LONG Outline: Criminal Procedure
Remedy: Class 2
Entick v. Carrington:
Facts: King gives warrants to search anywhere to find evidence of anyone criticizing the king in England. Entick sues
Carrington for trespassing.
Holding: Warrant was defective (No basis for warrant & scope was too wide)
Anderson v. Creighton:
Facts: FBI agent searches Creighton’s house. Creighton sues FBI agent individually because cannot sue fed gov because of
sovereign immunity. Qualified immunity protects gov officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Holding: Can only bring a civil lawsuit against a gov officer if violation is blatant (so clear/obvious)
Exclusionary Rule:
Mapp v. Ohio:
Facts: Should (4th Amend) Exclusionary rule be applied to states?
Holding: Yes, if there is a right there needs a remedy to force it. Need incentives for officers to follow the law.
Limits of Exclusionary Rule:
US v. Leon:
Facts: Gov officers acted on a defective warrant. Should the exclusionary rule be applied?
Holding: No, warrant only had small defect & officers had objective reasonable belief that warrant was valid. Not all errors
lead to suppression. Evidence is ONLY suppressed if warrant had significant error. (Ex: not specific enough, not enough facts,
officers lied about facts.)
Davis v. US:
Facts: Officer pulls over someone from speeding, makes an arrest and searches the car. Supreme court just ruled, law
changed & searching cars were not allowed without consent because of Arizona v. Gant. Was there a violation?
Holding: Yes, since law is retrospective, new law should have been followed. BUT no remedy.
***Exclusionary Rule does not apply automatically: must go through balancing test.
Benefits [v.] Costs
(Deterrence of police officers violating laws [v.] officers being able to do their job)
Search: Class 3
Search: Reasonable Expectation of Privacy (REP)
Katz v. US:
Facts: FBI put microphone (aka wiretapping) inside phonebooth to listen to Katz conversations.
Holding: Yes, search.
(1) Subjective expectation of privacy – ignore, because it merged with objective expectation of privacy.
(2) Objective expectation of privacy – what society is prepared to expect as privacy.
Florida v. Riley:
Facts: Police fly over with helicopter & see marijuana growing in greenhouse (marijuana illegal then).
Holding: Aerial surveillance from public aerial airspace is not a search.
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Kylo v. US:
Facts: Fed officer uses thermo imaging of house, seeing lots of heat inside house, suspects growing of marijuana.
Holding: Yes, a search. Obtaining details of inside of the house. (this part is just an assumption: with technology not in
general public use) So, even today thermo imaging is a search even if more available to general public use.
Dunn v. US:
Facts: Farm with fences, and barbwire, and barn few yards away from the house. Police looked into the barn and saw
marijuana.
Holding: Not search, because barn was not within curtilage of house.
Open fields are not protected, BUT curtilage of house is protected (ex: front porch, garage attached to home, etc.) so that
police cannot go right up in front of house and keep watching person.
California v. Greenwood:
Facts: police collected only Greenwoods trash to look for narcotics.
Holding: No, looking at someone’s trash is NOT search, once left curtilage of home.
Illinois v. Caballes (2005):
Facts: While police was giving person driving a car a ticket, another police came around with drug sniffing dog and dog
detected drugs later found in car trunk.
Holding: Not search, dog can only sniff for drugs, there is no expectation of privacy with person & drugs since it is illegal.
Class 4 (Jan 16th, 2019)
Smith v. Maryland:
Facts: Smith suspected to be calling and stalking. Gov monitoring what phone numbers Smith called with pen-register (what
number was dialed).
Holding: Not search. 3rd party doctrine – something that you reveal to a 3rd party is not protected (ex: bank, credit card
transactions, hotel registry records, utility bills, etc.) You give records to bank, it is now banks records.
Carpenter:
Facts: Theft of cellphones, gov used cell-sites to locate thieves.
Holding: Yes search. Difference is [voluntary exposure through affirmative act (your choice)] V. [involuntary disclosure to
participate in modern society].
Long-term surveillance: cell-site records are protected (is search) when gov collects at least more than 7 days.
Limited information collected is fine BUT not lots.
4 Models of REP (Reasonable Expectation of Privacy):
(1) Probabilistic model: REP a person has
(2) Private facts model: looks at info itself ( is info private)
(3) Positive law model: did gov violate a rule to get info
(4) Policy model: if there is a policy gov had to follow (always uses)
Search: Trespass Rule:
US v. Jones:
Facts: Gov put GPS device on car and tracked it for 28 days.
Holding: Yes, search (according to trespass rule with no reasoning)
Florida v. Jardines:
Facts: Police brings drug sniffing dog to front porch of home that reeks of marijuana.
Holding: Yes, search. Physical intrusion into the curtilage. (Brings back trespass test that is very similar with REP)
Implied license: people expect other people to come knocking on their door to talk or deliver mail, but not to bring drug
sniffing dog. Or police to knock on door and stick around for a long time.
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Summary:
Trespass test: physical intrusion into a constitutionally protected area beyond impled license with intention to obtain
information.
REP: 4 models test.
Probable Cause & Search Warrants: Class 5 (Jan 23 2019)
Illinois v. Gates: Probable Cause to search.
Facts: Police received anonymous letter with detailed information about the Gates and how they deal drugs. Police
corroborate most of the letter, got search warrant and arrests the Gates.
Holding: Yes, there was enough probable cause for warrant.
“Practical common-sense judgement based on the known facts that a fair probability exists that the contraband or evidence
will be found in the place to be searched.”
Maryland v. Pringle: probable cause to arrest.
Facts: Pringle and friends speeding in car at 3 am. Officer pulled them over saw lots of cash in glove compartment, searched
the 3 young men, found drugs and arrested them. Pringle in back seat away from drugs and money.
Holding: Yes, enough probable cause for all 3 arrests. (facts that it happened at 3 am rules out many other innocent
explanations.)
***No bright-line rules for probable cause (except for drug sniffing dog)
Cannot search guests in bar, if only probable cause for bar owner.
Can arrest all guests if no one knows who party host is and at a seemly vacant home.
If drug sniffing dog involved, it is probable cause. (well-trained dog good enough for police to use is enough).
Warrant: Contents:
 Probable cause: (& specify) place to be searched & things to be seized.
 Time length of warrant: 14 days (6am to 10pm)
 Police must knock & announce (give reasonable time to answer 15-20 sec)
 Can search place & not people UNLESS reasonable suspicion of person ON premise not if person already left.
Search & Seizures & Pretext of Persons (4th Amend): Class 6
Seizures of Persons: Bright-line rules (4th Amend)
Watson:
Facts: Watson sitting outside the restaurant was arrested without a warrant.
Holding: If probable cause & in public place, can arrest person without warrant.
Gerstien v. Pugh: what rights after arrest?
Facts: Once person is arrested & detained without warrant, he wanted a hearing for probable cause.
Holding: Yes, person is entitled to hearing before or after arrest, if after within 48 hours (Riverside). (Without attorney, or
saying defense, just like when getting warrant).
***If blatant violation  successful lawsuit against officer.
***If close call violation  no remedy, qualified immunity.
Searches of Persons: Bright-line rules (4th Amend)
US v. Robinson: Search incident to arrest:
Facts: Robinson driving with suspended license, officer searches him to arrest him, find crumpled cigarette packet in shirt
pocket with drugs.
Holding: Yes, officer can search incident to arrest. (ensure no weapons or prevent disposal of evidence)
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Riley v. California: Exceptions to Search incident to arrest:
Holding: After arrest, search is allowed except cellphones, other electronics (computers, USB, etc.)
***Search electronics after arrest: No
***Search physical property after arrest: Yes
Birchfield: Search incident to arrest:
Facts: Drunk driving case.
Holding: Breathalyzer: Yes. Blood testing: NO.
Pretext: (for Searches & Seizures of Persons) Bright-line rules (4th Amend)
Atwater:
Facts: Atwater has feud with police officer. One day Atwater and her children all don’t have seatbelts on, officer pulls her
over and arrests her for minor violation (misdemeanor).
Holding: Courts did not want to draw line for minor or major violations for when a person could be arrested. As long as there
is probable cause person can be arrested (no seatbelts).
Whren:
Facts: Officers watching streets in high crime area. Officer says they saw Whren sped away unusually quickly from stop sign.
Stopped and arrested, found drugs on Whren.
Holding: Probable cause to believe there was traffic violation allows stopping of car.
***Everyone speeds so anyone can be pulled over& arrested for speeding even if state law says that they cannot.
Maryland v. King: Holding: Post-arrest DNA tests are allowed without warrant.
Search & Seizures of Premises (House) (Places w/o warrant) Probable Cause (Class
7)
Payton: Warrant requirement
Facts: Gov had probable cause & is carrying out arrest. Do officers need warrant to enter into home & make an arrest? YES.
Mixture of arrest of person (don’t need warrant) & search of home (need warrant).
Holding: Arrest of person at home needs warrant (probable cause) AND reason to believe person is at home (place to be
searched).
***A warrant is needed to enter house (friend’s house, workplace, etc.) unless there is consent.
Reasons for search warrant for searching a home:
1. Scope – specific description of the place/thing seized
2. Homes are special – historically homes were special (privacy).
3. Neutral 3rd party – unbiased probable cause determination
4. To control the timing – limit search
Exigent Circumstances (Ex: people in house see police & tries to get rid of evidence, or gov doesn’t have time to get warrant,
hot pursuit (gov chasing car & person runs away into house), officer sees someone being assaulted in house & officer goes to
protect person, etc.) – do not want officer to hear someone being assaulted & go back to get a warrant.
(Welsh v. Wisconsin – drunk driver crashes car & enters house. Officer wants to get blood drawn from drunk man &
goes into house. In past, drunk driving was minor offense, minor offenses are not circumstances for no warrant)
Police created exigency (evidence is barred/excluded) – If officer can create emergency & then go in without warrant.
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Kentucky v. King: Exigent Circumstances (emergencies)
Facts: Officer was following drug dealer, dealer ran into house, officer did not know which door dealer ran to hide in. Officer
smells different drugs (marijuana), knocks & officer hears lots of moving sounds & enters without warrant. Judge says moving
sounds were not enough for exigent circumstances.
Holding: Case-by-case: Test for evidence to know there are exigent circumstances (evidence indicating exigent circumstances
must be taken without officers’ violations of 4th Amend).
Officers CANNOT violate or threaten to violate 4th Amend.
Chimel: Search Incident to Arrest
Facts: Search incident to arrest, how far is area to be searched after arrest. Officer arrest Chimel lawfully, then officers
searched his whole house.
Holding: Officers can search things in possession & in control of person that is arrested.
Test: Area of Immediate control (grabbable area): Can search person & a couple feet around.
Protective sweep doctrine – “About people” finding other people that might be threat to officers:
(1) Allows search without any cause following immediately adjoining areas after arrest (closets & spaces (under bed)
without probable cause).
(2) If reasonable suspicion (need probable cause) to think there is dangerous person somewhere else in house, can
search whole house where person could hide.
Horton: Plain View
Facts: Police gets warrant to search, does not lists guns in warrant, but police saw guns & took guns as evidence.
Holding: Officers must have lawful entrance, then things that are in plain view can be taken as evidence.
Plain View exception: is general, officer can take any evidence which incriminating nature is immediately apparent.
Allows pretext: (gov does one thing to get something else) Officers can get warrant for minor crimes & uses it to find
evidence for major crimes evidence that are in plain view.
Plain view Exception to Exception: “documents” are not evidence that is “incriminating nature is immediately apparent”.
Search & Seizures of Cars & Packages:
When can Gov stop a car?
 Whren v. US – pretext searches – class 6
- Why probable cause to stop a car is lawful is because of safety laws.
- Needs to stop the car to enforce traffic laws.
When can Gov search a car?
 Auto Exception – CA v. Carney
 Cars v. Packages – Acevedo
 Search-incident-to-arrest – Grant
 Inventory Searches – Wells
When can police search packages?
 Acevedo
 Chadwick
CA v. Carney: Auto Exception
Facts: Police arrest Carney, seize & searched motor home for having marijuana. Issue is whether motor home is vehicle or
home.
Automobile Exception: (1) “readily mobility” (car can be quickly moved – exigent circumstances); & (2) “less expectation of
privacy” (lots of regulation of cars & historical prohibition of alcohol, automobile used most to transport alcohol).
Holding: Motor home in this case was readily mobile, licensed to operate on public streets, was subject to extensive
regulation & inspection, & objective observer would conclude it was not being used as residence but as vehicle. Therefore,
search was reasonable, & magistrate would have authorized warrant with facts.
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Exception to exception: if automobile is recreated as house & not mobile then not automobile exception.
Other Exceptions to exceptions:
- Riley’s impact on Acevedo: US v. Camou: Police cannot search cellphone found in vehicles.
- Automobile exceptions (even though not automobile): (things that move on their own power) bikes, buses, boats,
etc.
California v. Acevedo (1991):
Facts: Police know Acevedo had marijuana (from package), Acevedo moved marijuana package from his house to truck of car
& was driving off, then police stopped him & got marijuana.
Holding: Ross decision will rule. As long as package was in the car during search, police can take it out & search package.
Package is any container (purse, luggage, locker, box, package). (If purse is open & outside then “plain view” doctrine).
Case: Arizona v. Gant (2009):
Facts: Gant arrested for driving with suspended license, handcuffed & locked in back of patrol car. Officers then searched car
& found cocaine in jacket pocket of backseat. Since Grant could not access his car to get weapons or evidence at time of
search, search-incident-to-arrest did not justify search.
Holding: After recent arrest, police may search recent occupant’s vehicle if arrestee is within reaching distance of passenger
compartment during search & reasonable to believe evidence related to crime is present in vehicle.
(1) In reach of arrestee at time of search; & (2) reasonable belief evidence related to crime is present in vehicle (“reason to
believe”). NO more pretextual searches.
General automobile exception: applies when evidence or contraband inside the car then search without warrant.
Case: Florida v. Wells (1990):
Facts: Inventory search. Wells was drunk driving & arrested & agreed to get his car impounded, Gov takes all of Wells
possessions & records in inventory. Then police searched Wells possession in inventory & found drugs.
If item on person, search is allowed (Robinson). For inventory searches there must be (1) policy; & (2) was done in
compliance with policy.
Holding: inventory search is not allowed. There was no policy in place.
Summary:
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Car can be stopped any time
Car can be searched anytime there if belief of contraband or important evidence
Packages cannot be searched
Packages inside of cars can be searched
For inventory searches there must be (1) a policy; & (2) was done in compliance with policy.
Terry Stop/Seizure (Stop & Frisk) – Reasonable
Suspicion
(1) What facts amount to “Terry Stop/Seizure”? (Seizure) What is a seizure test?
No seizure when reasonable person can terminate encounter & leave. According to Drayton when police approaches you
& asks question, you can say no & leave, as long as officer does not have reasonable suspicion, they cannot keep you.
Reasonable person test is so far removed from life experience. Supreme court wants to allow officers to be able to talk to
people, but not make them stay.
So, real question is, did police force person to stop? Lawful Terry Stop/Seizure needs reasonable suspicion.
(2) How much cause is needed to Terry Stop/Seizure?
Reasonable Suspicion, much less than probable cause.
(3) What can officer do during Terry Stop/Seizure? (assuming that seizure occurred)
 Officer can make traffic stop; & order passengers & driver out of car
 Drug sniffing dog is allowed if stop not lengthily
 Individuals can be handcuffed for officer safety purposes, which is not arrest
 Courts allow license & registration check (research on driver allowed)
 Officer is not allowed to move individual much, needs probable cause to take person to police station
 Officer can question individuals beyond cause of stop, as long as it does not unduly lengthen stop. (but people do
not have to answer questions)
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(4) How long can stop last?
Difference between Terry stop & traffic stop, no bright-line rule (generally 20 minutes or so, 90 minutes is too long) (Ex: if
officer only had reasonable suspicion & kept person for 90 minutes (needs probable cause) & person confesses then
evidence can be suppressed)
(5) What cause is needed for frisk?
Reasonable suspicion standard: cause reasonable person to believe person is armed & suspicious & presently dangerous.
(Ex: anything that can be used as weapon: razor blade, gun, knife, etc.)
If person says they are legally carrying weapon: courts are divided on what to do.
(6) How far can a frisk go?
Search-incident-to-arrest: can search everything but different from frisk.
Terry v. Ohio (1968): (Enough)
Bill of Rights (4th Amend) just started to be applied to states – incorporation doctrine 14th Amendment. Had these problems
were there before BUT can appeal to supreme court.
Facts: 2 men walking back & forth 12 times in front of store, another man joins them & walks together back & forth. Police
finds them suspicious & search men, finding guns. What officer did was search & seizure, applicable to 4th Amend. There was
no probable cause.
Holding: Allowed small stop & frisks without probable cause (not full search & seizure). Totality of circumstances justify
intrusion of 4th Amend. If officer has reasonable suspicion person is armed & dangerous, then officer can do search & seizure.
Seizures:
 Not a seizure (0)
 Terry Stop (.5) – Reasonable Suspicion
 Full seizure/arrest (1) – Probable Cause
Search:
 Not a search (0)
 Terry frisk (.5) - Reasonable Suspicion
 Full search (1) – Probable Cause
*** US v. Hensley (1985) Evidence of suspected past serious crime (offense) is another lawful Terry Stop (temporary stop).
Illinois v. Wardlow (2000): (Enough)
Fact: In area of high drug trafficking, Wardlow saw police & ran, there was reasonable suspicion for officer to Terry Stop
person.
Holding: Person running from police in high crime neighborhood, gives police reasonable suspicion for Terry Stop. But NOT
bright-line rule.
Dissenting: Past police interaction, which is negative, often in high crime neighborhoods people are more likely to run away
from police.
Florida v. J.L. (2000): (Not enough)
Fact: Police got anonymous tip that black male had gun. Police arrested 3 black males & stop & frisked them. J.L. asked to
suppress evidence of gun.
Holding: Anonymous tip that is not corroborated is NOT reasonable suspicion to stop & frisk.
Navarette v. CA (2014):
Facts: Police got 911 call that someone was trying to drive them off road. Police found car & followed it, but driver did not
make any traffic violations when police tailed car. So, police just went ahead & stopped Navarette, saw he had been drinking
& had drugs.
Holding: 911 call was enough reasonable suspicion because people make 911 calls on things that just happened.
(4) How long can a stop last?
(5) What cause is needed for a frisk?
(6) How far can a frisk go?
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Case: Rodriguez:
Facts: Traffic violation (terry stop & needs reasonable suspicion), officers can look for other safety violations during traffic
stop, reasonable time to check traffic safety. Was stop of car too long? Yes.
Holding: Officer had finished stop. But officer held Rodriguez longer for unrelated traffic violations, drug sniffing dog.
(Whether person has drugs in his car is unrelated to safety violations). Stop ends when officer’s tasks are complete or
reasonably should have been complete.
***Rodriguez & Gant are cases where court puts more limitations on traffic violations abuse.
*** Dash camera video is greatest evidence today.
Case: Dickerson:
Facts: Officer feels lump in jacket during stop & frisk, officer realizes it’s NOT weapon, realizes it’s drugs & pulled it out. Terry
frisk is done for safety of officer, this exceeded terry frisk. Terry frisk is frisk for weapons & not for other evidence. Like plain
view if officer is searching for weapons & come upon drugs then officer can seize drugs.
Holding: If officer has abandoned search of weapon then it is no longer terry frisk. In Terry Frisk if officer is unsure what item
is & then pulls it out to see & then if drugs then plain view exception.
Dissent: If officer says they were not sure what it is, but not a weapon? Can search further? No answer.
***Critic of courts applying 4th Amend – reality of stop & frisk is police being granted lots of bright-line rules they abuse.
***4th Amend regulates ONLY stop, NOT speech (ex: insults) & unavoidable aspect of race. To avoid racial pretextual stop,
need to overturn pretextual stops, but still fed law.
***Sandra Bland – bright-line rule allows officer to abuse the rule and not regulated by the 4 th Amend (underregulated).
Changes to rules that could make police law abuse better:
 Overturn Whren case
 Maclin proposal – reasonable person (walk away) based on race
 Regulate officer language on stop
 Regulate infirmity of rights (officers do not tell people what their rights are)
 Excessive force/qualified immunity (if officer assault person during unreasonable seizure then can make 4 th Amend
civil claim, but then there is qualified immunity)
Administrative inspection & Consent
Special needs – Gov actor is acting on non-government purpose. (Ex: teacher checking students backpacks, boarder check at
airport, drug testing gov employees without consent).
Reasonable test (4th Amend) – Gov interest v. privacy interest.
Consent – waiver doctrine
What is standard for voluntary consent?
Knowing – know your rights, what you are giving up.
Voluntary – chose to give it up
Intelligent – you are aware of cost & benefit analysis (Ex: not on drugs or alcohol)
Sneckloff Neckloft:
Facts: Police ask for consent to search car & is given consent. Did defendant know that he had rights not to consent.
Holding: People do not need to be informed of their rights by officers. It would be informal & long to inform people that they
can waive their constitutional right (bad reasoning).
Why do people usually give consent? Saying no is contrary to expectation & makes person look suspicious. Officers
intentionally use that against people. Consent searches are useful since no need for warrant & there is less destruction of
property, that is why Gov allows consent.
Florida v. Kineno: Scope of consent: typical reasonable people consent.
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Illinois v. Rodriguez: 3rd party consent:
Facts: Women (Fisher) said she was abused & allowed officers into house where they found drugs & Rodriguez was arrested.
But she moved out month ago. So, Fisher did not have common authority. Was consent valid?
Holding: Yes, because police thought that she had apparent authority, consent = valid.
Why were the police allowed to rely on apparent authority?
Apparent authority – police can rely on fake authority if it was reasonably reliable.
Common authority – mutual use & joint access (if you share space with someone then they can consent to areas of
common authority).
(Why? because shared space means shared responsibility. If roommate consents to search, then does not make sense
that evidence found can only be used against roommate & not you)
Georgia v. Randolph: If there are 2 people in common authority & person consents but other person is present & objects
then common authority doctrine does not apply. (If objecting person leaves, and other person gives consent, then police can
search).
Fernandez v. California:
Facts: Police follow robbery suspect home (Fernandez). He objects to search of home & girlfriend consents. Fernandez
arrested & held in police station, police asks again for consent to search & girlfriend consents.
Holding: Even though there was objection to consent prior, police can ask again, & person objecting must be present.
(Special speaker) US v. Johnson – Police saw car stop in non-stop area. Police did search & seizure. Terry and When applies to
moving violations & can make pretextual stops. What about pretextual parking tickets? Can officers seize driver & passengers
for parking violation (pretextual parking violations)? Yes. ☹
Limits on Exclusionary Rule:
Standing – Rakas, Byrd, Carter
Fruit of the poisonous tree– Wong Sun, Brown v. Illinois, Harris, Streiff
Inevitable Discovery/Independent Source - Murray, Nix v. Williams
***Most tests are about limits of exclusionary rule, not reasonableness test of Katz.
(1) 4th Amend standing for suppression motion, not standing in 3 rd Amend.
(2) Fruit of poisonous tree – link – “proximate cause” violation of constitution is way evidence was gathered.
(3) Inevitable Discovery/Independent Source - “But for cause”
When can Defendant under unconstitutional search & seizure suppress evidence? (1) Was constitutional rule violated? (2) is
there remedy? When does the exclusionary rule apply?
Standing
Rakas (Standing): Rakas was passenger in someone else’s car where drugs were found. Rakas could not have standing to
suppress evidence that was unconstitutionally obtained according to 4 th Amend.
Byrd (Standing): Your rights in property does not define your rights, it’s relationship to property that give you 4th Amend
rights. (Ex: friend lends you their car, then not your car but you have 4th Amend rights relating to car).
Carter v. Minnesota (Standing): Police peering into window & saw Carter bagging drugs. Carter tried to suppress evidence,
but evidence was not suppressed because Carter did not have standing. Carter invited into house to bag drugs did not have
enough relationship with house to have 4th Amend protection in house he was dealing drugs in.
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How much relationship must person have with property to have standing (to have 4th Amend rights related to property)?
***Exam questions tries to mix 2 & 3 & make questions ambiguous.
(1) Burglary – who broke into home = no standing
(2) Carter – invited in home to bag drugs = no standing
(3) Olsen – overnight guest or hotel stay = yes standing
(4) Renter = yes standing
(5) Owner = yes standing
Fruit of the Poisonous Tree:
Wong Sun (Fruit of the poisonous tree):
Facts: (1) Toys (2) Yee (3) Wong sun evidence, 1 & 2 evidence suppressed but not 3. There is a causation between 1,2,3 but 3
was so far removed from other confessions so 3 was not suppressed.
Holding: Why? They were all causes, but it depends on how close the cause was. What evidence obtained is fruit of
unconstitutional act, certain things leads to suppression, but it does not go on forever.
Brown v. Illinois:
Facts: Illegal arrest that led to photo identification. Saying Miranda Rights is mandatory & does not affect whether there was
a constitutional violation.
Harris: Patent violation was not unconstitutional because it was outside house.
Utah v. Streiff:
Facts: Anonymous tip drugs being sold in house. Officer just arrests next person, Streiff, coming out of house. Police did not
have probable cause to arrest, so unconstitutional stop, asked for ID, finds a warrant for his arrest, so police searched him &
found drugs.
Holding: If, after unlawful investigatory stop, police discover person has arrest warrant, any evidence discovered after
person’s arrest is allowed in court, & there is no 4th Amend violation for police misconduct because of Whren.
Reasoning: Exclusionary rule – which excludes evidence from trial obtained in violation of 4th Amend – can deter unlawful
police conduct. Yet, if benefits of deterrence are outweighed by social cost to letting criminal go free then exclusionary rule
may not always be employed.
Dissent: Reality of case in neighborhoods for high crime, there are so many warrants for arrest, 40% of people had warrants
for arrests. Officers were aware of fact & asked for ID, ran the ID & found warrant for arrest.
***Pretext does not matter because of Whren, BUT significant under the exclusionary rule.
Inevitable Discovery/Independent Source
Murray: Inevitable Discovery/Independent Source
Facts: Police had facts of drugs, then by violating constitution broke into house. Police confirmed what they were looking for
& then got warrant.
Holding: Evidence that is not tainted by illegal activity is NOT suppressed.
Inevitable discovery doctrine:  If you take out unconstitutional part, evidence of facts independent of unconstitutional part
is evidence that is allowed. Ex: Without break-in could police have found drugs?
Nix v. Williams:
Facts: unconstitutional interview that led to dead body. Would police have found body if unconstitutional interview did not
occur?
Holding: Court ruled yes. Evidence would have been/was discovered without unconstitutional part.
How does judge know? Gov has burden of proof. Gov must show that it is more likely than not evidence would have been
discovered.
***Exclusionary rule exists but is very narrow, judges do not like to suppress evidence.
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Government challenges: (1) Merits (more about scope of the exclusionary rule) (2) standing (3) fruit of the poisonous tree
(proximity test) (4) but for/inevitable discovery/independent source.
Undercover Investigations:
Government is being pro-active/pre-emptive & acting before there is victim.
Hoppa/Hoffa v. US:
Facts: Hopfa is corrupt & surrounded by corrupt people. Gov makes deal with Parton & Parton goes undercover & gets good
deal with gov. Hopfa tells Parton about illegal activity in hotel room suite.
Holding: Usually hotels have expectation of privacy but NOT in this case because there were so many 3rd party people coming
in & out, and there was no invasion because Hopfa invited Parton in.
NONE of these options need constitutional oversight according to Gov:
[1] Gov talks to friend after encounter w/suspect
[2] Gov makes deal with friend before encounter w/suspect
[3] Gov agent befriends suspect
[4] Gov agent befriends suspect AND wearing wire
(Undercover agents are not regulated but what they do & how they are used is regulated)
Entrapment doctrine: how courts regulate use of undercover agents:
Inducement doctrine: Did agent induce person to commit crime (NOT admissible evidence)
Predisposition doctrine: “but for” cause (was person going to commit offense anyways without inducement)
Sorrals v. US: Sorrals bought booze for friend, war buddy (when alcohol is illegal) because friend kept begging him to. Then
friend turns Sorrals in for illegal activity.
Holding: Entrapment is valid defense. Evidence not admissible, Sorrals was made to commit act by pressure of war buddy.
Sherman v. US: Undercover agent asks where he can get narcotics & keeps begging to get drugs. Was there entrapment in
Sherman?
Holding: Yes, he had to ask him repeatedly to buy drugs & was not Sherman’s idea to get drugs. Entrapment even if Sherman
did ultimately commit crime.
Reasoning: At some point there is price for when person will act. If gov continues to sweeten the deal & cause pressure to
commit crime. Opportunity to commit crime is not “inducement/entrapment” it is pressure to commit that is
“inducement/entrapment”.
Jacobson v. US: Jacobson bought child porn before it was illegal. Gov sent fake mail & ads for child porn. In end Jacobson gets
child pornography from undercover agent. Causation inquiry: Jacobson purchased child pornography before, & even without
Gov inducement would Jacobson had purchased child pornography anyways = predisposition doctrine. Only extreme
inducement is unconstitutional.
Holding: Prosecution was unable to prove, beyond a reasonable doubt, that Jacobson was inclined to commit criminal act of
purchasing child pornography independent of gov interference.
Doubt stems from the fact that government agencies may have actually encouraged Jacobson to break the law in their effort
to prosecute him.
Reviewing & Drafting Motion to Suppress: Video Example
Motion to suppress legal analysis: Search/seizure, reasonableness, remedies
Traffic stop Video Ex: Officer was allowed to stop car for speeding, officer was allowed to ask for license & registration,
officer was allowed to get people out of car, police was NOT allowed to go into car & search without consent.
Involuntary consent – officer threatened bad things will happen to boys in jail.
Voluntary consent – officer threatened to arrest him & put him in jail (is true & not threatening)
Officer searched Gordons bag – Gordon has standing for illegal search of bag, what about friend’s things in Gordons bag.
Automobile search apply – Officer smells marijuana (probable cause) gives officer ability to search entire car, all
containers, etc. because automobile exceptions apply.
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Terry Stop Video Ex: When officer starts talking to person is consensual, & person is allowed to terminate conversation at any
time.
Beginning of stop is when officer takes personals ID & officer tells him wait right there. Officer needs reasonable
suspicion for terry stop.
Frisk – was body search. Did officers have sufficient cause for frisk? Person was armed & dangerous. In this case,
frisk was unconstitutional.
Searching of bag – was voluntary consent. Scope of search: Typical reasonable person standard.
Home search Video Ex: College home party.
Door is little open, does that imply that anyone can enter or not circumstance of open party.
Non-owner gave consent to officers to allow them to enter (apparent authority).
Plain view, officers can get take anything in plain view.
Consent to search house – officers threatened owner with drug dogs, but officers had probable cause & could do
that, so threat was lawful & is ok, therefore voluntary.
Officers cannot promise to put in good word for person they arrest, & not strong defense.
Interrogations
Interrogation – gov is getting info from person when under arrest: People don’t know their rights, police use trickery.
What are legal rules gov must follow to get confession?
***Reid interrogation technic: make the person admit to a small part of the crime. If person admits to a small part are still
responsible for the whole crime.
***Must answer judge’s question (Or be held in contempt of court).
Do NOT need to answer police questions.
What are legal rules for interrogation? In past police used physical torture for interrogations, few lawyers only for people
that could afford them. Reports of police interrogations  Gov made Fed Rules of Criminal Procedure  Incorporation Doc
 Reform in Crim Pro  6th Amend right to counsel & privilege against self-incrimination: incorporation.
Massiah v. US:
Facts: Massiah indicted on fed narcotics charges, had counsel, & released on bail. While on bail, Massiah had conversation
with codefendants without counsel. Codefendant became gov informer transmitted conversation gov agent listened to
everything. Massiah made several incriminating statements. At trial, agent who listened to conversation testified to
incriminating statements over Massiah’s objection.
Holding: Massiah & attorney are preparing for trial, Massiah could not be questioned without lawyer unless he waives his
rights. Once person has 6th Amend rights cannot be questioned without lawyer, because police cannot obstruct lawyer’s
preparation for trial. Way of limiting police interrogation.
Escobedo v. Illinios: He repeatedly asked for lawyer & police refused. So, he confessed.
Holding: If person in custody, he has 6th Amend right to attorney. Any statement under such circumstances cannot be used
against him at criminal trial.
Justices could not decide when the 6th Amendment started. 1963 incorporation doctrine then Massiah and Escaveto in 1964…
1965 organized all the different cases to solve the interrogation abuse. 1966 Miranda, due process test.
Prior to Miranda technics the courts might have used: (1) regulate the time; (2) prohibit lying of police (3) pressure (4)
minimize culpability of the act (5) require… lawyer (6) legal warnings
Miranda v. Arizona:
Facts: Random case that was picked to organize the rules after Escobedo.
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When Miranda Rights are triggered:
(1) Custody Interrogation
(2) Right to series of warnings, to be told about their rights
(3) Set of choices: Waive their rights & answer questions (admitted); OR assert right to remain silent or right to counsel
– STOP questioning OR wait until attorney comes; OR do nothing (different criteria).
Escobedo and Massiah: 6th Amendment right to counsel.
Miranda: briefed & argued as 6th Amend case BUT decided as 5th Amend case.
5th Amend: Understanding of “compelled” by law, you must answer, or you will be punished.
Miranda: prophylactic (intended to prevent disease) rules underlying 5th Amend, later added into law. ONLY applies in
custodial interrogations because it is inherently coercive.
Basic Idea:
(1) Right to remain silent: privilege against self-incrimination (Prosecution may NOT use fact that D stood mute or
claimed his privilege, against D.)
(2) Anything said can & will be used against individual in court of law. (make aware of privilege & consequences of
waiving this privilege.)
(3) Right to have counsel present at time of interrogation.
(Originally was 6th Amend law right to counsel, BUT in Miranda is 5th Amend right to counsel which is different) (1.
Right to consult lawyer before interrogation; 2. Lawyer can be present during interrogation; 3. Right to have lawyer
appointed if cannot afford one  all new laws from Miranda)
***Miranda tells people what options they had but not explaining whether choices are good/bad.
***Procedural Rights: give people option to accept or waive rights.
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As part of the individual having choice, officers have to respect choice of silence by no further questioning.
Upstream Miranda rights: what happens before warnings are given.
Downstream Miranda Rights: What happens after warning are given. Circumstances where they cannot get lawyer,
they cannot continue questioning until lawyer is present.
Dissent: Miranda is said to be based on 5th Amend but is actually NEW concept. Miranda is its own world.
Bright-line rule that replaced Escobedo case. Massiah is still good law.
Adequacy of Warnings:
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What if police don’t follow warnings completely. Police give warnings orally & can make mistake when saying
warnings. = Warnings must reasonably convey rights.
If police know that suspect has ample funds (Ex: Bill Gates) they do not need to say, “If you cannot afford lawyer one
will be appoint for you.” BUT in every other situation all of warnings must be said.
Custody requirements:
Howes v. Fields (2012): Need both for custody
Reasonable person would not feel free to terminate encounter.
(Objective test: If told you are free to leave = NOT Miranda) (Told you are under arrest = YES Miranda)
Relevant environment presents same inherently coercive pressures as in Miranda (Circumstantial [hard to determine]: Officer
invites you into questioning room & starts to question for over hour).
JDB v. North Carolina (2011):
Facts: JDB was minor that was questioned. Justices do not determine if JDB was actually in custody BUT added exceptions for
minors.
Miranda:
1) Trigger for Miranda:
a. Custody (4th amend seizure + environment of compulsion (traffic stop, invitation to police station = NOT
Miranda custody) (YES Miranda = if told you are NOT free to leave))
b. AND Interrogation (Must have BOTH)
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2) If triggered, must be adequate warning:
3) Post-warnings, 4 statuses (Downstream Miranda problems - After Miranda warnings given)
a. Waiver (statements admissible)
b. Purgatory (they haven waived or asserted rights = did not do anything) (statements INADMISSIBLE)
c. Assert right to remain silent
d. Assert right to counsel
What is interrogation?
Rhode Island v. Innis:
Facts: Police arrested Innis. They were talking about “how dangerous it would be if children found gun & got hurt” to each
other while in car with Innis, that made Innis interject into conversation & said, “let me tell you where gun is.” Was this
interrogation?
Holding: Not in this case, because highly unlikely it was going to work. It was Innis’s personality that made him confess.
(1) There must be actual question & (2) pressure & (3) illicit a response.
Interrogation is any words/actions of police that police should know are reasonably likely to elicit incriminating response
from subject. Court found officers' conversation was not words/actions they should have known were reasonably likely to
elicit such response from Innis.
Illinois v. Perkins (jailhouse case): Not interrogation. Not environment of compulsion to be questioned (Perkins did not know
that person was police officer, so no state action compulsion to getting answers).
Pennsylvania v. Muniz: 5th Amend case. Guy being tested for drunk driving. He is talking & slurring.
Holding: routine booking = not Miranda (Ex: name, date of birth, etc.) (Yes Miranda: did you commit the crime? Etc.)
Officer conducting drunk driving test (walk in straight line & turn around, say alphabet, etc.) = NOT likely compelling
criminating response. “Do you understand how breathalyzer works?” not interrogation.
***interrogation under Miranda is: questions leading up to crime.
Public safety exception (close to exigent circumstances)
Arizona v. Quarles:
Facts: custodial interrogation, in custody & being asked about crime.
Holding: Public safety exception for police in this case for not saying Miranda warnings to Quarles when getting info about
where gun was.
Similarities of public safety & booking. Public is considered part of booking & routine checking.
How long does the public safety exception last? Not stated, this exception is not very clear.
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Government has a high burden of showing Miranda waiver. Lessened burden today.
About 80% of people waive their Miranda Rights. High % of people waive their rights for searches. Because: (1)
people think they look innocent; (2) Miranda rights make police seem reasonable;
Michigan v. Mosely: Once person assert right to remain silent. Officers need to stop interrogation & come back later (after
reasonable time) when people could have maybe changed their mind & come & ask questions again. (couple hours later)
Edwards v. Arizona: Once person asserts their right to counsel police stops & cannot come back & question person. (no time
limit  until Chaster)
Minick v. Mississippi: Problem is police cannot control how long you get to talk with his lawyer. It does not matter how long
person talks to their lawyer until Chaster.
Marilyn v. Chaster:
Facts: Police wanted to ask Chaster questions about him sexually assaulting his son, he asserts right to counsel. Then in
another case sometime later, police want to ask him same question. He waives his right & talks. He says his first assertion of
right to counsel from 1st case still applies to 2nd?
Holding: No. Miranda starts over: Can question again for questioning after 14 days since person is released. (Why 14 days? So
that police cannot just release person & arrest them right away)
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***Miranda right to counsel is very powerful, Police cannot ask any questions once person asserts right to counsel during
custody AND 14 days after out of custody.
Oregon v. Bradshaw:
Facts: minor involved in drunk driving accident. Asserts right to counsel & asks officer “what is going to happen now?”, officer
says I cannot talk to you. You must decide to talk. Then next day police give warnings, Bradshaw then waives his rights &
confesses. Can person assert rights then waive it later? Yes.
Holding: Once person exercise free will to get into category they have right to get out of category.
***Edwards v. Arizona, Marilyn v. Chaster, Oregon v. Bradshaw: Once person asserts their right to counsel, it lasts during
custody & out of custody 14 days. After all that, when taken back into custody, warnings start over (police need to re-read
rights & so forth). UNLESS person decides to waive their right (then police re-read rights & so forth).
Miranda Warnings:
Trigger:
Custody + Interrogation
Warnings:
Adequate
Public Safety Exception
Four positions/status (post-Miranda):
Waiver - Berghuis
Purgatory – not doing anything is not admissible
Assert Right to Silence – Needs to stop questioning and can come back later and try to see if the person
changed their mind. – Mosley, Berghuis
Assert Right to Counsel – Needs to stop question and CANNOT come back to question UNLESS there is a
lawyer, or the person decides to waive their rights. (Needs to wait to question 14 days after person is
released from custody, and the process starts again from the beginning.) - Davis
What are the rules for moving from category to category:
Davis v. US (1994): What it takes to assert right to counsel:
Facts: Davis waives his rights. Then later he re-asserts right to counsel.
Davis says, “Maybe I should talk to a lawyer…” (was ambiguous) Because, not clear in appellate record (would have been
maybe clearer on video tape). “I think I want to talk to lawyer before I say anything more” (was unambiguous).
Holding: Test: how much assertion of his right for counsel: MUST be unambiguous assertion of right to counsel (MUST BE
CLEAR or else it does not count).
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Why? Because people will say lots of things & police objective is to make person not choose right to counsel.
All people need to do is explicitly state, “I want lawyer” then you get all rights.
Very powerful rule, but most people do not know it.
Are police required to clarify if person asserted their rights to counsel? NO, but they do, so not ambiguous.
Berghuis v. Thompkins (2010):
Facts: Interrogation of murder 2hr 45min, mostly non-responsive, then he eventually starts to talk about his religion &
confesses to crime. At what point is lack of answer (how much silence) count as asserting right of silence. D starts at
purgatory, when he starts to talk, is that a waiver (implied waiver).
Holding: Needs to firmly assert unambiguously right to remain silent. Answering questions is waiver of rights. BUT also know
that person understood warnings.
***Miranda says waiver standard is a high burden on gov, BUT in this case there is an implied waiver. (Problem is person
probably did not implicitly waive his rights, he most likely was tired of hours & hours of questioning)
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Salinas v. Texas (2013): ***Questioning outside of Miranda.
Facts: Salinas asked to go police station, was NOT in custody & questioned. Not given Miranda warnings. So NOT Miranda
case. Questioning outside of Miranda, he answered all questions & when asked about bullet matching his gun, he
remained silent. His silence was used against him in court to find him guilty.
Holding: Needs to clearly invoke right against self-incrimination. 5th Amend right against self-incrimination. (“I plead the 5th”)
Then cannot use post-silence against defendant. But no warnings beforehand.
Chavez v. Martinez (2003):
Facts: Person in custody & Miranda warnings not given. Person says, “I want a lawyer.” Officer keeps asking, “Do you think
you’re going to die?” To get evidence in as hearsay exception of dying declaration. There was Miranda violations, but
evidence was not used.
Holding: There was Miranda violation BUT there is NO civil remedy for Miranda violations.
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If officers do not want to use evidence, then officers can violate Miranda.
But if police want to use evidence then police cannot violate Miranda.
BIG gap between lawyer understanding of Miranda & ordinary people.
Remedies – Chutz, Patane, Seiburt
Future of Miranda?
Handouts – Chart & Problems
Miranda Remedies:
There is no civil suit for Miranda violation.
Miranda remedies are different from 4th Amend (fruit of poisonous tree, etc.)
Miranda has constitutional rights but lesser than full constitutional remedies.
Oregon v. Elstad:
Facts: Guy was arrested in his home & asked about burgherly & he said he was there (unconstitutional). Later at police
station he was given his Miranda warnings, he waived it & confessed to crime.
Holding: 1st confession at Elstad’s home was not admitted, but 2nd confession was admitted (not fruit of poisonous tree)
because took proper Miranda steps. ***Miranda is just a formula, bright-line rule.
US v. Patane:
Facts: Patane stops officers from reading warnings & police officers stop. Even if person says don’t read me warnings, police
still needs to read warnings. So, there was constitutional violation. Statements were excluded BUT physical evidence
obtained through unconstitutional statement was admitted.
Holding: Testimonial statements & physical evidence is different. Miranda Rights are about protecting statements made by
suspects, but physical evidence from unconstitutional statement is fine. Physical evidence always admitted = broad rule.
Missouri v. Seibert:
Facts: When questioning Seibert in murder case, police obtained her confession before giving her Miranda warnings. Then,
after short break, police gave her warnings & had her repeat her confession. Seibert was ultimately convicted based on
2nd, post-warning, confession.
Holdings: both pre- & post-warning confessions violated Miranda.
(Court determined when police use “question-first” technique, post-warning confession is only admissible if facts make clear
that suspect reasonably believed he had right not to speak to police.)
Future if Miranda:
Bright-line rules are hard. So many different fact patterns. Basic Miranda body was kept, except remedies. Stopped many
abusive police practice. Police like Miranda because it is simple.
Miranda is on top of due process (voluntariness), if Miranda is followed then there is no legal problem. Now there is many
issues about Miranda & civil liberties.
Does Miranda have to be replaced? If not Miranda what else?
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Interrogation Law outside of Miranda:
Miller v. Fenton (1986):
Facts: Miller went with police to state police barrack & signed “Miranda Card”. There was 53-minute interrogation by
Detective Boyce, was tactics used, give voluntary confession?
Holding: Majority concluded confession was voluntary after hearing taped interrogation. There was no threats or physical
coercion of Miller. Detective Boyce was friendly, understanding & spoke in soft tone. He was sympathetic & wanted to
unburden Miller’s mind.
Arizona v. Fulminante (1991):
Facts: Fulminante in prison for another crime. Sarivola (paid informant for FBI) knew Fulminante was getting rough treatment
because of rumors & told him if he confessed to sexually molesting & killing stepdaughter, Sarivola would protect
Fulminante. Fulminante confessed. Confession was obtained as direct result of extreme coercion & was tendered in
belief that defendant’s life was in jeopardy if he did not confess.
Holding: Supreme court agreed, finding of coercion does not depend on actual violence by gov agent; credible threat is
sufficient. (very close & high bar)
Colorado v. Connelly (1986):
Facts: Mentally ill suspect hears “Voice of God” compelling him to confess. As a result, he confessed to crime & waived
Miranda rights. Was this voluntary?
Holding: yes, voluntary.
Corley v. US (2009):
Facts: Not 4th Amend argument but Rule 5 (Fed Rule). Fed Law § 3501(a) was meant to overrule Miranda & not McNabbMallory. Confession may be admissible, if it was voluntary & within 6hrs. BUT when confession comes after 6hrs, exclusionary
rule applies, & courts have to see if delay was unnecessary or unreasonable. This issue comes up ONLY if police questions
suspect or holds person more than 6hrs & questions suspect during time between taking person to magistrate office.
4th Amendment or McNabb-Mallory rule, 48 hours both state & fed court
ONLY Fed court 6 hours of Fed Rule.
Interrogation Law outside of Miranda:
 Miranda was intended to be one-size fits all but does not work that way.
 People were supposed to understand Miranda, BUT today most people don’t pay attention to Miranda & do not
understand rights.
 People don’t realize they can stop interrogation immediately if they ask for lawyer.
 The Central Park Jogger Case: 5 false confessions all constitutionally obtained. Later someone confessed to raping
jogger, & he alone did it. Contrary to people’s belief, people make false confessions, even more so to more serious
crimes. If there is serious crime, there is more pressure on police, police are more likely to use psychology coercive
techniques or wear down victim.
 People admit to small roles in crime, thinking that they will not be liable for all. BUT in law even small part in crime
can be prosecuted for whole crime. Minor involvement is prosecuted same as main involvement.
 Miranda answers some questions but there are still many problems, such as false accusations.
Grand Jury:
Grand Jury & Role of Subpoenas (summons):
 Mostly in white collar crimes, or serious crimes, or controversial issues.
 Prosecutor issues grand jury without any judicial review (judge approved).
 In serious crimes sentence is brought to grand jury, when they approve charges, it is called indictment.
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It is easy to indictment because grand jury only hears from prosecutor & only needs major vote – Sword function of
grand jury
Historically it was the community finding info & figuring out whether person should be prosecuted or not.
In warrants – person does not have right to check & see if warrant is valid when it is being carried out, because it
was approved by judge already.
In Subpoenas – (is just letter from prosecutor) person can bring subpoena to judge to get it checked, then either
judge approves or not. If approved by judge, then you must follow.
Two types of Subpoena:
Subpoena duces tecum – bring with you (docs)
Elements: 4th Amend: (1) must have relevance; & (2) not overly burdensome. (very broad & little limitations)
Subpoena ad testificandum – to testify (make people testify to lock down their testimony so they cannot change it)
Elements: 4th Amend: NO limitations
NO longer good law: Case: Boyd v. US (1886):
Company got subpoena duces tecum for files, original receipts of Boyd, cases of glass. Violates 4 th & 5th Amend. Police did not
break in but ordered company to turn over docs. Is this a search? Yes, because it has same effect. Unreasonable? Get
evidence only if evidence is contraband (Meer evidence rule but NOT good law anymore). Unreasonable under 4 th Amend &
violation of 5th Amend.
Holding was law said that subpoenas for docs are violation of 4th and 5th Amend.
Supreme court never overruled Boyd, but little by little in different cases.
Hale v. Henkel (1906): 1906 antitrust laws regulatory corporate crime investigation.
Corps have no 5th Amend rights. Corps have 4th Amend rights, entities have no 5th Amend rights, 5th Amend is for individuals.
Overturned Boyd without mentioning it at all. IF subpoena is not overbroad it is fine if it is for docs
Subpoena for “overbroad” evidence is negotiated & if needed litigated.
3rd party documents can be taken
Exception: Carpenter case; access to cell site records (protected under 4th Amend). Gov needs warrant to access cell site
records.
Denecio: Special grand jury for federal statutes against gambling.
There was wiretap during gambling & gov wanted to ID each of voices (Voice exemplar). Is it search to make somebody
speak?
No because there is no expectation of privacy in voice or appearance when they are exposed to people, NO 4th Amend rights
at all for subpoenas to testify, maybe 5th Amend issue. Can court subpoena to testify everyone in town? Yes, but practical
limitation. Prosecutor is running grand jury, so they cannot really practically make everyone in town testify. Different from
docs, because docs can just be sent to FBI, & FBI will take care of it.
5th Amend – Right Against Self-Incrimination in Grand Jury
3 requirements:
1) Compelled: legal compulsion requirement (threat of legal punishment if you do not comply)
2) Testimonial: evidence must be testimonial (giving up contents of your mind) (ex: confession) (there are nontestimonial evidence such as blood sample, DNA, handwriting samples, etc.)
3) Incriminating: tends to show involvement in crime (real & substantial danger evidence will be used against you.)
(giving gov info that may make you a suspect)
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Needs to affirmatively assert your 5th Amend rights, put on notice that answer might be incriminating.
Court need to determine context of question, & if it may be incriminating.
Court need to determine circumstances in which the question was asked.
Asking for someone’s name is generally not incriminating BUT asking person’s job may be incriminating.
Criminal trilemma – if a person is criminal they can: (1) tell the truth; (2) lie; or (3) stay quiet. There are no good
options for criminal answering question.
Gov cannot make suspect provide evidence, can only rely on confessions or through search & seizures.
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No 5th Amend rights for entities (businesses).
4th Amend is a sliding scale, but 5th Amend is a complete bar once right is asserted (unless gov gives immunity)
Act of production doctrine:
5th Amend Application deals with subpoenas with docs, & by handing them over has “implied statements”.
Sometimes speech & actions are same as testimonies (Ex: raise your hand if you did readings)
Foregone conclusion doctrine:
There are 2 types of evidence: (1) gatekeeper’s action of handing over docs (implied statements), &; (2) treasure (actual
docs). If gov has #1 then can get #2.
Act of production – Fisher (gov had implied statements & just wanted treasure) v. Hubbell (gov needed both implied
statements & treasure, so foregone conclusion doctrine did not apply, & 5th Amend applied)
Case: Fisher:
Facts: Fisher has docs from accountant that Fisher sent to his lawyer. Lawyer makes attorney-client privilege. Attorney cannot
assert Fisher’s rights. 5th Amend rights are individual rights. Gov answers hypothetical question without lawyer does
Fisher have 5th Amend rights regarding docs? Fisher turning over accounting files, implies that he had possession &
existence & authenticity of what he is handing over, tax fraud.
Holding: Implied statements (actions) is admitting 3 things: (1) it exists; (2) possession; & (3) authenticity. No testimonial
value of handing over docs. Existence of docs known because of accountant, so gov already knew they existed & just
needed actual docs. Gov did not need Fisher’s statements.
Foregone conclusion doctrine applies
5th Amend rights are personal
5th Amend rights can be applied to implied statements
Case: Webster Hubbell:
Hubbell worked for Clinton during scandal, gets involved with whitewater development company. Hubbell pleads guilty to
crime & agrees to hand over all docs. Hubbell does not completely comply. Gov sends subpoena for docs again to turn over
rest of docs, then Hubbell says that you cannot make me turn over everything 2nd time, because then it implies that it proves
he did not comply 1st time.
Foregone conclusion doctrine does NOT apply. Cause, gov needs both Hubbell’s implied statement & docs. All info was from
Hubbell & statements.
***what is the implied testimony of act, & does gov know, is there a difference.
Smartphones & foregone conclusion doctrine: ***not resolved, different in states***
1. Person needs to know phone passcode & where contents are hidden.
2. Gov needs to know evidence is in device to make person unlock their phone.
3. Person only knows passcode.
Guest Speakers:
Dan P – Police Officers
Reuben and – 2 defense lawyers
4th Amend not as applicable
5th and 6th Amend more applicable
Latino men being stopped bias: instinct v. racial profiling
Police officer did not like the defense lawyers until he needed one.
Right to Counsel 6th Amendment
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Gideon establishment of right to counsel of 6th Amend, was right of defense lawyers & out of this came Miranda and
5th Amend rights etc. Now it is less important.
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History of the role of lawyers historically: England, correction of a common law rule where defendants were not
allowed lawyers. (Lawyers would try to trick the jury into freeing guilty person). Because most defendants were
commoners, then when nobles rebelled against king, they could afford to get defense lawyer.
Incorporation doctrine, when Bill of rights applies to states, through “due process.”
Betts v. Brady (1942): there is right to counsel for death penalty case, BUT not in typical lesser criminal case, such as this
case, robbery.
Adopts case-by-case approach when defendants have a right to counsel.
Gideon v. Wainwright (1962): Felony of breaking & entering. Gideon asked for lawyer, which was denied. He had to
represent himself. He wrote petition of Habeas Corpus, & US supreme court reversed holding & stated 6th Amend right to
counsel does apply to states.
Bottom line: need defense lawyer in order for proper defense. Process is not set up for individuals to represent themselves
(complexity of law).
Importance of having defense lawyer: (hard to defend while in jail & not educated cannot prep for trial)
- Interview witnesses
- Motions to suppress (4th Amend, Miranda, etc.)
- Administrative stuff – filing papers
- Hire experts
- Trial procedure – Opening statements, cross-examination, etc.
- Evidence rules
Gideon allows more complex law procedure, because there is counsel.
6th Amend right to counsel  5th Amend right to counsel under Miranda (person not charged yet)
Argersinger v. Hamlin (1972): Brightline rule for how to implement Gideon, before person can be sentenced to jail they can
have right to counsel, but not other criminal cases (fines, etc.)
Alabama v. Shelton (2002): 30-day sentence but sentence suspended (conviction on books but do not need to actually serve
sentence unless they violated terms of probation). Suspended sentence still triggers 6 th Amend right to counsel.
5th Amend Miranda rights applies before 6th Amend rights.
Rothgery v. Gillespie County (TX 2008): When do 6th Amend rights attach? After hearing that signals defendant faces a
“threat of jail time” then defendant has 6th Amend right to counsel, after that hearing.
Massiah Right to Counsel:
Looking for when charges start. How Massiah “right to counsel” is different from Miranda.
Brewer v. Williams: Officers want to know where body is, officers keep reminding him of body. He confesses.
Holding: 6th Amend violation - Massiah case. Test is type of questioning “were officers trying to get suspect to tell them
where body was.”
Miranda  in custody Rhode Island v. Innis test
6th Amend Massiah  (has been charged or threat of being charged) Was the officer trying to (deliberately) interfere with
defense’s case?
Patterson v. Illinois (waiver):
Fact: Patterson has 2 different rights & after he was charged. He argued he waived his Miranda rights, but were not given 6 th
Amend Massiah warnings.
Court: said waiving Miranda rights also waives 6th Amend Massiah rights.
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(Exceptions in one case: Suspect did not ask for lawyer, but lawyer came & wanted to talk to suspect, police told lawyer to
wait & quickly got confession, officers did not violate Miranda, but did violate 6th Amend Massiah).
***watch for someone who has been charged & talks. Then applies Linkage of Miranda & Massiah in Patterson.
Jail plant cases: undercover informant (question that is deliberate eliciting incriminating statement)
Poolman & Henry  when is incriminating statement response to deliberate incriminating question? Gov having undercover
agent itself is not deliberate incriminating question, but judge decides after defense & prosecutor makes their argument.
Texas v. Cubb (offense-specific):
Defendant was charged for burglary, police questioned him for murder & later he confesses. 6th Amend Massiah right applied
to burglary (because he was already charged with burglary), but did 6 th Amend right also extend to murder? No, because
he wasn’t charged for murder yet (still under investigation).
Holding: Are Massiah rights are offense specific? Yes.
Miranda rules are not offense-specific (general Miranda rights AS LONG AS person in custody & interrogated)
Massiah rules are specific to a crime that were charged. (looks at each crime & their element)
Blockburger v. US – double jeopardy test – doe each offense of the crime have same element? (Ex: burglary (charged) &
murder (not charged) are 2 separate offenses BUT possession of drugs (charged) & intent to distribute are same crime,
so 6th Amend applies to both drug cases because it is same crime.)
Remedies Question (Nix? Feller?)
What are the remedies of 6th Amend Massiah?
Nix v. Williams & Feller:
Nix suggests one type of remedies, Feller says Miranda & Massiah are distinct, BUT remedies are same.  No answer, No
standard. Usually officers do not ask more questions after person is charged, & person that is charged already has a
lawyer & lawyer tells them not to waive anything & do not talk to the police.
Line-Up:
Eye witness testimony:
A lot of wrongful convictions are from eye witness testimony, memory is easily manipulated.
How should law respond to unreliability of eye witnesses? (1) 6th Amend right to counsel; (2) Due process clause.
Types of eye witnesses: (1) Line-up (2) Show-up (3) Photo array
Out of court identification (testify identification during line-up after the crime) = NOT allowed
In court identification (testify identification during time of crime & finding person at trial) = gov has burden to prove that it is
necessary to allow it.
US v. Wade (1967): Post-indictment line-ups defense lawyer right to be present, what does defense lawyer do during line-up?
Look for bias, taking careful notes why line-up is bias. So, prosecutor allows defense attorney to participate in line-up.
Kirby v. Illinois (1972): Pre-indictment line-up 6th Amend has not attach yet & therefore you cannot have lawyer present
during line-up.
***Once gov has committed to prosecution that is when commitment is adversarial.
***When 6th Amend right attaches then can have lawyer present at line-up but cannot if 6th Amend right did not yet attach.
***When 6th Amend attaches then need lawyer within reasonable time, MUST have lawyer during critical stages of case. (Ex:
interrogation, line-ups, etc.)
US v. Ash (1973): does 6th Amend right to counsel attach to photo array? No. (Problem hard to regulate when & how photo is
always shown, BUT photos can recreate biases, dangerous).
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Manson v. Brathwaite (1977):
Facts: was identification of photo allowed to be entered into evidence. Unreasonably suggestive? Yes, only 1 photo & asked,
“is this the person?”.
Certain features of reliability: Due process clause standard: Is there enough reliable basis of fact that allows jury to look at
evidence. Is there a high risk of false identification? If yes, then NOT admitted. ***Very high burden of gov to prove.
The 5 elements find in recording… T-T
Case: v. :
Facts: asks neighbor if they saw the criminal, neighbor points to a person outside. Due process clause does not attach
because there was no state involvement, so no due process rights.
Review:
Exclusionary rule
Miranda
Mostly judge made judicial law
3 periods of time:
Before 1961: Bill of rights applied to Fed & not States
1961-68: Incorporation & Warrant Court revolution, Matt v. Ohio, Miranda… etc. Katz, Terry, etc. (warren court revolution,
how the law should be applied to police)
Warrant Court Revolution: Bad crafting of Rules, Policy = good (4, 5, 6, 14 Amend Police practice generally = major concerns
and addressing them)
 Matt v. Ohio – incorporating the exclusionary rule to the states.
 Katz v. US – phonebooth case (Justice Harlem concurring opinion: test)
 Miranda v. Arizona – about the 5th Amend, but not really.
After 1968: roughly keeping rules but watering them down.
Shift in exclusionary rule
Burgess v. Thompkins
Originalism
Chalking tires not constitutional: Jones trespass issue – unreasonable and automobile exception does not apply.
Carpenter case:
Roads judges did not take:
 Constitutional limitations of crime, legislature makes the rules of what a crime is, then judicial decisions limits what
police can do.
 Statutory law
Future of this area of law:
 6th Amend more consistent/stable
 4th Amend going through a lot of changes: carpenter, jones, riley, (new technology and how to apply it) get broader
rights but not much remedies
- Qualified immunity: most justices do not like it
- Exclusionary rule: lots of cut backs
 Miranda: very few Miranda cases presently. (up for rethinking, but no visible trend)
 Stop and frisk: related to race, police power abuse (ex: limitation of time for traffic stops)
 Qualified immunity doctrine allows the use of excessive force
EXAM: 3-hour open books, open note
Multiple choice 40% - issue spotting (fact patterns) (maybe 45 questions)
Essay 60% - (1 policy question & other doctrine questions) are you spotting key issues, hard issues that can go either way &
why. 3 pieces evidence & explain. If there is easy question do not spend time on it.
Policy questions: answer policy (do you understand existing rule & problems: discussed in class) (deeper level) (give best
arguments, not your opinion)
Doctrine questions: answer doctrine
No time separation: try to follow the time recommendations.
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