Criminal Procedure Outline Fourth Amendment “The right of the

Criminal Procedure
Fourth Amendment
- “The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be violated…”
Whether person was seized?
- Triggered only if suspect is:
o Stopped
o Detained (even for questioning or investigation)
o Deprived of OR restrained of physical liberty
- Objective Test
o Reasonable Person Standard
o Subjective characteristics not relevant
- Seizure occurs if: Reasonable person does not feel free to terminate the
encounter because LE:
o Uses Physical Force to restrain movement
 Hodari – suspect in flight discards drugs before seizure
 OR
o Asserts authority causing suspect to submit
 Drayton - ∆ on bus with 3 officers; drug interdiction
- Seizure occurs if reasonable person does not feel free to:
o Terminate the encounter
o Leave
o Decline the request
- Per se seizure:
o LE retains ID or ticket
- Defining Physical Force:
o Perhaps just a touching by a known officer
- Why not merely assertion of force or attempt to seize?
o Pragmatic Logic:
 Encourages compliance/Discourages Flight
 Want the suspect to submit to authority
o Theoretical Logic:
 LE should not end up in worse position despite compliance with
good practice
- SCt – if a seizure has not occurred, citizens should feel free to leave; not a
- S Ct’s rule on seizure creates a time lag problem:
o Suspect discards evidence after assertion of authority but before
o Moment of submission = moment of the seizure
 LE wins (fortuitously)
 No difference in LE conduct
If no Seizure  no requisite suspicion
*Facts to support or rebut a seizure has occurred*
- Seizure has occurred – Facts to Support (∆’s POV)
o LE retain ID or ticked
o Warning shot that (accidentally) hits suspect in leg
- Grey area – Facts that can be argued to support or counter a seizure
o LE touched suspect
o Submission to authority (varies because it is from the objective reasonable
person’s POV – does not take into account subjective characteristics)
o Stop, It’s the Police
o Warning Shot in the Air:
 ∆ - Assertion of authority or Use of physical force to restrain
 Π – equivalent of “stop, it’s the police”
o LE yells “Hey, You”
 ∆ - Assertion of authority; equivalent of “Stop, it’s the police;”
Police in uniform projects authority
 Π – not an assertion of authority; just a greeting
- Seizure has not occurred – Facts to Counter (LE’s POV)
o Pursuit without touching – Hodari
o Suspect is still in flight (not submitting to authority)
o LE stop and ask someone questions
- *Exam Tip*
o Hypo with cumulative effect that may constitute a show of
 i.e. Timid citizen immediately raises arms
 have submission
 no show of authority
 could argue that there was authority if the PD screeches the
car, and does a u-turn
Exception to the Rule – Suspicionless Searches
Isolated Random Stops
- Not Allowed
o No individualized suspicion
o LE’s interest is minimal
- Case: Deleware v. Prouse
o LE checking for license & registration – attempted to justify for public
o Concerns over pretextual stops
Why are isolated random stops generally not allowed:
o “Swallow the Camel, Strain at the Gnat” [?]
 Must be an explanation
o Real Reason:
 Dangers of unconstrained discretion
 Arbitrariness/Capriciousness
 Discriminatory Enforcement
 Delegation of Policy-Making Authority
 No suspicion required
 Pretext
 Innocent individuals can be harassed
 Inefficient – cops should not just be doing busy work
 Slippery Slope
 Default: Liberty prevails
Roadblocks – Permissible:
- Timing of cars being pulled over:
o Every vehicle or every 1/xth vehicle
- Specific, Primary Purpose Related to the use of roadway
o Examples:
 Sobriety Checkpoints = Roadway safety
 Registration checkpoints = motor vehicle laws
 Investigatory checkpoint for specific accident
 Lidster – might be able to discover witnesses to
o Policy for allowing:
 Removes pretext
 More efficient use of resources
 Court does not allow general roadblocks
- Exigent circumstances:
o Examples:
 Imminent, terrorist attack
 Fleeing, dangerous criminal
 Policy for allowing:
o Policy:
 Extraordinary LE interest – allows greater intrusion on liberty
Roadblocks – Impermissible:
o Primary Purpose Comprises General Crime Control
o Rationale:
Fear that special exception will swallow general rule that seizure
requires individualized suspicion
 LE could use roadblocks for any crime control purpose
o Edmond:
 Drug interdiction - Roadblock on known drug route
Whren v. US
o Subjective intent of LE does not invalidate an otherwise justifiable stop
o Whren courts from determining whether a roadblock (or any other stop)
was made for a invalid purpose of General Crime Control
o LE – just give a reason; can be pretextual in reality
“Special Needs Searches”
- International Border
- Security Checkpoints
o Airport
o Courthouse
- Rationale for allowing these suspicionless searches:
o Ct hasn’t explained – but probably:
 Consent
 OR
 Pragmatic
- Effectiveness of suspicionless searches related to justification:
o Demonstrates evidence of Governmental Interest
 But
o Not dispositive in justifying suspicionless searches
Identification Statutes
- General Rule: not allowed
o Blanket ID law is unacceptable
- When are ID statutes allowed
o Allowed if request for ID reasonably related to circumstances that
justify the stop
- 3 Problems arising because ID statutes allowed:
o Bootstrap less than reasonable suspicion into grounds for stop or arrest
o Danger  unconstrained discretion  LE can stop people at any time
o Tension with Investigative Stop
 Allow questioning, but no obligation to answer
 Refusal to answer allowed, no basis for arrest
 Identification laws mandate an answer
- Officer is always allowed to question a suspect [double check about this section]
o Allows questioning, but no obligation to answer
o Refusal to answer allowed – no basis for arrest
- ID laws almost like a question  think about Miranda
Was the Seizure Reasonable?
- Reasonableness is defined by the Amount of Suspicion
o Built on spectrum scale
- General Rule: Suspicion must be individualized
- In order to be validly “seized” LE must prove:
o Reasonable Suspicion that suspect involved in criminal activity based
on specific, objective, and articulable facts along with reasonable
inferences drawn from LE experience
- Another way of saying what the LE must prove
o Reasonable suspicion
o Based on objective facts
o That suspect involved in criminal activity
- When is reasonable suspicion determined:
o Before the LE conduct (i.e. search or seizure)
- From Who’s POV:
o Evaluated from POV of Officer in the Field
Insufficient to create reasonable suspicion:
o Permissible protests or attempts to terminate the encounter
 Norwell v. Cincinnati – guy leaving his job at night; LE harassing; ∆
knocked away officers hand - ∆ allowed because the touch becomes
a seizure without reasonable suspicion; LE did not have
individualized suspicion/just suspicion about the neighborhood
o Refusal to provide Identification (absent other circumstances)
o Inchoate Suspicion or hunch
What is permitted for LE to use to prove reasonable suspicion:
o Information not observed
 Officials
 Tipsters
Can LE stop based on impermissible pretext:
o No – theoretically
How can LE engage in pretextual stops:
o So long as objective facts are known to LE that provide reasonable
suspicion  the subjective intent of LE is not relevant (even if some
evidence of bad faith
Whren v. US:
o Subjective intent of LE does not invalidate an otherwise justifiable stop
2 factors that may not be considered in isolation but may be considered as a
factor when determining reasonable suspicion:
o High crime area
o Flight
High Crime Area:
o Mere suspect present in high crime area insufficient to provide reasonable
o BUT – a permissible consideration
Suspect Flight from LE
o While suggestive of wrong-doing, insufficient to provide reasonable
o BUT unprovoked, headlong flight coupled with other factors is possibly
Terry Stops
- What is a Terry Stop:
o Brief investigation to dispel or confirm suspicion
- Level of Suspicion required for a terry Stop
o Reasonable Suspicion that suspect involved in criminal activity based on
specific, objective, and articulable facts along with reasonable inferences
drawn from LE experience
- Length of Terry Stop:
o Investigative detention for reasonable time permissible
o Reasonably brief detention permissible even if shorter detention possible
(i.e. arrival of drug dog)
- How to determine reasonableness surrounding the length of the stop:
o Reasonableness of time depends on facts:
 Known at beginning
 And
 Discovered during investigation (may permit extension)
- Can LE detain persons on premises during an execution of search warrant:
o Allowed
Terry Frisks – Protective Searches
- What is a Terry Frisk:
o Limited, Protective Search of Outer Clothing (pat down) to dispel or
confirm suspicion
- Chronologically, what is required prior to LE’s ability to conduct a Terry Frisk:
o Requisite Suspicion for a Terry Stop (they don’t have to be performed in
that order – but the suspicion must be present)
- Level of suspicion required for a Terry Frisk:
o Reasonable suspicion that suspect is:
 Armed
 Dangerous
What are the ramifications when LE delay conducting a Terry Frisk:
o Undermines LE claim of reasonable suspicion is immediate or prompt
search permissible
When may LE expand a Terry Frisk:
o If justified by facts known before LE takes action
3 General Factors to consider to allow LE expansion of Terry Frisk:
o Dangerousness
o Nature of additional intrusion
o Conduct of suspect
Permissibility of Expanding the search:
o Frisk reveals no object or non-weapon
 End search
o Frisk reveals object officer reasonably suspects is a weapon
 Expand search
o Frisk reveals object with immediately apparent incriminating character
 Expand search
What effect on the level of suspicion if LE find an object with immediately
apparent incriminating character:
o Ratchets up to PC
- What is any valid detention short of an arrest:
o Extended Terry Stop
- Define Arrest:
o Significant deprivation of Liberty/ Suspect “in custody”
- 2 types of arrest:
o Formal
o De Facto
- 4 factors to consider to determine if suspect is under de facto arrest:
o Location of encounter
o Movement of suspect by LE
o Intrusiveness/Use of Force
o Duration of detention
- What level of suspicion is needed for LE to make an arrest:
o PC
- Define PC:
o Facts and circumstances, along with reasonable inferences, sufficient for
reasonable officer to believe that crime committed by suspect
- What similarities does PC have with Reasonable suspicion:
o Based on specific, objective and articulable facts
o Known to officer or provided to officer by other officer (dispatcher or
o NOT an inchoate suspicion/hunch or even Reasonable Suspicion
Effects of LE mistakes in arresting a person
o Arrest of wrong person:
 Good faith Mistake exception regarding identity
 Officer must reasonably believe that arrestee is the suspect
o Arrest based on Mistaken facts:
 Allowed if PC at time of arrest
 Subsequent factual developments do not render PC arrest
o Arrest by LE without subjective belief in PC
 Authority split
 Some won’t allow
 Some will allow [not sure if the info below is required in all
 Some allow if objective PC present even if officer
subjectively lacked PC
o Arrest based on later-invalidated law
 Allowed – arrest based on currently valid law is constitutional even
if law is later invalidated
What 2 actions does an arrest with a warrant allow:
o Arrest & prolonged detention
o Entry into home to make arrest
What 1 action does an arrest without a warrant but with PC allow:
o Brief detention followed by prompt judicial determination of PC
What is presumptively a “brief detention”
o 48 hours
General Rule about permissibility of an arrest in home with PC but without a
o Not allowed – presumptively unreasonable
The exception to the general rule barring an arrest in home with PC but without
a warrant:
o Exigent circumstances – can overcome the presumption of
4 factors to determine if the exigency allows for an arrest in home with PC but
without a warrant:
o Gravity of underlying offense
o Hot pursuit
o Threat to public safety/dangerousness
o Preserve/prevent destruction of evidence
What is generally required of LE prior to arresting in home:
o Knock & announce
o But exceptions on case-by-case basis, as reasonable
When are LE allowed to ignore the K&A rule:
o If LE has reasonable suspicion that knocking and announcing would be
dangerous, futile, or inhibit investigation
- When does a search occur:
o When LE examines a place/thing in which a person possess a reasonable
expectation of privacy
- 2 pronged analysis for expectation of privacy:
o Subjective/actual expectation of privacy
o Objectively reasonable
- In part, what does the objectively reasonableness requirement under the
expectation of privacy depend on:
o The intrusiveness of the LE conduct
- __ times where there is no objectively reasonable expectation of privacy:
o Conduct in the open or exposed to public
o LE observes from Public vantage point
- If no expectation of privacy, what has the LE engaged in & what level of
suspicion required:
o Not a search
o No particular standard of suspicion required
- When can LE obtain evidence without officially conducting a search:
o No expectation of privacy
o If party to otherwise private activity gives otherwise private information
to LE
o LE observes from public vantage point
o Conduct in the open or exposed to public
o PV
PV Doctrine
- No reasonable expectation of privacy regarding evidence in PV
- What is the key to understanding when LE may use PV
o No reasonable expectation of privacy because LE observing from lawful
vantage point
- What senses may LE use in PV:
o Seeing (PV)
o Hearing
o Smell
o Touch
- 3 factors surrounding the PV doctrine allows seizure of object without a warrant:
o Observed from lawful vantage point
o Right of physical access
o Nature as an object subject to seizure immediately apparent
Cumulatively, what do the existence of these 3 factors create:
o PC to believe object constitutes contraband, fruit or instrumentality of
crime, or evidence of crime
Searches via 3rd Parties
- Rule behind LE search of Garbage:
o No reasonable expectation of privacy in garbage
- What is the principle underlying LE’s ability to search garbage:
o No privacy interest in abandoned property
- What is a pen register:
o Dialed phone numbers
- May LE search Pen registers or 3rd party information:
o Allowed
- Logic behind allowing searches of information shared with 3rd parties:
o The information is not private
Tracking Devices
- When are tracking devices permissible:
o If LE acquires publicly-observable information
- Define publically observable:
o Information conceivably observable by public
o No requirement of how likely
o Legal fiction
- When are tracking devices impermissible:
o LE acquires unobservable information
- *Note: make sure to analyze the installation of the device
Search of Home:
- When is exterior surveillance allowed:
o When conducting from a lawful vantage point
- Is exterior surveillance of a home a search:
o No – not a search
- General rule regarding interior surveillance of a home:
o Not allowed
- 2 exceptions which allow LE to search the interior of home:
o Accomplished by a device in general public use [is the interior movement
o Warrant based on PC
- How is Subjective prong of the expectation of privacy treated regarding the
o Presumptively satisfied
Search of Area Around Home/Curtilage
- When may LE NOT search the area around a home:
o When the area is considered curtilage
- What 2 exceptions may allow LE to search the curtilage
o Warrant based on PC
o Aerial surveillance conducted from navigable airspace in non-intrusive
- Define Curtilage:
o Area near house/building in which expectation of privacy exists
- 4 Dunn Factors to determine if area is curtilage:
o Proximity to house
o Within an enclosure surrounding the house
o Nature of use of the area
o Steps taken to protect the area from observation
Search of Open Field
- General rule regarding LE search of an open field:
o Allowed
- Why is a search of an open field allowed:
o No reasonable expectation of privacy
- Define open field:
o Area outside curtilage
o Term of art
- What effect do “no trespassing” signs have upon LE’s ability to search an open
o No effect on constitutional analysis
LE Use of High Technology
- 2 elements that must be met for LE to search with aid of high technology:
o Evidence gathered from public vantage point
o Using technology in general public use
- Standard of suspicion required to get a warrant:
o PC the crime committed
 And
o Evidence located on person or on premises or in thing
- *Note: Locus of Search might belong to suspect or 3rd party
- 4 steps procedure to obtain a warrant:
o PC
o Oath or affirmation – affidavit
o Neutral and detached magistrate
o Time, inventory, return, receipt
- Warrant must state with sufficient particularity to reasonably allow identification
of 3 things:
o Premises, person, thing searched
o Items/evidence searched for
o Items/evidence subject to seizure
- 2 Levels of sufficiency depending on what the warrant is for:
o Rigorous regarding:
 Premises
 Person
 Thing search
o Less Rigorous regarding:
 Items/evidence unless stolen property
- Default rule regarding warrants:
o A warrant is required for search of person, thing, or premises
o Unless a warrant exception applies
- As warrant exceptions have grown, what has happened to the “warrant
o Warrant requirement has become a “warrant preference”
- 11 Exceptions or other doctrines obviating warrant requirement:
o Terry Frisk
o Special Needs
o Administrative Search
o Exigent Circumstances
o Public Safety/Community Caretaking
o Search Incident to Arrest
o Vehicle Doctrines
o Inventory Search
o Booking Search
o Consent
o No Search/No Expectation of Privacy (i.e. PV, open fields, abandoned
Anticipatory Warrants:
- Are anticipatory warrants allowed:
o Permissible
- What must an anticipatory warrant contain:
o Triggering condition
o [? Condition not necess provided to suspect w/warrant ?]
Facial Challenges to Warrants
- 3 potential facial challenges to a warrant:
o Warrant lacks required standard or component
o Lack of particularity in Location, Search, Seizure
o PC not present in Affidavit
Sub-Facial Challenge to Warrant
- What happens when a warrant is valid on its face, but the supporting materials
are inaccurate
o Deeper Probing
- What is the standard for a “sub-facial” challenge to a warrant
o [? Hearing after preliminary proffer of material and deliberate falsity?]
- Define Deliberate:
o Knowingly or recklessly false statements
- Define Material:
o Statements necessary for finding of PC
- What is the remedy if there is a successful sub-facial challenge to a warrant:
o Warrant voided; fruits suppressed
Search of Persons on Premises During Execution of Warrant
- General Rule regarding the search of persons on premises during warrant
o Not generally allowed
- Exception to the general rule:
o If the person is named in the warrant
o “All Persons on Premises” warrants permitted upon proper showing
- 2 factors that might alter analysis & allow search:
o Inference/Evidence of involvement in crime
o Public vs. Private Location
Tip or Informant as Basis for PC
- 2 tests & jurisdiction:
o Aguilar/Spinelli Test
 Some states
o Gates Test
 Some States & Federal government
- What is the only test you use if only a federal LE is at issue:
o Gates
- Aguilar/Spinelli Test
o What are the 2 factors used:
 Basis of knowledge
 Veracity
o Basis of Knowledge
 3 factors to look at to determine the Basis of Knowledge:
 Look to level of detail
 Insider Information
 Predictive Nature
 What is the goal of reviewing the Basis of knowledge
 Distinguish first-hand vs. second hand information
o Veracity
 3 reasons of how knowing the identity of the tipster may lend itself
to the veracity:
 Identity of tipster may establish credibility
 Admission against tipster’s interest may establish credibility
 Track record of tipster may establish reliability
What is the goal of reviewing veracity
 Testing the Credibility & Reliability of information
How may LE shore up the veracity of an anonymous or unreliable
 Corroboration or Verification
 May elevate otherwise insufficient tip
Gates Test
o What test does the Gates test rely on:
 Totality of the Circumstances
o 2 factors:
 Veracity, reliability, and Basis of Knowledge
 Or
 Other indicia of reliability
o If one factor is deficient, can LE still use tipster:
 Deficiency in one possibly compensated for by strong showing on
o 2 keys to the Gates test:
 Corroboration
 Predictive Nature
- Consent allows the following 3 things during search or seizures:
o Search of person
o Search of premises
o Seizure of property/evidence
- Consent allows LE to bypass what 2 general requirements
o Warrant
o Any particular level of suspicion
- Scope of Search/Seizure Permitted per consent
o As reasonable
o Measured based upon consent given
Standard for proving consent
- Who has the BOP that consent was given
o BOP on LE
- What is the test for proving consent:
- For consent to be valid, it must be:
o Freely and voluntarily given
- What does not constitute valid consent:
o Not mere acquiescence to authority
- What effect does LE claim of a warrant do to consent:
o Vitiates any “consent” given
What are LE barred from doing in order get consent:
o No duress or coercion
Do LE have to inform people of their option to refuse to give consent – Maj/Min
o Majority – Fed & most states
 No requirement of knowledge of option to refuse
o Minority – some states
 Require Advising of option to refuse
4 factors tending to undermine voluntariness
o Show of force
o Number of officers
o Repetitive requests
o Overbearing/Intimidation
3rd Party Consent
- What must be present for a 3rd party to give consent
o Only valid if consenting party has common authority
- Who has the BOP
o LE
- What does the LE have to prove:
o Consenting person must have authority
 OR
o Apparent Authority - LE must reasonably believe consenting person has
- Issue: Scope of Authority [look up in notes]
o Housemates vs. Spouses
- Result when two people are present: one consents, one refuses
o Refusal prevails
- What Solution may LE use to avoid the problems about one consent and one
o Legitimately organize
o Sequence investigation to prevent conflict
- What is improper in resolving the conflict:
o Movement of prospective refuser solely to prevent refusal
Bodily Intrusion
- What is required generally
o Warrant
- What is needed to gain a warrant
o PC for search
o Sufficient to justify intrusion
Are exceptions to the warrant requirement allowed:
o Yes
- 2 prong test and sub-elements (2 each)to determine the reasonableness of
o Look to intrusion/Medical Test itself
 Examine intrusiveness (pain/trauma/risk)
 Examine effectiveness (LH of gaining evidence)
o Method of performing intrusion/Test
 Medical practices/location/personnel
 Risk by performing intrusion/test with this method
Shocks the Conscience
- Independent of 4th Amend. Claim
- What type of claim is a shocks the conscience
o Substantive DP – an implied fundamental rights claim
- Rule & Case:
o LE conduct that shocks the conscience is unconstitutional
o Rochin v. California
- 2 quintessential examples:
o Torture
o Entrapment
Sobriety Testing
- Is LE DUI testing allowed:
o Yes – both blood testing and breathalyzer
- Balance what 2 factors to determine if surgery may be performed:
o Intrusion
 i.e. risk of general anesthetic
o LE’s Need for intrusion
 i.e. gravity of offense, concern for public safety
Warrant exceptions
- Who has the BOP
o LE
- 4 factors to determine if exigent circumstances can be used to bypass warrant
o Gravity of underlying offense
o Hot pursuit
o Public safety
o Preservation of evidence
- Scope of Search allowed per exigent circumstances
o Search to find suspect
 And/Or
o Evidence
What is the Duration of Search allowed under exigent circumstances
o Until suspect and/or evidence located
 OR
o Until exigency ended
Search Incident to Arrest
- What is the dividing line between LE’s ability to search incident to arrest (SITA):
o Formal vs. de facto arrest
- What is the rule regarding SIDA and formal arrest
o Generally: Brightline/Per se Rule [Generally and per se?]
- Rule – SIDA and de facto arrest:
o Probably not available
- Timing of SIDA
o Contemporaneousness – but Wiggle room allowing search before and
after arrest
- 3 things LE may search with SIDA:
o Person of arrestee
o Area within immediate control
o Immediately adjoining area
- * Note: Requires PC to Arrest/Warrant
Search of Vehicle Incident to Arrest of Suspect
- May LE search a vehicle incident to arrest
o Allowed
- Scope of vehicular SIDA:
o Search of passenger compartment
o Search of accessible, unlocked containes
- Exception when LE may not conduct vehicle SIDA:
o Suspect has no reasonable access to vehicle
 And
o No reasonable belief that evidence in vehicle
- Contemporaneous limit:
o Suspect in vehicle
 OR
o Suspect recently exited vehicle
Search of Vehicle with PC (But no warrant)
- Is a search of vehicle with PC without a warrant allowed – what is needed:
o It is allowed
o PC that evidence in vehicle
What is unusual about this doctrine:
o Applies to all mobile vehicles, includes RVs
What is the rationale for allowing more expansive vehicles in this doctrine:
o Lower expectation of Privacy
Search of Container in Vehicle with PC (No warrant)
- Is a search of a container in vehicle with PC but no warrant allowed:
o Allowed
- What can be searched:
o Locked compartments & containers
o Passenger belongings
- Scope [?]
o With same level of particularity as warrant
o Things constituting evidence of underlying crime
Vehicle Citation Stop
- What is allowed during the stop:
o Permits ordering driver and passenger(s) to exit the vehicle
Inventory/Booking Search
- What is required to conduct an inventory search of a vehicle or a booking search:
o Must be routine procedure for LE
- Scope allowed in an inventory search:
o Vehicles/containers
- Scope allowed in booking search
o Arrestee
- What is unique about an inventory/booking search:
o Warrantless – search without particular level of suspicion
Special Needs Searches
- When is a Special Needs search allowed:
o Balancing of state vs. private interests
o Immediate objective not general crime control
- 3 Examples of Special Needs Searches:
o School searches
o Public employees
o Probationers
Administrative Search
- Are Administrative Searches allowed:
o Yes – they are allowed
- What is distinct about Admin Searches:
o Not conducted by LE
o Search by governmental/regulatory programs
*May occur based on area warrant, routine inspection, etc.
*May not require warrant or criminal level cause
Public Safety/Community Caretaking Function
- May LE search without PC or exigent circumstances
o Allowed – in the name f public safety or community caretaking function
- When is it not permissible
o If LE are investigating a crime
- Most common example:
o Reasonable basis for believing occupant seriously injured or imminently
threatened with such injury
Incriminating Statements
- What constitutes questioning or interrogation:
o Words or conduct by LE reasonably likely to elicit an incriminating
o Deliberate elicitation
- BUT what are LE not responsible for:
o Unforeseeable results
- Early in investigation, when are LE allowed to ask questions:
o If non-custodial
o Before Adversarial proceedings commence
- Why:
o No constitutional rights implicated
- *Remember: Questioning may also entail detention requiring a separate seizure
- May LE ask questions before adversarial proceedings with suspect’s consent
o Allowed
- Why
o Consensual questioning implies non-custodial and no detention
- May LE question a suspect while in custody but before adversarial proceedings
o Allowed only after Miranda warnings
- Exceptions
o Unless exigent circumstances (public safety)
- Questioning allowed after adversarial proceedings commence:
o Not generally allowed for offense charged
Which Amendment attaches to bar questioning after adversarial proceedings
o 6th Amendment RTC
The 6th Amendment question is limited by what
o Offense specific – questioning is allowed for other offenses
What else does the 6th Amendment Bar:
o Deliberate elicitation by informant/Snitch
What other right has by definition attached:
o Miranda
Questioning with Official Misconduct
- What amendment bars coercion/duress in LE questioning
o Substantive DP right – Shocks the Conscience
- Test:
o Whether the will of suspect overborne by LE
o Suspect must show statements involuntary [BOP on suspect?[
- POV – both subjective and objective elements
o Would the reasonable person in position of suspect have made
involuntary statement because of official misconduct
- What are the potential factors
o Suspect’s
 Age
 Mental state
 Mental capabilities
o Interrogation
 Length
 Nature
 Number of officers
 Understanding of rights
o Impairments of free will
 Deprivation of sleep/food
 Intoxicants/medications
 Injury/Pain
- 5 possible forms of coercion:
o Actual
 OR
o Threatened use of force
 By LE
 By others: mob outside or medical personnel
o Psychological pressure
o Promises of leniency or threats of harshness
o Deception
5th – Procedure
- Who determines whether suspect has been coerced
o Judge determines coercion based on preponderance of the evidence
- If the judge determines that the confession was coerced/involuntary
o The statement is excluded for all purposes
- What is the procedure if the judge determines the statement is not coerced
o The statement is admitted
o But
o The jury may still consider circumstances and weight
- 4 components required
o Effect of waiver of RTRS
o RTC (before/during/after questioning)
o If indigent, appointed counsel
- Is a specific wording required:
o N o magic words required/not talismanic
o Only Miranda’s formulation or equivalent
- What if the suspect subjectively knows his Miranda rights
o Irrelevant – suspect’s subjective knowledge of Miranda irrelevant
- When are Miranda rights required to be given
o Questioning during custodial interrogation
- Is Miranda charge specific
o No – Miranda is required even if questioning for offense different from
offense of arrest
- Is Miranda ever required for civil matters:
o Possibly – when the questioning could result in criminal charges (IRS)
- When is Miranda Not required:
o Routine traffic/citation stop
o Sobriety questioning (non-testimonial responses)
- Questioning Defined:
o Literal questioning or interrogation = sentences ending in question marks
OR orders to supply information
o Functional equivalent of questioning
 Words or actions reasonably likely to elicit an incriminating
response from suspect = deliberate elicitation
o But LE not accountable for unforeseeable results
- Custodial Interrogation Defined – 2 ways
o Under formal arrest in field or in custody at station
 OR
o Otherwise deprived, by LE, of Freedom in a significant manner
- Who’s POV do we view IC from:
o Reasonable person in suspect’s position
What are the factors for de facto arrest – which should trigger Miranda
o Length of detention
o Location
o Movement/control of suspect vs. voluntariness
o Intrusiveness/Force of restraint
*NOTE: Intimidating Aspects of Encounter/Questioning do not automatically
constitute custody
Invocation of RTRS
- If suspect unambiguously invokes 5th Amendment RTRS
o Interrogation must cease and cannot resume
- Exception
o Consecutive statements
- 5 factors that gauge the legitimacy of the second confession
o 1st Interrogation ceased immediately
o Passage of significant period of time (2+ hours)
o Renewed Miranda Warnings
o Questioning regarding different offense
o Different officer, different location [? Unsure about the effectiveness]
Invocation of RTC
- If Suspect unambiguously invokes 5th Amendment RTC
o Interrogation must cease
o Cannot resume until after suspect receives counsel & counsel consents
o Regardless of passage of time
o Regardless of unrelated offense
Attempted Invocation
- 2 possible results if suspect ambiguously attempts to invoke his rights
o No federal constitutional requirement that LE seek clarification
o Questioning may continue
- 4 Ambiguous statements:
o Maybe I should talk to a lawyer
o I’m suppose to have a lawyer
o Could I have a lawyer present when I talk?
o Can I get a lawyer right now?
Can LE be excused from issuing Miranda Warnings
- Only in Exigent circumstances – immediate concern for public safety
- Does LE need a waiver of Miranda Rights?
What 2 types of waiver are acceptable
o Express
o Implied
Who has the BOP that a valid waiver was given
o Prosecution
What 2 forms can an express waiver take:
o Written
 OR
o Oral
What is an implied waiver:
o Agreement to answer questions
o Agreement to answer inferred from answers
o *Waived even if suspect refuses to relinquish rights
What if suspect volunteers information after invoking rights
o Incriminating statement volunteered by suspect without interrogation
 Constitute a waiver
 Constitute an initiation of interrogation by the suspect
May Prosecution use ∆’s invocation of rights against him
o No
o Even if ∆ gives exculpatory evidence at trial, prosecution cannot ask “why
didn’t you tell the officers?”
May prosecution comment on ∆’s silence prior to suspect being in custody
o Yes – prosecution can comment on pre-arrest silence
Identification Procedures
Photo Array
- What is a photo array
o Non-corporeal identification
- Are photo arrays acceptable:
o Yes – without counsel present
- Is the 6th Amend implicated
o No
- Test to challenge
o Was the photo array unnecessarily suggestive
Live Identification - Pre Adversarial Proceedings – Line up or Show up
- Define Live ID:
o Corporeal ID – Witness ID of Live suspect
- Are live IDs permissible
o Allowed – without counsel present
Test to challenge
o Was the photo array unnecessarily suggestive
Is the 6th Amendment RTC implicated
o NO
Live ID – After Adversarial Proceedings Commence
- Are live IDs permissible
o Not allowed
- What amendment is implicated
o 6th Amend RTC
- When may LE conduct a Live ID after adversarial proceedings commence
o When counsel is present
- What is the concern/why we want counsel there
o To cure in the moment any unnecessary suggestiveness
- Define Adversarial Proceedings
o Any proceedings before judge
- What is not an adversarial proceeding
o Grand Jury Proceedings
Additional ID Procedure Challenges
- In addition to the 6th Amendment Challenge, what other challenge may ∆ make?
o If ∆ contends ID conducted in Unnecessarily suggestion manner
- When can LE still use a ID that was unnecessarily suggestive
o If the ID is reliable
- 6 factors to gauge reliability
o Witness’s opportunity to view suspect
o Witness’s degree of attention
o Accuracy of pre-ID description of Suspect
o Level of witness certainty
o Time between view & ID
o Other
Exclusionary Rule
4th Amendment Violations
- Remedies for a 4th Amendment violation
o Exclusion from prosecution’s case-in-chief only
- What 5 adversarial proceedings is the evidence not excluded from
o Pre-trial (incl. Grand Jury)
o Bail
o Sentencing
o Probation/Parole
o Impeachment of ∆ (with limiting instructions)
Exclusionary rule does not apply to what 4th Amendment violation
o K&A rule
What is the logic behind the exclusionary rule
o Deterrent value only
Exclusion from Civil/Administrative proceedings?
o Theoretically possible, but never applied
o Calculation of deterrent value
4th Amendment Violations when LE acting in Good Faith
- General Rule - Does the Exclusionary Rule apply if LE acting in good faith when
4th Amend violation occurred
o ER does NOT apply if LE reasonably relies on Search or Arrest Warrant
(or report of warrant) subsequently determined invalid for lack of PC
- 5 possible exceptions:
o Facially invalid warrant
o Magistrate not neutral/detached
o Warrant issued in unreasonable manner
o Officers dishonest/reckless in application
o Consider all fact (not just executing officer)
- Logic behind generally allowing the evidence in
o No deterrent value
Knock & Announce Violation
- Does the ER apply
o NO
- Logic
o No need for deterrent
o Not “But for” cause of discovery of evidence
Standing – 4th Amendment
- Who can assert a 4th Amendment Claim:
o Only a person whose 4th Amend rights are allegedly violated by LE
- 3 examples for persons who have standing
o Residents of premises
o Driver of vehicle
o Passengers (as to detention)
- 3 factors for Visitor’s Reasonable Expectation of Privacy
o Nature of Premises
 Commercial vs. non-commercial
o Amount of time visitor spent in premises
o Visitor’s connection to premises
6th Amendment Violation
- What is generally the violation
o Questioning or live ID procedure without counsel after adversarial
proceedings commence
- What is the evidence excluded from
o Prosecution’s case-in-chief
- *Analysis is the same as 4th Amendment
5th Amendment Violation – Miranda
- *Same as 4th Amendment Violatoin
- What is the evidence/confession excluded from
o Prosecution’s case-in-chief only
- What can the prosecution do if the ∆ takes the stand
o Impeach the ∆ - backdoor allowing introduction of evidence
- What can the prosecution not do:
o Impeach other witnesses
o Even if concern over “perjury by proxy”
- What is the exception for Consecutive statements
o If first statement obtained through negligent Miranda violation and
second obtained with proper warnings & waiver – exculpatory statements
may be used at trial
- What is the limit on the exception
o No exception if the first statement obtained through intentional Miranda
Substantive DP Violation
- Define:
o Coerced statements obtained in a manner that shocks the conscience
- What are SDP violations excluded from
o All purposes
- 3 Logical Explanations
o Not reliable
o Maximize deterrent value
o Maybe – Judicial integrity
What else can exclude evidence:
- Invalid warrant – 4th Amend violation
Extent of Exclusion
- Can prosecution use evidence obtained by LE only because of an earlier
- Which Constitutional amendments mandate evidence be excluded if obtained
indirectly, or secondarily
o 4th Amend
o 6th Amend
- 2 justifications
o Evidence obtained because of constitutional violation is tainted or
o Evidence obtained in steps following a constitutional violation constitutes
fruit of the poisonous tree
- What under these Amendment does not taint subsequent proceedings
o Arrest
FOPT and other violations
- Factors for FOPT for confession following illegal arrest
o Miranda
o Temporal proximity
o Intervening circumstances
o Purpose/Flagrancy of Official Misconduct
o Voluntariness
- Miranda Violation results:
o Only the incriminating statement
o No FOPT for physical evidence
- Arrest with PC but in residence without warrant
o Exclude evidence obtained within residence
Exceptions to FOPT
- 3 doctrines
o Independent source
o Attenuation/Dissipation of the Taint
o Inevitable Discovery
- Independent source doctrine allows evidence to be admitted when:
o Evidence discovered initially and unlawfully, but later discovered
lawfully because of uncontaminated line of investigation
- Attenuation allows evidence to be admitted when (2 ways)
o Connection between violation and evidence so attenuated as to dissipate
 OR
o Evidence obtained by means sufficiently distinguishable as to purge the
primary taint
3 Attenuation Factors
o Time (temporal Proximity)
o Intervening Act of Free Will
o Flagrancy (Taint Makes more to dissipate)
Inevitable Discovery – no exclusion if
o Lawful means would have led to the evidence
o Ultimately or inevitable
o “Hypothetical Independent Source”
Under Inevitable Discovery – who has the BOP & what is the standard
o LE
o Preponderance