Crim Pro Outline
Fall 2005
I. INTRODUCTION
Crime control model v. due process model:
 Crime Control
o Focused on efficient convictions of criminals/ controlling crime
 Central values center on guilt of the defendant and an efficient
process to punish wrongdoers
o Assembly line- courts are busy/ most people are guilty anyway
o Worried about criminals as a threat to others (an individual rights need to
be protected from private violence)
o Judicial restraints (see below)

Due Process
o Focused on Δ’s rights
o Obstacle course- gives government and police a lot of obstacles to
overcome
o Concerned about police violating individual rights
o Judicial activists (see below)
Judicial Power→ Activism v. Restraint:
 Activism
o Believe in legislation from the bench
o Concerned with individual rights
o Associate with due process model
o Political branches are structured to be “tough on crime” so judiciary
should protect the accused because the government cannot
o Liberals

Restraint
o Uphold law unless clearly unconstitutional
o Want courts to be restrained→ Federal courts don’t have power to expand
criminal procedure laws
o Associate with crime control model
o Conservatives
The Warren Court (1960s- when criminal procedure began) was dominated by liberal
decisions (and therefore the due process model). In 1980s, switched to conservative, but
very few of the old cases were overturned. They were instead limited in scope→
interpreted narrowly instead of broadly.
2 major problems with criminal procedure laws:
 Coherence→
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
o Cases don’t line up because 9 member panel of justices change over time,
as well as policy concerns change over time
o Challenges to coherence in cases include:
 Multi-member institution that
 Changes over time and
 Policy disputes and
 Unsettling text of the Constitution
Completeness →
o Challenges to creating a complete set of rules of criminal procedures:
 Court is passive- they have to wait on cases
 Court is busy- can’t take all cases
Incorporation
The process of applying the provisions of the Bill of Rights to the states by
interpreting the 14th Amendment’s Due Process Clause as encompassing those
provisions:
3 historical approaches:
 Selective Incorporation- not all of Bill of Rights are incorporated, but some are
o Test to see if it will be incorporated is fundamental fairness (provisions that
are fundamental to fairness are incorporated).
 Total Incorporation- all Bill of Rights are incorporated (and only the Bill or Rights)
 Pseudo Incorporation – none of Bill of Rights are incorporated, but based on
“fundamental fairness” certain parallel rights are created in the 14th.
o Pseudo incorporation
Duncan v. LA (man didn’t get jury trial for crime punishable by 2 years in prison), the
issue was whether 6th amendment jury trial guarantee applies to states. The arguments
were:
 Selective→
o Right to jury trial is fundamental to fairness therefore it is incorporated
o White (majority)- compromises between total incorporation and fundamental
fairness (some instead of all or none)
o Black/Harlan criticize this as pure judicial activism because there is no
historically defense for selective incorporation.
 Total incorporation→
o Is there a right to jury trial in Bill of Rights? Yes, so it is incorporated.
o Black argued for this→ drafters intended total inclusion
 Fundamental fairness (pseudo incorporation) test is too vague for
states…leads to judicial activism
 Fundamental fairness→
o Jury trial is not fundamental to fairness because there are fair bench trials all
the time.
o Harlan argues this- founders did not mean incorporation or they would have
said so- total incorporation is too burdensome on states
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o Harlan made a prediction that anything but fundamental to fairness will put
pressure on courts to dilute rights because they will be too damaging to state’s
ability to control crime
 This turned out to be true (states have 9 member jury instead of 12 and
doesn’t have to be unanimous)
4th amendment:
 Clause 1:
o Persons, houses, papers, and effects are protected from unreasonable search
and seizure
 Clause 2:
o Warrants are only issued on probable cause supported by oath or affirmation
and with particularity describing place to be searched and things to be seized
5th amendment:
 In a criminal case no person shall be compelled to be a witness against themselves
II. SEARCH AND SEIZURE – 4th Amendment
1. Was there a search and seizure of persons, houses, papers, or effects?

Boyd v. US → (this is how the early court interpreted this and IS NO LONGER
GOOD LAW) In Boyd, making Δ turn over papers was the functional equivalent of a
search and seizure
o Is there a property right? Property rights and trespass analysis are the key  Mere evidence rule- CANNOT search for and seize mere evidence
because infringing on property rights of the owner
 When does government have right in property?

When government has right in papers (record government
requires citizens to keep)

Government has a claim in the good (lien)

Contraband (narcotics)

Instrumentalities of crime

Stolen goods (government is acting on the rights of the rightful
owner)
o Was there a physical invasion? Making Δ turn over papers was the functional
equivalent of a search and seizure
o Miller’s Concurrence
 This is a 5th self-incrimination case because it’s quasi-criminal, there is
compulsion, and Boyd is being a witness against himself.

Schmerber v. California (BURIES BOYD/ rejects property rights)
o Blood taken from the DUI suspect against his will at hospital. Splits the 4th
and 5th Amendment rights up…4th and 5th are no longer keyed to property
rights and they are not practically the same provision:
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4th involves unreasonable search and seizure, and protects persons, so
it’s clearly implicated here: there was probable cause, no
warrant…but there was an exigency (liver was filtering out alcohol as
time passed, so destruction of evidence)

New Standard: To protect a person’s privacy (not property) via
reasonability test.
o Clause 1 = Protects rights +
o Clause 2 = Privacy Rights protected procedurally
through probable cause plus a warrant or warrant
exception.

Reasonableness under 4th is based on probable cause, common
sense reasonableness, and obtaining a warrant.
th
5 amendment ONLY applies to “testimony of a communicative
nature,” and NOT physical evidence (via property rights)…This is the
modern rule.

Being a witness against one’s self is giving testimonial
communication in response to questioning by the government.
Black’s Dissent: Blood here is communicative in nature

Thinks there is no real difference in testimonial/physical
evidence, and therefore this violates 5th

Hubbel (2000) – Scalia and Thomas suggested in their concurrence that Boyd was
right because 5th should not be limited to testimonial communications. Based on
original understanding 5th should be extended beyond testimonial communications.

Warden v. Hayden (1967) (man pretending to be asleep, police went in and found
clothing used in robbery)→ privacy, not property is protected
o Rejects mere evidence rule→ rationale is that 4th amendment is about privacy
and privacy is not violated more when looking for mere evidence than when
looking for fruits of a crime. So mere evidence rule is irrational because it
does nothing to protect privacy interests.
o This was a search and seizure so the issue becomes whether or not the
search/seizure were reasonable. There was probable cause, a warrant
exception, and scope of search was limited to what was necessary.
o Dissent:
 Douglas thinks that property theories actually relate to privacy, and a
“limit on the fruit to be gathered limits the quest itself” therefore
providing adequate protection.
A. Search Defined

Katz v. US - FBI attached electronic listening device to the outside of the public
telephone booth form which Δ placed phone calls in which he transmitted wagering
info in violation of federal statute→ SC said violation because reasonable expectation
of privacy (in phone booth, so use of listening device violated that privacy).
o Under Boyd (not good law, but for analysis purposes):
 Threshold Questions:
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
Is there a person, house, paper or effect?

Is there a physical invasion / trespass?

Can the conversation be seized?
 Under traditional Boyd analysis there does not appear to be a search or
a seizure…there is no 4th violation because there is no trespass into a
house. Could argue phone booth is a rented “house” but still there is
no physical invasion so no 4th violation
o Katz Analysis:
 Got rid of physical invasion requirement
 Protects PEOPLE, not places (concerned with privacy, not property)
o Reasonable Expectation of Privacy Test (from Harlan’s concurrence)
 Subjective prong – Was there an actual subjective expectation of
privacy?

Payment of toll, shutting sound proof door…there is a
subjective expectation of privacy in phone booth
 Objective prong – Was there a reasonable objective expectation of
privacy (Is the privacy interest something legitimate and justified, and
would society recognize the privacy expectation as reasonable?)
Nowlin’s Schema:

Empirical concerns→ how often as a matter of fact is this
invaded?

Normative concerns→ how important is it to society to
protect the privacy…questions of values:
o What is the social value of the privacy at stake
o What is the privacy value being asserted
o How intrusive is the search by the police
o What efforts did Δ take to guard privacy
o Crime control concerns- how important is it to law
enforcement to be able engage in this behavior w/out 4th
amend violations

An example of normative analysis is Smith v.
MD- on Copy Time Outline- woman was
robbed and had police put a pen register on her
phone- social value of privacy issues→ this is
just phone number, not conversation;
intrusiveness→ again, only numbers; guarded→
Assumption of Risk- when turn over info to 3rd
party (telephone company), run risk they will
give it to police- SC said no reasonable
expectation of privacy)
o Dissent – language of persons, houses, papers and effects does not include
oral conversation…founders knew about eavesdropping but still did not
include it, so electronic eavesdropping does not violate the 4th.

Rule:
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o To determine if search exists apply the REP test: actual expectation of privacy
and reasonable expectation of privacy?
 Once it is determined that a search has occurred the next step is to
determine if the search was unreasonable? (unreasonable defined by
clause 2 – probable cause and warrants)
False Friend Analysis


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US v. White→ No reasonable expectation of privacy regarding other party with whom
you share information regarding your criminal activities. There is an assumption of
the risk when criminal information is divulged to a 3rd party.
o Key difference between Katz and White is the party to the conversation in
White is working with the police, while in Katz the recording was without
either parties’ consent.
o There is no reasonable expectation of privacy so there is NO SEARCH!
o Dissent
 Harlan – this is a search therefore need a warrant and probable cause
to be reasonable.
 Douglas – can’t compare eavesdropping and recording…transmitters
and recorders are very intrusive.
False friend scenario: Agent or informer (A talks to B and B talks to police) - This is
NOT a search so don’t have to have a warrant
o Hoffa - 4th amendment doesn’t apply because not a search
False friend w/ recording device: Lopez says this is valid under 4th amendment
False friend w/ transmitter: Transmitter that transmits to 3rd party under On Lee is not
4th amendment violation
o perhaps Katz upset the transmitter situation- reasonable expectation of privacy
that the conversation is not being broadcasted- some lower courts said that
Katz overruled On Lee. Court must distinguish between recording the
conversation with neither party’s knowledge (Katz) from recording the
conversation with B’s assent (On Lee)
Open Field and Curtilage

Oliver v. US→ announced “open fields” doctrine – no warrant or probable cause
needed because there is no reasonable expectation of privacy in open fields so there is
no search in violation of 4th.
o Hester first created open fields doctrine because 4th only applied to houses,
person, papers and effects. This is no longer good analysis because under
Katz phone booth is protected.
o New Analysis – there is no REP in open fields
 Empirical – trespass into open fields occurs often
 Normative – privacy value is high and arguably the value to law
enforcement is high
o Dissent – there can be an expectation of privacy in open fields because they
include private wooded areas for nature walk, lover’s meeting, religious
gathering, etc. Also there were efforts to guard the land.
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Can’t search curtilage (U.S. v. Dunn) because it is an extension of home→ variables
to determine whether an area is curtilage:
o Proximity to home
o Existence of an enclosure around that area
o Nature of use to which the area is put
o Precautions taken to exclude others from the area
Arial surveillance


CA v. Ciraolo – police flew over house and took pictures of marijuana growing in Δ’s
curtilage (which was surrounded by 2 fences). Got warrant and made arrests. Court
said this was public navigable airspace and there is no need to obtain warrant for
something that is visible to the naked eye→ Nowlin says this is taking privacy away
from curtilage
o Whatever is knowingly exposed to a 3rd party does not have a reasonable
expectation of privacy
 FL v. Riley (case from prior years), police used helicopter at 400 feet
to come over Δ’s property looking for drugs. SC said as long as
aircraft was within FAA regulated airspace and there is no physical
intrusion, not a 4th amend search. Arguments for: aircraft usually fly
low, so reasonable…against: this is rare, so unreasonable
o Dissent – Don’t need physical intrusion to trigger invasion of privacy,
generally public can’t see into backyard, Δ did everything to protect curtilage
(can’t be expected to build roof and thereby extend his house), etc.
Rule – If police are where they have a right to be (in publicly navigable airspace) and
they engage in visual observation that is not physically intrusive then there is no
search within the meaning of the 4th!
o What might constitute physical intrusion? Riley – May be physically intrusive
in terms of noise or wind (like a helicopter that gets too close).
Cases using the modern Katz analysis and the outcome:
 Bond v. US → police searched passenger on bus’s bag after an initial poke and found
drugs. SC→ personal luggage is in an effect (so there is 4th amendment protection);
there WAS a reasonable expectation of privacy:
o Actual→ he put it in the overhead compartment in an opaque bag
o Objective (society)→ people do expect their bags will be touched by others,
but not to this extent (an exploratory manner – a squeeze intended to reveal
the contents of the bag is an unreasonable touch and therefore constitutes a
search)
 Dissent arguments→ he could have put this in a hard bag, this was no
different than squeezes that passengers could have done, could also
argue that value to police is high after 9/11
 Kyllo v. US- police used thermal heat detecting to scan Δ’s house. That is a search
because obtaining information about things (heat) occurring IN THE HOME that
could have not otherwise been obtained without a physical intrusion into a
constitutionally protected area while using sense-enhancing technology that is not in
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


general use by the public. Once technology is in general public use, police can use
it→ that is an undefined term (in general public use). Binoculars are in public use, so
they are okay.
o Actual→ this didn’t happen in this case, but he COULD HAVE put a super air
conditioner or super insulation in
o Objective→ intrusion is in home→ home gets most 4th amendment protection
 Dissent – this is not a search because same information could be
determined from snow melting faster or steam, etc (this is in some
sense exposed to the public). Also there is an inference needed to
determine if pot is being grown…all the scan said was one side of the
house was hot.
Rule – Where the government uses a device that is not in general public use, to
explore details of the home that would previously have been unknowable without
physical intrusion, the surveillance is a “search” and is presumptively unreasonable
without a warrant.
US v. Jacobson - private person (FedEx employee) opened a bag, found drugs and
called cops. Private citizens can do this without any problem unless a state actor
(police) ask them to, instructed them to, or authorized them to open it. Private search
does not violate 4th amendment. Subsequent search by police is also NOT a search as
long as they don’t go beyond the search done by the private citizen AND it doesn’t
reveal any new information→ police can replicate the private person’s search.
o Skinner→ whether the search was a private or state action is a fact intensive
inquiry (totality of the circumstances, did the state encourage this?)
US v. Place→ exposure of luggage in public place to canine was NOT a search - no
REP from dog sniff:
o No REP with respect to dog sniffs…the privacy interest you’d have to assert
is very small because your privacy interest would be limited to the smell of
drugs from your luggage. Also there is no physical intrusion
o Normative analysis to argue this is a search: privacy interest is the interest in
your personal effects. Not as intrusive as physical invasion, but its use of a
sense-enhancing device to gather information that otherwise would require
physical invasion to obtain!
CA v. Greenwood - 4th amendment does not prohibit search and seizure of garbage
placed in opaque container and left for collection on curb in front of home- the
garbage has been abandoned
o Actual→ opaque container
o Objective→ (to argue that it was a search would have to say there is a privacy
interest in our garbage and the police would need the connivance of the
sanitation people because there is a relationship between citizen and garbage
man)
B. Seizure Defined
What is a seizure?
 What is a seizure?
o Items / Things:
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
Jacobson - a seizure is any meaningful interference with a possessory
interest
o Person:
 An application of physical force (or threat) or show of authority which
combines to restrain personal liberty in such a way that a reasonable
person would not feel free to leave. (Terry, Mendenhall). Based on
totality of the circumstances (Mendenhall).
 Obviously Seizure:

Arrest

Handcuffed

Taken to the police station or put in cell

Pulled over or stopped

Striking (bullet, pepper spray, baton, etc.)
3 Situations:
o Questioning
o Questioning in Confined Spaces
o Pursuit / Show of Authority
Questioning

US v. Mendenhall - woman voluntarily went to DEA office, consented to a search;
drugs were found. There was no seizure because reasonable person would have felt
free to leave→ DEA agents approached her (not summoned her to them); they did
take her ticket, but they gave it back to her; asked her to go with them (not told her
she had to or forced her). The police asking her to accompany them means that it was
implicit that she could refuse. Because she consented to going to the officer there can
be no seizure.
o Mendenhall Test – A seizure exists only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed he was not
free to leave. This is an objective (reasonable person) test taking into account
the totality of the circumstances.
o Factors that may create a high level of coercion that would constitute a
seizure:
 Mere questioning is not a seizure (there may be small level of coercion
simply because there is show of authority, but mere questioning is not
enough to constitute a seizure).
 Orders or threats may constitute a seizure
 Physical touching constitutes a seizure
 Tone of voice may create a seizure
 Number of officers
 Presence of weapons
o The intent of the officer doesn’t matter (doesn’t matter if suspect is really free
to leave or not)
o Policy for requiring this test is that suspicion-less questioning is an important
tool in crime fighting.
o Concurrence – this is a seizure but it’s reasonable because seizure was low
level so only low level reasonableness is required.
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
o Dissent – this is an unreasonable seizure because there was no reasonable
basis to stop Δ and even minimal show of authority creates a feeling that one
cannot leave.
Florida v. Royer – suspect approached in an airport was seized because the officers
retained his ticket and license and never indicated he was free to leave.
Questioning in Confined Spaces

FL v. Bostick - man was on bus when asked by police if they could search his bags.
They told him he could refuse. He consented. Court said there was no seizure
o Reformulated Mendenhall test for confined spaces:
 Whether or not a reasonable person would have felt able to decline the
officer’s request or otherwise terminate the interview with the officer.
o SC didn’t say there was no seizure→ they remanded for the lower court to use
the reformulation but said it didn’t look like a seizure to them
 This was mere questioning with no actions that created a higher level
of coercion. There was no brandishing of weapons, no orders or
threats, etc.
o Dissent (Marshall) – high level of intimidation given the close proximity so
questioning in confined spaces should be a seizure.
Pursuit

CA v. Hodari D. - kid saw cops, cop yelled stop and ran after him and tackled him.
Was there a seizure at the time he yelled stop? Was there physical force→ no, so was
there a show of authority→ Yes. BUT, there was no SUBMISSION to authority.
Seizure means some kind of control. If someone escapes, there is no seizure. There
has to be some kind of physical control.
o A momentary seizure is when officer has control and then looses control
o Test – Would a reasonable person feel free to leave given the authority use of
physical force or show of authority? But in order for there to be a seizure
there must be a show of authority and submission.
o Dissent – seizure should be broad (show of authority w/o submission).
2. Was it unreasonable?



Ask: was there a search warrant and probable cause? If not, was there a warrant
exception?
Boyd→ 4th and 5th amendments go together- “unreasonable” in 4th amendment is
defined in 5th amendment (anything that makes one testify against themselves)
Schmerber→ clause 2 of 4th amendment defines what unreasonable is (search and
seizure without probable cause and warrant = unreasonable)
o There can be warrant exceptions (like exigencies):
 in Schmerber, alcohol leaves the blood system over time (doctor took
the blood in a hospital)
 emergency→ in Warden v. Hayden, police were looking for a suspect
who was armed and dangerous
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
5th amendment → protects one from testifying against oneself:
o testimonial evidence only (does not apply to physical evidence)
 In Schmerber, blood test is okay
o in Hudbell (2000), Thomas and Scalia say that 5th amendment does extend to
protect physical evidence - want to reexpand 5th amendment to cover physical
evidence
3. Exclusionary Rule

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


Exclusionary Rule – illegally obtained evidence will be excluded at trial
o Policy:
 Deter police from violating 4th amendment
 Individual remedy for people who’s rights were violated
 Judicial integrity

Evidence obtained in violation of 4th shouldn’t be used in
trial…don’t want tainted evidence.
 Right-remedy link
o Also, this takes away the incentive there is to violate the 4th amendment,
because evidence won’t be allowed if violate it
ER is the remedy of a 4th amendment violation
Weeks v. US - 1st formulation of ER came from Weeks (while guy was being arrested,
police searched his house and found evidence- court said violation of 4th amendment,
so evidence cant be used in court)
o Two reasons for exclusionary rule: Δ needs an individual remedy, and a
remedy will act as a deterrent.
o Basis for ER:
 Exclusionary rule is a federal rule of evidence (separate from the 4th);
or
 Inherent in the 4th is a right to exclude evidence obtained in violation
of the 4th.
Mapp v. OH (police forced way into woman’s home and took evidence)→ ER does
apply to states. Policy reasons: inherent right, judicial integrity, general deterrence
o ER is inherent in the 4th and therefore applicable to the state through
incorporation (so it’s not a federal rule of evidence because FRE are not
applicable to the states).
Justification for ER and Alternative Remedies:
o Deterrence
 Main and only justification cited today (and since the 70s)
 Also there is no remedy if innocent persons are subject to unlawful
search and seizure, so deterrence is particularly important.
o Downside: criminals go free…so courts must balance this with deterrence.
o Alternative Remedies:
 Civil or criminal liability for officer who violates the 4th

Suspect would have to go to police who are trying to convicted
the suspect in order to get this remedy; suspects are criminals
so they don’t want to deal with the police or judicial system;
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
juries will likely side with police; and legislature would have to
create these remedies.
US v. Calandrana (1974) – court stated that exclusionary rule was a “judge made
rule” and not part of 4th amendment (it’s a judicially created rule to protect the 4th’s
rights). Reasoning for ER is deterrence (policy for determining ER’s scope is based
on deterrence alone).
C. Probable Cause Requirement of 2nd Clause of 4th Amendment
A reasonable search is a search based on PC and obtaining a warrant.
Magistrates issues warrants if there is PC. Requirements to be a magistrate:
 can not be somebody in crime fighting (some think can’t be in the executive branch at
all)→ they must be detached and neutral
 have to be capable of making PC determination (low standard)
PC definition→ totality or circumstances test
 fluid and common sense test
 objective test→ reasonableness
 around 30% likely that somebody has committed a crime (lower than what justifies
conviction)
 more than a mere suspicion
 fair probability and substantial basis for believing
o PC – Arrest: PC to arrest “exists where the facts and circumstances within the
officer’s knowledge and of which they have reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable
caution…” (Brinegar v. US)
PC Test
 Objective reasonableness standard
 Totality of the circumstances test
 Fluid test meant to turn on common sense
Reasons PC is a requirement:
 warrant preference→ warrant searches are favored over warrantless searches b/c:
o they are issued by a neutral detached magistrate
o police are involved in crime fighting and have an incentive to search w/o
PC→ may be over zealous
 if warrantless searches w/o PC were constitutional, there would be no incentive for
the police to seek a warrant
PC for search and seizures→
 there has been a crime
 police are going to look in a place
o particularity→ no blanket warrants/ general warrants→ need to know specific
crime and specific evidence looking for. Needs to be reasonably particular.
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
for items relating to crime
Probable Cause in the Area of Tips / Informants
Spinelli v. US → informant says guy was a bookee:
 (Old) Strict 2-Prong Test (to determine whether an informant’s information meets the
probable cause requirement)
o Veracity
 Corroboration

Corroborate informant’s information
 Reliability

Informant’s past record (i.e. 24 of his 26 tips have been right)
 Statement against Interest

Usually seen as truthful because why would someone tell an
incriminating lie.
o Basis of Knowledge
 First-hand Observation

“I saw it…”
 Secondhand Observation

Veracity / Basis of knowledge must be determined with respect
to informant who told our informant
 Self-Verifying Details

Informant knows so much with such detail that information has
to be firsthand or close secondhand knowledge.
 Warrant Process –
o Officer’s information is placed in an affidavit and given to the magistrate to
make a detached and neutral PC determination. Affidavit must have:
 Veracity – satisfied by officer’s oath or affirmation; and
 Basis of Knowledge – officer’s basis of knowledge could include 1st
hand witnessed account, inference drawn from facts / circumstances,
or hearsay (information from an informant…so must apply veracity /
basis of knowledge test from above)
Illinois v. Gates – does away with 2-prong veracity / basis of knowledge test:
 Letter tip that couple was selling drugs and would be going to FL to get some and the
date. Police arrested them on the way back and found a lot of drugs.
o SC said that this is a totality of the circumstances test that veracity and basis
of knowledge are just a part of.
 Magistrate’s job is to make a practical, common sense decision whether, given all the
circumstances set forth in the affidavit before him, including the “veracity” and “basis
of knowledge” of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular case
o In this case, the tip predicted future activity. Had a lot of self verifying
information, so probably right about drugs, too.
 Policy reasons for TOC test→
o nonlawyers are issuing warrants- need to have easy common sense test
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o the harder it is to get a warrant, officers will have incentive to do pretextual
searches instead of going to magistrate
o tips (which are good information) wouldn’t really be able to be used a lot
under old test
State Constitutions with Respect to Tips:
 State Constitutions can always apply a higher level of protection (Constitution is the
floor-level)…so many States apply Spinelli to their state constitutions.
Standard of Review for PC Decisions:
 magistrate’s finding of fact will be reviewed by clearly erroneous standard
 magistrate’s determinations of mixed questions of fact and law will be reviewed de
novo.
 Use de novo for police officer’s determination of PC→ warrant preference theory
Probable Cause in the Area of Pretext
Wren v. US - subjective intent of cop is irrelevant if there is probable cause
 Police pulled guy over for traffic violation. There was PC to pull him over for the
traffic violation, so it was a reasonable, lawful stop. Π argues that the stop was
pretextual to search for drugs, which the officers did find in the car.
o SC said pretextual stops are okay as long as there was PC.
 People who think there were racially profiled can still bring an Equal Protection
claim→ then they will get strict scrutiny (for racial profiling)
o If stop is vindictive arrest rather than race…can bring EP if prove that are in a
class of one (officer’s ex-girlfriend’s new boyfriend) but class of one gets
RBR (but animus fails RBR).
o Reasons would want to bring claim as a 4th amendment violation rather than a
EP violation:
 EP are harder to prove (requires intentional discrimination)
 In EP suits, remedy is not exclusion of evidence
 Rule
o NO pretext analysis when there is PC. Argue EPC if there is a concern with
pretext. SS is applied to race and RBR to a class of one.
C. Warrant Requirement of 2nd Clause of 4th Amendment
Warrant Preference
 US v. Ventresca: Great deference is given to a magistrate who determines to issue a
warrant. There is a lower level of probable cause required and the magistrate’s
decision is given great deference. Police who do a warrentless search have a higher
level of probable cause and their decision is review de novo.
 Magistrates
Warrant
Probable cause (low)
great deference
Police
Warrantless Probable cause (high)
de novo
Execution of Warrants
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Execution within a specified time
o concerned about staleness→ items looking for are mobile- after 10 days, not
clear that there is still PC because items may have been moved
Prohibition on nighttime executions of warrants (except in special situations→ people
who are only home at nighttime, activity that does not occur until the middle of the
night, extremely dangerous suspects that officers want to take by surprise)
o policy→ safety reasons→ sleeping people may not answer the door, officer
may kick it in, shoot out; greater intrusion of privacy
Means of entry→
o “knock and announce” is required by 4th amend→ officers have to knock,
announce their presence, and give reason they are there. Banks (2003) gives
an additional requirement that the officers must wait a reasonable amount of
time (i.e. at least 15-20 seconds in narcotics cases) before breaking in.
 Ask what is reasonable→ if looking for stolen piano, reasonable
amount of time will be longer because suspect can’t hide a piano
o Policy→ minimizes property damage, violence, and slighter intrusion to
privacy
o When this requirement if waived→ if officers have a quantum of suspicion
(reasonable suspicion) of some kind of futility or danger to officers→ officer
thinks suspect will destroy/hide evidence or run or be violent, officer does not
have to knock and announce.
o Some states issue no knock warrants
Can do damage to property ONLY that is reasonable (break down a door), but cannot
do damage that is unreasonable
Police can still execute warrants when nobody is on premises (suspect can’t avoid
search by abandoning their home).
o Police must leave a copy of the warrant and an inventory of the items seized.
WARRANT EXCEPTIONS – Exigency, Automobile Exception,
Exigency
Requirements from Warden v. Hayden:
 police have PC
 there is an exigent circumstance
o in Welch v. Wisconsin, there was no exigency because drunk driving suspect
was in home asleep (danger had ended). SC also said police could not use
Schmerber argument because suspect has not committed a serious enough
crime to allow warrantless entry into this home
 the police did not create the exigency
 the scope of the search is tied to the exigency→ the exigency ends when danger is
avoided→ it is narrow
o if only looking for suspect, can look anywhere suspect could hide; if only
looking for weapon, can look anywhere weapon would be
o police must stop searching when they are satisfied they have located all
suspects and weapons
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Exigency (situations of hot pursuit, escape of suspects, destruction of evidence, danger to
officers)
 Exigent circumstances can give police right to search without a warrant
o Warden v. Hayden – HOT PURSUIT
 Police didn’t have time to get a warrant they were trying to apprehend
an armed and dangerous suspect.
 Scope of the exigency determines the scope of the search. Once
exigency disappears, so does warrantless search ability
 When there’s insufficient exigency
o Welsh v. Wisconsin
 Exigent-based warrantless search no good for police looking for minor
offense suspect (DUI suspect who had passed out inside his home)
 Police can’t create exigent situation
o Vale v. Louisiana - Police get arrest warrant for suspected drug dealer, come
to house, and watch and witness drug deal in front yard. They arrest D., and
then go in and search, looking for other people, and to prevent destruction of
evidence.
 Court says police cannot create their own exigency. Here they already
had Δ in custody, and could’ve gotten a search warrant at same time
they got arrest warrant. Search of house is no good.
 Temporary seizure until warrant obtained
o Illinois v. McArthur
 As woman escorted from premise following domestic disturbance call,
she says drugs inside with guy. Police can keep guy on porch and
temporarily seize until warrant arrives.
 Destruction of evidence constitutes an exigency
o Schmerber – alcohol would leave blood stream
Automobile Exception – per se exigency
Mobility doctrine→ since autos are inherently mobile, courts have found per se exigency
to search without warrant because fear of losing evidence
 Do not get exception when:
o if vehicle is obviously not mobile (on blocks)
o if vehicle appears to being used as home
o vehicle is in garage or on curtilage (part of home)
 these facts should be judged as they appear to the officer
 don’t need warrant exception if vehicle is being used in a crime because it can be
seized as contraband
 policy reasons for mobility doctrine→
o there is a diminished expectation of privacy since
 people can see into an auto
 cars are heavily regulated- people know they can be searched often
 car is not repository for personal effects as is luggage or home
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Carroll v. US - 1st case to establish that warrantless search of car is ok as long as police
have PC.
Chambers v. Maroney
 Officers impounded car after arrest, waited a few hours, then searched it. SC said that
is ok- no difference if search it at the time and location of arrest or at police station
later- no exigency required.
 Vale says warrentless seizure over warrentless search, but in the context of cars this
doesn’t apply (warrentless searches and seizures are treated the same).
 Dissent – follow Vale, searches are more intrusive than seizures so cure the exigency
with seizure. If you would rather your car be searched (b/c nothing to hide) then
consent to search and be on your way.
CA v. Carney – man was giving kids drugs for having sex with him in his mobile home.
He argued that the mobile home COULD be used as a residence. SC said not going to
make distinctions between types of autos. As long as it appears readily mobile and not
currently being used as a residence to police, the exception will apply.
D. Container Laws
US v. Chadwick
 Amtrak folks see talcum powder coming out of large trunk on train (talcum is used to
mask the smell of drugs). Police arrest Chadwick, seize trunk and take it to station
and open it there. US wanted mobile container exception similar to the auto
exception. SC said no→ no warrant exception for luggage. There is a heightened
expectation of privacy (luggage is not regulated like cars are, not visible to the public,
and it’s a repository for personal effects).
 There is no “automobile” exception applied to containers. Seize the luggage /
container and search it after attaining a warrant.
Arkansas v. Sanders
 Δ put luggage in car and police stepped in and searched. Court said don’t lose
expectation of privacy by putting it in a car (now bad law).
o No warrant exception when PC is related only to luggage and not car.
US v. Ross
 Police had PC to believe there were drugs in car. They came across container and
searched it. That was ok because PC attached to the car and container was in the car.
o PC attached to vehicle in which container was found…we’re under Chambers.
California v. Acevado - SC overruled Sanders and created a warrant exception when
container is placed in automobile.
 Policy for new rule→ this is a bright line rule (old rule was too hard), mobility
concern is the same once somebody puts container in auto, privacy interest is reduced
once container is placed in automobile; also, it is less intrusive to let the police search
the container, because if not, they may seize the entire car
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
REMEMBER→ scope is only that of the scope of PC. If police believe there are
drugs in a container in a trunk, can only search trunk.
Current container law →
 From no warrant exception to warrant exception:
o Container not in a car, apply Chadwick
 no warrant exception, must have PC and a warrant to search
o Container in a car – warrant exception applies so container can be searched,
apply Acevedo / Ross
 Old Law:

Robbins plurality said no containers in the vehicle fall under
the warrant exception period. Later distinction was made
between PC attached to container v. PC attached to car:
o Sanders – no warrant exception when PC attached to
container in car
o Ross says when PC attaches to the whole car then
warrant exception applies to containers in the car.
 Justice Split –
o Harlan wants no exception (far on the right)
o Scalia wants exception to apply to all closed containers (regardless of car…so
he’s on far left)
 WY v. Hougton → SC said doesn’t matter who owns container (passenger/ driver).
 Pockets are not containers→ still a heightened sense of security/ clothes are treated as
person
 No SC case about containers people are holding (purse, jacket, etc). Most lower
courts say no auto exception but if get out of auto and leave it in the auto, falls under
Acevedo.
E. Seizures with Respect to Persons
US v. Watson - informant gave information that Watson was in possession of stolen credit
cards, and set up at meeting with Watson at which he signaled to waiting police that
Watson had stolen credit cards right then. Police moved in and arrested him and asked to
search his car, which he consented to.
 SC→ when police have PC to believe that an offense is taking place in their presence
and that the suspect is at the moment in possession of the evidence, exigent
circumstances exist because delay would cause escape of suspect or destruction of
evidence.
 Policy reasons→ warrant requirement would severely hamper effective law
enforcement, police couldn’t arrest anyone under surveillance (if they had gotten
warrant, it would be stale but if they hadn’t gotten warrant, they wouldn’t be able to
make arrest).
o At common law didn’t need warrant to arrest, original understanding was no
warrant for arrest, and weight of historical practice / tradition say no warrant.
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This means that in searches there is a strong warrant presumption, and in seizures,
there is not a strong warrant presumption, would have to litigate case by case to
determine if exigency was sufficient
Dissent – historical analysis is wrong because “felony” is much broader now so court
has widened the scope of arrests that can be made without warrants.
Majority rule today→
 No warrant required for felony arrest in public (only need probable cause)
o Public = public place or place of public accommodation
 No warrant required for misdemeanor committed in the officer’s presence (this means
officer witnesses the misdemeanor using his 5 senses)
o Atwater v. City of Lago Vista (soccer mom case), mom was pulled over and
then arrested for not wearing a seatbelt and not having her kids strapped in.
SC→ if officer has PC to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the 4th
amendment, arrest the offender/ doesn’t matter how small the crime is or that
it’s not a breach or the peace
 policy→ too difficult for police to have to make decisions about
whether an offense is minor
 Misdemeanor not committed in the officer’s presence is not settled
o Common law says there must be probable cause and a warrant (or warrant
exception)
F. Search Incident to Arrest
Chimel v. California
 If there is a valid arrest, the officer automatically gets to search the person and their
wingspan. If a search is to be allowed because of the arrest, it should be limited in
scope to the area within the suspect’s immediate control (reach or grabbing area).
 Scope: Area of Control of the suspect, including o the suspect’s person
o immediate grabbing area of the suspect
 often wing span of person plus a few feet, or
 “rubber-man standard” that treats suspects grabbing area as if he
were able to stretch
 Justification: There must be some justification –
o Police safety (getting weapons out of suspect’s reach) or
o Destruction of Evidence
Area of Control and other Issues
 How big is grabbing area? Some lower courts have the 1 room rule while other
courts have “rubber man” approach (willing to use wing span plus several feet)
 Area of immediate control
o on the person
o immediate grabbing area of the suspect (wing span of the person)→
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this includes drawers, locked and unlocked containers, entire
passenger compartment of vehicle, etc.
 Maryland v. Buie says closets in room where person is arrested
 does NOT include any room other than the room where suspect is
arrested
Container Search – officers cannot search a container without a warrant, but if there is
probable cause to arrest then the container can be searched incident to arrest (if
container is within suspect’s area of control)
o Search must be done contemporaneously with arrest (Chadwick lost SIA
argument b/c footlocker wasn’t searched until back at station).
If arrest is invalid b/c no PC, all evidence would be tainted and not allowable.
It is a violation for officers to corral a suspect to a certain area to make the arrest so
they can search that area.
Knowles v. Iowa – must be an arrest to use “search incident to arrest”
 Court invalidated Iowa’s “search incident to citation”
 Policy reason is that neither of the policy concerns for the automatic search are
present if there is not an arrest (no additional evidence and no danger to police).
 Circumvention:
o Atwater allows arrest for minor traffic violations; or
o Announce arrest then search and if don’t find anything release; or
o Ask for consent and then make an arrest if the person doesn’t consent. Then
release the suspect if they don’t find anything.
US v. Robinson
 Police arrest a man for driving without a license and then do a pat down. They feel a
cig package and look inside it and find drugs. Robinson argues that there was no way
police could be looking for evidence of him driving without a license in a cigarette
package and it was obvious there was no weapon in it. SC said this is an
AUTOMATIC search.
o BLACK LETTER – officer automatically gets to search the wingspan and the
person when there is a valid arrest
 Dissent – wants case-by-case analysis to balance state interests against intrusion on
individuals. Want to divide search into stages:
o Frisk – obvious within the scope of a search incident to arrest;
o Removing object – may or may not violate the 4th (could be another type of
small harmful weapon);
o Opening the package – violates the Constitution because it clearly wasn’t a
weapon and there was no need to search for evidence for a minor traffic stop.
Special Vehicle Rule – New York v. Belton
 Police pulled over speeding car, occupants got out and were arrested. Police did
search incident to arrest of car, even though the boys were arrested outside the car.
SC makes special rule that as part of search incident to arrest, can search entire
passenger compartment of vehicle including the glove box and containers in the
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passenger compartment. Arrestee must be an occupant or recent occupant of the
car. Does not include the trunk.
Policy / Reasoning:
o People will often reach into their gloves box for weapon, so officer safety
o If not this bright line rule of the entire compartment, too hard to apply→ how
long are the arrestee’s arms, etc.
o If Chimel is applied straightforwardly, have to arrest suspect and do search
while he is in the car which is very dangerous
Difference between Chambers (auto exception) and this case → Chambers is a
warrant exception but still must have PC (and can search the trunk under Chambers).
This is an automatic search and cannot search the trunk.
Thorton v. US
 Officer didn’t make contact with Π until he was outside of car, but SC said search
was still okay because he was a recent occupant of the car. Reaffirmed Belton
G. Arrests in the Home
Payton v. NY
 Police broke into man’s house that they did not have a warrant to arrest. SC→ must
have an arrest warrant AND PC to think the suspect is in the home to enter a home
to make an arrest.
o Need arrest warrant to enter, but do not need search warrant
 Need PC suspect is in the home, in addition to probable cause
 search warrant v. arrest warrant → search warrant allows entry while arrest warrant
allows entry only if there is PC that suspect is there. Standard for a search warrant is
higher so courts allow arrest warrants to pierce privacy rights of the home (but can
still arrest a person with only a search warrant).
 Policy for requiring arrest warrant→
o Protecting privacy in home
o Still puts magistrate between police and entry into home (if not, officer could
use plain view doctrine below to go in and search)→ magistrate knows arrest
warrants will often be used to go into someone’s house
o Search warrants go stale, but arrest warrants do not
US v. Steagald
 If officers want to arrest suspect in 3rd party home, need an arrest warrant AND a
search warrant (that person X is being searched for)
 Policy → court thinks privacy interest are strong for 3rd party and this will help
prevent government abuse (waiting until suspect is in neighbor’s house if they want
to search that neighbor’s house anyway to make arrest). Also, 3rd party does not get
the derivative protection from arrest warrant + PC that arrestee does in his own home
 Exceptions → exigency, consent
 Standing - if police go into 3rd party house without search warrant and seize drugs in
plain view, arrestee cannot raise 4th amend claim to suppress evidence because it was
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not HIS 4th amend violations that were violated→ it was his neighbors. He lacks
standing.
o Can make argument that if someone has spent only one night in someone’s
home, that home has become a temporary residence (so hey have standing)
Protective Sweep – Maryland v. Buie
 Police got arrest warrant for man who robbed restaurant. They went into his house
and fanned through to find him. Officer stood at top of basement stairs and yelled for
anyone down there to come out with their hands up. Buie showed his hands and
came out. Officer still went down and seized clothing that matched clothing worn at
robbery. Buie argued that when he surrendered, search had to stop.
 SC→
o A protective sweep is a quick and limited search of premises, incident to arrest
and conducted to protect safety of police officers or others→ narrowly
confined to cursory visual inspection of those places in which a person may be
hiding (cant look in small containers)
 This is an AUTOMATIC search as long as it is in an area immediately
adjoining place of arrest

Have to have reasonable suspicion that someone is there that
poses a threat to officers to look beyond that area
o To determine reasonableness, must balance intrusion on individual’s 4th
amend rights v. its promotion of legitimate government interests
o Policy for protective sweep rule → police may be ambushed (officer safety)
H. Stop and Frisk
Terry v. State of Ohio
 Police saw 2 guys casing a store, approached them, asked some questions, ended up
patting them down and finding concealed weapons. SC → don’t need PC if a
reasonably prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger - only needs reasonable suspicion.
 Stop and Frisk v. Seizure and Search
o Mendenhall / Terry Test – a person is seized when a reasonable person would
have thought he was not free to leave….so “stop” is a seizure.
o Frisk is a mini-search (invasive touching of one’s person)
 Factors for reasonable suspicion:
o Totality of circumstances with language of reasonableness and it’s a fluid test
o Have to balance government interest v. articulable facts which taken together
with rational inferences from those facts, reasonably warrant that intrusion→
objective standard
 government interest→ crime prevention and police being assured that
person with whom he is dealing is not armed
 personal interest→ privacy
o need articulable INDIVIDUALIZED facts/ reasons (cant just be a hunch) that:
 for stop→ reasonable suspicion that crime is going on, about to be
committed, has been committed, is being planned
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for frisk→ that someone’s safety is at risk→ this is a weapons frisk

search must be limited in scope to an intrusion designed to
discover guns, knives, clubs, or other hidden instruments for
assault of the officer

this search is simply a pat down search to find weapons
 Reiterated in Ybarra → police execute search warrant in bar and Terry
frisk all patrons. On Ybarra, they found cig pack that contained drugs.
SC said no → have to have individualized suspicion (the reason they
could look in the cig pack in Robinson is b/c there was an arrest and
SIA is automatic)
Terry stop and frisk is limited to confirm or deny suspicion.
Policy reasons that lower reasonable suspicion is substituted for PC:
o lesser invasion of privacy→ stop is not a full seizure/ low level kind of
seizures should require low level quantum of suspicion
o Stop and frisk is a kind of per se exigency so no warrant requirement.
Reasonable Suspicion Test
o Objective reasonable suspicion
o Totality of circumstances
o Particularized to a person
o Articulable facts / reasons
§1983 actions and ER exist to help protect citizens from harassment.
Illinois v. Wardlow
 Police caravan saw group of teens in bad neighborhood → one ran. Each side wanted
per se rule that being in a bad neighborhood does or does not automatically mean
there is reasonable suspicion. SC 9-0 says NO - totality of circumstances - NO PER
SE RULES.
 The following are factors to be considered in TOC Terry stop test:
o Being in a high crime area
o Nervous, evasive behavior
o Immediate flight from police
 5 justices say High crime area + flight = reasonable suspicion.
Scope of Frisks and Stops
Scope of Frisks
 A frisk is a pat-down of a person’s outer clothing in search of a weapon.
o What if object is felt, but its unidentifiable? Officer has reasonable suspicion
that suspect is armed or dangers. The Court allows officer to reach in and take
out the undeterminable objects. If you cannot tell whether or not it’s a
weapon, then the item can be examined.
 If you pull it out and it’s not a gun, but its crack then it can be seized
and suspect can be arrested under the plain-view doctrine.
 Dickerson (1993)
o Plain-Touch Doctrine – if an officer touches an object and knows it’s not a
gun, but he does realize its contraband then the item can be seized. But the
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officer must simultaneously realize the object isn’t a gun, but it is some sort of
contraband.
 If the officer removes the object its under plain-view…if the officer
uncovers the item simply by touch then it’s under plain-touch.
Containers
o Soft Container - If the container could contain a weapon then the soft-sided
container should be squeezed or felt. If the officer still cannot tell whether or
not the container contains a weapon, the officer can open the container.
Search of the container must end as soon as the officer knows the container
doesn’t contain a weapon.
o Hard Container - most courts allow officers to open the hard-sided container
because a pat down of a hard-sided container would be useless.
Scope of Stops
 Terry Stops v. Custodial Arrest
o For custodial arrest there must be probable cause, but stops only require
reasonable suspicion.
 Traffic stops are Terry stops.
 Distinguishing factors
o Time
 Terry stops are suppose to be very brief (person can only be held for a
reasonable amount of time - Sharpe). Officers must act with due or
reasonable diligence to confirm or dispel their suspicion.
o Spatial
 Dunaway – putting an unwilling suspect in a squad car and moving
him to the police station is a full custodial arrest so there must be
probable cause. Movement of a suspect to a place of investigation
creates full custodial arrest rather than a Terry stop.
o Intensity
 Terry stop may turn into a full custodial arrest if the intensity is
elevated. If the officers use handcuffs or force this is no longer a stop.
 Investigatory Limits
o If the stop is a Terry search can the police then perform consent searches or
bring out drug dogs?
o Caballes – is there an investigatory limit to a stop? Can the officers bring out
drug dogs if the stop was because of a traffic violation?
 7-2 the Court says drug dogs are ok. Use of a drug dogs is not a search
or seizure…so a drug dog being used during a routine traffic stop is
ok. Place says drug dogs are not a search!
 Dissents – Dogs are sense enhancing devices, so Place should be
reexamined.
o Consent Searches – can you ask for consent searches during a Terry stop?
 Ohio v. Robinette (1996) – Court assumed such requests were ok, but
the Court did not analyze the reasoning
Reasonable Suspicion in the Area of Tips
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Alabama v. White
 Tip that woman would be leaving apt building and delivering drugs. Can anonymous
tip form basis of reasonable suspicion?
o Framework for analysis is Gates – TOC test utilizing veracity and basis of
knowledge. However Gates concerns probable cause, but White deals with
reasonable suspicion.
Florida v. JL
 Not enough to establish reasonable suspicion that tip said guy in plaid shirt on certain
street corner has a gun because no predictive information (or strong self-verifying
details)
o old outline, says that SC has said there MIGHT be a bomb exception to the FL
v. JL holding
o old outline also says that there is a diminished expectation of privacy in
schools and airports, so this tip may be enough there
Can Officer Terry Frisk a Car?
Michigan v. Long
 Officer pulled over man, he got out of car, officer looked in car and saw knife, then
did Terry frisk for other weapons of entire passenger compartment. SC holds officer
seeing knife justifies them in reasonable belief that Long posed danger if permitted to
reenter auto. Expanded terry frisk to entire passenger compartment→ also open
containers to dispel or confirm suspicion of weapons.
 Rule
o If person is believed to be reasonably dangerous and there may be weapons in
his car within his reach creates an exception that allows a Terry frisk of the
car based only on reasonable suspicion. This frisk also includes pat down of
containers which could be concealing a weapon.
 Terry frisk v. Belton

Belton can look in containers; Terry can only pat down
containers to see if they contain weapons.

Under Belton, they could have arrested him for DUI,
then searched the entire passenger compartment

In Belton, there was a SIA (there was an arrest; police
can search entire passenger compartment (not trunk)
including containers that may have weapon in them; in
Long, there was only a Terry frisk for weapons (can
only pat down containers and ??? about trunk)
Pennsylvania v. Mimms
 SC held that police may order persons out of an auto during a stop for a traffic
violation, and may frisk those persons for weapons if there is a reasonable belief that
they are armed and dangerous. No particularized suspicion required. Wilson expands
that to passenger.
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o Government interest is officer safety
Individual interest is sitting in car vs. standing outside car (not a big deal)
Maryland v. Wilson
 Expands Mimms to passengers (police can order passengers out of the car during a
stop for traffic violation.
o Can officer detain passenger? Court will likely say there has to be
individualized suspicion to detain passengers. Can balance law enforcement
interest v. interest of passengers.
 Government interest→ may leave with evidence; could get behind
officer and shoot him
 Interest of passenger→ minimal because most of the time they will
stay with driver
Defining Reasonable Suspicion Test
Arvizu (we did not do this one in class, but past years have)
 Police stop van on border. SC says following things do meet TOC test for reasonable
suspicion for Terry stop:
o road is often traveled by drug traffickers
o encountered minivan during shift change (common time for smuggling drugs)
o minivan is auto of choice for drug traffickers
o occupants in car did not look at officers
o kids didn’t wave, then they did, but it looked staged
o kids were sitting with knees up high like there was something on floor
Hiibel v. Nevada
 Under Nevada’s “stop and identify statute” an officer can ask someone to identify
themselves. If they fail to do that, officer can arrest them. SC said if there is a Terry
stop and asking name is reasonably related to the investigation, can arrest if name is
withheld.
Persons on Premises during Execution of Search Warrant
Ybarra v. Illinois
 Police come into a bar to execute a search warrant for bar and bartender. Police frisk
all the customers and when they frisk Ybarra they feel something like a cigarette pack
but they move on to another customer, but then come back and search Ybarra’s
package and find heroin.
o Must have “individualized reasonable suspicion that person is armed and
dangerous” and they did not have it here. [Just being present at bar (public
place) where warrant served is not enough].
 You can detain a person who resides or occupies the premises that is subject to a
search. Summers v. Michigan
o Must balance state interest (flight of person & danger) vs. public interest
(people would want to watch search so intrusion on person is minimal).
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I. Inventory Searches
At the stationhouse, it is proper for police to remove and list or inventory property found
on the person or in the possession of an arrested person who is to be jailed. (IL v.
Lafayette) 4th amend doesn’t require that LEAST intrusive means be used or acquire a
warrant or have individualized suspicion. This is a special needs search → has nothing to
do with the investigation.
Illinois v. Lafayette
 Elements required to have valid inventory search:
o lawful custodial arrest
o standard operating procedures (so police don’t randomly search)
o incarceration must follow (cant book him, do inventory search, then release
him)
 Policy reasons → balance state interest v. individual’s privacy interest
o state interest:
 protect police from false claims of property loss
 concerned with police safety (bombs)
 prevents arrestee form harming himself or other with hidden weapons
 protect property (inhibits theft or careless handling of articles taken
from the arrested person)
 need to ID person (may find real name)
 this is police acting as clerks, and not officers as this is not crime
fighting
Automobile Inventory Searches
CO v. Bertine
 Police arrested man, impounded his car, inventory searched it. SC said didn’t matter
that “standard operating procedures” had 3 choices of what to do with auto in this
case - it did give some limitation of officer discretion→ guidelines told them which to
do in certain cases. In this case, there was good faith that this was done for special
needs and not for criminal investigation. Least restrictive means is NOT required.
 It doesn’t matter that this car would be impounded at private lot instead of
stationhouse because still trying to guard against false claims, etc. even though there
would no longer be a threat to police
 Container in Vehicle
o Automobiles and containers within are subject to inventory searches…they
can look in all containers.
 Florida v. Wells – Police may choose to open all containers that are
large enough to contain a weapon and not other closed containers;
discretion can be allowed on whether or not to open closed containers
as long as there is guidance in SOP.
27
J. Checkpoints
Prouse
 “Roving patrol” case – officer was spot checking for license and registration
violations. This violates the 4th amendment because there is no RS or PC.
 Balancing state interest v. privacy interest
o state interest is highway safety
o privacy interest is high and intrusion is high because people have fear and
surprise when they get blue lighted.
Michigan Dept. of State Police v. Sitz
 Police set up sobriety checkpoints based on SOP. The argument is that there is no
individualized suspicion. SC said:
o stopping car at checkpoint is a seizure, so seizure must be reasonable
 Are those seizures reasonable? Do Brown v. Texas (known as Brown balancing):
o State Interest in safety is very high
o Degree of intrusion - Fear and surprise may be involved, but if a person is
sober the fear and surprise is minimal. At a checkpoint (rather than roving
patrol), other cars are being stopped and you’re assured the people stopping
you are uniformed police officers.
o Effectiveness of the program in achieving the state interest
 Approx. 1.5% of the drivers were arrested…this was compared to
Martinez (which allowed checkpoints near the boarder). Martinez’s
effective rate was less than 1%, so comparatively the sobriety
checkpoint was effective
 This case suggested that the following categories are okay for checkpoints: license
and vehicle registration, aliens, drunk driving.
City of Indianapolis v. Edmond
 Primary purpose of the checkpoint must be a special need that has a nexus to road
safety. In Edmond, the primary purpose of the checkpoint was to walk a drug dog
around the car to see if there were drugs in the car (to investigate criminal activity/
general crime fighting).
 For stops where general crime fighting is the goal, there has to be individualized
suspicion
o Exception → exigency or places where need for public safety can be acute,
like airports or government buildings
 Criticism of this case→ it is a magic words case (just call is sobriety checkpoint
instead of narcotics checkpoint and its ok)
 Dissent says subjective intent of officers shouldn’t matter as long as there is a lawful
stop (Wren)
 If get a checkpoints question on test, try to argue primary purpose. Things to argue
that drug control is the primary purpose→ location, drug dogs. If drugs are primary
purpose then the checkpoint is invalid.
Lidster
28

Officers went back to scene of hit and run one week later to look for witnesses.
Lidster was driving drunk and arrested when he went through the checkpoint. SC
upheld checkpoint because particularized special needs.
Checkpoints (Review)
 (1) Must pass Brown Balancing
o State interest
o Level of intrusion
o Effectiveness of the program in achieving the state interest
 (2) Standard Operating Procedures
 (3) Must serve a “special need”
o Not for generalized crime-fighting purpose
From Special Needs Handout:
Border searches:
Ramsey
 Upheld border searches without probable cause and individualized suspicion. Can be
a full search of bags. Court does balancing analysis:
o Level of intrusion is low b/c there is a low expectation of privacy at borders
o outweighed by special needs of state interest of the integrity of borders
 Although no individualized suspicion is required for the initial Terry stop, have to
have reasonable suspicion for any further detention, and PC for a full arrest.
Searches at schools:
New Jersey v. TLO
 Rejects warrant requirement and probable cause in favor of reasonable suspicion
standard. If there is reasonable suspicion that the law or school rules has been
violated then school officials can search within the limits of the suspicion. The
special need is likely discipline and safety in schools.
o School officials must have (1) reasonable suspicion at the time the search is
undertaken and (2) limit the search specifically to the area reasonably
included in that suspicion.
Drug testing in schools

Vernonia School District – upholding random drug test of student-athletes; Board of
Education v. Earls – upholding random drug testing of students involved in
competitive extracurricular activities.
o These students are separate from the whole student body because students
choose to participate in these extracurricular activities. Court doesn’t analyze
this as a consent search but basically the Court is saying if you don’t want to
be drug tested then don’t play football, etc.
Search of the Office of Government Employee
29

O’Connor v. Ortega – upheld the search of an office of a government employee if
there are reasonable grounds for suspicion of work-related misconduct; OR if search
is necessary for a work-related purpose.
Drug Testing in Government Employment
 Von Raab – upheld drug test for customs employees seeking transfers or promotions
to positions involving drug interaction.
 Skinner – upheld drug testing for railway employees involved in train accidents.
 Chandler v. Miller – INVALIDATED drug testing for candidates for state elective
offices. There are no safety concerns like the kinds that are present when workers are
carrying firearms or operating trains!
K. Consent Searches
Schneckloth v. Bustamonte
 Consent search has to be reasonable. To be reasonable, has to be voluntary based on
TOC test.
o TOC Test – Mendenhall Reasonableness Test
 Would a reasonable person feel obligated to agree to the search
 To see if consent was voluntary, look for signs of coercion→ officer saying there will
be hell to pay if don’t let me look in you car, etc.
 Policy for TOC test is that consent searches is big part of crime fighting and if
officers had to tell everyone they pulled over they didn’t have to consent, there
wouldn’t be any consent searches. Also, asking if they consent implies that they can
refuse.
 Dissent wanted test of Johnson→ waiver must be knowing, intelligent, and voluntary
Ohio v. Robinette
 Robinette pulled over for speeding and given a ticket. Officer then asks to search his
car. Robinette wants test to be officer has to tell him that he was free to leave or not
consent before asking him to consent to search.
o SC said no…knowledge of right to refuse is not required for consent to be
valid.
o Consent search must be reasonable and valid based on TOC. Knowledge and
right to refuse is one factor, but its not require.
 Custody – persons under full custodial arrest can give consent to search. The fact that
person is in “custody” is one factor to consider.
 Unlawful Detention
o Officer has a reasonable amount of time to conduct the stop. So whether the
consent search is at beginning or end as long as there is no unreasonable
delay…there is no unlawful detention.
Scope of consent search
30


Scope of consent is what the suspect consents too. If there is ambiguity, question is
how does it reasonably appear to the officer. Person granting the consent can limit
the search, revoke consent, etc.
In Florida v. Jimeno, guy consented to search of his car. Police found drugs in paper
bag. Jimeno agued he didn’t consent to search of containers.
o SC said a reasonable officer would have interpreted the consent to include
containers.
3rd party consent
Illinois v. Rodriguez
 Woman told police her boyfriend had drugs and she let them into his apartment with
key and consented to them searching. Was that reasonable?
 Matlock was precedent:
o If person consents to search of common area, that is fine even if the other is
not there. There is an assumption of risk when you have roommate. There is
common authority over the area.
 Have to determine if there was common authority. All that is required
is reasonable appearance of authority.
o Courts are split over what happens if both are there, one says no and one says
yes
Consent in the face of authority
Bumper v. North Carolina
 Police waived piece of paper in front of Bumper and said it was a search warrant. He
consented. SC said that was not valid consent because it was not voluntary consent, it
was just him saying ok to the show of authority.
L. Plain View Doctrine
Allows police to seize items found within plain view. There are 3 requirements:
 lawful vantage point (can see item from someplace officer is lawfully entitled to be)
 right of access to item (officer is legally allowed to go get the item)
 immediately apparent that the item is subject to seizure b/c its association with crime
Policy
 Does not affect privacy because already have a warrant to be there. Only affects
possession.
 Warrant exception to seizure…no warrant is needed to seize the item.
Horton v. California
 Police had only fruits of crime listed in warrant (Coins- very small things). While
searching, they found weapons and other evidence of crime and seized it too. SC
says there is no requirement that finding of evidence be inadvertent. The subjective
intent of the officer does not matter (Wren).
31

No requirement of inadvertence and no requirement that officers not create the
exigency.
o Privacy interests are not compromised by leaving things out of a warrant, so
there is no need to require inadvertence or “no creation of the exigency.”
o Leaving an item out of a warrant will not affect the scope of the search (if
anything it will decrease the scope of the search).
M. Use of Deadly Force
Tennessee v. Garner
 Police shot and killed 16 yr old who robbed a house who wouldn’t surrender when
the police demanded him to.
 SC - in the balancing test, the personal interest of life outweighs state interest of
effective law enforcement
o Hitting someone with a bullet is a seizure, so this was an unreasonable seizure
that violated the 4th.
 The only time deadly force can be used is when the officer has PC to believe that the
suspect poses a threat of serious physical harm either to officers or to someone else
OR if there is PC to believe that a suspect has committed a crime involving the
infliction or threatened infliction of serious physical harm
 Test
o Officers are limited in the use of deadly force (usually when officer uses
firearms):
 Probable cause to believe suspect posses a significant threat of death
or serious bodily injury (see a weapon);
 Reasonable suspicion (belief) force is necessary to effectuate the arrest
(necessary to prevent escape).
Deadly Force v. Excessive Force
 Graham v. O’Connor
o Excessive force or unreasonable force violates the 4th amendment.
 Totality of the circumstances / reasonableness test
 Nature of the crime or offense
 How much resistance is being offered?
 Level of threat to the officer
 Tests:
o Deadly Force Test = Garner
o Excessive Force Test = Graham
 These are not suppression of evidence cases…these are 1983 cases for civil remedies
(against police who used excessive or unreasonable deadly force)
END OF 4th AMENDMENT
32
III. EXCLUSIONARY RULE and Fruit of the Poisonous Tree
A. Generally
Exclusionary Rule
 If there is a 4th Amendment violation the evidence acquired as a result of that
violation must be suppressed.
Scope of the Exclusionary Rule
 Exclusionary rule doesn’t apply to civil proceedings
o ER does apply in quasi-criminal cases like forfeiture
 Pretrial – not under exclusionary rule (illegally seized evidence can be put before
judge to determine bail, etc.)
 Sentencing phase allows illegally seized evidence (not under the exclusionary rule).
 Also exclusionary rule doesn’t apply to future probation or parole hearings.
B. Standing
Can Δ, whose personal right were not violated, assert the rights of a 3rd party?
Traditional v. Modern Approach
 Traditional – 4th amendment standing analysis that asked 2 questions:
o Was there a 4th amendment violation?
o Does the criminal Δ who wants the exclusion have standing to raise that
violation?
 Target standing→ target of invasion

If you were the target of an invasion then you have standing to
argue exclusion.
 Derivative standing→ based on coconspirator rationale

If conspirator is unlawfully arrested and evidence is obtained
as a result of that violation, I may be able to assert 4th violation
to suppress evidence concerning me (even though I was
lawfully arrested).
 Legitimately on premises (?)
 Modern
o The modern approach is the personal rights approach that rejects standing.
o Only one question→
 Were the personal 4th amendment rights of criminal Δ violated?
Policy Reasons
 Traditional thinking was officers would have incentive to search others houses to find
evidence that they know will be allowable against Δ as long as Δ’s rights were not
violated. So traditional “standing” analysis ensures all 4th violations are punishable
by suppression.
 Modern Personal Rights Approach (Police can enter evidence against criminal
suspect even though obtaining that evidence violated someone’s 4th rights)
33
Rakas v. Illinois (Personal Rights Approach)
 Police found gun in glove box and charged Rakas, who was a passenger with crime.
Rakas claimed his 4th amendment rights were violated by unlawful search and seizure
 SC said to look at Katz and ask is he had a reasonable expectation of privacy in the
area searched.
o In this case, passenger didn’t have REP→ owner does, but passenger doesn’t.
 Court only wants exclusionary rule to operate when Δ’s rights have been
violated…want to minimize the suppression of evidence because all suppression does
is allows criminals to go free.
Rawlings v. KY
 Δ argued that since he claimed ownership in drugs that were found in friend’s purse
he had a privacy interest in the purse. SC said no, can’t say I own those drugs because
property rights standing is dead.
Overnight Guest in Home
Minnesota v. Olson
 An overnight guest in a home does have a reasonable expectation of privacy in the
home. Olson had 4th amendment rights in another’s home because he was an
overnight guest so his 4th amendment rights were violated when police unlawfully
entered the home.
 Need an arrest warrant to go into suspect’s own home to arrest him (Peyton), but need
a search warrant to go into 3rd party’s home to arrest suspect (Stegald).
o Olson tell us because Olson was an overnight guest with REP this was his
temporary dwelling so all police need is an arrest warrant even when he’s at a
3rd party’s home because that has become his temporary home!
MN v. Carter
 Δs were seen through window bagging drugs. Female Δ was paid in drugs for the use
of her home and the other Δs were only there around 2 ½ hours (bagged the drugs and
left).
 SC said no REP - more like a business guest (plumber). Δs were simply visitors there
for business purpose.
 Scalia says only way to have REP in another’s home is be an overnight guest.
 Kennedy says all social guests will have REP.
o 5 votes for social guests having REP.
Cases where could argue had REP in someone else’s car→ road trips, family vacation,
car pool, rental car.
C. Fruit of the Poisonous Tree
ER suppresses primary and derivative evidence.
 Primary - evidence discovered immediately because of 4th amendment violation
34

Derivative – evidence that derives from primary evidence
o Example – primary evidence is rolodex found in trunk of car during illegal
search and seizure. Derivative evidence is interview with person whose phone
number was in the rolodex.
Fruit of the Poisonous Tree (FPT)
 Simply means derivative evidence discovered based on primary evidence that was the
result of 4th violation is ALL suppressed.
o Must understand causation to be able to determine whether the 4th amendment
violation actually caused the police to obtain primary or derivative evidence.
If there is causation the evidence is suppressed…if the chain of causation was
broken then the evidence is not suppressed.
Causation Doctrines under FPT
 But For or Actual/Factual = (i) Independent source and (ii) inevitable discovery
(hypothetical independent source)
 Proximate or Legal Causation = (iii) attenuation or dissipation of the taint
i. Independent Source Doctrine
ISD
 Evidence will be allowed if there is a lawful independent source.
o Example - evidence obtained through an unlawful frisk. If there is another
frisk that is lawful that would have found the same evidence, there is no but
for causation, b/c the 2nd frisk was a lawful independent source.
 Policy → don’t want to make police worse off than they would have been absent the
illegal conduct.
Murry v. US
 Team of officers do an unlawful search then they obtain a warrant and do a lawful
search. Its the same team and only one hour between the 2 searches.
 SC→ cant suppress evidence if the 2nd search was truly independent
o If 1st search is a confirmatory search upon which the 2nd search is based then
the 2nd search is not independent.
 To see if independent, have to look at 2 things:
o Officers motivation in doing 2nd search
 Was the illegal search the motivation for 2nd search?
 Causation analysis→ if officers hadn’t done 1st search, would
they still have done 2nd search?
o What was necessary for the issuance of warrant?
 Nothing that was found in 1st search can be reason for getting warrant
for 2nd search
ii. Inevitable Discovery (hypothetical independent discovery doctrine)
Inevitable Discovery
35

Second lawful path never actually occurs, but would have had a 2nd lawful path if
evidence hadn’t been discovered by 1st unlawful path.
Nix v. Williams
 Δ was given “Christian Burial Speech” which violated 6th Amendment rights, and as a result



Δ showed police where body was buried. Government said they would have found body
anyway because they were searching and close (search teams were within a mile and would
have discovered the body in a few hours).
SC → no exclusion (inevitable discovery doctrine prevents evidence from being suppressed).
They have to only show by a preponderance of evidence they would have found it
Policy - would put police in worse situation if evidence was suppressed (b/c absent the 4th
violation [or 6th violation in this case] they would have found the evidence lawfully.
Circuit courts are concerned about this rule and have put limits on it such as:
o Only allow exception for derivative evidence
o Require police to be actively pursuing a warrant in order to take advantage of this
exception
o If exception is used to avoid getting a warrant, evidence will be excluded
iii. Proximate cause (attenuation or dissipation of the taint)
Attenuation analysis
 Even if there is a “but for” causal relationship that causal relationship is so attenuated
that the taint of the violation has dissipated.
 TOC Test – Look at:
o Proximity in time / place or space
o Remoteness in chain of events
o Act of free will – witness or criminal Δ
o Flagrancy of the violation
o Nature of the evidence
Brown v. Illinois
 Suspect is unlawfully arrested, held and interrogated…he eventually makes 2
incriminating circumstances after being given Miranda warnings. Police try to argue
giving the warnings breaks the chain of causation, but Court says that alone does not
attenuate the taint.
 Wang Sun – Suspect but was unlawfully arrested but later released. He returned a
few days later and gave voluntary incriminating statements. This constitutes an
attenuation of the taint because not only was there free will but there was also time
and the chain of events changed because there was a release.
Nature of the Evidence (last factor in attenuation analysis)
 US v. Ceccolini – Without probable cause cop opens envelope on the counter at a
business and finds evidence of illegal gambling.
o Rule – Taint dissipates faster for verbal evidence than it does for physical
evidence.
36

Court says the nature of the evidence makes a difference in the
analysis. Witnesses’ oral statement is based on free will…taint should
be dissipated faster because of the free will.
Chain of Evidence
 As you move down the chain of evidence (farther removed you become from the
unlawful search), police are not going to be any more deterred. At some point down
the chain of evidence the taint is attenuated because enough evidence has already
been suppressed to deter the 4th violation.
o Why continue to suppress evidence and therefore hurt government’s crime
control function when police have been sufficiently deterred.
Hudson v Michigan (on SC’s docket for 2006)
 Police violated 4th by failing to “knock and announce” and upon entering house they
found narcotics…should evidence be suppressed?
o For Suppression – evidence was discovered following 4th violation so under
ER evidence should be suppressed.
o Against Suppression – under Inevitable Discovery doctrine if police had
announced and knocked the drugs would have been discovered so there is a
hypothetical independent legal path. Counter argument is evidence could
have been destroyed before police legally found it. However Segura, in dicta,
held that there is no right to destroy evidence, so “destruction” argument
against ID would be defeated.
New York v. Harris
 Suspect is unlawfully arrested in his home (b/c police don’t have an arrest warrant).
He later makes statements at the station…SC says statements are admissible. Once
suspect is outside the home no arrest warrant is needed so there is an independent
basis for arresting him (PC). Therefore statements taken at the station were not
derivative of 4th violation.
o This is an independent source analysis
D. Good Faith Exception

Not an exception to Fourth Amendment, but exception to Exclusionary Rule
United States v. Leon
 Evidence obtained pursuant to search warrant later determined to be invalid may be
introduced in prosecution’s case if a reasonably well-trained officer would have
believed warrant was valid
 Situations were officer’s reliance is NOT reasonable
o Officer has misled the magistrate (office knowingly put a false statement
before the magistrate or acted with reckless disregard with respect to the truth
of the statement).
o Wholly abandoned the judicial role
37



Officer knows magistrate didn’t make a probable cause
determination…rather the magistrate rubber stamped the application.
o Lack indicia of Probable cause
 So lacking of indicia of probable cause…officer knows they are
lacking indicia of probable cause so officer can’t reasonably rely on
probable cause determination.
o Warrant is facially deficient
 Plain of the face of the warrant its insufficient
Policy
o No deterrence value in ER if officer reasonably (in “good faith”) believed
warrant was valid
o No need to try to deter magistrates, who won’t want to be overruled on
probable cause anyway
Dissent
o Exclusion would deter magistrate shopping and make officers more careful
(investigate more rather than hope magistrate will “take the bait” of a suspect
warrant); need to retain exclusionary rule
Extending Leon
 Shepard
o Warrant to look for evidence of murder was filed on warrant to look for
evidence of controlled substances. Magistrate said he would change warrant
to one for evidence of murder, but Magistrate forgot. This is not a warrant
that is facially deficient because magistrate assured the police the deficiency
had been corrected. So evidence should not be suppressed because of “good
faith exception” to exclusionary rule.
 Arizona v. Evans
o Court clerk mistakenly said there was a warrant for Δ (when warrant was
supposed to quashed)…that led to officer searching incident to arrest and
finding drugs; drugs admissible (officer reasonably relied, even though court
mistake and arrest was actually unlawful)
 Illinois v. Krull (Nowlin provided no further info.)
o Extends Leon logic to Legislature
o If searches authorized by statutes are later found to be unconstitutional there is
a good faith exception if the police objectively and reasonably relied on
legislator’s determination.
E. Impeachment Exception

Evidence that cannot otherwise be introduced at trial because it is the result of a 4th
violation…can be introduced for the limited purpose of impeachment (i.e. attack the
character of the witness…show that witness isn’t telling the truth).
o Must be accompanied by a limiting instruction that says evidence is for
impeachment purposes only and shouldn’t be used to determine substantive
guilt.
38
Agnello (1925)
 No impeachment exception…but Walder creates an impeachment exception with 3
limitations.
Walder (1950s) – Impeachment exception, but 3 limitations:
 Impeachment evidence is only admissible if impeaching someone on a collateral
crime (crime for which the Δ is not on trial for).
o Importance of this limitation was to protect the Δ from the jury using the
impeaching evidence (argument was limiting instructions won’t work).
o Harris (1971) dispensed with this limitation, so impeachment evidence is
allowed for either collateral or charged crimes. Reasoning: If charged crimes
isn’t allowed the Δ could get on the stand and commit perjury…the
exclusionary rule is not a license for perjury. Majority said if Δ’s argument is
limiting instruction doesn’t work…too bad. Don’t get on stand and commit
perjury and the evidence will never be introduced.
 Statements on direct exam and not cross exam.
o Havens dispensed with this limitation (see below)
 Can only impeach the Δ himself and not defense witnesses
o James v. Illinois – impeachment exception does not extend to all defense
witnesses (if James says his hair was straight and black…he can be
impeached, but if witness says it was straight and black evidence that he said
his hair was red is not admissible).
US v. Havens
 Havens denied helping his companion transport drugs, so on cross-examination
evidence that he had helped (t-shirt pocket case) was introduced into evidence for the
purpose of impeachment.
 However this was done on cross and the traditional rule was only statements on direct
could be impeached.
o Policy - To ensure the prosecution didn’t sneak the evidence in by asking
certain kinds of questions.
 New Rule – statement can be impeached with evidence that cannot otherwise be
introduced if the statement is made for the first time in direct or cross, but only if the
cross was in the scope of the issues raised on direct examination.
o Dissent – this will allow prosecutor to smuggle information in and this will
“chill” Δ from taking the stand.
o Counter-Argument – must be within the scope of direct so defense will still
control the scope of cross.
End of Exclusionary Rule
39
IV. INTERROGATION LAW
Policy Concerns in Interrogation and Confession Law
 Confessions are good because:
o Probative evidence (good evidence of guilt)
o Good for the psyche/soul (if guilty are going to rehabilitate confession is the
first step)
 Interrogations concerns:
o Untrustworthy confessions because suspects are coerced;
 Defeats crime control policies because the truly guilty person is free
o Human rights concern
o Not consistent with adversarial model (3rd degree by police officers with force
or threat of force is not consistent with the adversarial model).
Three Bodies of Confession Law:
 (i) Due Process (14th) / Self-Incrimination (5th) – incorporation created the housing of
a test in two different constitutional amendments.
o TOC Voluntariness Test
 Core Test
 (ii) Miranda Warning / Rules
o To protect 5th amendment right from self-incrimination but not part of that
right.
o Modern Test
 (iii) 6th Amendment right to counsel as it relates to pre-trial interrogation
o Modern Test
(i) Voluntariness Test (Totality of the Circumstances Voluntary Test)
Ashcraft v. Tennessee
 Guy is taken into custody, held incommunicado, and interrogated for 36 hours and he
eventually makes a confession.
o Relay interrogation overwhelms the TOC…confession NOT reliable after 36
hours of interrogation.
 Dissent
o Wants to give great deference to state actors (they are the primary agents for
crime control). Also, test is unclear (what about 34, 25, etc. hours?!?)
 Court doesn’t defer to state courts because of the concern of corrupt police and state
courts who side with the police rather than the suspects.
Spano v. New York
 Spano speaks with a childhood friend who is a cop about murder he committed and
then turns himself in. Cops then interrogate him and he confesses.
o SC - this is an involuntary confession and has to be suppressed.
 TOC Factors
o Spano was poorly educated, interrogated for 8 hours during the night, foreign
born, mentally unstable, and they used the childhood friend to illicit the
40
confession (childhood friend lies and says he will lose his job because of
Spano’s acts. This friend is playing on his sympathies and not just once, but 4
times).
Highly Indicative Factors in TOC Volountariness Test
 Force
 Threat of Force
 Subtle psychological pressure
o Techniques designed to break-down the suspect
 Promises of leniency or threat of harsh punishment
o Only if these are lies will they be equivalent to coercion
o Simply saying cooperate and we will go easier on you is not coercive because
it’s true because of plea bargaining.
Jackson v. Denno
 If the judge admits the confession, the jury is instructed as to the definition of a
voluntary confession and told to consider the confession as evidence only if it finds
that it was a voluntary confession.
o If judge thinks its involuntary then it must be excluded…only if he thinks it’s
voluntary can it be admitted.
Interrogation Law is an Exclusionary Rule:
 Core of the right is against unreasonable searches and seizures. Exclusionary rule
was added to give the 4th teeth, but it’s not part of the 4th right against unreasonable
searches and seizures.
 Interrogation Law under the 14th Due Process and 5th Self-Incrimination Law
o Core of the right is exclusion from the evidence, not freedom from coercive
police practices. So it is an exclusionary rule…not it has an exclusionary side.
Chavez v. Martinez
 Guy is shot in the head, he is interrogated while in the ER on the table thinking he’s
dying. There is no exclusionary argument…this test is not used to determine if an
interrogation has violated the constitution rather it’s to exclude evidence discovered
as part of an unlawful interrogation.
 Interrogation law test is not used when police interrogation is said to violate the
constitution. The test is Rochen: police behavior that shocks the conscience, then the
constitution is violated. This is a 14th Substantive due process test.
Connelly
 TOC / Voluntariness is looking for police overreaching which was not present in this
case.
Totality of the Circumstances / Voluntariness test
 Exclusion
o TOC / Voluntariness test IS an exclusionary rule
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
o
o
o
o
o
This test decides if the statement is admissible (not if the interrogation
was unconstitutional).
Whether or not the interrogation itself violates the constitution
 Rochen (1952) – “Shocks the conscience” test
“Standing” – can only assert personal rights, not someone else’s personal
rights
Full fruit of poisonous tree applies…so statements and derivate evidence is
excluded
No good faith exception
Impeachment exception – NO
 Evidence is unreliable (i.e. coerced) so there is no constitutional
impeachment exception
(ii) Miranda Warnings
Miranda v. Arizona
 Miranda Doctrine adds a layer of protection to the voluntariness test (the “core”).
 Miranda Doctrine
o If there is custody and interrogation…Miranda warnings must be given:
 Right to remain silent
 Anything you say can and will be used against you in the court of law
 You have a right to an attorney
 If you can’t afford one, one will be appointed for you.
 Custody plus interrogation creates a coercive atmosphere and an irrebutable
presumption of involuntariness. Miranda warnings dispel these presumptions. If a
valid waiver is given the statements are admissible.
o Coercive Atmosphere – custody is inherently coercive plus interrogation
creates a feeling that cops are in control and therefore the suspect feels great
pressure and coercion.
 How do warning dispel the coercive atmosphere?
o Silence:
 If right to silence is invoked the interrogation must cease, so suspect
knows he is in control of the interrogation.
o Warning of use:
 Helps give suspect a full understanding of what is at stake…this lets
them know the police are trying to extract evidence to use against them
in later prosecution. With this knowledge suspect can make an
informed decision concerning whether or not they want to talk.
o Right to attorney:
 If invoked interrogation must cease until attorney is present, so suspect
knows they are in control of the interrogation.
 Miranda right to counsel is based on 5th self-incrimination right
(this is different from 6th amendment right to counsel).
 Attorney is an advocate and expert to protect the suspect. A call for an
attorney is usually a cry for help.
 This is same reason you are told one will be appointed for you.
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

Why is Miranda constitutional? What is the legal basis?
o Legal Origin – English common law rule of evidence prohibited use of
involuntary confessions.
 Where does Miranda come from? Court makes it up in 1966.
 Dissent says Voluntariness is deeply routed in legal
traditions...Miranda is just made up, so should apply
Voluntariness!
Dissent says Miranda doesn’t add anything because police can lie. Voluntariness test
is enough…don’t need Miranda. This test isn’t going to work any better because
Miranda can be applied in an untrustworthy manner.
Dickerson - Court reaffirmed Miranda 7-2
 In 1964 Miranda was decided 5-4 (2000 dissenters were Scalia and Thomas)
 Congress passed “Safe Streets Act” shortly after Miranda which had a provision that
overruled Miranda and reinstated TOC / Voluntariness test. After 20 years the 4th
circuit sue sponte (on its own motion) decided that the “Safe Streets Act” overruled
Miranda so Miranda was not good law.
o The Court had to determine the status of Miranda?
 If it’s a constitutional right…Congress can’t overrule Miranda
 If it’s a judgment made rule Congress can overrule Miranda
 SC - Majority said Miranda is a constitutional rule…its less than a constitutional
right, but its more than judge-made rule. So, it’s not a right, but it’s a supervisory
rule. A constitutional rule is like a right…meaning Congress can’t overrule it!
o The core of the right is involuntary statements cannot be admitted at trial.
Court created rules to ensure the Voluntariness test was being applied
correctly. So Miranda is an attempt to protect the core of the constitutional
right (to be free from involuntary coerced statements). Miranda’s rules are
close enough to right but not actually a constitutional right. So it’s a rule
based on the core constitutional right.
 Dissenters said Miranda was judge-made rule so Congress can overrule Miranda and
did so in “Safe Streets Act:”
Custody – What is custody for Miranda purposes?
 Full custodial arrest or its equivalent triggers Miranda
o Equivalent – you are under full custodial arrest, but full custodial arrest hasn’t
been announced.
 What is NOT custody?
o Terry Stops
o Traffic Stops
Berkmer
 Not enough coercion in low level seizures to constitute the coercive atmospheres that
would trigger Miranda. The atmosphere associated with a Terry or traffic stop is not
so coercive that there will be a presumption on involuntariness.
o Terry / Traffic Stops?
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

These seizures are public, low intensity (i.e. like no handcuffs), and
traffic/terry are brief!
Terry v. Full Custodial arrest:
o Terry needs reasonable suspicion (terry stops aren’t custody); Full custodial
arrest requires probable cause (arrest is custody)
Rhode Island v. Innis
 Δ’s arrested for shooting and robbing cab drivers. He is arrested and Mirandized, he
asserts right to counsel and there is no more questioning. On way to station, police
talk to each other about how bad it’d be if handicapped kids found gun and killed
each other, etc. Δ speaks up and shows them where gun is.
 SC reviews and states that Δ’s been interrogated if:
o Δ was asked a direct question; or
o Functional equivalent of questions:
 Statements “reasonably likely to illicit an incriminating response.”
 This is determined by asking, “Would Reasonable officer,
knowing what they knew about D, know or have reason to
know that what they were doing was likely to illicit an
incriminating response?”
 This test would seemingly allow cops to talk around Δs, but not
directly to them (not intending to get answer from Δ) when really the
reason was to get Δ to confess. [Playing the long shot]
 SC said the present case was NOT coercive enough to illicit incriminating response.
This was not a statement reasonable officer should have known was likely to illicit a
response.
 Marshall Dissent –
o Definition is ok, but application is wrong. Handicap kids killing themselves
would coerce anyone into talking. This conversation was likely to illicit a
response.
 Stevens Dissent o Remove “likely” from test…if statement was calling for response then it’s the
functional equivalent of interrogation. Doesn’t have to be likely to illicit
response…just has to be aimed at eliciting response.
Maryland v. Blake [on SC’s docket]
 Blake asserts his right to counsel. Officer comes in the room and shows the suspect
he is death penalty eligible (when he really wasn’t) and another officers says “I bet
you want to talk now”…since you are death penalty eligible. Final officer says he has
invoked right to counsel so we can’t talk to him?
o Death Penalty Eligible?
 This is psychological manipulation v. This is evidence suspect needs
to know.
 Problem…it’s not true. This kills the argument that suspect
needs to know this information.
o Bet you want to talk now?
 Is this interrogation?
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o Does is matter that other officer says we can’t talk to him…he’s invoked his
right to counsel?
 Does this kill the interrogation then his continued talking constitutes a
waiver?
Illinois v. Perkins
 Police go undercover into jail and pretend they are planning to break out of jail. The
undercover agent asks if inmate has killed someone…Perkins tells a complete story
detailing the murder. Perkins orders the statement should be suppressed because he
was in custody and being interrogated so his statements weren’t voluntary b/c he
didn’t get Miranda warnings.
o Court says do NOT have to give Miranda warnings even though Perkins is in
custody and being interrogated.
 Miranda warnings aren’t required because there is no coercive atmosphere to dispel
by Miranda warnings. If Miranda warnings were required then no undercover work
could ever be done.
 Concurrence (Brennan) – don’t forget there is always the TOC / Voluntariness test, so
if these statements were involuntary they could be suppressed.
o Arizona v. Fulminante – undercover officer in prison offers protection from
other inmates if prisoner will admit he killed a child. Court says 5-4 this was
NOT a voluntary confession…so statement was excluded. This was coercive
because prisoner was motivated by physical threat.
 Majority (Kennedy) – these statements were voluntary and there is no federal
obstacle…this meets voluntariness test.
 Dissent (Marshall) – there was a coercive atmosphere that must be dispelled with
Miranda warnings. Anyone in custody is in a vulnerable position…plus in a
dangerous prison prisoners want to be seen as inmates who have committed violent
crimes.
Waiver
 Officer must obtain waiver of Miranda rights…standard is Johnson v. Zerbst:
o Waiver must be:
 Knowing and intelligent, and
 Moran (1986) and Spring (1987) – knowing and intelligent
means that you understand what the Miranda warnings
mean…if you understand the words then you have a knowing
and intelligent waiver.
 Examples of persons who might not understand the words:
o Someone who doesn’t speak English; Minors; Someone
intoxicated; Disability (deaf); Person may be stunned
because force was used to arrest them.
 Voluntary
 TOC / Voluntariness test
o Form of the waiver
 Best waiver is a signed written waiver, but waivers can be oral.
 Waivers can be expressed or implied.
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
Butler – can be implied waivers, but prosecution will have
heavy burden proving waiver existed.
Invocation of Right to Silence or Right to an Attorney
o What if suspect invokes their right to remain silent or their right to attorney
either after being given their Miranda warnings or after giving a valid
waiver…
Michigan v. Mosley (Invocation of Right to Silence)
 Guy arrested for robbery. He’s questioned by one officer regarding the robbery and
he invokes his right to silence. 2 hours later guy is questioned by another officer in a
different area of the jail about murder.
o “Scrupulously Honored” Test – it’s a TOC test and the invocation of right to
silence must be scrupulously honored.
 This applies to invocation of the right to SILENCE
 TOC
o Different officer from different jurisdiction or division;
o Different crime
o Occurred in different place
o Re-mirandized and valid Zerbst waiver was given
o Few hours of time passed between invocation and 2nd interrogation
 Scrupulously honored test ensures the suspect isn’t badgered. Officers can’t ask
every 5 minutes if suspect wants to talk now…this would create a coercive
atmosphere. Suspect must understand this is a separate interrogation where he again
can invoke his right to silence.
 Concurrence –
o Do Zerbst…did officers ultimately obtain a valid waiver?!? If officer
badgered witness that would play into Zerbst voluntariness test so the waiver
would be invalid.
 Dissent –
o Doesn’t like the test…it’s not protective enough and police will not know
when they can resume questioning.
o Brennan says if silence is invoked interrogation cannot take place until
attorney is present or the suspect is arraigned.
 2 ways questioning can be resumed:
o Scrupulously honor invocation and then obtain a valid Zerbst waiver; or
o Suspect initiates continued interrogation and a valid Zerbst waiver is obtained.
Edwards v. Arizona (Invocation of Right to Counsel)
 Edwards Rule –
o No police initiated interrogation until counsel has been made available (i.e.
present).
o No more police interrogation unless attorney is present.
 If suspect initiates there is no requirement counsel be present, but police must obtain
valid Zerbst waiver.
 Policy Analysis –
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o There is an additional level of protection because asking for an attorney is a
“cry for help”…this means the suspect needs an attorney so this need must be
respected.
Minnick v. Mississippi
 Minnick is arrested and invokes his right to counsel. He meets with his
attorney…then he is questioned again. Court says this is wrong.
o SC says counsel must be PRESENT at interrogation. It’s not enough to
consult with attorney…attorney must be present to satisfy Edwards.
 Dissent
o Miranda is some kind of constitutional rule to protect 5th self-incrimination
clause. So Edwards is a rule to protect Miranda….how many rules are we
going to create?
 This is a fairyland castle of constitutional doctrines
o Just do waiver analysis
Arizona v. Roberson
 What is 2nd interrogation after invocation of right to counsel is by different police
concerning a different crime?? There is NO exception. Invocation of right to counsel
is a complete bar from further police questioning regardless until attorney is present.
o Doesn’t matter that its different crime or different police!
Invocation and Initiation
Davis v. US (Invocation)
 Ambiguous Statements about Counsel – possibilities as far as rules we could have:
o Stop the interrogation if the criminal Δ says something ambiguous about
counsel
o Clarify whether or not the Δ wants counsel
 Are you or are you not invoking your right to counsel?
o Ignore ambiguous statements about counsel.
 SC said constitutionally allowed option is IGNORE…police may ignore an
ambiguous assertion of counsel.
o Policy – clarification might urge Δ to invoke right to counsel when maybe
they really don’t want to; also this is irrational obstacle to law enforcement;
and burden on Δ is not great to make clear their invocation of right to counsel.
 To count as an invocation the invocation must be CLEAR. This is an objective
test…how it would appear to reasonable officer.
 Dissent wants clarification because Δs who feel intimidated may request attorney in
an ambiguous way…if police ignore that suspect may believe he doesn’t really have
right to counsel.
Oregon v. Bradshaw (Initiation)
 Suspect may initiate interrogation (after invoking their right to counsel or silence)
without subjecting police to SH or Edwards. If suspects initiate conversation and
police obtain a valid Zerbst waiver the interrogation can continue.
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o Test / Analysis:
 “Willingness and desire for a generalized discussion about the
investigation” constitutes initiation.
Miranda
 Miranda is an exclusionary rule….core right is the right to exclusion. Chavez makes
clear Miranda is not about freedom from interrogation.
 Miranda is a personal right. In terms of standing, Miranda rights are violated against
A, statements made and can be used against B.
 Exceptions:
o Impeachment Exception – Harris
 Statements taken in violation of Miranda may not be used to prove
substantive guilt…this evidence may be used to impeach the criminal
Δ.
o Public Safety Exception - Quarles
 TOC Analysis – treated like a 4th amendment warrant exigency
exception. There is an exigency (loose weapon) and police need to
seize this weapon so asking where the gun is before Mirandizing is an
exception to Miranda because there is a public safety concern.
 No fruit of the Poisonous Tree
o Tucker – witness testimony derived from statements taken in violation of
Miranda is not excluded.
o Patane – physical evidence that is derived from statements taken in violation
of Miranda is not excluded.
 Derivate evidence is NOT suppressed under Miranda.
6th Amendment Right to Counsel
Massiah v. US (1964) – CB pg. 853
 Guy suspected of importing narcotics into US. Massiah is indited, he retains a
lawyer, pleads not guilty, and he’s released on bail. Police use an undercover
informant to interrogate Massiah. Does this violate any of the interrogation laws?
o Voluntariness – doesn’t apply because there is no coercion and no threat of
violence.
o Miranda – no custody and no need to dispel coercion
 6th Amendment Right to Counsel DOES Apply in certain situation. 4th amendment
right to counsel is triggered under interrogation when:
o Commencement of formal judicial proceedings
 Person has been charged with a crime (inditited)
 Only applies to charged crime…only those crimes for which you have
been charged and indited
o Interrogation
 Deliberate elicitation of Statements
 US v. Henry (1980)
o Deliberate – something done with purpose, knowingly,
or recklessly and is likely to result in elicitation.
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



o Kuhlmann v. Wilson – Elicitation:
 Passive listening is ok…that’s not elicitation
 Elicitation requires stimulation (if person
stimulated conversation about the crime then
that is elicitation). This includes engaging
person in conversations about the crime and
establishing a relationship of trust and
confidence.
Police concern is about a “fair trial” and the adversarial process.
o Δ should be able to put his attorney between state and Δ…attorney acts as an
advocate and provide Δ with expert legal advice. Once party has been
charged the adversarial process requires the protection of an attorney.
Compare to Miranda:
o Miranda concerns custody and interrogation and the policy is coercive
atmosphere
o 6th Right to Counsel concerns commencement of judicial process and
interrogation and the police is fair trial.
To interrogate after judicial proceedings there must be warning (Miranda – attorney
and appointment) and a valid Zerbst waiver must be obtained.
So Massiah’s statements are inadmissible because warnings and waiver requirements
were not met!!!!
What happens if after warnings are given the Δ invokes their right to
counsel…Jackson Rule
o If person doesn’t waive their right to counsel Jackson says no more police
initiated interrogation until counsel is present.
 Jackson rule only applies to charged crimes (because 6th amendment
right to counsel concerns interrogations after commencement of
judicial proceedings)
Note Cases
 Patterson v. Illinois – Miranda warnings (attorney and appointment) are valid
warnings to inform someone of their right to counsel and after those warnings are
given police must obtain Zerbst waiver.
o Zerbst waiver under 6th right to counsel:
 If counsel has been retained for someone the police must inform the Δ
that they have an attorney…otherwise the waiver is not knowing and
intelligent waiver. Police must tell Δ useful information for knowing
and intelligent waiver.
 There is a possibility under 6th right to counsel you have to tell
Δ what they are being charged with…may have to tell them
they have been charged with a crime and what crimes they
have been charged with?!?
 Michigan v. Jackson
o If there is an invocation of right to counsel…Jackson parallel Edwards. No
more police initiated interrogation without counsel.
 Texas v. Cobb
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o 6th amendment right to counsel is “offensive specific”…only applies to
charged crimes.
o Blockburger - 2 offenses are “offense specific” if they have an overlap of
elements
 Assault and assault with a deadly weapon are the same
offense…murder and burglary are separate.
 Understand…same offense is based on elements of the offense.
 In Texas v. Cobb police charged him with burglary and then
questioned him about murder…statements about murder aren’t
excluded b/c they crimes aren’t charged. 6th is offense specific
so only interrogation about burglary is excluded.
Invocation / Initiation of 6th Amendment Right to Counsel
 May use same as Miranda?!?
Miranda Right to Counsel v. 6th Right to Counsel
 Major differences:
o Custody v. Charged Crimes
 Miranda – there must be custody and coercive atmosphere
 6th – there must be commencement of formal judicial proceedings
o Offense Specific
 6th is offense specific…Jackson rule only prohibits police initiated
interrogation about charged crimes.
 Miranda follows Edwards which prohibits all interrogations under
counsel is present




6th right to counsel is a personal right
o Just like voluntariness and Miranda
th
6 is an exclusionary rule
o No case, but every reason to think that
Full fruit of the poisonous tree is a applicable
Exception
o Exception to Jackson Rule – Impeachment exception to Jackson
 Once someone has invoked their right to counsel there is no police
initiated interrogation until counsel is present.
 Harvey – impeachment exception to the Jackson rule
 If only violation is Jackson rule there is an impeachment
exception.
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