep desire on part of accused to open
up more generalized discussion relating directly or indirectly to invest.
i. See: “What’s gonna happen to me now?” (Oregon v. Bradshaw)
ii. Cf. “Can I have some water?”
2. 14 day min break in custody (Shatzer)
a. Still have to re-Mirandize (only time person not in custody may need
Miranda)
3. ALWAYS STILL HAVE TO RE-MIRANDIZE!!!
iii. Note: After D invokes, the court has allowed the officers to ask follow up and
clarification questions without violating the 5th am.
CUSTODY---MIRANDA---INVOCATION---SCRUP HONOR---INITIATION---MIRANDA AND WAIVER
XI.
The Miranda Exclusionary Rule
a. Miranda Exclusionary Rule: A breach of Miranda results in the exclusion of the evidence that is
immediately derived from the infraction
i. However there are exceptions
b. Generally, Fruit of the Poisonous Tree does not exclude Post-Miranda Statements
i. Oregon v. Elstad :
1. Rule: Miranda requires that the statement obtained in violation of Miranda be
suppressed, but a subsequent statement obtained after Miranda rights are given
and waived will not be suppressed because the initial failure to read a suspect
his Miranda warnings does not taint later voluntary statements
2. More like prelim stage of invest. And trying to get ingo girst in good faith
3. In this case, officers went to D’s home and spoke to him about a crime. While
there the questioning was custodial and D admitted to the crime. Then D came to
the station, was read his rights, waived, and then made the full confession.
4. The court allowed the post-Miranda confession regardless of the previous
Miranda violation.
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a. They said there is no fruit of the poisoned tree doctrine with Miranda
b. This is bc Miranda is only a procedural safeguard not a constitutional right
i. So the fruit of the a procedural failure does not have the same
prejudice as a constitutional violation
ii. The deterrent value is less because it’s not likely that early
violation of Miranda will lead to later statements, like searches
would.
5. The test for the secondary statement is if waiver was “knowingly and voluntarily
made”  here it was
a. No evidence that he only continued the confession bc of the earlier
statement
ii. Missouri v. Seibert: An Exception to the Elstad Rule
1. If D think already confessed, reading Miranda the second time actually worse
than not informing of rights (J Kennedy concurrence)
2. Rule: J Kennedy test (narrowest/plurality): When police deliberately violate
Miranda and obtain a statement then give suspect Miranda warnings, remind
suspect of earlier statements and elicit another statement the subsequent statement
will not be allowed 2. (Subj intent to get around)
3. FACTORS:
a. Completeness in detail of Q’s and A’s in 1st round
i. Ie. Elstad was a fewquestions
b. Overlapping content of the 2 statements
c. Timing and setting of first and second
i. Ie. building in space in btw the questioning
ii. Want to build in attenuation so not necly the product of 1st Q
d. Continuity of police personnel
e. Degree to which interrog’s questions treated the second round as
continuous with the first
i. Does Round 2 incorp things D already said?
ii. Want to say like: “Now start from the beginning, and tell us what
happened”
4. Only gave 15 min, ask exact same Q’s, reference first questioning
5. Here the cops had a deliberate 1-2 step process where they would get the
statement they want, then give Miranda rights, and ask again. The police would
then remind the suspect of previous answers.
a. The first round of questions render are too closely related to the first,
therefore they are treated the same and excluded
6. The court focuses on the intent of the officers to get around Miranda
a. Might be different if the cops took a curative measure, i.e. said that the ole
answers couldn’t be used and that they shouldn’t feel the need to conform
to them.
7. J Kennedy concurrence: Where intentional, it violates Miranda!
iii. United States v. Patane: Physical Fruits
1. Rule: When Miranda is violated and that violation leads to physical evidence the
physical evidence will not be excluded.
a. No fruits of the tree with Miranda
b. However when Due Process is violated, by coercion in interrogation, the
fruits of that violations (statements or physical evidence) is excluded.
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XII.
c. HUGE DIFF WITH 4th
d. Rationale: Either cost-benefit analysis or 5th only covers statements
c. Impeaching the Defendant-Witness
i. Rule: Government can’t use the statement substantively in government’s case, but they
can use it to impeach the defendant if he testifies untruthfully.
1. Ex: if cops beat it out of him, can’t be used to impeach
2. Gov cannot use pre-arrest silence to impeach D
3. Harris Case
d. Emergency Exception
i. Rule: When police reasonably believe that questioning w/o Miranda is necessary in order
to safeguard the public/police from danger a Miranda violation is forgiven
1. Ex: Boston bombing; If you arrest the person and ask where the other bombs are,
you can get away without giving warnings
ii. OBJ: Not matter if officer think they safe
1. Is it reble to think there is a threat?
iii. Undercover Rule: Miranda does not apply when cops pose as undercover citizens or
inmates (Illinois v. Perkins)
1. Primary objective of Miranda – to preserve the 5th amendment from
incommunicado interrogation of individuals in a police dominated atmosphere—
is not present in undercover settings
iv. NY v. Quarles
1. Rule: The police may question a suspect without first reading a suspect
his Miranda warnings where the exigency of a situation requires that public safety
take precedence over a suspect’s Fifth Amendment privilege.
2. Facts: A woman approach two officers and told them she had just been raped and
gave a detailed description. D fit the description of the assailant and when he saw
the police, he ran into a store. The police gave chase and he was caught.
3. One officer frisked him and found an empty gun holster. After handcuffing him,
the officer asked Quarles where the gun was and Quarles gestured with his head
saying “the gun is over there.”
a. The officer found the gun and read Quarles his Miranda warnings.
4. The court allowed D’s pre- Miranda statement because a suspect in police custody
may be questioned without first being read his Miranda warnings where public
safety demands it
a. This questioning was not coercive and there was no dominating presence
b. In emergency, need to question trumps the right to privilege.
c. DANGER BC ACCOMPLICE COULD POSE DANGER TO PUBLIC
OR MEMBER OF PUBLIC COULD PICK UP
5. Dissent: Can allow for public safety, but cant admit in trial
e. Note: Generally the government cannot use any statement or evidence from 5th Amendment
Due Process violations (regardless of impeachment, fruit, emergency, exc.)
Miranda checklist
a. Is the D in custody
b. Were they interrogated
c. Did the police read the Miranda rights
i. If not was there an exception that relieves the Miranda requirement
ii. If no Miranda can it be allowed in for another reason ex: impeachment/only fruit of
the confession
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XIII.
d. Did the D waive the Miranda rights
e. Was the waiver knowing and voluntary (express or implied)
f. Did the D invoke his right to be quiet or counsel
i. If yes which one
ii. If yes did the police comply with the right
1. Did the interrogation cease after the right was invoked?
a. If yes who initiated the communication after the right was invoked?
i. If it was the gov who initiated, How much time has lapsed since
the invocation of the right and the next interrogation
ii. If this is a "new" interrogation, go through the checklist again
bc the invocation from the past doesn’t apply.
Wording from SC Miranda Case:
a. Under the Fifth Amendment to the United States Constitution, an accused must be informed of
his right to counsel prior to custodial police interrogation. Miranda v. Arizona.
i. If an accused asserts his right to counsel, interrogation must cease unless the accused
initiates further communication, exchanges, or conversations with the police and validly
waives his earlier request for the assistance of counsel. Smith v. Illinois (citing Edwards
v. Arizona)
1. The United States Supreme Court has held that police interrogation need not cease
unless the accused's invocation of the right to counsel is clear and unequivocal.
Davis v. United States.
2. In order for a request to be deemed unequivocal, a suspect ‘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.’ Davis.
ii. Once a suspect unequivocally invokes his right to counsel, “‘courts may admit responses
to further questioning only on finding that [the suspect] (a) initiated further discussions
with the police, and (b) knowingly and intelligently waived the right invoked.’ ”
a. However, we have continued to hold that the “stop and clarify” approach
is “an appropriate prophylactic measure to protect an accused's rights
against compelled self-incrimination.” State v. Risk
iii. In proving that a valid Miranda waiver took place, a “heavy burden” rests on the state to
demonstrate that the accused knowingly, intelligently, and voluntarily waived his right to
counsel.
The Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury
of the State and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
IV.
Diff btw Miranda and Massiah
a. Mirandai. Only in custody
ii. triggered earlier (not wait till indictment)
iii. Rebly likely to ilicit incrim response
iv. Can ask Q until invoke
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V.
VI.
VII.
VIII.
v. Not offense-specific (once invoke, cant be bugged again unless 14 day release)
vi. No fruit
b. Masiahi. not only in custody
ii. Triggered only with formal proceeding
iii. Right not to be ASKED q’s wo lawyer
iv. Some action beyond merely listening that designed deliberately to elicit incrim remarks
v. Offense-specidic
vi. Fruit
General Principles
a. The Sixth Amendment guarantees the rights of criminal defendants, including the right to a
public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, the
right to confront and subpoena witnesses, and the right to know who your accusers are and the
nature of the charges and evidence against you.
th
6 amen is not just a trial right (need counsel for all parts)
The Massiah Rule
a. Rule: once the adversarial process begins, then the 6th Amendment gives a stronger right to be
represent by counsel.
b. Trigger= Adversarial Process/formal judicial proceedings: Three words (look for these on exam)
– when pros attorney involved
i. Indictment
ii. Preliminary Hearing
iii. Arraignment
c. This right to counsel before was the 5th Amendment right to counsel (different)
i. The right is even more strongly protected in 6th amendment than the 5th amendment
version of it
ii. This is b/c the criminal process has begun (not just arrest stage)
d. 1964- Massiah v. United States
i. Rule: Once someone has invoked their right to counsel, they may not to be asked any
questions without the presence of counsel
ii. Facts: After D had been indicted and was out on bond. Co-D cooperated with the police
and wore a wire to conversation with D. The prosecution used these statements.
iii. Holding: An individual's 5th and 6th amendment counsel rights are violated if, after an
indictment has been returned, the government deliberately elicits statements from that
individual without his counsel being present.
1. It is well est. that indictment is followed by orderly trial with the protections of
council
2. Here the interrogation is even more of a violation because D didn’t even know he
was being questioned
iv. Massiah holds that the right of an individual, at this point in the proceedings, is the right
not to be asked any questions without the presence of counsel, rather than Miranda’s right
not to answer any questions without counsel present.
Deliberate Elicitation Test:
a. Rule: Don’t need to find interrogation for 6th amendment violation, instead you must find that
the government's action was done to deliberately elicit statements from the D.
i. Secret interrogations after the indictment are fundamentally unfair and a violation of due
process
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IX.
ii. Test: Some action beyond merely listening that designed delibly to elicit incriminating
remarks
b. US v Henry:
i. Cops got inmate in same cell block to talk to Henry. Told him not to initiate questions
about bank robbery but to remember what they said in conversation.
ii. Hold: Ct said this was a deliberate elicitation of questioning without Ds lawyer present
after he invoked his right to council.
1. Unfair bc D didn’t even know that they were being questioned and were without
atty.
c. Note: However, if the witness only listened and it wasn’t questioning, then it wouldn’t be a 6th
am violation because they are not deliberately eliciting statements.
i. Def has to show that the informant took some action, beyond just listening, designed to
elicit incriminating remarks
d. Kuhlman v. Wilson:
i. Jailhouse witness was in contact with D and they discussed the crimes she committed.
The officials did not plan but also did not properly prevent these conversations and
meetings. Later the witness cooperated with the police to talk about her statements
ii. Hold: The court allowed the statements because it didn’t reach the same level of gov.
deception as past cases
e. Brewer v. Williams ONCE INVOKE, CANT QUESTION
i. After D (recently released from mental hospital) had been arraigned he conversed over
telephone with his attorney who told him that the he would be transported and that the
police had agreed not to question the defendant. The defendant was told to refrain from
talking with the police. During the transport the cops made statements (about proper
burial of D’s victim) that eventually got the D to utter incriminating statements.
1. Here, D had been arraigned thus adversary proceedings had begun (6th am active),
he had invoked his right to counsel, and no effective waiver took place, so D
could not be interrogated without his counsel present
a. At this point, D could approach the police and say he is willing to talk
without counsel and confess, but the 6th amendment protects from even
being asked questions before that point.
ii. Hold: The officer’s “Christian burial speech” amounted to interrogation because the
officer himself testified to the fact that his statements were intended to elicit information
from Williams.
1. Judges fight about if D knew of his right to remain silent/have counsel and then
intentionally relinquished that right.
a. Bc if the police statements made before D “waved” were not deliberate to
elicit, then the questions after waiver would not be a violation.
iii. Dissent: J White: Autonomy/Free will (insulting to assume cant waive until a lawyer)
1. Right results- only matter if punish right person (narrower view of crimpro)- ie. if
mob lynch the right man, that’s fine
a. (Cf. Dissent of Stevens in Montejo and Patterson- concer fairness of
process. They also based on ethical rules of communication with parties
repped by counsel- cant talk to if lawyer)
6th Amendment is offense specific
a. Rule: Affords protection from police questioning, in the absence of council, regarding the
offense(s) for which the defendant has been charged, but does not extend to police questioning
regarding criminal activity for which the defendant has not been charged.
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X.
i. Does not encompass criminal offenses that are merely factually related to the charged
offense.
b. 1991- McNeal v. Wisconsin
i. Rule: Invoking your Sixth Amendment right to counsel for an offense where formal
charges have been brought, does not automatically invoke one’s Miranda rights for other
offenses.
ii. D was arrested for an armed robbery, was appointed counsel and was indicted. While he
was still in jail, a detective came to question him about other crimes that D was a suspect
for. D waived his Miranda rights and gave incriminating statements.
iii. Hold: The Ct said that D invoking right to counsel during a judicial proceeding does not
automatically invoke his Miranda rights for all other offenses.
1. The Sixth Amendment is offense specific.
2. In contrast, Edwards v. Arizona, established that once a suspect invokes
his Miranda rights for one offense, the police may not interrogate him regarding
any offense until counsel has been made available to him.
a. At that point the suspect has expressly invoked that he does not want to
speak to officers without counsel, but here that has not necessarily
happened.
c. Rule: “offense specific” meant that other charges that are factually related were not precluded
from questioning by invoking the right to counsel, but officer cannot question about offenses
where the elements of one offense are necessarily included in the elements of the other.[if one
elem diff- diff offense] (TX v. Cobb- Blockberger Test/Double Jeop rules) AND when not allege
same conduct with same vic (even if same elem)- new charge
i. Note: Brewer might have come out diff. Indicted for child abduction. Not yet murder.
ii. Note: If obstruct justice w 5 diff officers, in GA can be charged 5 diff times w obstruction
iii. Armed robbery not the same offence as murder; elements must be the same or totally
contained within.
1. Lesser included offenses would be the same offense in the 6th amendment
analysis, where the invocation of right to counsel precludes questioning about the
2nd offense.
Waiver of 6th Amendment Rights
a. Rule: A subject’s proper waiver of his Miranda rights, making him aware of the dangers and
disadvantages of representing himself, also acts as a knowing and intelligent waiver of his right
to counsel during post-indictment questioning.
i. Basically, A waiver of Miranda rights is usually sufficient to waive the 6th amendment
counsel right
b. Patterson v. Illinois:
i. D had been indicted, and after hearing who else had been charged, he offered to speak to
the police about an accomplice. The officer read him his Miranda rights, and D waived.
ii. Hold: Ct allowed the statements because a defendant knowingly and intelligently waives
his Sixth Amendment right to counsel when he properly waives his Miranda rights.
1. One of the Miranda rights that D was told is that he had a right to counsel at the
questioning. And it also described the consequences of speaking (used against
him at trial). And it said that a lawyer could advise him from making
incriminating statements
iii. This case is different from Edwards because here the D approached the officers and
waived his rights. It was not a result from a deliberate elicitation.
iv. SEPERATES waiver for purp of interrog and waiver for purp of trial
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XI.
1. In investigation, limited in what can do. At trial, a lot more benefits/disadvantages
to lawyer
v. Argument against fully informed how lawyer help: Advise answering specific Q,
Negotiate, witness the questioning, inform legal consequences
c. What is necessary for a waiver of your right to counsel?
i. Old Rule: Once you were appointed council, the police could not approach the D and try
to get a waiver. The right to counsel was binding.
1. New Rule says that the police may approach and seek a waiver unless D invokes
the right to counsel.
ii. 2009- Montejo v. Louisiana
1. Ethical rules don’t apply to law enforcement
2. Autonomy of individual to invoke or not
3. Generally, a valid Miranda waiver will establish that the suspect waived his 6th
am right because the Miranda warning sufficiently apprises of the nature of his
6th Amendment rights and of course the consequences of abandoning those rights.
4. Rule: Police can seek a knowing and voluntary waiver from an individual after
they are charged with a crime (6th am is then operative) unless D affirmatively
invokes his right to an attorney.
a. And being appointed an attorney is NOT an invocation of your 6th
amendment rights. So even if a D is represented, the police still may
obtain a valid waiver. However, once the D asserts his right to an attorney,
all questioning must cease!
5. Hold: In this case, D never expressly invoked his Sixth Amendment rights, since
he never formally asked for a lawyer, and so the police may to question such a
suspect at any point after arraignment.
6. INVOCATION NEEDS TO BE SPECIFIC SO OFFICERS SPECIFICALLY
MADE AWARE D WANTS LAWYER PRESENT
d. What is necessary to invoke your right to council?
i. Rule: SC has said that you have to unambiguously invoke your right to counsel.
e. 6th amendment to this point - Hypo:
i. Ds retain counsel and they are indicted. They are arraigned, plead not guilty. (6th
amendment territory and he has an attorney)
ii. Cops can still approach D (Mirandize him) and try to get him to talk. If D waives his
right and agrees to talk, that statement can come in.
1. Under the old rule, if you had counsel, no questioning, but Cops are now free to
seek a waiver unless D invokes.
2. Under the new rule, cops can approach him without counsel and seek a waiver/ask
questions until he invokes.
a. Court requires D to clearly and unambiguously invoke 6th amendment
right, but once D invokes, there can be no more questioning w/o counsel.
f. Note: Waiver/invocation of the right to counsel is inapplicable during secret interrogations
i. In undercover settings, like US v. Henry, where D is unaware he is being interrogated, it
cannot be held that D waived his right to counsel. He need not invoke.
g. Burden: The Government still bears the burden of proving a valid waiver of an individual's 6th
Amendment rights. Even if that is through Miranda warnings, the gov must show that D
voluntarily, knowingly, and intelligently waived his right to counsel.
6th Amendment Exclusionary Rule
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a. Rule: If the Sixth Amendment Right to counsel is violated, then any substantive use by the state
of any resulting statements, as well as any derivative fruits are excluded.
i. Contrast with 5th amendment: fruits can still come in there
b. Exception: Government can still use the statement for impeachment.
i. Bc exclusionary rule not flow from constit, need to balance
1. Minimal deterrence here v. Cost of exclusion (1.) Perjury needs to be prevented,
2.) Integrity of trial process)
c. 2009- Kansas v. Ventris
i. Rule: A defendant’s incriminating statements, elicited in violation of his Sixth
Amendment right, are still admissible at trial for the limited purpose of impeaching the
defendant. Statements and evidence are excluded only if the deterrent effect on police
conduct outweighs the cost to society.
ii. The state concedes that using informant in Jail after indictment violated D’s Sixth
Amendment right to counsel.
1. However, at trial, D testified and blamed the murder and robbery on his partner.
2. The Court allowed D’s incriminating statements for impeachment purposes only.
iii. The ct finds that the 6th amendment violation occurs when the person is
unconstitutionally questioned, not when the evidence is used at trial1. As opposed to the 5th am where violation when the evidence is used because at
that point is when you are forced to self-incriminate.
a. This is why you can’t use product of a 5th am violation even for
impeachment
2. CT separates right to counsel at interrog and right to counsel from that point
forward (wall off interrog assist from other assist of counsel)
iv. Bc the inclusion is not a violation, statements and evidence obtained after a 6th am
violation are excluded only if the deterrent effect on police conduct outweighs the cost to
society.
v. Hold: Here, interest in deterring perjury and preserving the integrity trial process
outweighs any deterrent value gained by exclusion.
d. Hypo: D invokes 6th amendment right to counsel, cop says I don’t care, keeps talking and
pushing him to talk. D confesses, and leads the cop where he hid the gun.
i. The gun and the statement would be excluded
1. But if he says that he has never seen gun, it could be used to impeach.
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