CRIMINAL PROCEDURE RULES OUTLINE
Powell v. Alabama
 Rule: in a capital case, where the ∆ s unable
to employ counsel, and is incapable
adequately of making his own defense
because of ignorance, feeble mindedness,
illiteracy, or the like, it is the duty of the court,
whether requested or not, to assign counsel
for him as a necessary requisite of due process
of law; and that duty is not discharged by an
assignment at such a time or under such
circumstances as to preclude the giving of
effective aid in the preparation and trial of the
case. To hold otherwise would be to ignore
the fundamental postulate that there are
certain immutable principles of justice which
inhere in the very idea of a free gov. which no
member of the Union may disregard.
Duncan v. Louisiana
 Rule: Because we believe that trial by jury in
criminal cases is fundamental to the Amer.
Scheme of justice, we hold tha the 14th
guarantees a right of jury trial in all crim.
Cases which – were they to be tried in a Fed.
Ct. – would come w/in the 6th’s guarantee.
i)
Ct. later determined the
“fundamental fairness” approach
was not working, so went to
“selective incorporation” (in these
areas, the rights the Fed. Had to
respect, the States had to respect.”
[THE FOURTH AMENDMENT]
“The right of the ppl 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.”

(2) Clauses
1. For Searches and seizures
2. No Warrants w/out PC
Meaning of “people” – who is protected
“people” are those class of persons who are part of
a national community or who have otherwise
developed sufficient connection with this country to
be considered part of that community.

Mex. Drug dealer, taken to the U.S., and
his house searched by U.S. agents in
Mexico w/out warrant, not violation of
our Const. because he was a foreign
national living in a foreign country, the
U.S. just brought him here, so he does
not get the protection.
Note: 4th Protects against Gov. agents NOT priv.
citizens

You can’t stop your mom from giving
police things, unless the Gov. asked that
priv. person to do the search, or gov.
coordinates with them, they will be
treated as a gov. agent.
4th Amend and the States:
Wolf v. Colorado
Rule: The Due Process clause of the 14th
is violated if a State actor would have
violated the 4th if it was enforced
against the states, then the Due Process
clause is violated. (but no suppression)
Birth of “Exclusionary Rule”
Weeks v. United States
 Rule: Evidence obtained in violation of the 4th
will be excluded from trial (if the violation of
the const. was by a federal agent, they did not
exclude the state obtained evid.)

“Silver Platter doctrine” –
Feds got state actors to do
their dirty work after this,
because it was not excluded
as not a violation of the 4th,
but 14th.
Mapp v. Ohio
 Rule: All evid. obtained by searches and
seizures in violation of the Const. is, by that
same authority, inadmissible in State Court. –
this overruled Wolf. (When Os violate 4th,
then remedy is exclusion of the evid. at trial).
 Rationales:
 1) W/out exclusionary rule, the 4th is
just a right w/out a remedy – other
remedies don’t work.
 2) we want exclusionary rule because it
deters Os from performing illegal
searches and seizures. (can’t use evid. so
less likely to do it).
 3) Integrity of the Cts rational – ct. is
neutral arbiter of innocence and guilt,
and if they allowed this illegal evid., they
would seem to be a party to it, which
would undermine integrity.
What is a “Search” under the 4th Amend?
Katz v. United States - **muy importante**
 Rule: If the search takes place in an area
where one has a reasonable expectation of
privacy, then it is a search w/in the 4th. If the
search takes place outside an area where you
have reasonable expectation of privacy, then
it is not a search.
 This has (2) Components: 1) That a
person has exhibited an actual
(subjective) expectation of privacy (Katz
must believe no one is listening); 2)
Society must recognize your belief as
reasonable (objective). (determined
searches are presumptively
unreasonable w/out a warrant, and rid
of “trespass doctrine.”
U.S. v. White – exposure to 3rd Party
 Rule: when you knowingly expose to the
public (3rd party) you have no reasonable
expectation of privacy, Katz), here by
knowingly exposing to the informant, he
assumed the risk that the informant was
actually that, an informant for the police
 Key – knowingly expose to 3rd party,
that party chooses to expose to police,
you assumed that risk, and therefore
you lose. (Distinguishes this from Katz).
Smith v. Maryland – pen registry; phone co.
records
 Rule: No 4th limit on use of pen registers,
bank records, or medical records (3rd party
exposure is vastly expanded by this case).
 ct. is treating all 3rd parties as
conspirators and undercover agents, if
you give someone access to information,
even if you tell them not to tell anyone,
1

(So expanded to all contacts with 3rd
parties including banks and phone Co.’s,
treated just like buddies who choose to
rat on you).
 Katz analysis here: If you are dialing a
phone call you can’t expect that to be
private, because you are conveying the
# to the phone Co. and they are
connecting it. Also, can’t have this
subjective expectation because the
front of your phone book says the
phone Co. keeps track of numbers in
order to help you if someone is
harassing you, and if you make long
distance calls and itemized bill with
numbers is sent to you, so if tracking
long distance numbers, the Co. must be
tracking all numbers (most ppl would
realize this). Also this is not an
expectation of privacy that society
would recognize. (this is both prongs, in
a 3rd party exposure analysis).
U.S. v. Knotts – beeper I
 Rule: When you are in public you are
knowingly exposing certain things to public
view and therefore you don’t have a
reasonable expectation of privacy to those
things. If the police place a beeper in a drum,
if they are following you in public (on a public
road to your cabin), then there is no 4th
violation.
U.S. v. Karo – beeper II
 Rule: if the beeper is placed inside an object
that then tracks the movement of that object
inside a house, this is a search under the 4th,
which would require a search warrant.
 Difference: One just showed where the
house was located, the other gave
movements inside the house. The
movement inside the house is
protected, not the location found by
going by public road. (Have to stop
tracking once inside the “curtilage” this
is the dividing line).
U.S. v. Place - Dog Sniffs:
 Rule: “A dog sniff is not a search” because of
the limiting nature of the intrusion, it is
sniffing the outside, it is smelling particles off
the bag. It is also not a search because the
information is limited, the dog can ONLY
detect the presence of drugs, it cannot detect
anything else. The dog can only tell whether
or not you have drugs.
Caballas
 Rule: Dog sniffs are “sui generis”; you have no
legitimate privacy interest in the possession
of contraband, and therefore the dog sniff is
not a search because it only detects
something that you cannot possess in the first
place.
Open Fields Doctrine – Curtilage:
 Rule: Police can search open fields w/out a
warrant. The 4th does not cover open fields,
this is not a 4th “search.”
What is an “open field?”
 “any unoccupied or undeveloped area outside
of the curtilage (of a home)”
or let anyone else in your house, you run
the risk that they will do it anyway.
Contrast with : Curtilage
 The outdoor area that is closely related with
what you do in your daily life.
 There is a part of your house that is part
of the great outdoors and is not an open
field, this is a “curtilage” you have a
reasonable expectation of privacy in
your curtilage, but not in the open field.
Dunn – (4) Factors of Curtilage: (don’t need all)
1. The proximity of the area claimed to be
curtilage to the home.
2. Whether the area is included w/in an
enclosure surrounding the home.
3. The nature of the uses to which the area
is put.
4. The steps taken by the resident to
protect the area from observation by ppl
passing by (shield from public eye).
Aerial Surveillance Cases:

Rule: non-sense-enhancing aerial surveillance
by the gov. of activities occurring w/in the
curtilage of a house does not constitute a 4th
search if the surveillance: 1) occurs from
public navigable airspace; 2) is conducted in a
physically nonintrusive manner; and 3) does
not reveal intimate activities traditionally
connected with the use of a home or
curtilage.
C.A. v. Ciraolo

Rule: Flying over a house to take pictures of
marijuana plants in a backyard of a house,
enclosed by a fence was not a search. The
marijuana was grown in the curtilage, but ppl
fly on airplanes all the time so you should
expect ppl to fly over and they will see your
marijuana.
F.L. v. Riley

Rule: Police using a helicopter to fly over
property and look into a partially open
greenhouse to see marijuana growing inside
was not a search. (O’Conner concurred and
said the real issue is whether there is air
traffic going over with enough regularity that
it is reasonable to expect police will do it,
concurred because there was no evid. that
there wasn’t such activity.)
Dow Chemical – only aerial sensory enhancing
tech.

Rule: precision mounted camera used to
photo an industrial complex. Ct. said no
search because it is an industrial complex and
therefore no curtilage so reduced expectation
of privacy, so don’t worry that sensory tech
was used to see something they could not see
with their naked eye.
Further, What is a “search”
C.A. v. Greenwood

Rule: A person has no reasonable expectation
of privacy in garbage enclosed in a bag and
left for collection outside the curtilage of the
home. No search occurs when an O opens a
trash bag left at the curb and sifts through its
contents. (this info was knowingly exposed to
the public, and voluntarily turned over to
others).
Sensory Enhancing Technology – Line Drawn
Kyllo v. United States – heat pot detector

Rule: that by obtaining by sense-enhancing
technology any information regarding the
interior of the home that could not otherwise
have been obtained w/out physical “intrusion
into a constitutionally protected area”
constitutes a search – at least where (as here)
The technology in question is not in general
public use.
Bond v. U.S.

Rule: An O that squeezed a bag on a bus, and
felt a “brick”, and then got consent from
owner and opened bag to find coke; the initial
squeezing was a search. When you take a
bus, you reasonably expect others will not
squeeze your bag, and this is one that society
will recognize as reasonable. “Agent’s
physical manipulation of ∆’s bag violated the
4th.” (not the same at airport when you check
your bag, you are told they can search after
checked.)
What is a “Seizure”?
U.S. v. Karo – beeper in ether drums

Rule: A seizure of property occurs when
there is some meaningful interference with an
indv’s possessory interests in that property.
Just placing a beeper in an oil drum being
transferred from X (merchant) to ∆, to track
the drums movement, was not a seizure, as it
did not meaningfully interfere with ∆’s
possessory interests.
Items that Can be “seized”:

1) Contraband

2) Fruits of the Crime

3) Instrumentalities used in the commission of
the offense.

4) “Mere Evidence”
Seizure of a Person:

Comes w/in 4th Amend; because they are
“seizures.” An “arrest” is a seizure.
WHAT IS “PROBABLE CAUSE?” [PC]
 Def: “Probable cause” exists when the facts
and circumstances w/in an O’s personal
knowledge, and of which he has reasonably
trustworthy information, are sufficient in
themselves to warrant a person of reasonable
caution in the belief that: (1) in the case of an
arrest, an offense has been or is being
committed and the person to be arrested
committed it; and (2) in the case of a search, a
specifically described item subject to seizure
will be found in the place to be searched.
 Alt: A law enforcement officer, as a
reasonable person, must have a “good
reason” – enough reliable information – to
reasonably believe that (in the case of arrest)
the person to be arrested committed a crime
or (in the case of a search) that the search will
uncover evidence relating to the crime.
Gen Rule: Before police can do a search they have
to get a warrant, which means they have to
demonstrate PC to a magistrate, and if PC is
proven, then the magistrate will sign a warrant.
2

An open field need be neither “open”
nor a “field” as those terms are used in
common speech. (can be fenced in
etc.).
Aguilar
 Rule: Based off a tip from an informant, a
judge can’t just rely on the O’s statement that
the statement is credible or reliable. A
magistrate must be provided with 1) the
statement itself, 2) Informant’s basis of
knowledge (how they knew what they said
they knew); 3) Reliability of informant.
 2 prongs: (1) the basis-of-knowledge
prong(I know this because I bought
drugs at her house yesterday, or selfverifying detail - Draper); and (2) the
veracity prong (the informant’s track
record, or if it is a statement against
their interest, that they are reliable, or
are reliable in this instance), of which
there are two alternative spurs, the
“credibility-of-the-informant” and the
“reliability-of-the-information.” (had to
prove both).
 Also if informant heard this info from
someone else, you really have 2
informants – each level of informant
must be proved reliable.
Draper
 Rule: Where the conduct is not suspicious in
and of itself, but where the informants
account was highly detailed and many of
these details are verified. When so detailed
and you can verify this, this supports the
notion the informant had an intimate basis of
knowledge. Predicting Future Conduct, this
boosts basis of knowledge and reliability.
Spinelli v. U.S. – Confidential Informant (CI)
 Here, the informant’s information was not
detailed enough, and the activity was not
suspicious enough, ct. said no PC.
(Corroboration of “one small detail” was
insufficient). (Used Aguilar and Draper).
Illinois v. Gates – sell-out hair dresser (CI letter)
 Rule: “Totality-of-the-Circumstances Test” –
a magistrate must conduct a “balanced
assessment of the relative weights of all the
various indicia of reliability (and unreliability)
attending an informant’s tip.” The factors
enunciated in Aguilar – basis-of-knowledge
and veracity – remain “highly relevant’ in
determining the value of an informant’s tip.
But, the prongs are no longer treated as
separate, independent requirements. The
strength of one prong or some other indicia
of reliability may compensate for weakness
in the other prong.
When thinking about PC based on an informant:
 1) Statement
 2) Info based on basis-of-knowledge
 A) State basis of knowledge, or
 B) Corroboration, self verifying detail

Suspicious

Highly Detailed

Future Action
 3) Reliability of informant (Veracity)
 Past reliability
 Statement against interest
 Oath or Affirmation
McCray v. Illinois
 Rule: ∆ does not have a due process right to
get the name of the informant from the police
to see if police are lying. We don’t care if
informant is lying, only if O is.
ARREST WARRANTS:
Franks v. Delaware
 Rule: Where ∆ makes a substantial showing
that a false statement knowing and
intentionally, or with reckless disregard for
the truth, was included by the affiant in the
warrant affidavit, the 4th requires a hearing
be held (Franks hearing) at the ∆’s request. If
perjury or reckless disregard is established by
a preponderance of the evid., and with the
affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to
establish PC, the search warrant must be
voided and fruits of search excluded to same
extent as if PC was lacking on the face of the
affidavit. However, if the affidavit w/out the
statement is still enough for PC, then the
warrant is still valid and no suppression.
How Probable does PC have to be?
Maryland v. Pringle – 3 drunks in a car
 Rule: 33.3% was enough. ∆s pulled over (3 in
car); O’s found wade of money in glove box
when taking out registration. Os asked to
search and found bags of cocaine in the car. 3
∆s would not say who’s it was, O arrests all 3.
∆ later confesses, but moves to suppress for
no PC to arrest. Ct. said: Sometimes PC will be
under 50%, especially in cases like this (All in
car, cash in front, cocaine in back, might be
working together, so how probable is an
undefined notion. They have gone this low,
but not lower (for a percentage). (Note: 3 in 3
separate houses there is not this extra
(together) connection, and very unlikely this
would be upheld w/out showing a connection.
Winston v. Lee
 Rule: For a warrant to surgically remove a
bullet, since this is a heightened invasion of
privacy you need “PC plus”. (so draw blood to
tell if drunk, or surgically remove bullet to
match, then maybe it must be sig. higher than
50% before you reach PC.
When Thinking about PC – Think of Factors: Essay
1. The level of probability itself (how likely
evid. will be found here or ∆ is guilty
here).
2. The intrusiveness of the search (most
intrusive is invasion of body, if less
intrusive lower level of justification.)
3. What is the harm to be averted? (harm
might be so great that a lower level of
PC could be tolerated).
U.S. v. Grubbs – “Anticipatory Warrant”
 Anticipatory warrant is a warrant based upon
an affidavit showing PC that at some future
time (but not presently) certain evid. of crime
will be located at a specified place.
 Rule: 1) Must have PC that a condition will
occur (deliver of child porn to ∆’s residence;
2) Must have PC once that event occurs
(when parcel received by ∆ and taken into the
residence). These are ok as long as the police
wait for the anticipatory event to occur,
before execution
Payton v. NY
 Rule: “a person’s home is his castle”; you
must have an arrest warrant to enter a ∆’s
home to arrest him, and this is to protect the
extra intrusion from arresting you in your
home. (Contrast: Just need PC for arrest in
public).
 Notes After:
 Rule: When a person is arrested in
public w/out a warrant, that does not
mean they don’t have a right for a judge
to determine PC, just that they don’t
have a right for that determination
before the arrest. (Can have a Gerstein
hearing post-arrest (48 hrs), but this is
not a full-blown hearing).
Graham - Use of Force
 Rule: It is unreasonable to use deadly force
against a fleeing felon, unless the O has PC to
suspect the person poses a threat of death or
serious physical injury to either the O or to
others, and the O reasonably believes that
such force is necessary to make the arrest or
prevent escape. (second part added from
Dressler but it was in an answer to a MC Q).
Exceptions to the Payton Rule: Warrantless Entries
into a Home
Minn. v. Olsen – Exigent Circumstances – none here
 Rule: Def. of exigent Circs. – “A warrantless
intrusion may be justified by:
 (1) A hot pursuit of a fleeing felon, or
 (2) Imminent destruction of evidence,
or
 (3) the need to prevent a suspect’s
escape, or
 (4) the risk of danger to the police or to
other persons inside or outside the
dwelling.
Steagold v. U.S. – Arrests in 3rd party’s residence
 Rule: An arrest warrant for ∆ will not allow
Os to enter a 3rd party’s home to arrest ∆,
even if they have PC ∆ is in 3rd party’s home.
The Os should instead get a search warrant
for 3rd parties home, and list the ∆ as the
item to be seized. (Arrest warrant authorizes
you to enter ∆’s home, but not 3rd party’s.
However: Effect: If illegally arrested in your home
or someone else’s home, you remain under arrest;
only really implicates evid. they might find for fruit
of the poisonous tree – suppresses evid. found.
The “Threshold” Cases – The doorway of a home
Santana
 Rule: if you are in the threshold then you are
in public, and they can arrest you. And if you
are in the threshold and you step inside, then
you are a fleeing felon and they can arrest
you. (follow you into your house).
Necessaries for a Warrant:
1. Must be supported by PC, supported by
oath or affirmation (O-affiant has to
swear the facts are truth to the best of
their knowledge).
2. Magistrates signature, neutral and
detached magistrate.
3
Lo-Ji Sales – 2 rules
 Rule: 4th Amend requires you to particularly
describe place to be searched, and persons or
items to be seized. (can’t amend warrant
later). Because you can only search in areas
where the items could be (elephant – can’t
look in lingerie drawer).
 Rule: The determination of whether or not
PC exists must come from a neutral and
detached magistrate (he can’t himself
participate in the search).
Particularity Requirements: Principles to Apply

1) A relatively general description will be
tolerated if the nature of the object to be
seized could not realistically be described
more specifically ex) a string – “any where
were records can be found, but say
computers.”

2) Greater generality is allowed in the case of
contraband.

3) Greater specificity is demanded if other
objects of the same general classification are
likely to be found at the search site (Ex)
“cartons of women’s clothing” will not do if
the Os will be searching a warehouse
containing many such cartons)); and

4) “scrupulous exactitude” is demanded when
the search encroaches on 1st Amend
concerns, such as in Lo-Ji Sales.
Richards v. Wisconsin – “Knock and Announce
Rule”
 Rule: In order to justify a “no-knock” entry,
the Os must have a “reasonable suspicion”
(more than just a hunch, but less than PC)
that knocking and announcing their presence,
under the particular circumstances, 1) would
be dangerous or futile, or 2) would inhibit the
effective investigation of the crime by, for
example, allowing the destruction of
evidence.
However: Hudson v. Michigan – no suppression
 Rule: For a mere knock-and-announce
violation, the remedy for the violation is NOT
suppression of evidence-(pull back
exclusionary rule here).
U.S. v. Banks – wait is short
 Rule: 15-20 seconds is long enough to wait in
a drug case after knocking and announcing to
rush in. (but doesn’t really matter anyway).
Illinois v. McArther
 Rule: Ct. allowed Os, who developed PC at
the scene, that when ∆ denied consent to
search, they could seize the premises and
prevent ∆ from going in unaccompanied by an
O, and wait for the warrant to allow the
search.
 Why allow this “seizure” w/out a warrant?
 1) Os had PC to believe that ∆’s trailer
home contained evid. of crime and
contraband, unlawful drugs. 2) Os had a
good reason to fear, unless restrained,
that ∆ would destroy the drugs before
they returned with a warrant; 3) the Os
made reasonable efforts to reconcile
their law enforcement needs with the
demands of personal privacy (did not
search or arrest until warrant, and only
restricted ∆ a little bit, did not disturb
trailer); 4) the police imposed the
restraint for a limited period of time,
here 2 hrs.
Exec. A warrant after Entry: Scope of search
1) Os may search containers large enough to
hold the criminal evid. for which they are
searching.
2) While Os execute a search warrant, they may
seize an object not described in the warrant, if
they have PC to believe it is a seizable item
(plain view doctrine).
3) Maryland v. Garrison
 Rule: Information that becomes available to
Os immediately before or during the
execution of a warrant may require them to
cease or narrow their search,
notwithstanding the dictates of the warrant.
 Ex) while searching an apt. they figure
out the warrant describes one building
with 2 apts, but the PC is only for one
apt., they must stop searching other apt.
and only search the one PC is for. But if
they find evid. before they get info they
should narrow, evid. is still good.
Note: PC is a before the fact determination, just
because after the fact they are wrong, does not
mean they didn’t have PC before.
Note: If you get info that could expand your
search, you have to go back and get a new warrant
to broaden the search.
Ybarra v. Illinois – stoners hanging out
 Rule: Can’t just search people hanging out on
the premises of somewhere you have a search
warrant to search. In order to search
someone found on the premises during a
search you have to have (2) things:
 1) Independent PC relating to that
person (then maybe you can search
them….but must also have)
 2) warrant to search that person, or one
of the exceptions to the warrant
requirement.
But Michigan v. Summers
 Rule: Although Os may not automatically
search persons present at the scene during
the execution of a search warrant, A warrant
to search a residence for contraband founded
on PC implicitly carries with it the limited
authority to detain the occupants of the
premises while a proper search is conducted –
this detention right includes the right to use
“reasonable force” to secure and maintain
detention of the occupant.
When are Warrant’s Required? [Exceptions]
Warden v. Hayden – EXIGENT CIRCUMSTANCES:
 Rule: The Ct. does not want to know why Os
are doing what they are doing. They want to
know, “is what the Os did reasonable under
the circs.” give the justification (regardless of
what happened in the O’s head). Here,
Person and weapons created the exigency,
and you could therefore search any area
where the exigency could be found (person or
weapons). (Armed robber ran into a house).
[for exigency you can’t just search for mere
Welsch v. Wisconsin
 Rule: If DWI is a civil offense, then Os are not
allowed to warrantlessly enter ∆’s house and
arrest him to get evid. of ∆’s blood alcohol
level based on exigency of destruction of evid
(it would dissipate if they had to get a
warrant). This was because it was a civil
offense, might come out differently today.
Mincey v. AZ – “Murder Scene” non-exception
 Rule: To search the premises for other
victims is an exigency, but once this exigency
is over, you have to go get a warrant. Can’t
just keep searching the murder scene for evid.
for 4 days.
Brigham City v. Utah – “The Emergency Doctrine”
 Rule: Law enforcement Os may enter a home
w/out a warrant to render emergency
assistance to an injured occupant or to
protect an occupant from imminent injury.
(could enter home to stop fight).
Final Note: Remember, you still need PC for this
exception, you need PC + An Exigent Circumstance;
exigency itself is not enough.
Chimel v. CA – SEARCHES INCIDENT TO ARREST
 Rule: The Os can search the arrestee’s person
and the area “w/in his immediate control “meaning the area from w/in which he might
gain possession of a weapon or destructible
evidence.
 (2) Reasons for this (for search of person
and grab zone).

1) Risk of weapons

2) Risk of destruction of evidence
United States v. Robinson – Bright-Line Rule
 Rule: In the case of a lawful custodial arrest, a
full search of the person is not only an
exception to the warrant requirement of the
4th but also a “reasonable search under the
4th. Once you have PC to arrest, you can
search his person, and then also his “grab
zone” – regardless of the crime, they still
allow it here (even here, driving w/out a
license). [you can search containers on your
person or in your grab zone as long as PC to
arrest]
INVENTORY SEARCH
 Rule: Process when someone who is arrested
goes downtown, and their car and person are
searched and items found are inventoried.
This type of search is confined to whatever
procedure the Dep’t has for the inventory
searches, only if it is routine is this ok.
N.Y v. Belton – Car Arrest
 Rule: Once an O has made a lawful custodial
arrest of the occupant of a vehicle, he may, as
a contemporaneous incident of that arrest,
search the passenger compartment of that
vehicle. The Os may also examine the
contents of any containers found w/in the
passenger compartment, for if the passenger
compartment is w/in the reach of the
arrestee, so also will containers in it be w/in
his reach. The container can be searched
whether open or closed. It is not required
4
Pre-conditions to the search incident to arrest:
1) Must have a lawful arrest (PC to arrest in
public, or if in home you need PC + an arrest
warrant or an exception to warrant
requirement).
2) The right to search is unlimited so long as it is
w/in the proper scope, you do not need
suspicion as long as it is a search of the
person, effects of the person, or in the “grab
zone.”
3) Also after Belton, the grab zone includes the
passenger compartment of the car, as long as
you are a “recent occupant” and search
happens contemporaneously to the arrest.
(you cannot wait until an hour later to search
the car after removing and arresting ∆, must
be fairly close in time).
**Arizona v. Gant – Limiting Belton **RECENT**
 Rule: Police may search a vehicle incident to
a recent occupant’s arrest only if the arrestee
is w/in reaching distance of the passenger
compartment at the time of the search or it is
reasonable to believe the vehicle contains
evid. of the offense of the arrest. When these
justifications are absent, a search of an
arrestee’s vehicle will be unreasonable unless
Os obtain a warrant or show that another
exception to the warrant requirement applies.
Knowles v. Iowa
 Rule: “search incident to citation” is not
valid. If O stops a car for a traffic violation,
they are not arresting them, it is a brief stop,
short of full arrest, so can’t search passenger
compartment of the vehicle. Can’t do it just
because they stopped your car.
HOWEVER – Atwater v. City of Laga Vista
 Rule: If Os give you a traffic citation, and
arrest you, they can search your vehicle. If PC
you committed some violation there is no 4th
violation if they arrest you, won’t require cops
to know if finable or jailable offense.
**Note: You can’t do a full search of the passenger
like you can search the person of the arrestee,
when you arrest the driver or someone else in the
car**
Thorton v. U.S. – “Recent Occupant”
Rule: So long as an arrestee is the sort of “recent
occupant” of a vehicle such as ∆ was here, Os may
search that vehicle incident to the arrest. Belton
governs when an O does not make contact until the
person arrested has left the vehicle. (Analyze
Spatial Proximity and Temporal Proximity.)
Whren v. U.S.
 Rule: Don’t want to look at subjective intent
of the Os. A stop for racial profiling Is
“reasonable” for 4th purposes – as long as
there is PC. (even if violates EP, “if you have
PC you can violate EP and it be a reasonable
search). If you have PC, then it is reasonable.
 Exceptions to this: Searches and
seizures conducted in an extraordinary
manner, unusually harmful to an indvs.
Privacy or even physical interests – 1)
Seizure by means of deadly force; 2)
evid., you have to search for the thing that
creates the exigency]
Minn. v. Olson – warrantless entry of home
justified by
 Rule: A warrantless intrusion may be justified
by 1) hot pursuit of a fleeing felon, or 2)
imminent destruction of evid., or 3) the need
to prevent a suspect’s escape, or 4) the risk of
danger to the O or to other persons inside or
outside the dwelling.”
 Also, Os must have PC the exigency exists.
3RD EXCEPTION: CARS AND CONTAINERS “AUTOMOBILE
EXCEPTION”
Chambers v. Maroney
 Rule: Os with PC to search an automobile at
the scene where it was stopped may
constitutionally do so later at the station
house w/out first obtaining a warrant. (a
warrantless search of an automobile that
would be valid if it were conducted at the
scene, i.e., at the place where it was stopped
or discovered, is also permitted if it takes
place shortly thereafter away from the scene.
 Auto Applies when: 1) PC to believe
there is evid. of crime in the car; 2)
Vehicle of some kind.
Coolidge v. New Hampshire
 Rule: Cars found in the curtilage of the home
need a search warrant to be searched (falls
outside the exception).
C.A. v. Carney – motor home
 Rule: Reasons why this motor home falls
within Automobile exception and police only
needed PC, not a warrant, to search it. 1) The
vehicle was mobile, capable of turning the key
and driving away; 2) motor homes are heavily
regulated like cars, so this reduces your
expectations of privacy; 3) the motor home
was in a public area, in the public eye, it was
in a parking lot. Therefore, this motor home
is more like a vehicle than home, so it is w/in
the exception rather than the general rule.
Os had PC to search, and that is enough.
 Factors: 1) How mobile is it; 2) How is it
used primarily, is it licensed or truly a
house; 3) is it connected to utilities. If
residence then need a warrant.
Auto Exception Rule: 1) PC; 2) Vehicle: 3) It is in a
public place as opposed to a curtilage = can search
w/out a warrant.
4TH EXCEPTION TO WARRANT REQ.: INVENTORY SEARCH
EXCEPTION
* exception to PC and warrant requirement. If Os
seize your vehicle they are also permitted to do an
inventory search of the items in your vehicle.
 Gen Rule: Os must have a regular procedure
that provides for an inventory search, and
they have to follow that policy and procedure.
(can give some discretion, but if completely
silent it won’t justify the inventory search).
Cannot be pre-textual – must just follow
policy.
FL v. Wells
 Rule: Os were not permitted to open a locked
suitcase they discovered during an inventory
search because the Department had no policy
whatever with respect to the opening of
closed containers encountered during an
inventory search.
United States v. Chadwick – talcum locked trunk
that the containers be able to hold a weapon
or evidence of the criminal conduct for which
the suspect was arrested, they may be
searched anyway. (cannot search trunk).
California v. Acevedo – Fedex’ed Marijuana
Rule: If you have PC to search the car or a
container inside the car, that works. If you have PC,
you have it whether it attaches to car or the
container. You can only search the area where the
PC attaches to.
Automobile Exception

(1) PC to search vehicle

(2) A vehicle

(3) Found in a public place
 Allows you to search containers in the
vehicle, locked or unlocked
 If PC limited to container itself, Os must
stop the search once they find the
container.
Wyoming v. Houghton – Passenger problem
Rule: Os with PC to search a car may inspect any
passenger’s belongings (containers) found in the car
that are capable of concealing the object of the
search; can search any containers in the car that
might hold the drugs in this case. (however you
cannot search the passenger’s person, only their
containers).
5TH EXCEPTION: “PLAIN VIEW DOCTRINE”
Horton v. C.A. – “plain view doctrine”
 Rule: Requirements for “Plain View”
Doctrine:
 1) O has to have lawfully attained a
vantage point from which to see the
object(s). (O has to be somewhere in
conformance with the 4th).
 2) The incriminating nature of the item
must be “immediately apparent.”(just
looking at it you can tell it is “seizable.”
 3) Lawful right to access the object itself
(ex)If O sees cocaine through a window
of a home, even though (1) he is on a
public sidewalk outside a house) and (2)
are established, (3) is not, O does not
have a lawful right to access because
there is PC but no warrant to enter).
(but if ∆ saw O see him doing drugs
maybe exigent circs, which would allow
O to go in w/out warrant).
 4) Inadvertence is not needed. (we
don’t care about pre-text).
Arizona v. Hicks – Plain view and Plaint touch
 Rule: Merely moving a turntable a few inches
to read the serial numbers off of it to call in
the numbers to see if it was stolen is a search,
and thus the incriminating nature of the item
was not “immediately apparent.” If by just
looking at it they could read and call in the
serial numbers, this would be ok, as it would
not be a search or seizure. (also, if had PC to
believe the stereo was stolen then you could
move it to look at the numbers, but RS was
not enough to be able to move it.
 New Rule – Plain View: After this case
5
Unannounced entry into a home; 3)
Physical penetration of the body. In
these cases they will look beyond PC and
do a balancing.
CONSENT TO SEARCH
Gen Rule: For consent to be valid it must be
free and voluntary, and not coerced (state has
the burden of proving this).
Schneckloth v. Bustamonte
 Rule: The Test is the “Totality-of-thecircumstances”; looking at 1) whether the Os
conduct was coercive or not; 2) The
characteristics of the ∆ - vulnerability; and 3)
if we can tell the consentor knew he could say
no. These are just factors you look at, don’t
need all. (Voluntary consent will be
determined by looking at the “totality of the
circs;” whether or not ∆ knew he could deny
consent is just one factor in the analysis.
Bumper v. N.C.
 Rule: mere acquiescence to a claim of
authority (that O had a warrant) is NOT
consent; the O here made a claim of authority
to search, but he did not have the authority,
and this was not consent. (by claim of
warrant, O basically tells occupant they don’t
have a right to deny the search, this is
coercive).
 Gen Rule: Even if a person voluntarily
consents to a search, she can set limits of
temporal nature (time) or limit the scope
(area) of the search. A person may also
withdraw consent after it is given (O must
honor this, unless pre-withdrawal search gives
independent grounds to proceed.
Matlock
 Rule: Someone who possesses common
authority over the premises, that consent is
valid against an absent co-tenant.
Georgia v. Randolph
 Rule: If joint tenants, both present, and one
says “NO”, then Os cannot come in. But, if
you have joint access and control, then that
person can consent to a search in your
absence, and that search is ok, and evid. can
be used against you. (if Os search, evid. found
cannot be used against the objecting party).
 Other Rules Discussed: In a situation where
roommates have their own private bedrooms,
it is NOT reasonable for B to give consent to
the Os for them to search A’s room, the
consent only goes to the common areas. But,
if you have H and W or domestic partners
living together, then they would have joint
access and control over the whole house, and
thus 1 could give consent to search the whole
house.
 Note: 3rd party consent does not include LL
or Hotel Manager – or a child unless just to
come into the foyer.
ILL v. Rodriguez – “Apparent Authority”
 Rule: As long as Os “reasonably believe” the
person has the authority to let them into the


Locked trunk taken from trunk not closed
when ∆s in car arrested, opened sometime
later at station house – no warrant. Lesson:
ppl have a greater expectation of privacy in
containers than in their cars. Therefore,
when the Os unexpectedly encounter a
container that they believe holds criminal
evid., and assuming that no other warrant
exception applies, the Os may seize the
container w/out a warrant. However, they
may not open it until they convince a
magistrate that they have PC to search it.
*We focus on Acevedo however*
FL v. Jimeno- Scope
 Rule: The permissible scope of the consented
to search depends on what the Os
“reasonably believed” what the permissible
scope was. Here O’s told ∆ they were looking
for drugs, therefore it was reasonable for
them to believe they could look in a paper bag
on the floor of the car. (But if Os said they
were looking for an elephant, they could not
open a small paper bag – this would not be
reasonable). (It’s what the Os reasonably
conclude based on the facts known to them at
that time).
State v. Wells
 Rule: It is not reasonable to assume general
consent to search a car is enough to pry open
a locked container. (A general consent to
search a car is not enough to open a locked
container, you have to ask separately for
consent to).
[TERRY STOPS]
(3) Types of Encounters between Os and People:

(1) Voluntary Encounter – Os can walk up to
you on street and ask questions.
 Justification: None; Scope: citizen
determines scope of contact, they can
just walk away.

(2) Terry Stop – a seizure but not quite arrest
 Justification: A “reasonable articulable
suspicion” that the person stopped is
engaged in crime. (lesser than PC; but a
“hunch” is not enough, The O has to give
you the facts that lead the O to believe
the ∆ is engaged in crime, and the facts
themselves with reasonable inferences
have to lead a reasonable O to believe
this person is engaged in a crime).
Scope: Limited in Time – it is brief [1]
the means of investigation are likely to
confirm or dispel suspicions quickly and
[2] the Os have to be diligent in pursuing
those means (need both).

(3) Arrest – Justification: PC; Scope: No
inherent temporal limit.
(3) Types of Search of a Person:

(1) Consent Search – Justification: Must be
voluntary and not coerced, no level of
suspicion just need voluntariness; Scope:
Limited by the scope of the consentor’s
consent – whatever limit they place on it.

(2) Terry Frisk – Justification: “reasonable
articulable suspicion” that ∆ may have a
weapon; Scope: External Pat-Down.

(3) Search-Incident-to-Arrest – Justification:
PC to believe the ∆ is guilty of a crime (the PC
that justified the arrest); Scope: You can

(1) O lawfully attained vantage point
from which O sees the object.
 (2) Incriminating nature must be
“immediately apparent” w/out
moving the object
 (3) Lawful right of access to object
Minn. v. Dickerson – “Plaint-touch doctrine”
 Rule: if O pats you down and can feel that the
item is “siezable” at that time, he can seize it
at that time. But if O has to play around with
it to figure out it is incriminating in nature, he
can’t seize the object.
apt. (give consent), then the search is
reasonable, even though it turned out the Os
were wrong later.
FINAL OCCUPANT CONSENT RULE: 3rd party can
consent if they have “joint access and control’
unless non-consenting party is present and are
objecting to the search. If Os go in anyway, the
evid. they find will not be admissible against the
present objecting party, will be admissible against
consenting, and maybe admissible against absent
other tenant. The consent does not have to be
based off actual authority, consent can be
apparent. As long as Os “reasonably believe” they
have the authority, the O’s search is reasonable.
Minn v. Dickerson – Pat-Downs
 Rule: Terry frisk is not justified to look for
evidence, just weapons; NEVER a justification
for evidence, ONLY weapons. (Here, if O
could have gotten PC that it was crack based
on the pat-down he could have seized it by
search incident to arrest). (When O does
external pat down, he can tell it is NOT a
weapon, therefore he CANNOT reach in and
grab it under Terry.
Adams v. Williams
 Rule: reasonable suspicion that ∆ had a gun
allowed an officer to reach into his waistband
and grab it, when the O asked ∆ to open his
car door, but instead ∆ rolled down his
window – reasonableness and O’s safety
justified this.
ILL v. Caballes – Traffic Stops that Become drug
investigations
 Rule: Under Terry as long as the Os do not
exceed the temporal scope of the traffic stop
(only long enough to give ticket) if they
happen to walk a dog around the car during
that time it is ok. Dog sniff is not a search –
pre-text as well – don’t care about pre-text if
objectively reasonable to do the stop at issue,
and don’t exceed scope. (but if time took too
long, it could become unlawful).
Dunaway v. NY – exceeding scope of Terry
 Rule: (3) Distinguished this case from Terry;
1) ∆ was moved from one location to another
– one where it was the O’s environment
(station) – coercive; in Terry it is brief and you
are let go; 2) this was not brief – Terry is brief
– Os transported ∆ to the station, and
interrogated him for a lengthy period of time;
3) Os had no intention (subjective) of letting
him go (this part does not matter don’t care
subjective).
 Terry stop v. Arrest – need to look at the
scope of the encounter; if Os move you
from one location to another; or
something that makes it more coercive
than a traditional Terry stop – if so, then
it will be treated as an arrest, not a Terry
stop.
FL. v. Royer – Miami Airport
 Rule: Os who held on to ∆’s plane ticket and
luggage, prevented him from going anywhere,
so this was a continuing seizure, not a brief
encounter, the seizure continued throughout
the interrogation. Also, the movement to the
Os office – this was movement from a public
place to a police dominated atmosphere, to
an office that had no one but the ∆ and the Os
– this heightened the coerciveness that comes
(2) Components to Terry Stop

[1] Means of investigation – must be likely to
confirm or dispel Os suspicions quickly;

[2] Os have to diligently pursue those means.
U.S. v. Mendenhall – airport drug courier – no
Terry
 Rule: Standard to determine if there has
been a seizure or not: “if in view of the
totality-of-the-circumstances a reasonable
person would not believe they were free to
leave.” – if not then no seizure. The ct. will
look at the characteristics of the person
seized, but also at the conduct of the Os, and
will focus more on conduct of the Os. The
more coercive Os are, the more likely ct. will
find ∆ didn’t think they could leave.
United States v. Drayton – greyhound bus sweep
 Rule: Modified Standard for Seizure: Would
a reasonable “innocent” person feel free to
terminate the encounter with the Os. (if a
person felt free to say “screw you” to the O,
then not seized, but if they felt they had to
stay where they were until O let them go,
then they are seized). It Does Not matter if
the Os intend to arrest someone, or if the ∆ or
someone like them felt they were going to get
arrested, only reasonable “innocent” person.
Focus is on the Os conduct.
California v. Hodari D.
 Rule: 1) Once physical force is applied to the
person by the Os, they are “seized;” does not
matter if this is successful or not – if you
escape you are no longer seized, but you were
before. (grabbed collar) 2) For show of
authority, seizure occurs after submission to
the Os authority.
Seizures v. Non-Siezures – an encounter will not be
a seizure unless;

1) Some conduct by the Os that can be
characterized by an arrest
 A) Physical force, or
 B) Show of Authority

2) Given the Os conduct, would a “reasonable
innocent person have felt free to terminate
the encounter?

3) If show of authority, did the ∆ submit?
Alabama v. White – “reasonable suspicion”
 Anonymous tip so you need Veracity,
Reliability – basis of knowledge and
corroboration can show this. Here,
information was given that predicted future
event, so the tip + corroboration of future
events was enough to satisfy RS to stop the
car. (shows lower than PC).
Adams v. Williams
6
search the person, and the area w/in their
“immediate control.”
Terry v. Ohio – this was a stop and search
 Rule: If Os have a reasonable articulable
suspicion ∆ is committing a crime they can
stop them, and if reasonable articulable
suspicion they have a weapon Os can frisk
them. (Here RS given by the ∆’s weird
activities, then after O started asking
questions they started mumbling etc, and the
crime O suspected them as contemplating
was armed robbery.)
FL. v. JL
 Rule: An anonymous informant who only
gives a tip relating to present facts (just
describing a person as anyone could) that is
not enough to establish RS, no prediction of
future acts (but if do know the informant then
yea (above)).
Hilbel v. 6th Jud. Dist of N.V. – Converting RS into
an arrest
 Rule: there is a statute that says if Terry stop
Os have a right to ask you your name, if you
refuse you can be arrested. So Os have to
have RS first before anything, before stop and
require to give your name (If the Terry RS
requirement is not there, this would be illegal,
but in Terry context asking your name and I.D.
after RS then this is ok.) The 4th does not
give the right to ask ∆ for his name, it is the
statute – but Os can only do it w/in the
constraints of the 4th – after they have RS for
a Terry stop.
Illinois v. Wardlow – “High Crime Area”
 Rule: If in high crime area, ∆’s flight from
police is enough to get RS, and enough to
justify a Terry stop. (runs at sight of Os). [fine
line between going about your business and
fleeing police – this is arguable in other
contexts].
Maryland v. BUIE – Protective Sweeps
 Rule: [1] As part of a search-incident-to-anarrest you can search the (1) the person; (2)
the area under their immediate control; and
(3) adjoining areas from which an attack could
be immediately launched. (closet in the room
or an adjoining room and Os do not have to
have any level of suspicion to do this, they
can just do it as a search incident to arrest.
[2] If you want to search any other room, you
have to have RS that someone dangerous is
hiding in one of those rooms. (you have to
have RAS that someone is in one of those
rooms, ready to launch a counter attack). (if
they have reason to believe someone else
dangerous is there – multiple people armed
robbed a store etc.)
U.S. v. Place- Terry Seizure
 Rule: Under Terry, the Os can seize property
just like they can seize a person. So if RAS for
given piece of prop. has evid. of crime in it, or
is evid. itself, you can do a warrantless seizure
based on Terry. However, Os have to use the
with the movement. (this was not a Terry
stop, so only justified if had PC, they did not,
so illegal arrest, and weed found in luggage
suppressed).
Penn. V. Mimms and Maryland v. Wilson
 Rule: Traffic Terry stops allow Os to make a
limited seizure of the driver, and also the
passenger, Os can order them out of the car.
U.S. v. Sharpe – Length of detention (here 20 min)
 Rule: Terry stops deal with diligence. In
assessing whether a detention is too long in
duration to be justified as in investigative
stop, we consider it appropriate to examine
whether the Os “diligently pursued a means
of investigation that was likely to confirm or
dispel their suspicions quickly, during which
time it was necessary to detain the ∆.” (Pull
over to call for partners pulling over other
car).

“SPECIAL NEEDS” DOCTRINE
Administrative Searches – reg. enforcement
Camara v. Municipal Court
 Rule: had to go into buildings to enforce
regulations – no suspicion. Had to get an
administrative warrant here – all you needed
to have was a need to enforce the regs.
N.Y. v. Berger
 Rule: because car party industry is a closely
regulated business (closely regulated industry
by gov) there is a lesser interest in privacy,
you have consented to regulatory regime, so
as long as search fits w/in the administrative
needs it is ok. (search of junkyard finding
stolen parts, after owner could not produce
license or list of parts) no need for PC or a
warrant, adm. regs had a non-penal purpose.
N.J. v. T.L.O – birth of “special needs”
 Rule: public school teachers and
administrators may search students w/out a
warrant if [2] conditions are met: 1) there are
reasonable grounds – not necessarily PC in
the criminal law context – for suspecting that
the search will turn up evid. that the student
has violated or is violating either the law or
the rules of the school; and 2) once initiated,
the search is not excessively intrusive in light
of the age and sex of the student and the
nature of the infraction.
 So RAS breaking rules or law, then scope
limited by age, sex, and nature of
offense.
Border Searches:
 1) If search occurs right at the border, it can
be completely suspicionless search [Also at
fixed checkpoints].
 Rule: At the border and its functional
equivalent (airport where international
flights arrive) a person may be stopped
(seized) and her belongings searched
w/out a warrant and in the absence of
individualized suspicion of wrongdoing,
“pursuant to the long-standing right of
the sovereign to protect itself” from the
entry of persons and things dangerous
to the nation.
Compare Roving Border Patrols:
 Rule: if driving around looking for ppl, they
need RAS before they can stop you and search
your vehicle. (more alarming than just passing
through a toll gate)
City of Indianapolis v. Edmond – add drug dogs
 Rule: If the “Special Need” is just to enforce
criminal laws, that is not enough to support
suspicionless seizures and searches. Because
here cars were stopped and dogs walked
around them, and primary purpose was to
just stop crime – the DWI and license check
were secondary – you can’t just do these
searches to further the goal of law
enforcement. The program would only be ok
if DWI was the primary purpose etc. (DWI
drivers are an immediate threat to the public,
drugs in a car is not). We don’t go with Whren
in this context, we look at the purposes
behind the program itself, will look to primary
purpose. (not indv. officer, but whole
program). (if Primary purpose is to check for
DWI and they also bring in dogs to sniff – this
maybe would be ok).
ILL v. Lidster – Roadblock to find witness
 Rule: It was ok to set up a road block at the
same time of day as a hit and run accident, in
order to find witnesses that may have seen
the accident. Specific need to find evid. of the
accident and not trying to find the
perpetrator, so special nature of circs.
Justified it.
Final Roadblock R.: DWI, Protecting borders, need
to find a fleeing felon, need to stop a terrorist
attack, need to find witness to a crime, analyze
with:
 Primary Purpose – must be special, then
1) State interest; 2) Effectiveness; 3)
Level of intrusion.
Drug Testing: Suspicionless Drug Testing
 Rule: “nature and immediacy” – there must
be some close connection between the state’s
interest in finding drug use and the person
being searched. Exs) RR workers involved in
train accidents; Customs agents – they do
drug interdictions; Student athletes. Ct. also
looks at level of intrusion; blood testing
(minimally intrusive) Breath (less intrusive)
Excretion (urine) – ok as long as no one is
watching you do it. (Did not uphold it for
political candidates). Chandler v. Miller.
Remember: Trick Checkpoint – Sugartree gives RS
to stop if they try to avoid and pull off road.
REMEDIES FOR 4TH VIOLATIONS
U.S. v. Paynor – Standing
7
Rule: Informant tip, saying ∆ had gun in his
waist band – was not future prediction, it was
present. O knew the informant, he had given
info before, and tip was enough to get RS.
Since O knew who he was, that may be
enough to establish RS; because we know
informant’s identity, and if he is lying we can
prosecute him for making a false report
(statute); so if known identity so they are on
the hook – you can establish enough
reliability for RS – even though not predicting
future conduct, and Def not enough to
establish PC.
method that will expel their suspicions
quickly, and do this efficiently. Here, by
seizing the suspected drug case, taking 90
min, taking it to another airport. Os knew of
∆’s arrival, they should have secured drug
dogs at that airport. Not take 90 min to go to
another airport, let dogs hit, then get warrant
for search after a whole weekend passes.
(need diligence).
Michigan v. Long – Car “frisks”
 Rule: When Os have RAS that there might be
weapons that could be a danger to them, they
may search in any area inside the passenger
compartment of the car where weapons
might be found. “the search of the passenger
compartment of an automobile, limited to
those areas in which a weapon may be placed
or hidden, is permissible if the Os possess a
reasonable belief. . . that the suspect is
dangerous and the suspect may gain
immediate control of weapons.”
Rakas – passengers of a searched car were not
allowed to assert 4th claim to exclude evid. they did
not have a legitimate expectation of privacy (Katz).
 In a car you might have a reasonable
expectation of privacy, but these ∆ did not
show a reasonable expectation of privacy.
They need to show a possessory or ownership
interest in the car or the items – that might
have been enough to show a reasonable
expectation of privacy.
To Assert 4th Claim:
 Have to show the search or seizure involved
an area where you have a reasonable
expectation of privacy. To show this you need
to show ownership or possessory interest in
the place searched or items seized.
Jones
 Rule: ∆ given permission by apt. owner and
given a key to stay there. O’s committed an
illegal search, and evid. against ∆ was
suppressed because “anyone legitimately on
premises where a search occurs may
challenge its legality.” (Ct. agrees with this
result later – but ultimately finds this holding
too broad).
Simmons v. U.S. – problems with claiming
possessory interest
 Rule: When a ∆ testifies in support of a
motion to suppress on 4th grounds his
testimony may not thereafter be admitted
against him at trial on the issue of guilt unless
he makes no objection. (can’t be used
substantively, but can be used as
“impeachment” evid. – can’t abuse the
suppression decision). But this impeachment
exception does not apply to third party
witnesses (can’t use ∆’s statement to impeach
a 3rd party witness).
Minn. v. Olsen – homes unlike cars for standing
 Rule: To hold that an overnight guest has a
legitimate expectation of privacy in his host’s
home merely recognizes the everyday
expectations of privacy that we all share. We
think that society recognizes that a house
guest has a legitimate expectation of privacy
Mich. Dep’t State Police v. Stiz - Checkpoints
 Rule: Sobriety checkpoints, which are
suspicionless seizures to find drunk drivers,
are permissible as long as the Os meet (3)
requirements: 1) State interest (stop drunk
drivers here); 2) Effectiveness of the program
(1.6% was effective enough here, just have to
show some level of effectiveness); 3) Level of
intrusion of the search (here stops are just
brief, ppl are let go, not that subjectively
intrusive because of reasonably innocent
person would not feel alarmed) – so both
objectively and subjectively low. (Notice that
if randomly pulling ppl over, the level of
suspicion is subjectively higher).
1) State Interest
2) Effectiveness of the Program
3) Level of intrusion of the Search

2) 5 votes – Kennedy +
dissent – if you are a social
guest you will almost always
have a legitimate
expectation of privacy no
matter how long there or if
you stay overnight (virtually
always have an expectation
of priv after this.
Rawlings v. Kentucky
 Rule: Ct. rules that the test enunciated in
Rakas whether the ∆ had a reasonable
expectation of privacy in the area searched –
is the exclusive test for determining whether a
∆ may successfully challenge search.
 Rule: While ∆’s ownership of the drugs (in
other occupant’s purse) is undoubtedly one
fact to be considered in this case, Rakas
emphatically rejected the notion that
“arcane” concepts of property law ought to
control the ability to claim the protections of
the 4th. Here, ∆ had no access to her purse,
so it was unreasonable for him to think he had
a legitimate privacy interest in her purse; just
because he claimed ownership of the drugs
did not give him a legitimate privacy interest
in the purse the pills were in. (you have to
have an ownership or possessory interest in
the area searched, it DOES NOT matter if you
have an ownership interest in the item
seized).
Mapp v. Ohio – applied exclusionary rule to states
and fed. Gov.
Reasons for the exclusionary Rule:
 1) Deterrence of O misconduct; 2) did not
want it to be right w/out a remedy; 3)
maintain the integrity of the justice system.
Why Ppl don’t like it:
 1) Lets ∆s get off even though guilty; 2) When
you exclude evid. you are impeding the truth
finding function. [exclusionary rule does not
apply in a) grand jury hearings; b) Preliminary
hearings; c) probation and parole hearings.]
GOOD FAITH EXCEPTION TO 4TH:
U.S. v. Leon – it was a “close call” if PC or not
8

Rule: To have standing for the exclusionary
rule, the ∆’s const. rights must be the one’s
violated. Here, O’s unlawfully seized W’s
briefcase, which gave then incriminating
evidence about ∆, however ∆’s rights were
not the ones violated, therefore no exclusion
of the evidence against ∆, only if there was
evid. found against W would W be able to get
suppression of the evid.
Rakas v. ILL
 Rule: The question that must be answered for
exclusion is whether your 4th Amend rights
were violated; whether you have a reasonable
expectation of privacy and if society will
recognize that interest. Here, passengers in
the illegally stopped car had no possessory
interest in the car (not renting, leasing, or
borrowing it) they are mere passengers. Also,
they had no legitimate expectation of privacy
to the glove compartment or under the seat
(or trunk) because passengers would not have
an expectation of privacy there – and they
don’t claim ownership to the guns. (Here no
possessory interest in the car searched, or
guns found).
The Standard: Objective Good Faith Standard: It
requires “objective reasonableness” the O can
actually know there is not PC, but if a reasonable O
would not have known, then they will get away
with it. (“the good-faith inquiry is confined to the
objectively ascertainable question whether a
reasonably well trained O would have known that
the search was illegal despite the magistrates
authorization.”) We don’t want to look into the
heads of Os.
Exs) of when it is appropriate to suppress despite
warrant:
 1) When judge is misled by info the affiant
knew or should have known (reckless) about
giving false info.
 2) if judge abandons the judicial role – Lo Ji
 3) Aguilar, Spinelli affidavit – so lacking in PC
that a reasonable O would not rely on that
warrant.
 4) When warrant is facially deficitient –
where a reasonably well trained O would
know something was wrong by just looking at
it.
Remember: The Good Faith exception has nothing
to do with the O’s subjective Good Faith.
Mass. V. Sheppard
 Rule: Os informed judge of problem with the
form of the warrant (narcotics as opposed to
murder, but could not get a murder one on
the weekend), Os tried to fix the form,
informed the judge of the problem, judge
said he would fix it, and signed it and gave it
back. However, the warrant facially deficient
as stated search for narcotics not murder
failing the 4th; ct. refused suppression
because judge affirmatively told Os he fixed
the error, therefore a reasonable well-trained
O would have relied on the judge’s
assurances, and thus not excluded.
Groh v. Ramirez
 Rule: Warrant failed particularity
requirement and ct. did exclude, because
warrant was created by the Os, not the judge
as in Sheppard. If Os prepare the warrant
app. and it is deficient as not describing
in his host’s home (they look to social
custom).
 Here, ∆ is a social guest, especially an
overnight one, and when you sleep you are
very vulnerable and society recognizes this as
being reasonable that you have an
expectation of privacy. (so “overnight guests”
have this even though no ownership or
possessory interest (Rakas – opposite).
Compare – Minn. v. Carter – bagging coke in house
 Rule: ∆’s seen bagging cocaine in owners apt.
as guests there. Ct finds, 1) they are on the
premises for a short time (shorter time in
location, lower claim you have to a legitimate
expectation of privacy); 2) no prior connection
to the owner (lack of prior connection with
owner negates they had a legitimate
expectation of privacy to the house, makes it
more tenous; 3) business transaction in the
house (this is a home, but being treated like
an office, temporary office, lesser expectation
of privacy in an office than a home). All of this
taken together = ∆s have no legitimate
expectation of privacy in the house and no
standing to challenge the search.
 (2) Rules from this case:

1) 5 votes – if business, short
time, no prior contact, then
no legitimate expectation of
privacy.

Rule: When we look at costs and benefits and
there is not much deterrent value, then we
don’t exclude evid. (“the marginal or nonexistent benefits produced by suppressing
evid. obtained in objectively reasonable
reliance on a subsequently invalidated search
warrant cannot justify the substantial costs of
exclusion”).
When Evid. Should be suppressed:
 1) Lo-Ji Sales – no neutral magistrate
 2) Affidavit contains very little issue, and
not supported by PC (Bare bones).
 3) The form is improper and something
on the surface of it shows it to be wrong.
 4) if the magistrate or judge in issuing a
warrant was misled by info in an
affidavit that the affiant knew was false
or would have known was false except
for his reckless disregard for the truth.
(When fault is just the magistrate, there is no
reason to suppress, no deterrence, their job is
not to ferret out crime).
things to be seized, that will be applied to Os,
they were responsible for the error in the
first place, so evid. excluded. (In Sheppard it
was judge’s fault, here it is O’s).
Arizona v. Evans – expansion of Leon
 Rule: Os computer in traffic stop said ∆ had
an outstanding arrest warrant; ∆ arrested,
and search incident turns up marijuana, but
later found out the computer info was
incorrect. A Ct. clerk had committed a
clerical error, and computer was not updated
to show warrant was quashed; exclusionary
rule meant to deter Os not clerks – Os acted
objectively reasonable so no suppression – it
was a clerk’s error not O’s.
Hudson v. Michigan
 Rule: no exclusion for violation of the 4th’s
knock and announce rule.
FRUIT OF THE POISONOUS TREE DOCTRINE
Silverthorne Lumber Co. v. U.S.
 Rule: The 4th Amend exclusionary rule
extends not only to the direct products of
governmental illegality, but also to secondary
evid. that is the “fruit of the poisonous tree.”
Evidence that is not causally linked to gov.
illegality is admissible pursuant to the
“independent source doctrine.”
Doctrine of Attenuation or Dissipation
 Rule: If the link between the 4th violation
and discovery of evid. is attenuated so poison
is dissipated, then evid. can still come in even
though discovery is caused by a 4th violation.
Decision Tree:

A) Identify the “tree” (the Const. violation)

B) The fruit (evid. gov. seeks to introduce).

C) determine whether b) comes from a) (is
there a causal link?) and

D) if the fruit did come from a poisonous tree,
identify any facts that may justify the
conclusion that the poison from the fruit has
dissipated (the “attenuation” doctrine).
Wong Sun v. U.S. – Lots Going on – Whole Scheme

Statement by BT right after the illegal
search/arrest of him, there was no time for
the violation to dissipate – so it was caused by
the 4th violation ,and statement is
suppressed. Illegal search because no
warrant and no PC.

WS was illegally arrested, but he came back
later voluntarily to give a statement (several
days later) the poison had “dissipated” –
attenuation exception. Rule: if the illegal
search or seizure causes the evid. to be
discovered, then excluded at trial, but when
the casual link is attenuated between conduct
and evid., then they will find the poison is
dissipated (although but-for, there is no prox.
Causalty).
 Factors Relevant: “so attenuated as to
dissipate the taint.” 1) Several days had
passed; 2) they were given warnings of
their rights (Os tried to cure the taint);
3) they chose to return and talk
voluntarily.

Drugs: found at 3rd party’s house, so usually
BT would not have standing to get these
suppressed, however, BT’s statement, gotten
U.S. v. Ceccolini – witnesses
 Rule: For the purposes of attenuation you do
not treat witness statements the same way.
(more likely to find attenuation when it comes
to witnesses). Illegal information leading to
the identification of a witness – the ct. is more
likely to find attenuation because of the
likeliness the witness could have come
forward at some point.
Murray v. U.S. – “Independent Source Doctrine”
 Rule: “the ultimate question, is whether the
search pursuant to warrant was in fact a
genuinely independent source of the
information and tangible evid. at issue here.
This would not have been the case if the
agents’ decision to seek the warrant was
prompted by what they had seen during the
initial entry, or if information obtained during
that entry was presented to the Magistrate
and affected his decision to issue the warrant.
You have to ask these (2) questions, and if
“Yes” to either, then the evid. will be
excluded. (here O’s illegally go into
warehouse and see drugs, leave everything as
they found it, apply for a warrant to a judge,
not telling the judge they illegally entered,
used info from before the entry, get warrant
and go back and seize all the weed).
Nix v. Williams – Inevitable Discovery Doctrine
 Rule: “had the police not violated the law,
they would have gotten it legally thereafter
anyway, so fruit of poisonous tree does not
apply. (preponderance of the evid. is BOP).
Even though Os violated ∆’s rights by
“Christian burial speech” forcing ∆ to lead
them to her body, and search team was
already looking and would have eventually
found the body anyway. (not independent
source because did not find it independently –
but by their violation).
Here, ∆ was cool calm and collected throughout, his
characteristics overcome the coercion (he is a coldhearted snake). ∆ also stated that he would have
never given a statement, but his co-defendant
made a statement, that is why he did, to counter
act it. It was free and voluntary.
Spano v. N.Y.- candy store boxer murder
 Rule: involuntary confession 1) ∆ is relatively
weak and vulnerable- he is young, immigrant,
emotionally unstable (the type of person
susceptible to coercion; 2) Improper conduct
by Os; there was no att’y present (heightens
coerciveness); the Os continued to question
after ∆ said he did not want to talk to them
anymore; they used ∆’s friend Bruno for
“promises and threats” – If Os are using
promises and threats – that will lead the ct. to
finding that there is coercion taking place.
(that if he didn’t confess, his friend Bruno
would lose his job). (conduct + characteristics
– maybe if Lisenba was in this situation it
would not have been enough (cold-hearted
snake)).
A.Z. v. Fulamonte – Due Process – child killer
 Rule: ∆ befriended other prisoner who was
an FBI informant; this prison offered ∆
protection in prison (because he was catching
heat for being a child killer) if he would tell
him the truth about the death of his 11 yr old
daughter. The fear of physical violence,
absent protection from his friend is what
motivated ∆ to confess, so ∆’s will was
overborne in such a way as to render his
confession the product of coercion. (indirect
threat). ∆ is a child killer so very susceptible
to violence against him).
[THE FIFTH AMENDMENT]
“No one shall be compelled in any criminal case to
be a witness against himself.”


9
illegally, caused the Os to go to JY’s house and
find the heroin. (heroin is not a fruit of BT’s
tree, but because the entry to his house
caused the entry into JY’s house, the heroin is
excluded).

WS does not have a reasonable expectation of
privacy in JY’s apt, where drugs found, and
WS’s rights were violated AFTER JY’s rights.
Bt’s were violated before JY’s causing the Os
to find the heroin in JY’s house. Since WS’s
violated after you can’t make the same
argument BT did, so come in against WS.
Brown v. ILL – Factors in determining when the
connection between the 4th violation and a fruit
has become so attenuated as to dissipate the
taint:
 (1) length of time elapsed between the initial
illegality and the seizure of the fruit in
question; (2) the flagrancy of the initial
misconduct (dissipation of bad-faith violations
takes longer than with good-faith violations);
(3) the existence or absence of intervening
causes of the seizure of the fruit (some other
reason besides illegality you found the fruit);
and (4) the presence or absence of an act of
free will by the ∆ resulting in the seizure of
the fruit (like WS coming back to give
voluntary statement).
Nature of the Fruit: (2) Kinds
1. Physical
2. Statements (testimony)
[CONFESSIONS]
(4) Ways to challenge introduction of Confessions
Directly:
1) Due Process Clause
2) 5th Amend – Right against Self-Incrimination
3) 6th Amend – Right to Counsel (once invoked)
4) 4th Amend – Fruit of poisonous tree (BT case
because of fruit of poisonous tree).
Hector (a slave) v. State – torture
 Rule: coerced confessions are inherently
unreliable, so unreliable you cannot let the
jury hear it. Ppl who are tortured are liable to
say anything to get the paint to stop. It is a
question of law, because not reliable.
Brown v. Mississippi - torture
 Rule: torture confessions are not just
unreliable, but evid obtained in this way is a
fundamental wrong which transforms the
entire trial into a mere sham – notion of
fundamental justice that confession obtained
due to coercion is a fundamental injustice.
Lisenbe v. California – Involuntary Confessions
w/out Torture
 Rule: It violates Due Process to admit at trial a
confession that was given involuntarily.
Standard for voluntary v. involuntary –
Totality-of-the-circumstances – 1) police
conduct, and 2) characteristics of the person
giving the confession (did the O’s conduct
over power the will of the ∆ and cause him to
confess – if so then Due Process violation
because (involuntary).
Remedy: Exclusion – it is specifically w/in the
language of the Amend, you can’t admit compelled
testimony of the ∆ against that ∆.
Schmerber v. California – Blood Test
 Rule: The 5th only protects compelled
“testimony” not physical evid. Here ∆ being
ordered by Os to get his blood withdrawn did
not violate the 5th. If this had been a lie
detector test, this would be different, but this
is merely a chemical test. The privilege is a
bar against compelling “communications” or
testimony,” but that compulsion which makes
a suspect or accused the source of “real or
physical evidence” does not violate it.
Hilbel v. 6th Jud Dist – not “incriminating”
 Rule: “stop and identify” statute – Giving
your name is not an admission to a crime, so
the Os can compel you to give booking
information, name, address etc. – not covered
by 5th. 5th only covers “testimonial” and only
statements that are incriminating.
Bram v. U.S. – murder on a ship
 Rule: question “they said they saw you do
this”, and then ∆ basically admitted it, this
was an involuntary admission. The question
compelled an answer. Any pressure at all may
be enough to require suppression – cited in
Miranda.
Miranda v. Arizona
 Rule: Before any custodial interrogation the
police must inform the ∆ of his 5th Amend
rights:
 (1) The right to remain silent;
 (2) and that anything ∆ says can and
will be used against him in court;
 (3) that ∆ has a right to counsel;
 (4) and that if ∆ cannot afford one, one
will be appointed for ∆.
 Rule: To prove waiver is a very heavy burden,
an express wavier might be enough, but mere
silence is not enough. And the waiver must
be voluntary – they cannot threaten or trick
you into doing it.
 Rule: Requirements for Miranda to attach: 1)
Custody; 2) Custodial Interrogation. Have to
read you your rights before interrogation;
after the warnings you have to get a waiver
before you can ask any further question; if no
waiver then anything ∆ says will be excluded.
ILL v. Perkins – cell mate undercover cop
 Rule: Need 1) Custody, 2) Interrogation, and
3) ∆ has to know the person interrogating
them is a police officer. (w/out 3rd
requirement there is no coercion). You must
know the person questioning you is an O (the
5th does not stop morally wrong questions
(trickery) just coercive questions)). (the
undercover officer cellmate that ∆ confessed
murder to did not violate Miranda).
De-Constitutionalizing Miranda

A statement gotten in violation of Miranda
cannot be used in a prosecution’s case’s casein-chief, but can use it as impeachment. But if
the statement is compelled, then it can’t be
used to impeach.
Balancing test: The public safety must outweigh
the safeties of Miranda.
Oregon v. Elstad “Cat out of the Bag”
 Rule: Mere Miranda violations (voluntary
statements with no Miranda warnings or no
waiver) none the less, if there is no
compulsion, then there is no poisonous tree
and no fruit, Os can Mirandize you later and
get the same statement and there is no
problem. (first statement was in his house,
then Mirandized, and second statement at
station after waiver). Here no Const.
violation, just Miranda violation, so no fruit of
the poisonous tree.
Dickerson v. U.S.
 Rule: Miranda is a constitutional
requirement: That Miranda was applied to
state courts as well, not just federal, so this
shows it was constitutional. (so not just a
supervisory rule.) It is a Const. Rule, so
Congress does not have the power to overrule
it, but the scope of it is not the same as the
5th; not overturning the prophylactic part of
it, it is a prophylactic rule with const. anchor,
therefore Congress cannot overturn it.
Missouri v. Seibert – Deliberate 2-Step Method
 Rule: usual violations of Miranda should be
governed by Elstad’s considerations.
However, when the 2-Step approach is used
(deliberate strategy) post-warning statements
that are related to the substance of prewarning statements must be excluded unless
curative measures are taken before the postwarning statement is made.
Kennedy Analysis – Follow (3) Steps in applying
Seibert:
U.S. Patane – physical fruits of Miranda violation
 Rule: If the first confession is a mere Miranda
violation – since no poisonous tree – there are
no physical fruits of the Miranda violation, so
physical fruits of the Miranda violation can
come in. (as a result of interrogation Os get
statement and physical evid., physical evid.
not excluded).
What is “Custody”?
Oregon v. Mathiason – voluntarily goes to station
 Rule: Os are not required to give Miranda
warnings to everyone whom they question.
Miranda warnings are required only where
there has been such a restriction on a
person’s freedom as to render him “in
custody.”It was that sort of coercive
environment to which Miranda by its terms
was made applicable, and to which it is
limited. (here ∆ was free to leave at any time,
never told he could not go, and was told he
was not under arrest).
Berkemer v. McCarty – Miranda for misdemeanors
 Rule: A person subjected to custodial
interrogation is entitled to the benefit of the
procedural safeguards enunciated in Miranda,
regardless of the nature or severity of the
offense of which he is suspected or for which
he was arrested. (so it is for felonies and
misdemeanors).
 HOWEVER: Rule: When mere Terry stop
(traffic stop) the Os can do mere questioning
w/out Mirandizing. (allowed because a
reasonable person in the context of a Terry
stop will believe they can leave soon (It Is
Brief), so then no need for warnings.).
**A Terry Stop is not custody, but a full arrest is**
What is “Interrogation”?
10

The 5th protects against compelled selfincrimination. Miranda protects against
custodial interrogation w/out warning or
waiver (so protects you against more).
 1) There could be cases where you have
compelled self-incrimination, but maybe
no Miranda violation (gun to the head
after Miranda rights read – would be
coercive).
 2) Sometimes you will have compelled
self-incrimination where there is also a
Miranda violation.
 3) Sometimes you will have a Miranda
violation, but no compelled selfincrimination.
Mere Miranda Violation:
 Rule: The statement is suppressed, even
though the 5th has not been violated.
 Rule: If you don’t get your Miranda warnings,
and you choose to be silent, that silence CAN
be used against you at trial. (but if given
warnings and you say you choose to remain
silent, that can’t be used).
N.Y. v. Quarles – “Big Ben” – gun in store
Rule: Public Safety Exception: 1) You need to have
some situation that gives rise to some need for
public safety – it must be reasonably threatened.
(here, a guy that is a rapist, with a holster, and gun
is missing – there could be an accomplice, or
another customer that might stumble across it –
inherently dangerous situation). 2) the question
itself must be related to the public safety danger –
here they asked where the gun was (not if ∆ raped
her – this would be outside the scope). Miranda
violation but public safety doctrine allows the
questions.
1)
The Ct. should determine whether Os
deliberately employed the two-round
interrogation strategy for the purpose of
sidestepping Miranda (Kennedy). If not, then
the inquiry is at an end and no Miranda
violation occurs.
If the procedure was deliberately employed to
sidestep Miranda, then to determine whether
a given situation is more like that in Elstad or
Seibert, the Ct. should apply the (5) Factors
the Seibert plurality enunciated:
a) The completeness and detail of the
questions and answers in the first round
of interrogation;
b) The overlapping content of the two
statements;
c)
The timing and setting of the first and
second;
d) The continuity of police personnel; and
e) The degree of which the interrogator’s
questions treated the second round as
continuous with the first.
Finally, if after applying these factors, the Ct.
concludes that the facts are more like those in
Seibert than Elstad, it should follow a third,
final step: Determining whether the
interrogator took any curative measures
(telling ∆ the previous statement could not be
used etc.). Assuming that he or she did not,
the confession is inadmissible.
Rhode Island v. Innis – taxi cab killer – handicapped
girl school
 Rule: There are (2) types of interrogation: 1)
Express interrogation, which is asking ∆
questions, and 2) Functional equivalent;
words or actions that Os should know are
reasonably likely to illicit an incriminating
response from the suspect. For the
Functional equivalent the court does not look
to subjective intent of O but whether, “if a
reasonable O would have realized what he or
she was saying or doing was reasonably likely
to illicit an incriminating response, then it is
interrogation.” [Here it was not functional
equivalent, ∆ is a cold-hearted snake, so the
technique does not seem likely to illicit an
incriminating response from him]. (they
spoke of danger of someone at the mentally
challenged school of finding the gun and
hurting themselves, nothing in his character
showed a soft spot for this, they did not
directly question him, and only went on for a
few mins.)
 [Note]: Functional equivalent does not have
to be words, it could have been pics of the
dead taxi driver passed from one O to
another; also does not have to be something
with a question mark after it.
Rule: The Miranda safeguards come into play
whenever a person in custody is subjected to either
express questioning or its functional equivalent.
The term “interrogation” under Miranda refers not
only to express questioning, but also to any words
or actions on the part of the Os (other than those
normally attendant to arrest and custody) that the
Os should know are reasonably likely to elicit an
incriminating response from the suspect.
Penn v. Muniz – booking questions
 Rule: Routine booking questions are not
covered by Miranda therefore no rights need
to be read before asking them. One part of
the court said there was a “routine booking
exception to Miranda; the other said the
answers to booking questions were not
“testimonial.”
Waiver and Invocation of Miranda Rights
N.C. v. Butler
 ∆ was read his Miranda rights, and then
determined he had an 11th grade edu., and
was literate. Os gave ∆ the FBI waiver form
and ∆ refused to sign it. ∆ said, “I’ll talk to
you, but I’m not signing a form.” ∆ continued
to talk and made inculpatory statements. At
no time did ∆ request counsel or attempt to
terminate the agents questioning.
 Rule: Waiver must be knowingly, voluntary,
and intelligent, it is a heavy burden, and it
will not be presumed from silence, or from
the fact that ∆ ultimately confesses.
However, the question is not one of form, but
rather whether the ∆ in fact knowingly and
voluntarily waived the rights delineated in the
Miranda case. As said in Miranda, mere
silence is not enough. That does not mean
that ∆’s silence, coupled with an
understanding of his rights and a course of
conduct indicating waiver, may never support
a conclusion that a ∆ has waived his rights.
The Cts must presume that a ∆ did not waive
his rights; the prosecution’s burden is great;
but in at least some cases waiver can be
Michigan v. Mosley – invocation of 5th Silence
 No Miranda violation, 1) ∆ invoked right to
silence, not to counsel, and 2) in this case, the
2nd questioning involved a diff detective,
from a diff bureau, about a diff crime, and
happened at a diff time, and under those
circumstances no Miranda violation.
 Rule: The admissibility of statements
obtained after the person in custody has
decided to remain silent depends under
Miranda on whether his “right to cut off
questioning” was “scrupulously honored.” As
long as Os conduct is consistent with
scrupulously honoring right to cut off
questioning, then later questioning may be ok
if it is attenuated enough: as it was here.
This is diff. from 5th right to counsel.
Oregon v. Bradshaw
 Rule: Initiation by ∆ after invocation, only
occurs when an inquiry from the suspect can
“fairly be said to represent a desire on the
part of an accused to open up a more
generalized discussion relating directly or
indirectly to the investigation.” (asking for a
drink of water or to use the phone does not
constitute initiation).
Arizona v. Robertson – 5th counsel not Of-Sp
 Rule: an invocation of the 5th right to counsel
applies to all crimes and the knowledge of
that invocation is imputable to all law
enforcement. (this shows difference between
right to counsel vs. silence). (thus 5th right to
counsel is NOT offense specific).
Minnic v. Mississippi – further of not Of-Sp
Brewer v. Williams – “Christian Burial Speech”
YMCA case.
 Rule: Fruit of the poisonous tree applies to
the 6th. (note that in Miranda there are no
fruits, only the statement gets suppressed,
not fruits of it; but with the 6th, the fruits will
be suppressed).
 Rule: If you violate the rule (deliberate
elicitation after invocation of right) once you
do that – Game Over – the evid. is
suppressed.; if waiver comes after deliberate
elicitation by the gov., then it is going to be
really hard, maybe impossible for the gov. to
prove waiver. (the “Christian Burial” speech
did this).
U.S. v. Henry – deliberate elicitation
 Rule: informant in cell with ∆. “even if the
agent’s statement that he did not intend that
Nichols would take affirmative steps to secure
incriminating information from ∆ is accepted,
he must have known that such propinquity
likely would lead to that result.” That, in
messiah, no inquiry was made as to whether
Massiah or his co-∆s first raised the subject of
the crime under investigation.
But See Kulmann v. Wilson – no deliberate
elicitation
 Rule: Situation not covered by Massiah when
a cellmate merely listened to what ∆ said, and
then took notes and reported findings to Os.
Ct. stated ∆ must demonstrate that the Os
and their informant took some action, beyond
merely listening, that was designed
deliberately to elicit incriminating remarks.
2)
3)
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clearly inferred from the actions and words of
the person interrogated. (does not have to be
express).
Silence + Understanding + Conduct might be
enough to show an implicit waiver.

Make sure to look at 1) Nature of ∆, and 2)
Nature of O’s conduct, in determining
knowing, voluntary, and intelligent.
Moran v. Burbine – waiver is personal
 Rule: ∆ knew he had a right to remain silent,
and knew he had a right to counsel; that is all
you have to tell them. Os don’t have to tell ∆
a lawyer is waiting to represent him. And
since wavier is personal, only the ∆ can invoke
or waive his rights, the fact a lawyer was
knocking on the door and wanting to come in
is irrelevant for Miranda, and Os also don’t
have to tell you a lawyer is waiting to come in.
(for “knowing.”
[Note] – Voluntariness around waiver, and even
after waiver, the interrogation itself could be
coercive, and if it is the ∆ may get evid. suppressed
as a direct 5th violation.

[The ct. is much less likely to find coercion
when there has been a waiver of Miranda.]

Look to characteristics of ∆, O’s actions, and
also the waiver (if waiver, the more likely
conclusion will be voluntary).
Edward v. Arizona – If right to counsel invoked
 Rule: It has nothing to do with whether the
2nd waiver was voluntary or if the confession
even was. If an accused, such as ∆, having
expressed his desire to deal with the Os only
through counsel, is not subject to further
interrogation by Os until counsel has been
made available to him, unless the accused
himself initiates further communication,
exchanges, or conversations with the Os. Os
can’t even see if ∆ has changed his mind.

Rule: Once a suspect invokes his 5th right to
counsel (under Miranda), the Os may not
reinitiate interrogation in the absence of
counsel; unless ∆ initiates it. Even if the ∆ has
talked with his lawyer. (lawyer must be in the
room).
Davis v. United States – request for counsel must
be unambiguous before Edwards applies.
 Rule: ∆ must articulate his desire to have
counsel present sufficiently clearly that a
reasonable O in the circumstances would
understand the statement to be a request for
an att’y (clearly and unambiguously). If the
statement fails to meet the requisite level of
clarity, Edwards does not require that the O
stop questioning the suspect. (if you say
something ambiguous Os can ignore it and
keep questioning you, no duty to inquire
further or clarify, duty is on ∆).
POLICE INTERROGATION: THE 6TH RIGHT TO COUNSEL
Massiah v. United States – co-∆ working with
police and taping ∆’s statements after invocation of
6th right to counsel - ∆ did not know at time
 Rule: 6th applies even when ∆ does not know
they are talking to a gov. agent. It applies
anytime the gov., or agent thereof is
deliberately iliciting information from the ∆.
Once the charges have come, and the rights
(6th) have attached, the Os cannot
deliberately try to elicit information from you
(unless you waive it, or the ∆’s lawyer is
present) (can’t talk to the accused w/out their
lawyer, once the right attaches).
Differences between 5th and 6th:

5th: attaches when a custodial interrogation
is imminent.

6th: attaches when you are indicted or
otherwise charged with a crime (moving from
being a suspect to being the accused.)
Following indictment or arraignment (4) Categories
of Massiah exist:

(3) Involve “Counsel Events” – 1) the ∆ can
request counsel (Jackson), 2) Can be
appointed counsel (Brewer), or 3) can retain
counsel (Massiah) the 4th Category involves
the absence involves the absence of a
“counsel event” – the ∆ does not request and
the legal system does not provide counsel
(Patterson). In all of these cases, ∆s receive
almost exactly the same rights under Massiah
as under Miranda. Os may not re-approach
after a counsel event, but in the absence of a
counsel event, Os may secure a voluntary
waiver.
McNeil v. Wisconsin – a way that Miranda is more
protective than Massiah
 Rule: The 6th right to counsel is offense
specific, the 5th is not. When you invoke your
6th right, it is only an invocation to the crime
you have been charged with, not others. But
if you invoke your 5th right to counsel, they
can’t come back and ask you for a waiver as to
any crime. (So Os can ask for a Miranda
waiver for other crimes, just not the one you
have invoked the 6th for).
Texas v. Cobb – meaning of “Offense Specific”
 Rule: The “factual relation test” is rejected for
the test as to whether the 6th invocation
covers the offense the waiver is sought for.
The test for the same offense in the 6th
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(so seems as long as doesn’t instigate the
discussion on the topic, informant just
listening does not violate the 6th.)
Michigan v. Jackson
 Rule: Once you invoke your (6th) right to
counsel, the Os can’t even ask you for a
waiver. (Edwards made a prophylactic rule
for the 5th) – now the ct. is doing the same
thing for the 6th Amend. Os can’t even come
back and ask for a waiver, much less
interrogation you. So apply same rule in
Edwards to the 6th Amend. Also all
knowledge of the invocation is imputed on all
governmental actors. So ∆ can initiate after
invocation of 6th right, this might be ok
(waiver) but Os can’t ask after.
Patterson v. ILL – ∆ never asserted his 6th, so the
ct. found the Miranda waiver also waived Massiah
on the facts of the case.
 Rule: nothing in the 6th prevents Os from
approaching and seeking waiver from a
suspect like ∆, who knows of the indictment
and neither has counsel nor requests a
lawyer. From the moment of invocation the
Os can’t ask for a waiver, because the right
has been invoked. But if you are in the period
between attachment of the right and
invocation of the right, the police CAN ask for
a waiver – because you have not yet invoked
your 6th right. (So there can be a time period
where your 5th and 6th Amends diverge
(overlap), so a waiver of your Miranda rights
will be a waiver of your 5th and 6th Amend
rights to counsel. (here ∆ knew he was
indicted when he waived).
context is the same as the 5th double
jeopardy clause, called the “Blockburger” test.
This test finds different statutory offenses to
be the same only when the elements of one
offense are necessarily included in the
elements of the other offense. One way to
express this principle is to say that offenses
are the same only when proving the elements
of the greater will always prove the elements
of the lesser. (here, burglary and murder do
not have the same elements).
Ex) Manslaughter is a lesser included offense of
murder, so it is the same offense for doublejeopardy purposes. By proving murder you prove
manslaughter.
Ex) crimes that share some common elements, but
are not all the same:

Crime 1) has elements: A, B, C

Crime 2) has elements: B, C, D
 As long as each crime has an element
not included in the other, then no
double jeopardy.
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