CRIMINAL PROCEDURE OUTLINE
Kerr, Spring 2006
I. Due Process and Incorporation ...................................................... 2
A. Due Process ................................................................................................... 2
B. Incorporation .................................................................................................. 2
II. Fourth Amendment .......................................................................... 3
A. Life and Death of Boyd ................................................................................... 3
B. What is a search? ........................................................................................... 3
C. What is a seizure? .......................................................................................... 5
D. Reasonableness and Warrant Requirement ................................................... 5
E. Exceptions to Warrant Requirement ............................................................... 7
F. Standing ....................................................................................................... 13
G.Remedies ..................................................................................................... 14
H. Arrests .......................................................................................................... 15
III. Fifth Amendment ............................................................................ 15
A. Justifications ................................................................................................. 16
B. Compulsion .................................................................................................. 16
C. Incrimination ................................................................................................. 17
D. Testimonial ................................................................................................... 17
E. Limits on the Privilege................................................................................... 18
IV. Miranda ........................................................................................... 20
A. Summary ...................................................................................................... 20
B. Road to Miranda ........................................................................................... 21
C. Miranda (1966) (Warren) .............................................................................. 22
D. Waiver .......................................................................................................... 23
E. Suppression Remedy ................................................................................... 25
F. Alternative Perspectives. .............................................................................. 26
G.Miranda’s Costitutional Status ...................................................................... 26
V. Sixth Amendment ........................................................................... 27
A. Right to Counsel ........................................................................................... 27
B. Interrogations ............................................................................................... 28
C. effective Assistance Counsel ........................................................................ 29
D. Lineups ......................................................................................................... 30
VI. Entrapment ..................................................................................... 31
A. Two Step (Jacobson) Analysis ...................................................................... 31
B. Jacobson v. U.S. (1992) ............................................................................... 31
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I.
DUE PROCESS AND INCORPORATION
A. DUE PROCESS
1. Approaches
a. Bill of Rights. Harlan dissent in Hurtado v. California (1884) (charges may be
presented by information, grand jury not constitutionally required).
i. DP is about protecting rights in BOR.
ii. This perspective won out in the long run.
b. Legality and nonarbitrariness: Mathews holding in Hurtado. “Any legal proceeding . . .
in the discretion of the legislative power, in furtherance of the general public good, which
regards and preserves principles of liberty and justice, must be held to be due process of
law.”
c. Procedures should minimize risk of false convictions. Betts v. Brady (indigent
should get appointed counsel); Moore v. Dempsey (mob trial unconstitutional); Powell v.
Alambama (Scottsboro Boys).
d. Fundamental Fairness. Is right infringed sufficiently fundamental as to warrant
restriction? Palko v. Conn.; Ross v. Moffitt (no right to appointed counsel in discretionary
appeal).
B. INCORPORATION
1. Black v. Frankfurter
a. Black: Total incorporation
b. Frankfurter: “implicit in the concept of ordered liberty”: selective incorporation plus
(generally prevailed)
2. Duncan v. Louisiana (current test)
F: D sentenced to 60 days for crime carrying penalty of up to two years without benefit of jury
trial.
H: (White). 6A rt. to jury trial incorporated against states AND serious crimes are entitled to a
jury trial.
Test for Incorporation:
 Right “necessary to an Anglo-American regime of ordered liberty?” “fundamental
principles of liberty and justice which lie at the base of all our civil and political
institutions” OR
 Right is essential to a fair trial.
C: (Black). Wants total incorporation. Allowing Justices to pick and choose to subjective.
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3. Rights currently not incorporated
a. Right to grand jury indictment. Hurtado.
b. Jury Trial (7th A) in civil cases
c. Bail Clause of 8th A
d. 12 jurors not guaranteed
II. FOURTH AMENDMENT
Right of people to be secure in persons, houses, papers & effects, against unreasonable S&S, shall
not be violated, AND no Warrants shall issue, but w/ PC, supported by Oath/affirmation, &
particularly describing place to be searched, & persons/things to be seized.”
A. LIFE AND DEATH OF BOYD
1. Boyd Regime
a. Boyd v. U.S. (1886) (“mere evidence” rule)
F: Man convicted of violating customs law forced to hand over invoices and goods as
evidence against himself.
H: 5A prevents state from forcing man to submit mere evidence against himself,
including incriminating documents. Note: Ct. distinguished b/t evidence of crime and
fruits, latter can be seized former cannot.
b. Schmerber v. California (1966)
F: Man convicted of DUI after cop ordered doctor to draw his blood.
H: (1) Compulsory blood test did not violate 5A b/c not testimonial.
(2) 4A applies b/c drawing blood is a seizure, but here cop had PC and risk of
destruction of evidence enough to bypass warrant req’t.
2. Death of Boyd
a. Warden, Md. Penitentiary v. Hayden (1967).
b. Fischer v. U.S. (1976). Ct. order to produce accounting documents did not violate 5A,
though still subject to 4A.
c. Today, “mere evidence” rule pretty much dead letter.
B. WHAT IS A SEARCH?
1. General Standard
a. Pre-Katz. Physical trespass doctrine.
b. Katz v. United States (1967) (Harlan Concurrence)
H: (Need warrant to place listening device on phone booth).
R: (1) Does D have an actual expectation of privacy?
(2) Is society willing to recognize expectation as reasonable?
 Greenwood factors
 Ready accessibility- to animals, public
 3rd party- giving to trash collector. Smith v. Md. (pen
register OK b/c recording #s dialed out)
 Knowing disclosure to public
 Did all could do? hypo: shredded papers in trash- prob
protection
 4A protects people not places (though home still most protected).
N: Case rejects Olmstead’s property-centric interpretation of 4A.
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2. Specific Standards
a. Open Fields. Oliver v. U.S. (1984, Powell)
i. No legitimate expectation of privacy in open field even if fences and no trespass
signs posted (as in Oliver). Fields don’t provide setting for intimate activities 4A
designed to protect.
(1) Marshall dissent: No different that phone booth in Katz.
ii. Curtilage Exception. Area immediately surrounding home protected if an
individual would expect that area to remain private.
(1) Dunn Factors.
 Nature of uses to which area is put. Probably most important.
 Proximity to home
 Included in enclosure surrounding home
 Steps taken to protect area from observations from passersby.
 Barn 50 yds from house, surrounded by locked fence and which couldn’t
be seen from outside not curtilage. Dunn.
b. Trash. California v. Greenwood (1988) (White)
F: Cop collected and searched trash bags w/o W.
H: No objectively reasonable privacy right in trash b/c people expect that their trash
can be search, therefore no search.
D: (Brennan) Distinguished b/t what you think people might do and what you think
government might do. Trash contains intimate life details.
N: Brennan makes more sense because 4A specifically talking about government
actions, not what people expect civilians to do.
c. Dogs (methods that only reveal crime and nothing else). U.S. v. Place (O’Connor)
(Dog sniffing not search).
i. There is no right to criminal contraband and search only reveals presence of
such contraband with no other invasion, therefore not search.
d. High Technology. Kyllo v. U.S. (2001) (Scalia)
F: Agent used IR scanner to determine one side of wall warmer than other. Used
info to get warrant and found pot growing operation.
H: Info obtained by a device using sense enhancing technology that is not in
general public use is a search (Kerr’s reading)
My reading: “[O]btaining by sense-enhancing technology any information that
could not otherwise have been obtained without physical intrusion into a
constitutionally protected area constitutes a search—at least where (as here) the
technology in question is not in general public use.
(2) “All details are intimate details.”
D: (Stevens). Because device only measured things outside of home (IR spectrum)
not a search. This approach foreclosed by both Katz and majority, however,
many courts seem to have adopted this line.
e. Aerial searches. Florida v. Riley (1989) (White plurality).
i. Plurality: Test for reasonableness is whether the public ordinarily had access to
the info sought by the police, not whether it was legally possible for member of
public to obtain it.
ii. No W req’d when flying over house w/in FAA regulations.
f. Beepers. U.S. v. Karo (1984) (White)
F: Tracking beeper placed on drum of ether (used to make meth). Beeper tracked
drum’s location in several places including inside home.
H: To the extent that beeper revealed what is going on inside home, it was a search
and required a warrant.
g. Informants. U.S. v. White (1971) (White). No reasonable expectation of privacy when
speaking with government informant b/c speaker assumes risk of disclosure.
i. Can be seen in terms of knowing disclosure.
ii. Hoffa. No search where person recounted conversation contents, therefore can’t
be more of a search to use more accurate method: recording.
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iii. This ruling may be based on policy concerns (SC doesn’t want warrants every
time person agrees to record convo). See Professor Philip Heymann.
iv. As a constitutional matter, unilateral consent enough.
h. Physical inspection more invasive than visual. Bond v. U.S. (2000) (Rehnquist)
F: Agent boarded bus and felt luggage passengers had placed in the overhead
storage space; squeezed D’s bag and felt “brick-like” object. D admitted owning
the bag, consented to its search, and agent discovered a "brick" of
methamphetamine).
H: Exploratory manner of contact constituted search. D had expectation of privacy
which was reasonable.
C. WHAT IS A SEIZURE?
a. Florida v. Bostick (1991) (O’Connor) (Basic test for seizure)
F: Officers boarded bus and asked passenger if they could search his baggage. He
was informed that he had the right to refuse consent.
H: Owner consented therefore no seizure.
R: “A court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officer’s
requests or otherwise terminate the encounter.”
b. Mendenhall factors.
i. Threatening presence of several police officers
ii. Menacing display of a weapon by officer.
iii. Some physical touching of the person
iv. Use of language or tone to indicate a compulsion to comply.
c. For property: Interference with possessory interests. Karo; but see Hicks (recording of serial
number not a seizure but moving stereo to see number was).
d. Act to restrict freedom of movement must be intentional. Inyo (car thief ran into police
roadblock setup to stop him; holding odd for facts b/c cops did want to stop him).
e. Seizure requires either “physical force or submission to the assertion of authority.
California v. Hodari D. (1991) (Scalia) (Man being chased by cop threw away vial of cocaine.
Being chased by cop not seizure).
D. REASONABLENESS AND WARRANT REQUIREMENT
1. Preference for Warrant. Search presumptively unreasonable if no properly issued warrant,
unless it falls w/in exception.
a. Warrantless searches are reviewed de novo. Ornelas. Warranted searches receive
deference to magistrate.
b. This is technically SC’s view, though exceptions weaken.
i. Katz: IF had warrant to eavesdrop, OK. No govt exception to warrant req’t
c. Alternative view: Warrant optional b/c separate clauses: 1st: req’rs S&S be
reasonable. 2nd: if have warrant, has to be w/ PC. Validity of search depends on
reasonableness, not warrant. Rehnquist, Scalia, Thomas
2. Reasonableness and Probable cause
a. Core Test: Gates’ totality of circumstances. Facts and circumstances are sufficient to
warrant a man of reasonable prudence that. . .
i. Arrest: D committed a crime
ii. Search: evidence of a crime will be found.
b. Informants.
i. Old Spinelli test. Two independent prongs:
(1) Officer adequately revealed knowledge of informant
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(2) Officer established veracity of informant’s information info or reliability of
informant’s report.
ii. Illinois v. Gates (1983)(Rehnquist)
F: Cops get anonymous letter that a couple deals drugs. Letter states that
wife drives car to Florida, flies back. Husband loads up drugs in car and
flies back up. Cops confirm that airplane reservations match story. Cop
uses letter and corroboration and they get warrant.
H: Cop had probable cause.
R: Spinelli prongs make sense as factors, but don’t need to be
independently satisfied. (So if informant always reliable but can’t
substantiate now, enough for PC).
 Corroboration of facts important.
 Amount of facts informant had that could not have been obtained absent
some circumstance that made key information more likely to be true.
(Here travel plans
c. Ornelas v. U.S. (1996) (Rehnquist)
F: Milwaukee officer spotted Oldsmobile with California plates. He ran the plate
and it revealed a Hispanic name, that name came up in a national drug
trafficker database. Officer then asked S’ consent to search (note that court
ignored issue of consent and treated as warrantless search). Found drugs
H: PC findings for warrantless searches reviewed de novo.
d. Group Probable Cause
i. Ybarra v. Illinois Cops searched everyone in bar on suspicion that bar tender
was dealing. Search violated 4A. Where probable cause is the standard, it must
be supported by probable cause “particularized with respect to that person.”
ii. Maryland v. Pringle
F: Officers pulled over a speeding car. Three occupants in the vehicle.
When driver opens up glove box, he sees a bunch of money. Cop asks
them to get out, asks for consent to search vehicle, gets it, finds cocaine.
When no one takes responsibility for drugs, cop arrests them all. Pringle
later confessed.
H: PC to believe Pringle engaged in crime.
 Distinguishes Ybarra. Car passengers are much more likely to
be engaged in a common enterprise.
3. Warrant Requirement
a. Obtaining a Warrant: PC, Oath, Particularity
i. PC: no warrants shall issue, but upon PC, AND
ii. Oath: supported by oath or affirmation, AND
(1) Facially insufficient affidavits cannot be rehabilitated by later testimony
concerning information possessed by affiant. Whiteley.
(2) Negligent or innocent falsehoods will not invalidated a warrant. Whiteley.
(3) Perjury or reckless disregard for truth will invalidate. Whiteley.
iii. Particularity: particularly describing place to be searched, & persons/things to
be seized.
(1) Should permit an officer “with reasonable effort to ascertain and identify
the place intended. Steele v. U.S.
(2) BUT you can say “other fruits unknown” if you describe everything else
with particularity. Andresen v. Maryland.
b. Knock Requirement
i. 4A requires that law enforcement knock and announce themselves before
entering. Wilson v. Ark.
ii. EXCEPTION: Exigent circumstances.
(1) Police has “reasonable suspicion that knocking and announcing their
presence, under the particular circumstances would dangerous or futile,
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or that it would inhibit the effective investigation of the crime by, for
eaple, allowing destruction of evidence. Richards v. Wisc.
(2) U.S. v. Banks (Souter) (2003)
F: Cops had warrant to search for coke, knocked, yelled “police
search warrant” After 15 to 20 seconds, burst in.
H: Search OK b/c perps had opportunity to destroy evidence.
E. EXCEPTIONS TO WARRANT REQUIREMENT
1. Summary
a. Consent
b. Exigent circumstances (destruction of evidence in non-minor offenses).
c. Plain view exception
d. Automobile exception
e. Search incident to arrest.
i. Protective sweep.
f. Terry stop
g. Vehicular arrest.
h. Fleeing Ss.
i. Community caretaking
j. Leon good faith exception for defective warrants.
k. See also independent source and inevitable discovery doctrines.
2. Consent
a. Consent must be voluntary. Schneckloth v. Bustamonte (1973) (Stewart)
i. Evaluate voluntariness under totality of the circums.
 Police coercion
 Physical force
 Was S in custody? Handcuffed?
 What cops said?
 Brandishing sidearm.
ii. Not required to tell someone they have the right to refuse.
iii. Whether the S was informed of right to refuse is relevant in determining
voluntariness of consent—but absence of such a warning is not dispositive.
iv. D: (Marshall) How can waiver be voluntary unless person knew they could
refuse.
b. Reasonable belief in consent sufficient even if defective. Illinois v. Rodriguez (Scalia)
(girlfriend who had keys to boyfriends apt. told them to enter, even though didn’t live
there).
D: (Marshall) Maj. ignores that warrantless searches presumptively unconstitutional
c. Scope of consent determined by what RP would’ve understood given exchange b/t cop
and S. Florida v. Jimeno (consent to search car includes consent to search containers
w/in car, there, a locked briefcase in the trunk).
d. Cops not obliged to tell detainees they are free to go before consent is effective. Ohio v.
Robinette (1996) (Rehnquist)
F: (Speeder pulled over. Given warning. Cop asks consent to search car, gets it,
finds E and pot).
C: (Ginsburg). Thought effects of these stops significant.
3. Exigent Circumstances
a. General Principles
i. Emergency circs= impractical/unreasonable to get warrant
ii. Scope of search is limited by emergency justifying cop action- search for person
diff than search for gun, ex
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iii. PC. No lowering level of justification needed for search
b. Destruction of evidence.
i. Mendez v. Colorado.
F: Cops on unrelated call at hotel smelled weed. Got hotel manager to let
them into room.
H: Search OK, b/c risk that marijuana would be smoked.
ii. U.S. v. Dickerson.
F: Cops went to home with knock-and-announce warrant, encountered
resident outside and arrested him after he got rowdy. They entered
house (thus it was warrantless b/c didn’t announce).
H: Search OK b/c of possibility of destruction of evidence by unknown
accomplices in house.
c. Temporary restraint of individual acceptable alternative to prevent destruction.
Illinois v. McArthur
F: Woman asked cops to come back with her while she moved stuff out of
apartment. Woman tells cops that there are drugs inside. Cops refuse to let guy
back into home unsupervised until they get a warrant to search.
H: Seizure reasonable b/c cops had reason to believe trailer had evidence and guy
would destroy if went inside.
D: (Stevens) Argues Welsh: This is by no means a law enforcement priority in
Illinois.
N: So, after McArthur, cops can choose between warrantless search or temporary
seizure while seeking warrant.
d. No murder scene exception. Mincey v. Arizona (Stewart) (1978)
F: Undercover cop made deal to buy heroin, left to get money, came back, went in
the house. Occupants attempted to close door behind him. Other cops heard
gun shots where original occupant was. After shoot out, cops searched
apartment without warrant for four days.
H: There is no murder scene exception to 4A
R: Warrants generally required unless “exigencies of situation make the needs of
law enforcement so compelling that the warrantless search is objectively
reasonable under the 4A.” Here, no indication that evidence would be lost, that
evidence would be lost.
e. Knock and talk procedure unconstitutional. U.S. v. Johnson (7th Cir.) (Cops looked
inside apartment while person opened the door for them, while talking they spotted crack
pipe).
f. Minor offenses EXCEPTION. Welsh v. Wisconsin
F: Man drove off road, when Good Samaritan helped out he suspected he was
drunk. Driver disappeared before police arrived. Cops get there, go to guys
house and go into house where they arrest him for driving under the influence.
H: Search unconstitutional b/c DUI insufficiently serious offense.
R: Gravity of underlying offense should be considered when determining exigency.
Here, b/c offense non-criminal, not serious enough to warrant arrest
N: Compare:
 Atwater v. Lago Vista where court upheld arrest of drunk driver before he
entered his house.
 United States v. Rohrig. Where cops came to house about loud music,
knocked on door and got no answer. They entered house and
incidentally saw wall-to-wall plants. Evidence allowed.
4. Plain View Exception
a. Rule:
i. Lawful right of access AND
ii. Cop in lawful position to view AND
iii. PC to believe object is evidence of crime.
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b. Arizona v. Hicks (Scalia) (1987)
i. F: Gun fired through the floor striking the man below. Cops came onto the
scene and entered into apartment where they found nice stereo equipment in
shitty apt. They moved equipment around and got serial numbers and found out
they were stolen.
ii. H: While noting S/N if in plain view OK, moving stereo was seizure not b/c no PC
to believe evidence of crime.
c. Horton v. California (Stevens) (1990)
i. Man was accosted by two masked men, V recognized voice. Cops got warrant
to search S’ house for proceeds of robbery by not weapons. When officers go to
search, they find the weapons but not the proceeds and seize weapons.
ii. H: Inadvertence not necessary to plain view doctrine.
5. Stop and Frisk Searches AKA Terry Stops
a. Terry v. Ohio (Warren) (1968)
i. Cop saw 2 men repeatedly walking past store. He stopped and patted down
Terry finding a gun.
ii. Terry’s balancing test. In deciding constitutionality of search, ct. must weigh
government interest in safety and security w/ degree of privacy intrusion.
b. Only need reasonable suspicion, not PC, grounded in specific & articulable facts that
i. Crim activity is afoot (more than hunch, less than PC), OR
(1) Terry men casing store.
(2) Alabama v. White. Anonymous tip (drugs and time, car model, address)
corroborated by observed facts enough.
(3) Florida v. J.L. Anonymous tip that young black male at bus stop wearing
a plaid shirt was carrying a gun insufficient b/c no means of testing
veracity of informant’s knowledge of concealed criminal activity.
(4) U.S. v. Arvizu (2002). Border agent stopped and searched car on the
basis that it was a minivan (which drug couriers use), on road used by
couriers, drive coincided w/ period where road ordinarily unpatrolled,
near border where drugs usually moved. OK.
(5) RS exists where D flees unprovoked and is located in high crime area.
Either alone insufficient. Illinois v. Wardlow (2000)
 F: Defendant fled upon seeing police officers patrolling an area
known for heavy narcotics trafficking. Two of the officers caught
up with him, and conducted a protective pat-down search for
weapons.
ii. Person was involved or is wanted in connection w/ completed felony. US v.
Hensley.
c. Royer factors
i. Length of detention: temporary, last no longer that is nec to effectuate purpose
of search.
(1) Dunaway (suspect taken into custody, not arrested but would have been
restrained if tried to leave. Statements suppressed).
ii. Methods: least intrusive means reasonably available. Royer: Didn’t need to go to
interrogation room- could’ve gotten D’s consent on concourse, free to catch flight
if search unfruitful, & could have used sniff dogs.
d. Frisk permissible if:
i. Facts and circumstances support inference that subject is armed or presents
danger to officers. Terry.
e. Luggage searches. U.S. v. Place. (can briefly detain luggage if RS it contains
contraband or E of crime)
i. BUT D held for 90 minutes before positive dog sniff gave PC, beyond Terry
limits.
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6. Search Incident to Arrest
a. Lawful arrest AND
i. Need actual arrest. Knowles v. Iowa.
F: D stopped for speeding and given a citation. Under IA law, officers may
issue citations in lieu of arrest and conduct an otherwise lawful search.
H: Not enough that arrestable, must be arrested.
b. Grabbable area. Must be limited to S’ person and the area w/in which he could reach for
a weapon or evidence. Chimel v. CA. OR
i. Chimel v. CA
F: Police went to D’s house to him pursuant to a warrant for robbery of a
coin store. Arrested D, searched home w/o consent.
D: (White). Should be able to search when exigent circumstances.
ii. But see U.S. v. Robinson (Rehnquist)
F: Cop pulled over D on PC of driving with revoked license, cop arrested D
searched his person, found ciggy box, opened it and found H).
H: All persons who may be arrested may be searched, including items
found on their person.
D: (Marshall) Maj. rule allows pretextual traffic stops and searches w/o W.
Even cop could frisk, no reason to open box.
c. Protective Sweeps. Maryland v. Buie
i. “Officers may, as a precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces immediately adjoining the
place of arrest from which an attack could immediately launched.”
ii. May only be a “cursory inspection of those spaces where a person may be
found.”
7. Vehicular Arrest. Can search person and car if recently occupied by D.
a. U.S. v. Robinson. Can search person and anything on their person.
b. Arrest of vehicle occupant allows contemporaneous search of the passenger
compartment. U.S. v. Belton (Cop found crumpled cigarette box on driver, opened and
found heroin.
i. Justified on safety grounds, but really virtually impossible for box to contain
weapon.
ii. Subjective belief in danger irrelevant.
iii. Marshall dissent: SC departs from Chimel b/c no longer just about area from
which driver could procure weapon.
c. Doesn’t include trunk.
d. Thorton v. U.S.
i. Cop runs check finds car w/ wrong tags, pulls over D. Cop suspected driver was
high and asked if he had any weapons or drugs on him. Cop searches vehicle
while driver is in squad car and finds crack and a nine millimeter.
ii. H: Cop can search vehicle D recently occupied, w/o W despite no risk of
destruction of evidence or officer safety.
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e. Arrest not required. Knowles v. Iowa (can’t search after moving violation, have to
arrest).
f. Inventory search of impounded vehicles permissible to protect property and safety.
Colorado v. Bertine.
8. Automobile Exception
a. Carroll Doctrine. Because of danger of loss of evidence, police may search a car
without a warrant so long as have PC. (Search for liquor during prohibition).
b. Exigent determined at time vehicle is seized. Chambers v. Mahoney. (Cops found
robbery Ss in car, arrested them, brought car to station and searched it without a
warrant).
c. Pre-Acevedo. Cops could search entire car and contents if PC extended to entire car,
BUT if PC only extended to package, could seize only package, but not search until
warrant obtained.
d. California v. Acevedo (1991) (Blackmun)
F: Guy claims package police know contains pot. Guy goes home then
comes out and gets in car. Cops stop him, search car and find pot.
H: Cops can search containers in car w/o W so long as have PC to search
car.
D: (Stevens) car exception makes no sense. SC confuses exigency w/
reduced expectation of privacy in car.
e. Di Re. Can’t search passenger unless PC is specific to that person. But see Pringle.
f. Search of passengers. Wyoming v. Haughton. (1999) (Scalia)
F: Cops pull over car, spot syringe in driver’s pocket. Search the entire car, find
purse, search it, find drugs.
H: W not required to search passenger belongings in a car if PC to believe that
they contain evid of a crime (police officers w/ PC to search a car may
inspect passengers belongings found in the car that are capable of
concealing the object of the search).
9. Fleeing Suspects. Warden v. Hayden
F: Cops told about where robber is hiding out, cops enter home and search)
H: 4A doesn’t require cops to delay in the course of an investigation if doing so would
gravely endanger their lives or the lives of others.
10. Community caretaking exception?
a. Simpson case (e.g. cops worried someone inside needs help).
11. Special Needs (administrative searches, roadblocks)
a. Will hinge on interest balancing (asserted interest/purpose v. privacy intrusion),
but might also be about discrimination. See below.
b. Asserted Interest/purpose
i. Undocumented aliens. U.S. v. Martinez-Fuerte. Roadblocks infringe on 4A
rights far less t4 OK to use roadblocks to catch illegal immigrants.
ii. Drunk driving. State police v. Sitz (1990). Roadblocks to find drunk drivers
permissible b/c of the “magnitude of the drunken driving problem.”
iii. Drug trafficking across border. U.S. v. Montoya Detained Colombian passenger
at airport cops had reason suspicion was a mule. She refused to submit to X-ray
and was detained for 16 hours while cops awaited bowel movement.
c. Indianapolis v. Edmond (2000) (O’Connor)
F: Indianapolis setup roadblock to stop people and have drug dogs smell cars.
About 5% of the people were arrested for drugs, another 4% for miscellaneous
other things.
H: (1) Purpose matters. Program with illicit purpose might be proscribed.
 General interest in crime control (drugs) insufficient interest.
(2) Suggests that if you stop everyone, you can stop anyone.
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D: (Rehnquist) Can’t distinguish Whren and Martinez-Fuente therefore should be
allowed.
d. Delaware v. Prouse. State may not stop people to check driver’s licenses and
registrations b/c gives officers too much discretion.
i. This case may explain what is really underlying this area of law.
e. Illinois v. Lidster (Breyer) (2004).
F: Hit-and-run killed bicyclist. One week later, at the same time, road, they conduct
a roadblock to ask for information. Cops hand a flyer to people and ask them if
they saw anything. One guy is drunk and almost kills a cop.
H: Checkpoint permissible b/c cops asking for help as opposed to looking for
evidence from people stopped.
 Asserted purpose important: finding hit-and-run driver.
 Checkpoint substantially advanced purpose.
 Stops interfered only minimally with 4A rts b/c only a few seconds.
12. Profiling and Pretextual stops
a. U.S. v. Sokolow (1989)
i. Relevant RS inquiry: NOT whether particular conduct is innocent or guilty, but the
degree of suspicion that attaches to particular types of criminal acts
ii. A court reviewing RS determination must require agent to articulate facts that led
to the conclusion –but the fact that these factors may be set forth in a profile
doesn’t detract from their evidentiary significance
b. Randal Kennedy argues that racial profiling may work, but the broader social harm isn’t
worth it.
c. Whren v. U.S. (1996) Pretextual stops OK.
F: Cops passed car with temporary license plates which waited too long before
starting to move at green light, cops flipped a U, car turned right without signaling
and took off at unreasonable speed. Cops pulled him over for failing to give full
time and attention to vehicle, failing to signal before turn, and violation of basic
speed law. Cops see drugs and arrest him.
H: The temporary detention of a motorist upon PC to believe that he has violated
the traffic laws OK even if a reasonable officer would not have stopped the
motorist absent some additional law enforcement objective.
 Officer’s motives (pretext) not important.
 Traffic violation is enough reas suspicion to stop.
d. City of Chicago v. Morales
F: Chicago enacted law prohibiting known criminal gang members from loitering in
certain secretly designated public places.
H: Statute overbroad and void for vagueness under 14A DP.
1) Notice.
i. Even if loitering has accepted meaning, doing so with “no
apparent purpose” doesn’t.
ii. Dispersal unclear: for how long, where do you go?
2) Arbitrary. Statute provides officers with almost unlimited discretion.
D:
 Guidelines which restricted who could be considered a gang member,
restricted officers that could arrest and drew geographic boundaries.
 No constitutional right to loiter.
N: Remember that this is a First Amendment case, but it could be applicable to
Fourth Amendment too.
12
13. Leon Good Faith Exception to Defective Warrant
a. Illegally obtained evidence OK when cops acting on reasonable reliance on W issued
by neutral magistrate but later found to be defective. U.S. v. Leon (1984) (White).
i. Reasonable defined objectively: Would reasonably well-trained cop know
search lacked PC despite magistrate’s authorization?
ii. But reckless disregard or making false or misleading statements WILL invalidate.
b. Must be someone else’s error
i. Evidence OK where cop searches incident to arrest where clerical error told cop
warrant outstanding for D. Arizona v. Evans.
ii. Legislature passed defective statute pursuant to which warrants were executed
in good faith. Illinois v. Krull.
iii. Not OK when cop left description of “person or things to be seized” blank on
warrant. No reasonable officer would’ve believed warrant valid. Groh v.
Ramirez.
c. Many state courts, relying on state constitutions have made good faith exception invalid.
F. STANDING
1. D may exclude evidence based on an illegal search only if the search infringed his own
reasonable expectation of privacy, not someone else’s. Rakas v. Illinois (Rehnquist).
a. Person must have either
i. Some sort of ownership or possessory interest in the evidence OR
ii. Party must demonstrate that items were seized from some area in which he had
a legitimate expectation of privacy.
b. D: (White) Should keep Jones rule of legitimate presence on premises.
2. Transitory, commercial presence on another’s premises not reasonable expectation of
privacy. Minnesota v. Carter (Rehnquist) (1998)
F: Ds bagging cocaine inside apt and police looked through window and saw b/c of anon tip.
Police went and got warrant. Ds were only in the house for a couple hours.
H: Purely commercial nature of transaction, short period of time on premises and lack of any
previous connection between owner and D shows no reasonable expectation.
PLURALITY HELD: Virtually all guests have a reasonable expectation of privacy unless
connection is “fleeting and unsubstantial.”
C: (Kennedy) Almost all legitimate social guests expect they will enjoy same privacy from
outside intrusion as owners, business guests don’t.
D: (Ginsburg, Stevens and Souter) You get legitimate expectation when you are invited into
someone’s home. Illegality of activity does not alter analysis.
N: Case fundamentally misconstrues relationship b/t crime and privacy expectation (i.e.
have less legitimate expectation b/c conducting a crime).
13
3. Overnight guests have legitimate expectation. Minnessota v. Olson.
G. REMEDIES
Applies in both state and federal courts. Mapp v. Ohio.
1. Exclusionary rule.
a. Evidence seized in contravention of 4A can’t be used in proceeding.
b. Inapplicable to grand jury, civil deportation, and sentencing proceedings.
2. Fruit of the Poisonous Tree Doctrine
a. Remember Standing. D can’t contest evidence if obtained by violating someone else’s
expectation of privacy. Minnesota v. Carter
b. Wong Sun v. U.S. (1963) (Brennan)
F: Cops arrested Hom Way with drugs, he said he got it from “Blackie Toy” at
laundry on Leavinworth St.. Cops went to that street and found laundry called
Oyes. They knocked and after identifying selves as cops, Toy answered and
fled. Cops arrest him, he said Jonny Yee had heroin. Went to Johnny Yee who
did have heroin who gave up Wong Sun. Wong Sun arrested, released, came
back several days later, on own and gave statement.
H: 1) Toy’s statements at the scene of his own arrest were the fruit of that arrest
2) Drugs in Yee’s bedroom were also fruit of Toy’s arrest.
3) Wong Sun’s eventual statements permitted b/c had become so attenuated
from Toy arrest as to dissipate illegal taint.
c. Attenuation. Ceccolini factors
i. Testimony given by witness’ own free will
ii. Time elapsed between illegal search and initial contact with witness.
iii. Subjective intent to obtain illegal E
d. Independent Source Doctrine. Permits introduction of E discovered during an unlawful
search if E discovered later through a source that is untainted by the initial illegality.
i. Murray v. U.S.
F: Cops observe enter warehouse where drugs supposedly kept w/o W,
later get W.
H: E discovered during an unlawful search, but is later obtained indep from
activities untainted by the initial illegality is admissible b/c it would have
eventually been discovered. Indep source doctrine applies. Ct says
police had PC without first search.
D: Maj. creates an incentive for unconst searches. Can undertake an illegal
search and then get a warrant after see what you find
ii. Segura. Cops entered illegally while they waited for W. B/c would’ve gotten E
from W, E admissible.
e. Inevitable Discovery. Gov must show that the illegally obtained evid would have been
discovered through legit means indep of the official misconduct.
i. Nix v. Williams. D told cops where body was after asking for L. SC held that
would’ve found body anyway, so not suppressed.
ii. In theory, this shouldn’t apply to warrantless searches, where there is PC. If it
did, then cops would never have to get W again, can just say they would’ve
gotten W anyway (since had PC either way).
14
f.
Critique of Inevitable Discovery and Indep. Source. Encourage cops to enter illegally
then say they had anonymous informant to get W.
3. Bivens Actions
a. SC seemed to implied that you can bring an action for damages resulting from
constitutional deprivations.
H. ARRESTS
1. Basis of Right
a. Common law: Needed warrant for misdemeanor but not for felony arrest.
b. Constitution: All custodial arrests must be based on probable cause. Henry v. United
States.
c. Arrests are quintessential seizures.
2. Current Rule
a. Arrests in public. U.S. v. Watson (1976)
F: Postal inspector got tip that arrestee had stolen credit cards. When informant
met with arrestee and was told he had the cards, cops arrested guy without
warrant, searched his car.
H: Arrest proper b/c for a felony. Police may arrest when (1) probable cause to
believe felony committed or (2) misdemeanor in officer’s presence.
b. Arrest may not be made in “extraordinary manner, unusually harmful to her
privacy or physical interests.” Whren v. U.S.
i. Atwater (arrest in front of kid for moving violation OK).
c. Warrantless arrests must be reviewed for PC without unreasonable delay, but not >
48 hours. County of Riverside v. McLaughlin (1991).
i. Severity exception??? But see U.S. v. Awadallah (D detained for several weeks
w/o deposition or ability to secure release when had alleged ties to 9/11
hijackers).
d. No severity requirement for warrantless arrest, even minor misdemeanors OK.
Atwater v. Lago Vista (2001) (Souter) (Atwater pulled over for driving without a seatbelt,
cop had pulled her over before, got into verbal altercation and arrested her. Violation
punishable by no jail and a $50 fine).
e. Need warrant for arrests in home. Payton v. New York (1980) (invalidating NY law
authorizing warrantless entry into homes for felony arrests).
i. UNLESS exigent circumstances or consent. Id.
f. Arrests at 3rd party’s home req’s separate search warrant. Steagald v. U.S. (1981)
(Cops entered 3rd party’s home looking for S with a 6 month old arrest warrant. Found
drugs, court suppressed everything b/c concerned w/ cops using AWs to circumvent SW
req’t).
III. FIFTH AMENDMENT
No person “shall be compelled in any criminal case to be a witness against himself”
NEED: Compulsion, Incriminating and Testimonial.
15
A. JUSTIFICATIONS
a. Protection of the Innocent
b. Cruel to subject the accused to trielmma of self accusation, perjury, or contempt.
Murphy.
c. Deter perjury
d. Unreliability of Coerced Statements
e. Preference for the Accusatorial System
f. Deter Improper Police Practices
g. Fair State-Individual balance
h. Preservation of Official Morality
i. Privacy rationale
j. First Amend rationale
2. Kastigar v. U.S. (Powell) (1972)
F: W’s refused to testify despite statute that provided them with immunity from use and
derivative use.
H: Statute’s scope is sufficient to vitiate 5A concerns.
R: Murphy held state may not compel testimony by granting immunity when liability may lie
in other jurisdictions.
Under § 6002, Fed’l officials must establish that E obtained did not result from testimony.
D: (Marshall). Statute effectively puts people in worse position for testifying and it’ll be hard
to tell what came from testimony and what didn’t.
N: Other statutes provide transactional immunity (can’t be prosecuted at all). Ct. says this
isn’t req’d, look at examples of other crim pro protectiosn.
B. COMPULSION
1. General Contours
a. Use of contempt power is compulsion.
b. Conditioning reception of public Ks on waiver of 5A compulsion. Lefkowitz v. Turley.
c. Prosecutor can’t mention to jury that D didn’t testify. Griffin v. California.
d. D has right to jury instruction that jury can’t infer guilt from failure to testify. Carter v.
Kennedy.
e. In civil context, adverse inferences permissible.
f. Loss of professional license is compulsion. Spevack v. Klein.
2. McKune v. Lile (2002) (Kennedy)
F: Man convicted of rape and aggravated sodomy. Prison tried to enter him in sex offender
treatment program which required him to take responsibility for acts in question and any other
criminal sex acts for which he wasn’t caught. Program attempted to rehabilitee inmates and
encourage their participating by condition other benefits on that participation.
H: No 5A violation b/c no punishment. Loss of TV, gym area, and job opportunities in a prison
not sufficiently compelling.
N: Ct. seems to distinguish b/t prisoners and citizens, but this is a distinction w/o a difference.
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C. INCRIMINATION
1. Incrimination refers to the consequences of a truthful answer, BUT
a. May also mean setting where question asked. Chavez v. Martinez
2. Factors in determining. U.S. v. Ward
a. Does person face formally criminal liability?
i. If not specified, look at legislative intent to label as criminal or civil. Ward, Allen.
b. If liability isn’t formally criminal, is the sanction sufficiently punitive so as to become
criminal? Mendoza-Martinez factors
i. Affirmative disability or restraint?
ii. Historically regarded as a punishment
iii. Is scienter required?
iv. Does statute involve retribution and/or deterrence?
v. Is there another rationally connected alternative purpose, and is penalty
excessive for that purpose?
c. Probability of receiving penalty.
i. “Real and appreciable” not “so improbably that no reasonable man would suffer it
to influence his conduct.” Brown v. Walker, OR
ii. Furnish “a link in the chain of evidence needed to prosecute.”
d. Subjective belief in incrimination may be necessary. Hiible.
3. Examples
a. Civil forfeiture considered criminal. Boyd v. U.S.
b. Statute imposing a civil penalty upon persons discharging hazardous material into
navigable waters was not crim so polluters still had a reporting req. Ward.
i. Note that activity here was actually criminal in separate statute, but use immunity
given on that.
c. Statute allowing ct. to declare sex offender “sexually dangerous person” civil not criminal
even though req’d proof beyond reasonable doubt, initiation of a related criminal
proceeding and resulted in incarceration where state labeled as “civil.” SC cited purpose
of rehabilitation and legislative label. Allen v. Ill.
d. Stop-and-Identify statute OK where D did not evidence a subjective fear of incrimination.
Hiibel v. Sixth Judicial Dist. Ct. of Nev. BUT SC left room that in some circumstances
where furnishing ID would be link in chain necessary to convict. Still, unlikely even here
ct. would find incriminating.
4. In cases where gov immunized W, it bears burden of showing neither immunized
testimony nor its fruits were used against the D. Kastigar.
D. TESTIMONIAL
1. Competing theories
a. Content of mind theory. Suspected req’d “to disclose any knowledge he might have” or
“to speak his guilt” or “to disclose the contents of his own mind. Doe.
i. Dissent (Stevens): This involves accessing mind’s contents, so is testimonial,
not like blood test. 5A prohibits compelling D “to use his mind to assist the
prosecution in convicting him of a crime.”
17
b. Choice theory. (Pluralities Muniz). Testimony is really about whether gov should be
able to force D into trilemma (self-accusation, perjury, contempt).
2. Physical evidence not testimonial
a. Blood test. Schmerber.
b. Standing in lineup. Wade.
c. Furnishing voice sample
d. Handwriting sample. Gilbert.
e. Signing authorization form to allow gov. to get access to D’s accounts. Doe
3. BUT Asking DUI arrestee to fill out forms which showed he was drunk, reponses were
testimonial. Muniz.
a. Brennan, Scalia, Kennedy, O’Connor: Slurred speech not testimonial because
communicated only physical characteristics (like Schmerber).
i. But even they conceded that D’s refusal to answer when his sixth birthday is IS
testimonial b/c trilemma.
b. Rehnquist, White, Blackmun, Stevens: On 6th B-Day: The “potential for giving a bad
guess does not subject the S to the truth-falsity-silence predicament that render a
response testimonial”
c. So, 8 justices accept the trilemma reasoning, though they differ in their application.
E. LIMITS ON THE PRIVILEGE
1. Can’t use grand jury testimony to impeach D at later criminal trial. NJ v. Portash
2. Privilege does not protect lies, just not answering.
a. Fed’l Immunity Statute. 18 U.S.C. § 6002.
i. When a W is compelled to testify over his claim of a 5A privilege, “no testimony
or other information compelled under the order . . . may be used against the W
in any criminal case, except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with the order.”
b. “Exculpatory No” to incriminating question can be punished. Brogan v. U.S.
3. Corps have no 5A rights. Hale v. Henkel.
4. Required Records Doctrine
a. No privilege where law requires you to keep records in question AND are not used
“merely for criminal law enforcement but in service of a civil regulatory regime.” Shapiro
v. U.S.
b. BUT must be bona fide civil regulatory scheme. Marchetti v. U.S. (striking down statute
requiring illegal gamblers to register and pay an occupational tax).
i. Distinguished Shapiro
(1) D not obliged to keep records like in Shapiro.
(2) No public aspect to information req’d by this statute
(3) This statute directed at criminal activity, not in Shapiro.
5. No 5A balancing test limit, BUT
a. Cal. v. Byers. Four-four split on whether staying at scene and identifying incriminating
and testimonial. Harlan, deciding vote, agreed that was incriminating and testimonial but
that public interest in deterring hit-and-runs permitted.
b. Baltimore City Dep’t of Soc’l Svcs. v. Bouknight (1990) (O’Connor)
F: Mother given custody of child under court-approved protective supervision order
(after social services took away for fear of child abuse). After mother violated
conditions of order, she refused to produce child on the grounds that it may
18
incriminate her and is testimonial b/c would establish her control and possession of
kid.
H: 5A doesn’t protect. Req’g production of kid legitimate exercise of gov’t non-criminal
regulatory powers.
(1) Scheme not intended to facilitate criminal prosecutions.
(2) Scheme is not targeted at group inherently suspect of criminal activities, but
rather public as a whole.
D: (Marshall) (1) This does target criminal activities: child neglect. Maybe depends at
what level of specificity you define interest, under Marshall, all civil schemes would
be criminal if could be in a specific case.
N: Maybe this case is actually carving out a public safety exception (kid may be alive,
and we need to find him).
6. Documents: Does D have to use mind to fill in gaps.
a. Fisher v. U.S. Subpoena requires D testify that document (1) exists, (2) is authentic and
(3) is possessed. BUT where gov already knows or can establish one or more of these
three things, privilege doesn’t protect D.
i. Here, gov. knew docs existed and were in L’s possession, therefore not
protected.
ii. Two readings of Fisher
(1) Everything reading” Only reason you use subpoena and not W is b/c
you don’t know where doc is, what it says, or its existence. Under this
reading, Fisher would protect almost everything.
 Hubbell (see below). Pretty much rejects nothing reading.
(2) Nothing reading: Docs not protected, only action of producing them is.
Therefore, if gov’t doesn’t mention how they got it, they can use them..
Under this reading, Fisher protects almost nothing.
 Braswell Can compel custodian to produce as long as don’t
mention how you got it.
b. U.S. v. Hubbell (2000) (Stevens)
F: Whitewater IC sued Hubbell. IC in granted immunity if produced docs falling w/in
11 categories. He then produced the docs and other indictable offenses were
found. Gov. argued no derivative use immunity b/c existence of documents was
a “foregone conclusion,” t4, Fisher doesn’t protect
H: Production was testimonial b/c D had to make extensive use of own mind in
deciding which docs to produce. Gov. had no knowledge of docs, there
existence or location.
N: Read literally, Hubbell could pretty much kill use of subpoenas, but you can
escape this narrow reading by requiring “extensive use” of contents of mind. Cts.
can just find use was only minor.
7. Collective entity rule
a. Official records of an organization held by an agent in a representative role can't form
basis for fifth's privilege, even if production of papers tends to incriminate the agent
personally
b. Braswell v. US: Official docs and records of an org that are held by an agent in a rep
manner rather than in a personal capacity cannot be the subject of personal privilege
even though they might incrim him personally
i. Corp agent assumes the risk of producing docs as part of the job, but not the risk
of being compelled to give incrim oral testimony
19
IV. MIRANDA
A. SUMMARY
1. Is Miranda applicable? Requires:
a. Custody. Did cops actions involve either formal arrest or “restraint on freedom of
movement of the degree normally associated with formal arrest.” Murphy.
i. Temporary detention not custody. Berkemer (routine traffic stops; Terry stops).
ii. Surrounded by cops in own home at 4 AM is custody. Orozco
iii. Murphy (mandatory meeting with probation officer).
iv. Note cop intent irrelevant. Stansbury.
b. Interrogation. Did cops make statements s/he should know are reasonably likely to elicit
an incriminating response? Innis.
i. Whether inculpatory or exculpatory not relevant, question is whether D perceive
statements in a way likely elicit D statements that would later be used at trial by
prosecutor.
ii. Mauro (granting wife’s request to speak to husband and recording not
interrogation).
iii. Booking exception. Muniz (routine administrative questions don’t count).
2. Was there a valid warning?
a. Custodial interrogations are presumed coercive if no valid warning has been given.
b. Exceptions to warning req’t
i. Pub. Safety. Quarles.
ii. Impeachment. Harris (statements); Jenkins (silence).
3. Has there been a valid waiver?
a. Waiver invalid unless warning given.
b. Pre-invocation Waiver. D must waive “voluntarily, knowingly and intelligently” Moran
i. Voluntary: Product of free and deliberate choice rather than intimidation, coercion
or deception.
(1) Id. (but deception OK as long as suspect unaware of it);
(2) Perkins (undercover cop pretending to be prisoner)
(3) but see Stevens (diss.) (lying about E means exclusion, all deception
should count).
c. Post-Invocation Waiver. Questioning must cease if
i. S indicates intent to remain silent, OR
(1) Effective Duration: fairly short. Mosley (two hours).
ii. S requests L.
(1) Must be unambiguous (reas. cop would understand). Davis (“I think O’d
like to do that” insuff.); Fare (juvenile asking for probation off. insuff.)
(2) Effective Duration: long. Roberson.
(3) Once D consults with L, can’t question after. Minnick.
4. Did D re-initiate interrogation?
a. Reinitiation treated broadly. Field (consenting to polygraph reinitiated whole
interrogation); Bradshaw (D, on way to jail in cop car, asks “what is going to happen to
me?”; waived).
5. Can fruits be suppressed? Patane
a. If testimonial, may be suppressed, IF
i. Pre-mirandized statements coerced subsequent. Siebert (woman confessed
then Mirandized coerced).
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ii. NOTE: Kennedy’s alternative: Was lack of warning good faith of intentional?
iii. UNLESS Elstad exception. Careful and thorough subsequent administration
cures.
b. If physical evidence, no suppression b/c don’t implicate risk of self-incrim. Patane.
i. BUT Breyer thinks fruits of poisonous tree should apply.
6. Note that interrogation may violate 6A right to counsel independent of Miranda. See
below.
B. ROAD TO MIRANDA
1. Voluntariness Test: D’s will overborne?
a. Bram v. U.S. (1897)
F: Man stripped naked and interrogated.
H: 5A prohibits compelled, incriminating testimony.
R: Ct. can't accept into E confession resulting from “either hope or fear or both.”
b. Brown v. Mississippi (1936). Incorporates voluntariness against states.
i. D’s whipped until they confessed.
c. Ashcraft v. Tenn. (1944)
F: S questioned from Saturday night until Monday morning, never leaving a room.
H: Confession suppressed b/c environment “so inherently coercive that its very
existence is irreconcilable with the possession of mental freedom by a lone S.”
d. Watts v. Indiana (1949) (Frankfurter) (Due Process clause)
F: Guy put in a “hole” and questioned for a day and a half.
H: Frankfurter wrote that the “pressure of unrelenting interrogation” violated
procedural due process b/c E should have been obtained in ct. under its
procedural safeguards.
e. Justice Jackson dissent in Watts (ends justify means)
i. Given facts, cops could either interrogate or close books on crime, no other
leads.
ii. SC shouldn’t overturn what trier of fact found were voluntary and accurate
confessions.
iii. If confession is truthful, it shouldn’t be suppressed b/c harm to society is too
great.
iv. Jackson’s position did poorly.
f. Post-Watts,
i. SC moved from question of whether will was overborne to whether police
conduct was acceptable in a free society.
ii. SC less and less trustful of state processes and courts.
g. Massiah v. U.S. (1964) (Right to counsel approach)
F: D arrested for drug-related crime, made incriminating statements in coconspirator’s car after he was indicted. Subsequently convicted. Federal agents
used co-conspirator to question him about things.
H: Agents violated 6A by interviewing S w/o L after he was indicted.
N: (1) This really isn’t a 6A case b/c interrogation, not hearing.
(2) Probably more of a 5A case b/c incriminating statements being elicited.
(3) Because this case creates a post-indictment rule, it encouraged getting info
before indictment.
h. Escobedo v. Illinois (1964)
F: Person asks for L during pre-indictment interrogation.
H: Once police has “begun to focus on a particular S,” and to interrogate that S, the
right to assistance of counsel is denied where S requests but is denied an L.
Pre-indictment stage just as important as post.
N: Concern with accuracy and discouraging independent police work
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C. MIRANDA (1966) (WARREN)
H: “Pr. may not use statements . . . stemming from custodial interrogation of the D unless it
demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination.”
R: (1) Custodial means “questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way.”
(2) Procedural Safeguards:
 Person must be warned that:
 Has right to remain silent
 Any statement he does make may be used as evidence against him
 He has a right ot the presence of an attorney, either retained or
appointed
 Waiver must be
 Voluntary
 Knowing, AND
 Intelligent
D: (Harlan)
(1) Confession and self-incrimination jurisprudence are fundamentally different, SC conflates
them.
(2) 5A doesn’t prohibit any pressure, just pressure that overcomes will.
(3) No support in precedent that knowledge of rights is essential.
D: (White)
(1) SC not informed on actual practices, just uses old manuals. Doesn’t look at any actual
interrogations.
(2) Maj. rule too broad. Confessions may be completely voluntary but excluded anyway.
1. Custody
a. Custody requires either formal arrest or “restraint on freedom of movement of the
degree associated with a formal arrest.” Minnesota v. Murphy
i. Actual arrest not required, enough that S did not feel free to go where he
pleased, even in own home.. Orozco.
ii. Custody stems from worry that S has that interrogation will continue until cops
get answer they want. Murphy.
iii. Temporary stop of limited duration not custodial. Berkemer.
b. Examples
i. Questioning at 4 AM in S’ home. Orozco v. Texas
ii. Testimony in penalty stage stemming from psychiatric examination of accused
w/o Miranda. Estelle v. Smith
iii. Routine traffic stops not custodial. Berkemer v. McCarty
(1) Terry stops don’t implicate Miranda.
(2) So, after Berkemer, cops can Terry stop you, ask questions, then arrest
you and use pre-arrest statements.
iv. Mandatory meeting with probation officer where officer intends to inform police
not custodial. Minnesota v. Murphy.
c. Note that SC’s rhetoric divorced from reality: SC assumes that average person isn’t
intimidated by cop.
d. Police intent irrelevant to “custody.” Stansbury v. California (Cops went to S’ home told
him they wanted to interrogate him at station as a witness to a crime. After interrogation,
they arrested him—which had been their intent all along).
e. Illinois v. Perkins (Kennedy) (1990)
F: Officer pretending to be prisoner talked an inmate into confessing his crime.
H: No interrogation b/c no coercion. So custody only matters if there is also
coercion.
D: (Marshall) Deception is also coercion.
22
f.
D’s actual perception not dispositive.
2. Interrogation
a. Rhode Island v. Innis (1980) (Stewart)
F: Cops find and arrest murder S. On the way to station, cops converse w/ each
other stating that they hope school kids don’t find murder weapon and hurt
themselves. D then makes statements used to later convict him.
H: Interrogation includes any statement an officer should know is reasonably
likely to elicit an incriminating response. Here, SC holds that statements not
reasonably likely, so admissible.
D: (Stevens). SC basically says any statement not ending in question mark ok.
N: Kerr thinks this case points out distinction b/t rule (reasonably likely to elicit) and
coerciveness. SC is really focusing on the latter, and adjust concepts of former
to get there. Because here, there is no real coerciveness, SC interprets facts to
not be reasonably likely.
b. Ariz. v. Mauro (1987) (Powell). No interrogation where cops tape recorded conversation
b/t wife and husband where they had been previously interrogating them separately and
they had wanted to speak to each other. No E that cops sent wife to talk to husband as
part of a psychological ploy.
i. Note: Can’t arrive at ct’s conclusion without looking into subjective state of mind.
So, intent may matter for interrogation, but not for custody, see Stansbury.
3. Routine Booking Exception.
a. Pennsylvania v. Muniz (plurality) (1990): Miranda doesn’t cover biographical information
requested for record-keeping purposes only.
D. WAIVER
1. Burden of proof
a. State has burden of showing waiver, but need only show it by preponderance of the
evidence. Col. v. Connelly.
2. Before warning: Waiver impossible. Miranda
a. But, can omit certain aspects of warning. See, e.g., Cal. v. Prysock (no mention of right
to appointed counsel prior to interrogation).
3. Miranda Exceptions
a. Public Safety Exception. N.Y. v. Quarles (Cop arrested D on street, found empty
shoulder holster, asked where gun was, then Mirandized).
b. Impeachment Exception.
i. Unmirandized statements may used for impeachment. Harris v. N.Y.
F: D makes unmirandized statements then contradicts them on stand.
H: Enough deterrence to police misconduct exists, even if impeachment
allowed.
N: This case is BS, if Miranda violations are 5A violations, then, why
allow use at all?
ii. Pre-Mirandized silence may be used for impeachment. Jenkins v. Anderson
(1) BUT Use of post-Mirandized silence violates DP. Doyle v. Ohio.
4. Waivers before invocation
a. Moran v. Burbine (O’Connor) (1986)
F: D waived rights. Sister got him L, cops told him L was coming. L called asked to
speak with him, cops told L they wouldn’t question D that night. Cops didn’t tell D
he had L or that he called. Later on, D makes inculpatory statements.
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H: (1) D “voluntarily, knowingly, and intelligently” waived his rights. Even if cops
deceived him, D wasn’t aware so couldn’t have affected voluntariness.
(2) 14A DP claim fails b/c conducts doesn’t shock “the sensibilities of civilized
society.”
R: (1) Voluntary: product of a free and deliberate choice rather than intimidation,
coercion or deception.
(2) Intelligent: Must have been made with a full awareness of both the nature of
the right being abandoned and the consequences of abandoning it.
D: (Stevens) (1) Note that burden always lies with gov. to prove waiver validity in
custodial interrogation.
(2) Miranda does prohibit lying or tricking someone into a confession, even if
S understands rights. So lying to someone about a co-conspirator’s
statements would violate Miranda. If this type of deception violates
Miranda, so does deception by omission.
(3) Requiring cops to inform of L would not upset “delicate balance,” it might
make law enforcement tougher, but all constitutional rights do this.
(4) As a matter of fact, everyone knows that L’s have right to see D.
(5) 14A DP: Police interference with A-C relationship violates DP.
N: Deception OK so long as D not aware of it once waiver is signed.
 Though SC didn’t so hold, Moran also makes sense in light of Perkins
where lying to D OK so long as not coercive.
5. Waivers after invocation. Questioning must cease if
a. S indicates intent to remain silent, OR
i. Duration of waiver depends on whether rights were “scrupulously observed.”
Mosley (S questioned, invoked Miranda; 2 hours later questioned about different
crime at different location, by different cop, S talked.
ii. H: Invocation didn’t cover second interrogation).
b. Asks for attorney. Edwards.
i. Request must be unambiguous. Davis v. U.S. Protections kick in when
reasonable cop would understand S’ statement as request for an L. Davis.
(1) Otherwise, cop can keep on questioning. Smith v. Illinois (D advised of
right to L, and says “I’d like to do that.”; no waiver).
(2) Souter argued that if a tentative invocation isn’t enough, as a practical
matter, people may be forced to talk to cops b/c most people are
tentative in front of cops.
(3) Juvenile’s request for probation officer insufficient to trigger Edwards.
Fare.
ii. Invocation can last several days. Arizona v. Roberson (S asked for L,
interrogation stopped, interrogated again three days later, waived, stmnts
suppressed).
iii. Once S asks for L and consults with L, can’t question later w/o L. Minnick.
(1) Scalia dissent in Minnick. Makes no sense to exclude b/c suspect too
stupid not to listen to counsel.
c. Reconciling Mosley and Edwards. Right to counsel gets more protection that right to
remain silent.
i. Minnick and Mosley also support this b/c you can re-interrogate within a couple
of hours after right to remain silent invoked, but can’t re-interrogate after right to
counsel invoked even after a few days.
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6. BUT if S re-initiates after invocation, SC pretty willing to admit and treat initiation broadly.
a. Initiation of one type of communication can extend to others. Field v. Wyrick (S invoked
right to L, then initiated polygraph, after polygraph made inculpatory statements. 8th Cir.
said should’ve had another waiver, SC reversed b/c S initiated interrogation, not just
polygraph.)
b. Oregon v. Bradshaw (initiate)
i. S arrested for furnishing liquor to minor, asks for L. On the way to jail, asks cop
what’s going to happen to him. Cop warns him he can’t talk to him unless of own
free will. S asks what can be done to help situation, cop says take polygraph. S
does, fails. Is subsequently convicted.
ii. 4 justices said asking what’s going to happen to him doesn’t trigger Edwards
prohibition.
iii. Powell (conc) declines to invoke Edwards protection on facts presented.
iv. Marshall (diss) S obviously trying to find out where he was going since he was on
the way to go somewhere, not trying to re-initiate interrogation.
E. SUPPRESSION REMEDY
1. Elstad Exception.
a. “Careful and thorough administration of Miranda warning serves to cure the condition that
rendered the unwarned statement inadmissible.” Oregon v. Elstad (D made unmirandized
statement, warned, then gave in writing, not suppressed).
2. Missouri v. Siebert (Plurality) (2004)
F: Kid died in sleep. Mother and kids burned down trailer to prevent authorities from finding
body which had evidence of neglect. Other son dies too. They bring her to the station
house (no arrest but was custodial for Miranda purposes) and cops used two-step
interrogation process (question first, give Miranda rights, then question again). She
admitted burning down trailer and that she knew Donald was in the room. They then
Mirandized and asked her same questions reminding her she had already answered.
P: (1) Statement inadmissible. People won’t understand that pre-Mirandized statements
ineffective, therefore will feel coerced.
(2) No fruit of the poisonous tree doctrine.
(3) Elstad inapp. b/c questioning there separate, here part of same interrogation.
C: (Kennedy) Deliberate violations (like two-step interrogations) mean statements should be
suppressed, unless sufficient curative measures taken (passage of time or advising that
previous statements are inadmissible would suffice).
D: (O’Connor, for Rehnquist, Scalia, Thomas).
(1) Agrees that no fruit of poisonous tree.
(2) Officer intent irrelevant.
(3) Two-step interrogation process validity depends on specific facts as to whether
confession was voluntary or not. Did taint dissipate?
3. U.S. v. Patane (Thomas) (2004) (same day as Siebert)
F: Guy gets arrested and they ask him where his gun is (after arrest without Miranda), he
tells them. He tries to get it suppressed.
P: Physical evidence resulting from voluntary statements admissible b/c do not implicate risk
of compelling testimony against self.
D: (Souter) Maj. discourages deterrent effect of Miranda.
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4. Breyer thinks fruits of the poisonous tree should apply to intentional Miranda violations.
Patane (diss.); Siebert (conc.).
a. Shouldn’t apply to good faith mistakes.
5. No § 1983 remedy for Miranda violations where statements not used in trial. Chavez v.
Martinez.
F. ALTERNATIVE PERSPECTIVES.
a. Can waivers ever be knowing?
i. How many people would say anything if they were properly advised by an L?
Answer really comes down to whether we see L as a nuisance, as in an
inquisitorial system, or as a necessary implement for constitutional protections.
Moran (Stevens, J., dissenting).
b. Deception impermissible. Some state courts have held that there can be no waiver
under state law if D not told about L’s efforts to contact him. See, e.g., State v. Stoddard.
c. Nonwaivable right to counsel? Professor Ogletree argues that the only way to rectify
this trickery problem is to make right non-waivable.
d. Alternative: Judicial Examination of the Accused.
i. Kauper argues that you could just put accused in front of neutral magistrate and
let that person question S.
ii. Failure to answer questions could be used against person.
iii. Questioning should be immediate, so S doesn’t have time to manufacture
answers.
e. Miranda may not matter.
i. Many states have enacted laws requiring taping confessions.
ii. 80% of Ss waive their rights anyway.
iii. 65% subsequently make incriminating statements. Ofshe & Leo.
(1) Cops just adapted to Miranda by changing their tactics, so Miranda didn’t
really diminish effectiveness. This is a good thing, it shows that
respecting rights doesn’t mean letting criminals go free!!!
(2) Of course, even Ofshe & Leo acknowledge that false confessions may
be a serious problem.
iv. Paul G. Cassell argues that Miranda has had noticeable effect on all FBI crimes
except murder and rape.
v. Schulhofer argues that Miranda does matter
(1) Psychological coercion a whole lot better than physical.
(2) Symbolism matters.
G. MIRANDA’S COSTITUTIONAL STATUS
1. Miranda as a prophylactic rule
a. Miranda is a set of rules implement to protect the right against compulsory selfincrimination. Mich. v. Tucker (pre-Miranda interrogation where cops failed to informs of
rt. to L OK b/c Miranda not constitutionally req’d).
2. Miranda may nonetheless invalidate Fed’l law. Dickerson v. U.S. (Rehnquist) (2000)
a. Dissent (Scalia, Thomas): Maj. doesn’t examine whether law violates 5A, only examines
whether it conflicts with Miranda.
i. Maj. ignores cts. own exceptions to Miranda.
ii. Doesn’t even think prophylactic rules are constitutional.
iii. Finishes off by saying he will continue to apply § 3501 despite cts. finding.
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3. Is Miranda more securely doctrinally grounded in 14A DP than 5A?
a. Colorado v. Connelly (1986) (schizophrenic confessed to crime, later argued not
voluntary). SC held involuntariness must result from cop coercion.
V. SIXTH AMENDMENT
A. RIGHT TO COUNSEL
1. History
a. Powell v. Alabama (Sutherland, J.) (1932)
i. 6A requires effective counsel or opportunity to get effective counsel for capital
defendants.
ii. F: 8 of 9 black D’s convicted of raping woman, convicted and sentenced to
death. L met them on day of trial.
b. Betts v. Brady (1942) In non-capital cases,l L req’d only if lack of L would result in “trail . .
. offensive to common and fundamental ideas of fairness and right.”
c. Gideon v. Wainright (Black, unanimous) (1963)
F: D committed a felony (breaking and entering with intent to commit
misdemeanor). Ct. denied counsel.
H: 14A DP entails right to counsel. B/c precedent has already req’d this in fed’l ct.,
Black (believes in total incorporation), incorporates against states too.
N: Overrules Betts.
2. Purpose
a. “To protect the unaided layman at critical confrontations with his expert adversary, the
government, after the adverse positions of gov. and D have solidified.” McNeil
b. Compared to Miranda right to counsel: Purpose is to protect S’ desire to deal with cops
only through counsel.
3. No imprisonment w/o counsel.
a. No person may be imprisoned for a crime unless they were represented by L.
Argesinger v. Hamlin.
i. So if prosecutor says no prison time will be sought, no rt. to attny.
ii. Must be actual imprisonment. Scott. So, if imprisonment possible but don’t
actually get sentenced, lack of attorney OK.
iii. Alabama v. Shelton (2002) (Ginsburg)
F: D sentenced to suspended sentence w/o L.
H: Suspended sentence also requires counsel b/c of concern with reliability
of initial determination of guilt.
D: (Scalia) Possibility shouldn’t be enough. If worried about imprisonment
w/o L, retry at the stage where suspended sentence may be revoked.
N: Scalia’ approach would be consistent with Nichols.
b. Uncounseled convictions may be used to enhance future penalties. Nichols v. U.S.
4. Counsel on Appeal
a. Douglas v. California (Plurality) (1963)
F: Cal. law req’d independent investigation of merit of appeal before L assigned.
H: D’s entitled to L on appeals of right. Process of deciding whether to assign L
needs L for D.
R: “There can be no equal justice when the kind of trial a man gets depends on the
amount of money he has.” (Douglas), of course this is bigger talk than precedent
supports.
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N: Unclear if Douglas was about equal treatment or fundamental fairness.
b. Ross v. Moffitt (Rehnquist) (1974)
H: Neither 14A DP or EP require state to provide L for discretionary appeal.
R: (1) Due Process. D on offensive in discretionary appeal, so do DP rt. to counsel.
Sort of ignores language of Douglas. State has no obligation to allow any
appeal, so why should it be required to give L.
(2) EP. No obligation to remedy financial inequality. (probably relying on
Valtierra).
C: (Douglas). No meaningful difference b/t trial and appeal. L serves important
function in both
N: Resolves Douglas’ open question: fundamental fairness, not equal treatment.
5. Critical Stages of Prosecution
a. Coleman v. Alabama—Accused has right to counsel at every critical stage of criminal
prosecution.
b. “Critical stage” includes any stage where defendant’s legal rights may be affected.
i. Includes preliminary hearings, Coleman, initial appearances, Brewer, and
arraignments, Hamilton. Also includes parole revocation hearings, Brewer.
ii. Excludes warrants or ex parte hearings.
iii. Excludes habeas corpus/collateral attacks.
6. Policy Considerations
a. In Virginia, maximum payment for felony with over 20 year imprisonment is $1,235.
b. Many PDs take on 1,200 cases or more per year.
c. Ake v. Oklahoma where D’s sanity may be a significant factor at trial, he should have
access to psychiatrist.
B. INTERROGATIONS
1. A pre-invocation waiver of Miranda rights equals waiver of 6A rights. Patterson v. Illinois.
a. UNLESS, L is trying to reach you, then Miranda waiver is not 6A waiver. Id.
b. Conversely, invocation of 6A right to counsel, not invocation of Miranda right to counsel.
2. 6A attaches at the commencement of adversarial proceedings. Brewer.
a. Warrant issued, arraigned, committed by court to jail confinement. Brewer.
b. Indictment. Massiah.
3. Once right to counsel attaches, can’t ask any questions. PERIOD.
a. Brewer v. Williams
F: S fled murder scene, calls his L, who tells him to turn self in. S indicted, cops
pick up D, L tells cops not to question. On drive back, cops mention how sad it
would be not to find body and give proper burial.
H: Right attached b/c indictment issued and L retained. Fruits, including body,
suppressed.
R: No waiver b/c after 6A rt. attaches, hearing required.
D: (Burger). (1) Waiver of rights was informed and D fully understood what he was
doing including the liability consequences.
(2) Fruits of poisonous tree shouldn’t apply to physical E b/c reliability not a
concern.
b. Michigan v. Jackson(1986) (Stevens) Edwards rule applies to 6A.
F: D asked for L at arraignment. Cops question anyway.
H: Edwards applies, statements suppressed.
D: (Rehnquist) No proof that cops are denying people their 6A rt., therefore don’t
need Miranda’s prophylactic rules.
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4. Waiver requires hearing. Cf. Brewer;
a. Unlike Miranda where you can waive by reinitiation.
5. Remedies include fruit of the poisonous tree and exclusion.
6. Unlike Miranda, use of informants used to violate 6A.
a. Henry “intentionally creating a situation likely to induce D to make incriminating statemtns
without the assistance of counsel,” violates 6A.
b. Kuhlman v. Wilson radically limited Henry. In Kuhlman, state put undercover cop in cell,
but cop asked no questions.
i. H: 6A doesn’t bar merely listening, D must show that the “police and their
informant took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.”
ii. Brennan & Marshall argued that state intentionally created a situation reasonably
likely to result in inculpatory statements, that should be enough, doesn’t matter
whether listening or talking or asking.
c. Maine v. Moulton placing codefendants together and recording them is OK. (Sort of like
Mauro, husband and wife).
d. UTTER BULLSHIT.
7. 6A v. Miranda rights to counsel
a. McNeil v. Wisconsin.
i. F: Guy waived Miranda rights but hadn’t waived 6A rights, tries to suppress
statements.
ii. Waiver of rt. to counsel under 6A not waiver under Miranda b/c Miranda not
offense specific and 6A is.
b. BUT Texas v. Cobb. “Offense” may encompass statutorily different but related crimes.
Test is whether each offense requires proof of a fact which the other does not. If one
does, then they are separate offenses and invocation of 6A covers both, and waiver
would cover both.
i. Of course, this allows police to question w/o L present so long as unrelated to
crime charged. But wouldn’t this be covered by Miranda?
C. EFFECTIVE ASSISTANCE COUNSEL
1. Historical standard was “mockery of justice.”
2. Two Prong test. Strickland v. Washington
a. Inadequate performance. L did not provide “reasonably effective assistance” like that of
a “reasonably competent attorney”
i. Strong presumption of effective assistance.
ii. Examples include
(1) Breach of duty of loyalty.
(2) Williams v. Taylor. (Ineffective assistance where L presented mom, two
neighbors and excerpt from state psychiatrist. L did not mention D
beaten by father, parents imprisoned for criminal child neglect, borderline
retardation, his help in busting prison drug ring, or testimony from prison
officials that he wasn’t violent.)
(3) Strickland (Defense attorney takes over murder trial, guy sentenced to
death. At sentencing phase, L did not present character witnesses,
psychiatric examination. L didn’t request pre-sentencing report).
(4) Failure to consult with D about right to appeal where appeal would be
non-frivolous and D indicated interest in appealing. Roe v. FloresOrtega.
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b. Prejudice. Did ineffective performance prejudice D?
i. D must show “reasonably probability that result would be different.
(1) In plea bargains, D must show “reasonable probability that would not
have pled guilty” but for inadequate assistance. Hill.
ii. Prejudice is presumed where L’s failure is: Cronic
(1) Actual or constructive denial of counsel (complete denial)
(2) Refusing to allow L to meet with D.
(3) “Counsel failed to function in any meaningful sense as the gov’s
adversary.” Pretty much has to be complete failure.
D. LINEUPS
1. Protections stem from both 6A and DP.
2. Post-Indictment Lineup
a. Once 6A attaches, counsel must be present at lineup. U.S. v. Wade. (1967)
i. Rationale: L’s mitigate risk of improper influence.
F: Employees robbed a bank and FBI conducted post-indictment lineup with D’s L
present.
b. Per se exclusionary rule applies to out-of-court lineup identification in violation of right to
counsel. Gilbert v. California (1967)
c. Permissibility of courtroom ID after violation depends on whether taint has dissipated.
Wade.
d. No right to counsel at pre-indictment lineups. U.S. v. Ash (1972).
i. This case can’t be reconciled on Wade’s rationale b/c dangers still present. Of
course, can be rationalized on Kirby’s rationale. Which matters more: justice or
attachment of counsel?
3. Photographic Arrays.
a. U.S. v. Ash
F: No need for L b/c no risk of improper influence.
D: (Brennan). Risk of improper influence probably greater with photos.
N: What the fuck? Of course there’s risk. This case is more motivated by practical
considerations.
b. Randolph Jonakait suggests we can mitigate risks of improper influence by keeping track
of what picture we show witnesses.
4. The Due Process alternative
a. Even if 6A isn’t violated, inappropriate lineup may violate DP rights. Manson v.
Braithwaite.
b. Totality of Circumstances Test: Whether “unter the totality of the circumstances the
identification was reliable even though the confrontation procedure was suggestive.”
5. See p. 261 for proposed lineup procedures.
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VI. ENTRAPMENT
A. TWO STEP (JACOBSON) ANALYSIS
1. Did government induce violation?
a. Question is essentially whether an reasonable person under the circumstances would
commit the crime.
b. “Law enforcement officials go too far when the implant in the mind of a innocent person
the disposition to commit the alleged offense and induce its commission.”. Jacobson
c. Jacobson: Gov. did induce.
2. If so, government can still show beyond reasonable doubt that D would have committed
anyway.
a. Gov. did not show D would have committed anyway.
3. Jacobson’s procedural underpinnings undermine holding b/c reasonable jury could have
found predisposition, but ct. held otherwise.
4. Objective v. Subjective version
a. Model Penal Code and 10 to 15 states have opted for objective. MPC states
inducements improper if “create a substantial risk that an offense will be committed by
persons other than those who are ready to commit it.”
b. Jacobson was ostensibly a subjective test b/c it asked whether this D was induced.
5. Outrageous government conduct
a. Maybe these cases are really about this type of conduct.
6. Should this be a constitutional issue?
a. Why didn’t ct. use 6A? B/c deals with stuff at end not beginning.
b. Not 5A b/c no compelled testimony.
c. Criminal procedure is constitutionalized to make it consistent in every state.
d. Here, ct. doesn’t b/c it doesn’t fit into any of the traditional oles.
B. JACOBSON V. U.S. (1992)
F: Man bought child porn when government sent a bunch of materials advertising child porn.
They sent materials for over two years before D bought.
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