Criminal Procedure Outline
Spring 2004
Prof. Nowlin
Policy Divides in the Criminal Justice System
I. Competing Criminal Justice models:
1) Crime Control Model: Conservative approach, focused on Declaration of Independence
language, thinks that government should be protecting citizens rights to “life, liberty, and pursuit
of happiness” from private violence (criminals)
a) Efficiency in processing, conviction, and disposition of cases (assembly line)
b) managerial/administrative model
c) Interested in protecting citizens’ natural and human rights to be free from violent acts of
criminals
2) Due Process Model: Liberal Approach: focused on Declaration of Independence language of
protecting citizens’ “life, liberty and pursuit of happiness” from the government’s influence.
(layers of procedural protection)
a) focuses on protecting defendant’s rights, human dignity
b) not managerial
c) adversarial and judicial
d) protects from government infringement on Δ’s human rights, showing respect and
autonomy of the individual
3) Dershowitz – “The Best Defense”
“Nobody really cares about the justice and due process model – crime control is what people care
about – it is the basis from which the criminal justice system operates.”
II. Procedural/Structural Dimension: Judicial Power Dimension
1) Judicial Activism:
a) constitutional democracy: discretion on interpreting constitution, not necessarily
required to ground decision in traditional legal materials/precedents
b) fear of the masses
c) protection of electoral minority (unpopular)
d) part of a system of checks and balances
e) believes the Constitution is a “living Constitution,” allowing for modifications
f) believes in broad judicial authority to legislate form the bench and make policy—
adapting to tough political/social concerns, where legislature may not be prepared to act
because of politics
2) Judicial Restraint:
a) local control: States have police power generally, so their laws should be upheld unless
clearly in violation of Const.
b) federalism—S.Ct. has little business interpreting Constitution--should focus more on
history and intent of framers
c) Representative democracy: Legislature should get deference, and make policy, not the
Court. Judicial branch violates rights of citizens by making policy, b/c legislature
represents the people and is responsive to them—they should make law.
d) Decisions of the Court should be grounded in history and traditions and precedent, little
flexibility allowed here.
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III. Liberal v. Conservative: Current split on the Supreme Court
1) Liberal Justices: Souter, Breyer, Ginsburg, Stevens
a) favor Due Process model, and Judicial Activism
2) Conservative: Rehnquist, Thomas, Kennedy, Scalia, O’Connor
b) Favor Crime Control model and Judicial Restraint
IV. The Supreme Court in an attempt to set rules governing criminal justice has difficulty creating a
complete, coherent,
and therefore effective set of rules.
1) Complete – because of a limited docket not many cases reach the Supreme Court
2) Coherent – cases do not line up due to the different viewpoints of the Court. Changes occur
because over time there are major policy revisions and shifts as well as Justice shifts.
3) Implementation – application varies in Circuit splits.
Incorporation Arguments
Duncan v. Louisiana: Involved question of whether Due Process Clause of the 14th Amendment made the
6th Amendment’s jury trial requirement applicable to the states. Important to figure out how much of the
Bill of Rights applies to the states, because States do almost all the lawmaking in the Criminal Justice
System. There are several theories:
1) Total Incorporation: All provisions apply to states. Justice Black says that history doesn’t
support selective incorporation, and the fundamental fairness theory provides vague and
varied results. Black believes that this will lead federal judges to make case by case moral or
political judgments and lead to judicial activism. He wants to avoid this by totally
incorporating the Bill of Rights. Black concurs in the Selective Incorporation stance because
although some rules are left out it is close to the Total Incorporation stance.
2) Fundamental Fairness: BOR should apply to States to the extent necessary to protect
defendants from things which would deprive them of fundament fairness. Justice Harlan said
text of 14th doesn’t support incorporation—it would’ve been easy to say “incorporated to
states” in the text. Due Process clause actually means fairness, and calls J. Black an
‘activist,’ for wanting total incorporation and would handcuff State police power.
3) Selective Incorporation: current stance: Some, but not all of the BOR apply to states.
Justice White announced as a compromise. This, currently, is almost total incorporation, as
only a couple amends are not incorp. Also, fundamental fairness is considered as well.
Basically all major criminal protections have been incorporated. Argument against total inc.
is that some provisions don’t apply well—what works well on Federal level may not work
well at local level—ex: 12 v. 6 jury members, and voting…
Selective Incorporation + Some Additional Rights through fundamental fairness.
Search and Seizure:
The 4th Amendment states: “The right of people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but
upon probable cause, supported by an oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”
Boyd v. United States: Boyd is required (by federal subpoena) to turn over paperwork over
shipping/tariffs on some plate glass. Court found that this violated both the 4 th and 5th
amendments. It was essentially a seizure, and if Δ provided docs, it was incriminating, and if he
didn’t he was assumed guilty.
1) While a landmark decision at the time, Boyd has been overruled, because it was based on
property rights. The thought was that gov’t could come in and look for more evidence of
crime as long as they had a property interest (trespass doctrine).
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2) This trespass doctrine said that people’s rights weren’t violated if they didn’t have a property
right: examples of things people didn’t have rights to:
a) contraband: illegal drugs, etc.
b) fruits of a crime
c) instrumentalities
3) Judgment said that 4th and 5th were linked and meant same thing, basically on the principle that an
unreasonable search revealing evidence used against you is effectively making you testify against
yourself. Bad Law
Olmstead (1928): Eaves dropping in a telephone booth is ok, because it wasn’t a trespass. Overruled (b/c
of property rights/trespass reasoning) by Schmerber and Hayden.
Schmerber v. Calif.: Blood taken from the DUI suspect against his will at hospital.
1) Splits the 4th and 5th Amendment rights up:
a) 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—destruction of evidence)
b) New Standard = To protect a person’s privacy (not property) via reasonability test.
i.
Clause 1 = Protects rights +
ii.
Clause 2 = Privacy Rights protected procedurally through probably
cause plus a warrant or warrant exception.
c) 5th amendment ONLY applies to “testimony of a communicative nature,” and NOT
physical evidence (via property rights)…This is the modern rule.
d) J. Black’s dissent: blood here is communicative in nature:
i.
thinks there’s no real difference in testimonial/physical evidence, and
therefore this violates 5th
Hayden: Δ’s personal effects (here: clothes) seized while in hot pursuit, which was not specifically an
instrument of crime.
1) Gov’t thinks they can seize anything they have property right to (like Boyd)
2) Majority kicks out this argument:
a) Nothing in text of 4th makes the distinction between property rights and privacy
rights: Mere evidence in one case could be an instrumentality in another case.
b) 4th Amendment is really about privacy rights. Same intrusion exists whether
government is searching/seizing evidence or instrumentality. Once a warrant dispels
a privacy concern, then the gov’t can seize.
3) Expressly overrules mere evidence rule = b/c ct said you can’t protect privacy by protecting
property rights.
a) To protect privacy you must do it directly by using probably cause + warrant/warrant
exception.
4) Dissent: J. 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.
Hubbell: 2000: Even though Schmerber and Hayden have overruled Boyd, Justices Scalia and Thomas
commented that they might be willing to return to it. They feel like compelling evidence is really
making Δ be a witness against himself…
Search and Seizure defined:
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Katz v. United States: this expressly overruled Olmstead (property rights). Δ used phone booth, and
gov’t listened in on conversation. Δ Convicted. This case helps define what a search is, under 4th
Amendment.
1) Majority: Justice Stewart: Katz didn’t have property claim, but he did have a privacy claim
(combining “persons, houses, papers and effects” into general idea of privacy). Gov’t can’t
intrude on what Δ seeks to preserve as private. The 4th Amendment protects people not
places.
2) Ct. had to update “Trespass” to include new technologies (aka wiretaps).
3) Concurrence: Justice Harlan actually announced the current test: it is a search if Δ had a
“reasonable expectation of privacy”. Current Test = (Reasonable expectation of privacy)
Both must be met:
a) Subjective expectation of privacy: Did Δ personally believe it was private?
i.
Gov’t can NOT wipe this out by informing you or public…it rests on
whether you would want that privacy. Subjective test is a paradox so
Ct. focuses on Objective test.
b) Objective expectation of privacy: Is the privacy interest something legitimate and
justified, and would society recognize the privacy expectation as reasonable?
(Nowlin’s Schema = Reviewed by two things):
i.
Empirical evidence: based on facts of situation—a judgment about the
way the world is.
ii.
Normative concerns: court looks at value judgments, about the way in
which the world should be, by the following factors:
1)
Social value in protecting this privacy
2)
Amount of gov’t intrusiveness
3)
Degree to which Δ attempted to protect privacy interest
4)
Crime Control: does this further C.C. interests?
U.S. v. White: False friend case/Turncoat. Conversations recorded/transmitted in home and heard by
agent hiding.
1) Majority: J. White: Court looks at objective factors and decides that Δ’s claim fails, because
he didn’t attempt to protect privacy—(assumption of risk when talking to someone)--he assumed
risk by divulging incriminating info to another, and further, there’s no difference between
recording a conversation, and an informant later reporting info to police.
2) Dissent: Douglas says that this is very intrusive and should not be allowed. (Electronic
surveillance goes too far because it chills free speech).
3) Dissent: Harlan says it’s very intrusive and also society has interest in private conversations
with others.
Bond v. U.S.: police board bus to check nationality status. Officer squeezes Δ’s luggage and feels hard
brick like object. Opens it and finds a brick of methamphetamines.
1) Gov’t argues that Δ’s bag is like open fields, and Δ knew other passengers would touch and
feel bag.
2) Majority: Court says this was much more intrusive (probing squeeze) than what other
passengers would’ve done—this was examinatory squeezing, and is a violation of 4th, with no
probable cause/warrant.
US v. Place: Exposure of luggage in public place to canine was NOT a search. (scent is not protected
privacy) and low
level intrusiveness with high social value. No reasonable expect. of privacy
for field test (sniff, chem. test etc).
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California v. Greenwood: 4th amend does not stop prohibit S & S of garbage placed in opaque containers
and left for collection on curb in front of home. (no reasonable expectation in garbage).
Kyllo v. US: Thermal imagining device does constitute a search and requires a warrant. Technology is
not common
place. Social value “in home” is highest; and heat is “inside” the home. Reveals
intimate things in home.
Emphically, other people would not know how hot your home is.
US v. Jacobsen: Private person (FedEx employee) opened a bag, found drugs and called cops. Private
citizen can do this without any problem unless a state actor (police) asked them, instructed them or
authorized them to open it. Subsequent search by police is NOT a search so long as their search
doesn’t go beyond the private citizen
search.
Open Fields and Curtilage
Oliver v. United States: announced the “open fields doctrine”…no warrant needed to search here,
because persons don’t have a reasonable expectation of privacy in open fields.
1. No reasonable expectation of privacy
2. No real value of open field privacy against public.
3. People usually just have fences and signs but nothing else to prevent entrance like a house
does.
4. Does not meet curtilage analysis because too far away from house.
5. “Open Field” is not listed in fourth amendment list of protections.
However, the S.Ct. said in US v. Dunn, that curtilage (area immediately around home) is considered an
extension of the home, and warrant/p.c. needed to search. Majority said we needed bright line
rule here. Analysis in determining if warrant needed:
1) Proximity to the home
2) Enclosure
3) Nature of the “uses of the area” in question
4) What steps were taken to resist/protect from observation
*Cts. are generous w/ curtilage. But, will not extend to large plots of land.
Arial Surveillance:
CA v. Ciraolo: 1986: Δ had 6’ outer fence and 10’ inner fence around home, so police got a plane and
flew over at 1000’ to spot marijuana plants. Δ asserted unreasonable search.
1) S. CT. said Δ had no reasonable expectation of privacy in what he “knowingly exposes to the
public” (Katz).
2) This plane was within FAA reg. airspace and Δ knows that people can see it from the air.
3) Is there a LAWFUL VANTAGE POINT whereby everyday people could see your property.
Florida v. Riley: Police use helicopter at 400’ to come over Δ’s property looking for marijuana.
1) Majority holds that so long as the aircraft was within FAA regulated airspace, and as there
was no physical intrusion (no wind, dust, etc. blown on land), it was reasonable and not a 4th
Amendment search.
2) O’Connor Concurrence: Aircraft frequently fly at low altitudes, so no reasonable expectation
of privacy in open land here.
3) Dissent: Says that aircraft rarely come by at low altitude, so expectation is unreasonable.
Note cases:
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1) Air pollution Variance Bd—daylight observation of smoke plumes from open fields is not a
search.
2) US v. KNOTTS: monitoring the whereabouts of car by electronic beeper revealed nothing that
invaded Δ’s expectation of privacy.
3) US v. Karo: warrantless monitoring of beeper in person’s residence is search in violation of
4th. Getting it there by consent in container and then knowing container was taken to house is
not a search.
4) CA v. Greenwood: no reasonable expectation of privacy in garbage left on curb for pickup.
5) Thermal Imaging Devices: detecting heat from pot lamps outside of residence is not a search;
no R.E.P in emissions. Eyeballing thermal transfer is ok (snow on roof), and if you can see
something, you can use enhancement. But using device to see into a person’s home is NOT
ok. General rule is that the more sophisticated a device the police use to examine your
property, the more likely it will be deemed a 4th Amend. Search. Ex: using binoculars to see
onto property ok, using $1 billion spy satellite to examine heat in your home not ok. All
goes back to REP.
Seizures
What is a seizure?
1) Property: “any meaningful action or interference with a posessory interest” (Jacobsen). De
minimis intrusion such as “mere handling “or slight amount (drugs) used for chemical testing
is NOT sufficient to be seizure.
2) Persons: 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) This doesn’t actually mean would you or I feel free to leave and not
answer, but something more. This is based on totality of circumstances (Mendenhall). Mere
questions don’t amount to seizure unless:
a) physical force applied
b) display of weapon (even touching holster)
c) D surrounded?
d) Tone of voice from police (is officer commanding-showing authority)
e) Police say Δ’s suspect in crime
f) Keeping ID of Δ may keep him from feeling free to leave
Brower: force (in seizure context) must be applied intentionally—accident of bumping into
someone doesn’t count.
In bus search cases--test is “would r.p. feel free to decline officer’s request or terminate
interview?” No per se rule that not free to leave on bus. Not feeling free to leave is linked to
officers conduct. The SCT feels suspicionless questioning is necessary for police to obtain
valuable info.
3) You have been seized if: in handcuffs, in squad car, you have been told you are under arrest, force
has been
applied (shot, beaten, pepper sprayed).
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Three Situations
1. Questioning
US v. Mendenhall: Lady gets off airplane and DEA agents thought she looked suspicious so they
questioned her while taking her DL and ticket. They then took her voluntarily to a private room. to do a
search where she consented and turned over drugs. COURT TEST IS AGAINST COMMON SENSE
because common person does NOT feel they can tell police no or just leave.
Mendenhall TEST: (Must be Heightened Coercion not just questioning)
1) A person is seized physical force or show of authority is applied; and
2) Would a reasonable person believe they are not free to leave?
a. Tone vs Command
b. Did they keep your documents or property
c. Did they pat their gun or weapon.
d. Number of officers, did they surround you etc.
2. Questioning in Confined Spaces
Florida v. Bostick: Guy riding on bus when cops come on (routinely) and ask to see his ticket and DL.
The cops then asked for a search of his luggage and told him he could refuse, he consented. Issue is
whether his consent came from his belief that he was seized b/c of confined space. Ct. eventually held
Bostick was NOT seized.
Ct. said verbal formulation from Mendenhall doesn’t apply b/c guy on bus doesn’t feel he can walk away
because if he does the bus will leave.
Bostick TEST: (Does RPP feel free to Decline to cooperate/answer questions)
1) Does a reasonable person believe they don’t have cooperate?
2) Does person feel free to NOT answer questions?
3. Pursuit
CA v. Hodari D: Show of authority only amounts to a seizure if a person submits to it.
1) There needs to be physical restraint, not a chase or something of the type.
2) If a person runs from police upon sight, he hasn’t been seized. Likewise, Δ must submit to
physical act as well—if an officer tackles suspect, he’s seized, but if the suspect gets free and runs, he’s
not seized
anymore.
3) Dissent: pursuit is a seizure. Stevens thinks this invites police misconduct. Cops could use
show of authority (smoke out) and see who runs and throws contraband, which would be ok
because they are not yet seized and the evidence would admissible because the person wasn’t
“seized.” Cops gamble w/o quantum suspicion to see who flees.
TN v. Garner: burglary suspect running and police shoot to stop him from fleeing—use of deadly force.
1) At CL, felony suspect could be apprehended by serious force, however, things have changed
now. Many things are felonies now that weren’t then, and our weapons much deadlier (guns
now v. clubs then)
2) Majority: application of force here is a seizure, and the use of deadly force is VERY
intrusive.
3) Balancing test: State interest in Crime Control, apprehending dangerous felon; v.
Individual’s Right to Live. (very strong)
4) Rule : To use deadly force:
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a) officer must have p/c to believe suspect poses a significant threat of injury to
officer/others,
b) + reasonable suspicion that such force is necessary to effect arrest.
Graham v. Connor: 1989: an arrest is a seizure. Therefore, excessive force would make the seizure
unreasonable. To determine whether force excessive or not, look to T/C of each case:
1) nature of crime—how serious was crime—level of state interest
2) how much does Δ resist arrest
Exclusionary Rule of 4th Amendment
ER = Illegally obtain Ev will be excluded at trial--exists as prophylactic rule to discourage police
misconduct and to protect individuals’ rights, not to punish the gov’t. (US v. Calandrana) Gov’t must
abide by laws or the gov’t will fail.
Illegally seized evidence can be used against you in:
1) parole hearings
2) sentencing
3) bail hearing
4) quasi-civil-criminal trials.
Weeks v. US: 1914: Lottery tickets case--suspects home searched and letters, paper and documents taken
by Gov’t.--> Use of evidence is barred when it’s obtained through an illegal S&S.
Court found letters seized unconstitutionally. Argument of the Court is that while 4 th doesn’t contain an
exclusionary rule, the 5th does, and it’s a gloss over the 4th. This is judicial activism (via 4th amend) to
create procedural rules in the lower courts. Looked at federal policy concerns for excluding evidence:
1) Right-remedy link: if there’s no constitutional right, there’s no adequate remedy
2) Judicial Integrity: It would undermine judicial process if by allowing evidence to be
introduced, it would be sanctioning unconstitutional activity.
Wolf (1949): Court stated that exclusionary rule wasn’t in 4th, and as it wasn’t a Constitutional
requirement.
Mapp v. OH: 1961: Court overruled Wolf and said exclusionary rule applied to the states through the
14th. (4th amend and Exclusionary rule are PART & PARCEL)
1) Inherent Right Court looked at states and said many had already started using the
exclusionary rule b/c it was the a right.
2) Judicial Integrity: Something they have to do to be fair. Court said that while there are
some legal remedies for violation, none are effective (private lawsuits, civil action, §1983,
etc.) to replace the exclusionary rule. (Innocents have no remedy except as general cop
deterrent)
3) General Deterrence: Court wants to get rid of police incentives for violating the
Constitution through unreasonable search and seizure. If evidence is not allowed, police
won’t want to do it.
Even if officer doesn’t care about consequences, his
superiors/department will have policy and may discipline him.
4) Dissent: Cardozo said letting crooks off the hook like this is “a crazy idea.” “Too strong of
medicine.”
5) Dissent: J. Harlan: this is an illegitimate use of judicial power to create this rule, where it’s
not grounded in Constitution text, history, etc. Harlan thinks SCT may have violated the
constitution by authoring this rule.
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Calandrana: 1974: Court stated that the exclusionary rule was a “judge made rule” and not part and
parcel of 4th amend. Prophylactic, and not remedial. Dickerson, in 2000, said is a constitutional
judge made rule not a 4th amend.
Probable Cause and Warrants
Warrants based on tips from informants/anonymous tips cause the most problems in this area.
Probable Cause exists where facts and circumstances w/in officer’s knowledge and reasonably
trustworthy info are sufficient in and of themselves to warrant a man of reasonable caution in the
belief that an offense has been or is being committed and person arrested committed it. (Totality
of circumstances Objective Test) (30-35% sure)
-Based on more than bare suspicion; fair probability and substantial basis for believing.
-Measured by the facts of the particular case.
-Particular person has committed a particular crime. (quantum of suspicion)
Spinelli v. US: gambling/bookee guy—FBI sees 2 phone lines in apartment, they hear rumors that he’s a
bookee, informant says he is a bookee. Did officers have probable cause to go in and search the
place? NO. Analysis for probable cause to issue warrant: (RIDGID TWO PRONG TEST)
1) veracity—how reliable is information? = Oath or affirmation of officer or informant.
2) basis of knowledge: how believable/reliable are the facts—can/have some of the facts been
corroborated (self-verifying)
a) Based on first hand witnessed account?
b) Inference (e.g. guys go in holding money come out acting like on drugs)
c) Hearsay—if officer simply heard something from informant, repeat test w/ respect to
informant.
i.
Veracity: what’s informants past track record, etc.
ii.
Basis of knowledge: what’s the informant’s knowledge based upon?
-Firsthand knowledge
-Reliability of Informant
-Hearsay: at least some facts should be corroborated
through investigation
Illinois v. Gates: Changed from rigid Aguilar/Spinelli 2 prong test, to a more flexible “Totality of the
Circumstances (T/C)” test. This is current law.
1) Majority: Rehnquist said we still care about the Aguilar/Spinelli factors, but it’s just not rigid
anymore. One very stong factor may make up for another weak one, and are all factors in
this T/C test, which magistrate will evaluate.
a. Majority felt that Aguilar-Spinelli was too rigid and difficult for officers and
magistrates to apply in some cases.
b. Great deference is to be given to the magistrate’s determination of probable cause.
c. Ct. didn’t want cops to circumvent warrant procedures, so they made warrants easier
to get.
*When officers have probable cause in a search situation, it’s known as substantial basis.
*Probable Cause doesn’t mean 51% or something. It’s more like 35%+, and this T/C test makes it vary
from magistrate to magistrate. PD require more PC than what they need when they have a
warrant.
*Standard of review for Appellate Courts:
1) magistrates’ findings of fact will be review by clearly erroneous standard.
2) magistrates’ determinations of mixed q of fact and law will be reviewed de novo.
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3) Use de novo for a police officer’s determination of probable cause. (based on Warrant
Preference Theory).
i. Cops fight crime for a living and may more zealously fudge to get warrant.
ii. Magistrates should be more detached and more objective so lower standard of review can
be used.
Whren v. US: Δ arrested in bad neighborhood for turning without a turn signal, etc. and police come to
car and see drugs…D argues that his stop was based on racial profiling and bad motivations by
police. (9-0)
1. Court said that pretext doesn’t matter. Whether police had right to arrest based on probable
cause will be viewed objectively, and won’t question officer’s mental state.
2. Cts. don’t require reasonableness test to determine if violation occurred which allows a traffic
stop.
3. Here, officer had probable cause to stop b/c of the traffic rule violation, and once he went to
car and saw drugs, he could arrest. Officer’s subjective intent is irrelevant.
4. Does not look at if a reasonable officer would have stopped Δ for the traffic violation.
Warrant requirement/Exceptions
Based on the text of the 4th Amendment, arrests and searches should never take place without a warrant.
This is called the Warrant preference. However, there have been so many exceptions added that
they have largely swallowed this rule, and warrants are only needed in certain instances.
Remember that there still must be probable cause.
WARRANT REQUIREMENT EXCEPTIONS
-- EXIGENCY (No time to wait)
1. Destruction of evidence:
Schmerber: destruction of evidence is an exigency/warrant exception.
level)
(e.g. dissipation of blood alc
2. Hot Pursuit
Warden, MD Pen. V. Hayden: Δ robbed cab company and ran home, cab drivers followed and informed
police who got consent(disputable whether she had authority or if she did) by Mrs. Hayden to
come in and search (no warrant). They arrested Hayden (pretending to be asleep in bed, no less),
and officers searched house and found his clothes, gun, ammo, etc.
1) Court said this was an exigent circumstance and was almost “hot pursuit.” Police didn’t have
time to get warrant to search house or arrest Δ Police may search or seize if:
a) police have probable cause
b) scope of search is tied to the exigency (police protection, destruction of evidence)-coming back sometime after arrest to search house would be invalid, as exigency had
ended. [guy in hospital in ER is interrogated]
c) the exigent circumstances must exist
d) police cannot create exigency
2) What’s the proper scope of a search incident to arrest? Same as scope of exigency.
Exigency ends when danger is avoided. Here, Court said police have ability to search for
weapons, in any place where either the Δ could be hiding, or the weapon could’ve been
stashed. This exigency is narrow.
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3) Plainview doctrine: If police come across evidence out in the open while searching for D.,
they can seize it lawfully.
Vale v. LA: 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.
1) 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.
2) J. Black’s Dissent: points out that arrest warrant was for bond hearing, and so police couldn’t
have gotten search warrant too. Also said that a search is often more intrusive than a seizure.
Macarthur (2001): Wife tells police that Δ had drugs in house. Police seized house, then went to get a
warrant. Constitutional to seize house, and then get warrant.
3. Auto Exceptions
--Mobility Doctrine: Since Automobiles are inherently mobile, Courts have found a per se exigency to
search without warrant fear of losing evidence.
•
If vehicle is upon on blocks or not mobile it is NOT within the exception.
•
If vehicle appears to be in process of being used as a home it is NOT within the exception.
•
If vehicle is in your garage/curtilage it is NOT in exception b/c it isn’t public place.
•
If vehicle is being used in a crime, it can be seized as contraband and DON’T need warrant.
--Diminished expectation of privacy, due to the fact that people can see inside, and people know they
can be searched early and often. (heavily regulated area)
Carroll v. US: Established first that warrantless search of an auto is ok if police have P/C.—1929 bootleg
liquor case.
Chambers v. Maroney: Police seized car after arrest and took it back to station for search. This is ok, b/c
of mobility doctrine. Also b/c of diminished expectation of privacy.
1) even though the exigency seemed dispelled, Majority said that there was no difference
between seizing the car, and searching it. Was ok.
2) Dissent: J. Harlan said that search was very intrusive, and police could’ve gotten a warrant
once at station (they had unlimited time).
--Auto exception is based on how it appears to the officer (reasonable)
1) car must be readily mobile: i.e. not on blocks in a yard
2) car must be used for transportation, and not another use like a home
3) if car is in a driveway, that’s curtilage, and if it’s in a garage, that’s considered in a home.
4. Other Warrant Exceptions:
1. Execution within a specific time or it goes stale.
2. Nighttime Execution (in some areas) because it is more intrusive.
3. Means of Entry (knock and announce requirement) (15-20 seconds), (must have reasonable
suspicion to do a “no-knock entry”) (magistrate decides if no-knock is needed)
4. Damage to property (excessive or unnecessary damage is prohibited).
5. No occupants on premise (warrant still served but copy left in room with inventory stating seized
items)
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Review
--4th Amendment:
1) Clause 1: search and seizures must be “reasonable” which is defined by
2) Clause 2: reasonable if done with warrant and probable cause, or at least probable cause with
a warrant exception.
--Warrantless seizure is thought to be less intrusive than a search. Privacy is thought to be more valuable
than a possessory interest.
--Warrant preference: intervention of a detached judicial magistrate necessary; police cannot make
warrant choice, because often biased and caught up in moment—not objective.
Magistrate Requirements
1. Can not be a member of executive branch (can’t be a prosecutor or cop etc)
2. They only requirement for them is that they have ability to determine probably cause.
3. Must only be able to review totality of circumstances (and have a pulse).
Container Laws
US v. Chadwick: Drugs in big trunk on Amtrak train. Train folks see talcum power around trunk and
notify authorities. Police arrest Chadwick, seize trunk and take it to station and open it there.
1) Court says NO. No footlocker exception for mobile PP. Containers don’t have same
exigency as automobiles, and there’s no diminished expectation of privacy here.
2) Court said police could always seize and then get a warrant.
3) Ct. didn’t have inventory searches yet.
Arkansas v. Sanders: Δ put baggage in Car and police step in and search. Court said you don’t lose
expectation of privacy by putting it in a car. (now bad law) No warrant exception when PC is
related to luggage and not automobile. (as opposed to Ross where PC was for car not luggage).
US v. Ross: police had P/C to believer there was drugs in car. They come across a container and search
it. ok? Yes.
1) Court stated that probable cause was attached to the car, and this container was in the car.
The scope of this is basically that officer can search whatever a magistrates’ warrant
would’ve allowed. So if Police come across container that could contain the drugs they
thought would be in car, they can search.
CA v. Acevedo: When Δ put container in a car, it was like Sanders, however, here the Court overruled
Sanders and created a warrant exception when container placed in a car. Reasoning:
1) mobility interest is the same (exigency)
2) privacy interest is now the same (reduced)
3) trying to make police draw line between Ross and Sanders, is difficult, so now Sanders is
overruled, and there’s a bright line rule.
4) Remember the scope is same as scope of probable cause: If police believe drugs in the
container, and you put container in trunk, they can only search the trunk of the car…
--Dissent: Stevens said that now in order to retain a privacy interest, you have to walk with your
containers.
After Acevedo, if PC is for package, seize and get a warrant. If PC is for car, can search w/o warrant
WY v. Houghton: 1999: Court stated that it didn’t matter who owned the container, whether it’s
passenger’s or drivers has no bearing. Police officers can’t be expected to make this distinction over
ownership in the field.
Plain View Doctrine:
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Allows PD to seize items found within plain view.
Horton v. CA Police had a warrant listing only the fruits of the crime (coins and money) but while
searching they found weapons and other evidence of the crime and seized it too. They only
looked places where the fruits could have been (if you can look anywhere small things could be,
then you could easily search anywhere) which was all over. Ct. rejected possible 4th element of
“inadvertence requirements” b/c of exigency abuses by PD.
Elements:
1) Seen from a lawful vantage point (ex: officer walking by on sidewalk, etc.)
2) Right of entry
3) Probable cause to seize (the item)
Seizures / Arrests
Arrest in a public place:
US v. Watson: Warrantless arrest in public accommodation (credit card fraud case?). Δ challenges
constitutionality of arrest w/o warrant. Court said arrest valid:
1) Full custodial arrests seldom require a warrant, and legal traditions, including Common Law
roots show no warrant necessary for felonies and misdemeanors committed in officer’s
presence (based on officer’s 5 senses).
2) This leaves only misdemeanors not committed in officer’s presence that require a warrant.
US v. Santana: See above—Threshold of doorway is a public place, and if you dart in when you see the
police, they can come in b/c they’re in Hot Pursuit.
Gerstein: There’ll be a P/C hearing after the warrantless arrest where a magistrate will determine whether
there’s P/C to hold Δ This hearing must be prompt and within a reasonable amount of time.
Arrests in Home:
Payton v. NY: Officers need ONLY an arrest warrant to go into your home and arrest you and NOT a
search warrant. This is to protect home and privacy interest. However, a search warrant isn’t
necessary when PD enter your home to arrest you. Arrest warrants protect liberty while search
warrants protects privacy. You can arrest a person with a search warrant but its standard is higher
than an arrest warrant so courts allow arrest warrant to pierce privacy rights of the home.
US v. Steagald: if officers seek to arrest Δ in 3rd party’s home, they need an arrest warrant AND a search
warrant (stating that person X is being searched for) - Court feels that privacy interest are strong
for 3rd party and this will help prevent gov’t abuse. Exceptions: exigency, consent.
Maryland v. Buie Two guys robbed Godfathers pizza wearing a red running suit. Arrest warrant was
obtained for Buie and executed it at his home. Officers did a cursory “protective sweep” to look
for persons who pose danger. Cop found guy in basement and saw a red running suit. Ct. held
PD can ONLY look in places where a person could hide and where they have reasonable
suspicion that a person could hide (spaces immediately adjoining the place of arrest).
Search Incident to Arrest (SIA)
An arrest is limited in spatial scope to the suspect’s person, therefore if a search is to be allowed because
of the arrest, it should be limited by this scope to the following:
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1) Scope: Area of control of the suspect:
a) on the suspect’s person
b) immediate grabbing area of the suspect [wing span of person] (including
drawers/containers within reach, and even entire passenger compartment of car)
2) there must be some Justification:
a) police safety (obtaining weapons): many officers killed, want to make sure Δ can’t
go for weapon during arrest process, etc.
b) destruction of evidence—we want to preserve evidence
*this “immediate grabbing area” is actually wingspan+ a few feet.
Chimel v. CA: Cops get arrest warrant, but not search warrant, for Δ for selling coins. They go, arrest D.,
and search whole house for an hour. They argue SIA, Court reasons:
1) Court said, NO. SIA only covers “immediate grabbing area” to provide for safety of officers
and prevent destruction of evidence.
US v. Robinson: Guy’s driving w/o license. Police have probable cause, and pull over to arrest. During
search, officer feels crumpled cigarette pack in pocket. Officer removes it and opens it finding
drugs. Δ argues that Police can’t search for stuff outside crime arrested for, and that police aren’t
in danger when arresting for traffic offense. Court reasons:
1) Officer needs to think it’s a weapon in order to search it/seize it, however officer doesn’t have
to think that weapons/evidence exists to initiate SIA.
2) No quantum of suspicion is required, b/c with SIA we’re ultimately concerned with police
safety and preservation of evidence.
3) With arrests, in general, there’s lengthy exposure to suspect, so police officer is in much
greater danger—more chance for altercation. Bright line rule = Officers need to be safe.
Atwater (2001) Soccer mom was arrested for a seat belt violation (minor traffic stop) and taken down
town. Ct. said this was ok (5-4) and arrests are valid even for minor violations (b/c police are not
required to know punishment for all violations) b/c where would be the bright line for when arrest
is ok. Cops can arrest for anything.
Knowles v. Iowa: 1998: Δ’s stopped for traffic violation, and simply issued a citation (search incident to
citation). Police search his car.
1) Court found this unconstitutional—there’s no Search Incident to Citation. There’s no
extended exposure (police safety) when only giving a ticket, no evidence to be preserved.
2) There must be a full custodial arrest to get SIA. Problem is that officers want to search, but
don’t want a jail filled with speeders. However, with Atwater, the officer can arrest and put
in patrol car for traffic offense, and search, and if they don’t find anything, they can release
suspect.
Whren v. US: Δ arrested in bad neighborhood for turning without a turn signal, etc. and police come to
car and see drugs…D argues that his stop was based on racial profiling and bad motivations by
police.
1. Court said that pretext doesn’t matter. Whether police had right to arrest based on probable
cause will be viewed objectively, and won’t question officer’s mental state.
2. Here, officer had probable cause to stop b/c of the traffic rule violation, and once he went to
car and saw drugs, he could arrest. Officer’s subjective intent is irrelevant.
NY v. Belton: Cop pulls Δ over for speeding, and sees envelope with “supergold” on it, which is slang for
marijuana. He pulls guy out of car and searches car and finds more drugs in jacket in backseat. Δ
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challenges constitutionality of search saying once he’s pulled out of car, none of that is in his
grabbing area (Chimel).
1) Court issues bright line rule: SIA: entails police to search entire passenger area of car
anytime there’s an arrest. If the arrestee was originally in car. Does not include the trunk.
2) There must be reasonableness for how far away in location and time from arrest the search
occurs.
3) This will help protect officers, b/c otherwise they’d want to keep Δ in car as long as possible
so they could search, and Δ’s likely to have a weapon (gun knife) within reach there. Also,
rule like this will be easy for police to follow in field.
4) Justified intrusion b/c of probable cause arrest.
5) **NOTE: Chambers case = is a warrant exception (NOT SIA) and you can search in trunk
for warrant exception but not here.
Thorton (2004) Guy gets out of his car and then the officer makes contact with person. He is arrested and
court still held vehicle search was ok. New rational said the crime itself must determine whether
a search of the car is ok. (2 justices said the officer must have initiated contact with Δ while they
were in the vehicle).
Generally = You have choice of either consenting to a search or being arrested for anything and being
searched.
Inventory Searches
Inventory searches are constitutional.
1) Here there is no criminal investigation, so no warrant is needed; P/C preferences: Balancing
test
a) State’s interest
i.
Protect police from false claims of property loss
ii.
Concerned with police danger (booby traps/explosive)
iii.
Protect the property itself
iv.
Need to ID person (might find real name) and see if any other warrants
issued.
1. NOT generalized crime fighting.
b) Privacy interest of D:
i.
Diminished expectation in a vehicle
ii.
Diminished privacy of your effects (possessions/containers).
2) the State interests win if:
a) Police acted in good faith
b) Limited discretion pursuant to regulation.
c) PD must have standard operating procedures for the inventory.
In inventory searches, police are essentially acting as clerks and NOT as crime
fighters/investigators.
IL v. Lafayette: Elements required to have a valid inventory search:
1) Lawful custody and arrest
2) Standard operating inventory procedures
3) Incarceration must follow arrest
*Inventory searches do not have to involve the least restrictive means.
Colorado v. Bertine On a DUI stop, while waiting for tow truck the PD inventoried his car and found
drugs and money in a backpack. Ct found this was a valid inventory search b/c they were
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standard inventory procedures. (even though impound lot was private and thus no state interest in
dangerous weapons at PD Bldg or claims of theft).
FL v. Wells added that the SOP need not require all containers be opened for any to be opened
(discretion is ok).
Consent Searches
Schneckloth v. Bustamote: search is ok by consent if the consent was voluntary. Test of voluntariness is
now measured by “Totality of Circumstances.” Consent = Reasonable Search (so its out of 4th
amend).
1) prosecution has burden of proof (preponderance of the evidence) to show the consent was
voluntary
2) voluntary= not coerced beyond normal coercion of police
3) Low IQ, stress, should have known etc all encompassed in Totality of Circ. test.
4) Policy: critical to crime control- lots of good evidence.
5) Practically you don’t feel you can refuse, and/or you probably don’t know you CAN refuse.
6) Dissent: wanted a Miranda style warning—said you couldn’t voluntarily consent, if you
don’t realize you can decline. The wanted to keep the Zerbst Test for Voluntary Consent =
Knowing, Intelligent and Voluntary.
US v. Watson Full custodial arrest is still not reason enough to fully inform a person of their right to
consent. This laid groundwork for Robinette b/c if Court doesn’t require being informed for
arrest, then you also don’t need full disclosure for traffic stops to refuse consent. It goes to
totality of circumstance.
OH v. Robinette: 1996: Δ pulled over for traffic violation. Δ asked to get out of car, given warning.
Then before cop lets Δ go, he asks to search, gets consent and finds drugs. Is consent while in
custody voluntary?
1) Court says maybe. They’re still going to apply a totality of circumstances test, and the
coercive nature of the custody will be an important factor to weigh. However, officer
doesn’t have to give warning that Δ doesn’t have to consent.
2) Here the search was justified officer had probable cause to pull Δ over.
3) Once scope of seizure has ended, police need to issue a warrant or tell person free to go.
4) Majority says so long as the extra detention time is not significant it is not an unreasonable
seizure.
5) Dissent: If after the stop, cop continues to detains it is then unreasonable seizure.
Florida v. Jimeno: (1991) Consented to search, cop found drugs in paper bag, guy said I didn’t mean the
paper bag. What is the scope of a consent search? Court says it’s what’s reasonable. What
would officer have reasonably interpreted consent search to allow? Search of car includes
containers in car. Consent can be revoked during search though. (You can say you can search
anything but my suitcase (etc)).
US v. Matlock: 1974: 3rd party consent for search. If another with common authority over domicile is
there, they can consent to search of premises, except personal space…Trial court looks at facts
and determines whether there was common authority. Generally, courts hold that if you have
a roommate, you assume the risk that they’ll consent. Many circuits also hold that even if both
roommates are present and one consents and other says no, cops can come in and search. Hotel
clerk can not consent to guest room search.
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Illinois v. Rodriguez: When you don’t truthfully have common authority, but make cops believe you
do…Girlfriend has access and tells cops she lives there and lets them in. Is that consent valid?
1) Factual correctness is not the issue, the question is “reasonable belief/appearance for
officers to rely upon common authority” If so, it passes muster.
*other issues:
--private citizens searching cannot violate a constitutional amendment—requires state action.
--when state actors begin to instruct private citizens, then you might have a violation: totality of
circumstances test to determine degree of police involvement.
--D can revoke consent at anytime.
Bumper (1968) If you show up with a warrant (but it actually isn’t) and say go ahead and search, that is
not consent and evidence is not admissible. If PD were acting in good faith (and didn’t know
warrant was bad) then it is admissible. It is not consent because a warrant is an order, not a
request for consent. If you don’t consent to a warrant you go to jail.
** Atwater, Robinson, Belton creates problem b/c PD can offer you the choice 1) arrest for traffic
violation and then search incident to arrest or 2) consent and I will give you a citation. Not much
of a choice but a citation is a courtesy and they could just arrest you.
US v. Jacobson: citizen does private search, calls police, then they come and search. Constitutional?
1) once the “cat’s out of the bag?” whatever officers are told by private citizen is equivalent to
the plain-view doctrine.
Stop and Frisk & Reasonable Suspicion
Generally, under the 4th Amendment:
--stop is a seizure, if you don’t feel free to leave
--frisk is a search, intimate touching of body (invasive)
Terry v. Ohio: Seasoned officer sees guys outside place who look like they’re preparing to do an armed
robbery. He stops them and asks questions, and when they can’t answer, he briefly frisks them
for weapons & finds two guns.
1) Majority says you need a less quantum of suspicion stop and frisk (a per se exigency) and
thus no warrant is required. As a brief stop and frisk is much less intrusive than full search or
full arrest, so no probable cause needed—only reasonable suspicion. The test for whether
reasonable suspicion exists is:
a) objective R/S
b) totality of circumstances
c) particularized to a person
d) articulable facts/reasons
2) Officer can now stop when he has reasonable suspicion that criminal activity is afoot (stop)
3) Officer can search when he has reasonable suspicion that Δ may be armed (search)
This stop and search is limited however to confirm or deny the suspicion. Officer’s search should
not be full search, simply a pat down minimal search to find weapons.
Policy: balancing interests between individual’s privacy and state’s interest in crime control.
e) States interests: Crime control—we want to allow police to act proactively as well as
retroactively. With establishment of reasonable suspicion, police can now confront
suspects and foil crimes. §1983 actions and exclusionary rule exist to help protect
citizens from harassment.
f) Personal interests: privacy is key. Police may use this lesser standard to harass
minorities and citizens in general. Also, with the lower standard, it will make it
harder to show discrimination and harassment.
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IL v. Wardlow: Defined reasonable suspicion: Police in bad neighborhood investigating drugs: Δ looks
at police and runs—do police now have reasonable suspicion?
1) SCT says that R/S is established by totality of the circumstances test (case by case): here
you are in a high crime area, and suspicious looking flight is enough, under objective test.
a) officer must be able to articulate facts that give suspicion, can’t just be hunch.
b) This standard is low (maybe something like 15-20%), and probably half of P/C.
c) Flight must be unprovoked (officer can’t hold gun on suspect and say “run you
SOB”).
Arvizu: 2002: most recent R/S case: police stop van on border road in which lots of illegals/drug traffic
on it. Police see van, not a local vehicle, no eye contact, no kids waving, then kids wave
mechanically. They say that’s R/S.
1) SCT says yes, there was R/S based on totality of circumstances. You look at all facts together
to determine this, and not each fact individually. Drug courier profiles can also be a factor here.
Stop and frisk issues:
1) Tips: Alabama v. White: can anonymous tips form basis of R/S? yes depending. We’d
normally go with Gates’ veracity and basis of knowledge test (Spinalli Factors), but here use
R/S (15-20%) not PC b/c the informant is anonymous.
a) police must use corroboration (creating track record by having facts verified) and try
to see if Δ does any of predicted activity to verify.
b) Florida v. J.L.: this is an example of a case where R/S wasn’t established by anon.
tip. Just b/c Δ met description is not enough—there must be “predictive info” that
he’s going to be involved in a crime. Police try to argue for public safety (gun)
exception. SCT says NO, but there may be one for a bomb in airport, etc. PD should
have waited and watched him until he did something giving RS.
2) When does stop/frisk become full custodial arrest? US v. Sharpe—overloaded car and truck
w/ camper running case.
a) Court employs a reasonable police officer test, rather than setting time limit,
however a very long detainment may exceed scope of reasonable suspicion. Here,
Δ’s created the length of time by not stopping together for officers.
3) Can officer ask you to get out of car at traffic stop based on R/S?
a) YES. Mimms: we’re worried about officer safety, and Δ’s more dangerous in car
where he could reach a weapon. Liberty interest is not problem, b/c Δ’s already
stopped.
b) Passengers can also be asked to get out without R/S or P/C. (MD v. Wilson).
4) Containers found during stop/frisk: Can officer search them?
a) if officer during frisk finds container and isn’t sure what it is, he can open it to look
for weapon—then it’s plainview doctrine if it’s evidence…
b) Michigan v. Long: 1983: extends this to search to a Terry Frisk of “passenger
compartment” of car if they have reasonable suspicion that Δ is armed/dangerous.
You can frisk the area by opening pouches and containers while frisking car. Here, Δ
was drunk, wrecked, police saw knife in car—that’s enough. They were allowed to
search and found drugs.
5) Contraband: Plain Touch Doctrine: Court says that if you’re doing Terry frisk, and feel
something you believe to be contraband, and P/C develops, then you can seize it.
a) However, if he isn’t sure what it is and keeps squeezing it then that goes too far and
is unreasonable.
6) When a Frisk it turns into a full custodial arrest
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a) Spatial = Unreasonable movement of Δ by PD is a defacto arrest and NOT a Terry
Stop.
b) Seizure Intensity Dimension = If they put you in handcuffs or hits you it is defacto
arrest.
c) Temporal = If they hold you for an unreasonable amount of time it becomes full
custodial.
d) Consent Frisk is OK and does not fall into 4th amendment. (Investigatory)
7) Hiibel (2003) said if you refuse to give your name during a Terry stop the PD can arrest you
b/c it gives a basis for the PD to arrest you.
8) Cabelles (Not Decided Yet) Can you bring out a drug dog during ordinary traffic stop?
Probably Yes (Place)
Ybarra v. IL PD come into a bar to exercise a search warrant of bar & bar tender. Ybarra is just a
customer but PD frisks all customers. They frisk him, feel something like a cigarette pack but
they go onto to another customer and then come back and search Ybarra’s package and find
heroin. Ct: 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].
a) You can detain a person who resides or occupies the premises that is subject to a search.
Summers v. Mich.
b) Must balance state interest (flight of person & danger) vs. public interest (people would want
to watch search).
Highway Stops/Checkpoints
DE v. Prouse: Random checkpoint stops of motorists by police:
1) Court does balancing of state’s interest in providing highway safety and check of
licensing/registration, v. Major Individual Interests: objective intrusions (time/movement)
and subjective intrusions (fear & surprise).
2) In this case, Individual interest wins, b/c low amount of good the stops do, and mainly b/c of
too much police discretion. The Court ultimately ruled that “random, suspicionless stops” are
Unconst under the 4th.
3) R/S must exist for Terry stop.
4) Checkpoints reduce the fear & surprise b/c you see it coming up and everyone is doing it.
Mich. Dept of State Police v. Sitz: checkpoints set up for sobriety.
1) court upheld this because state interest was strong and privacy intrusion minimal. Also this
policy advanced state interest.
2) Keys: special needs doctrine
a) checkpoint for safety/sobriety/border control/license/registration doesn’t require
reasonable suspicion and is ok under the 4th as long as specific guidelines are in
place to limit intrusion and quell the discriminatory possibilities.
City of Indianapolis v. Edmond: City sets up roadblocks for drug interdiction. Δ challenges. (it’s about
the same as Sitz, but has drug dog sniff around the car.) Held that Brown requirements not even
enough.
1) SCT said 6-3 that this was unconstitutional, because it was not based on “special needs” but
was ordinary crime-fighting.
a) things such as border-patrol, sobriety, have nexus with highway safety and are so
important that an exception to R/S is allowed. Here, drug activity doesn’t pose
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special highway safety problems to other motorists, and evidence shows only small
% of stops catch anyone.
b) This is an exercise in nomenclature: If police had called this something else (sobriety
checkpoint, for ex.), it might’ve survived.
2) The SOP reduced their discretion b/c they had to pull a certain number of cars over, and drug
dog checked.
3) This is outside Wren because it is not a pretext stop (however a pretext stop here would be
Unconst).
a) Pro-gramatic Pretext (When the actual reason of the stop is concealed or false) is
Unconst.
*border searches of luggage and searches of person and baggage in airports allowed b/c compelling
gov’t interest.
* If police develop R/S they may detain in these cases for some time.
1) Border Stop: no R/S necessary, because of “special needs”. To detain further, need R/S, to
arrest, need P/C.
2) Near border (say 100 miles): Prouse dicta prohibits random stops, must have R/S.
Checkpoints however can be conducted for appropriate “special needs” purposes under Edmund.
3) Fear and surprise are not so important in boarder checkpoints because of expectation to be
stopped at boarder and illegal immigration is different and you can’t guess if someone is
smuggling illegals like you can for DUI.
FL v. Mantono Ct. held the disabling/taking out the gas tank was standard procedure (routine) and thus
Const at boarder.
Mantoya Ct. held it was Const to hold a person for several hours on a Terry Stop on the boarder.
**See Special Needs handout for further decisions**
School rules
4th Amendment only applies to state actors/agents—to find out whether public school constitutes this, we
use T/C test, and the degree of gov’t involvement.
 State Interests: Gov’t in these cases argues special needs of student safety
and ability to effectively administer education.
 No warrant/no P/C required for student/book-bag/locker search, only R/S
required (TLO, 1995).
Drug testing:
1) Veronia S/D: suspicionless drug testing of school athletes ok b/c of special needs of quelling
drug problem
2) Earls (2002): SCt upheld suspicionless testing for ANY afterschool competitive activity on
basis of special needs.
3) Skinner: RR employees can be drug tested randomly, safety concerns important
4) Von Raab: Customs employees can be drug tested, special needs
5) Chandler: 1997: GA wants to drug test all political candidates—SCT say NO 8-1 decision.
Standing
To determine if Δ can challenge search/seizure, Δ must have standing. Analysis:
1) Were Δ’s rights violated?
2) Did Δ have a reasonable expectation of privacy?
Rakas v. IL: car pulled over, Police find guns, etc. in glove box, passengers challenge.
1) Court uses one-step approach and asks whether passenger had:
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a) property interest in thing searched (NO, passangers had no ownership of automobile.)
b) own reasonable expectation of privacy (Court says no, you can’t expect something in
another’s car to be private).
Minnesota v. Olhson: Rule: Δ in another’s home to stay for night does have REP, so they can challenge
search.
Minnesota v. Carter: Δ’s seen through window, by police, bagging cocaine in friend’s apartment. The
Δ’s paid friend in drugs, and were there only around 2 hours.
1) D’s don’t have their own REP, because:
a) Commercial venture
b) They didn’t know owner well (not close or family)
c) Time Period was short (not long enough to get expectation)
Add up all the justices’ concurrences, and it shows trend that all social guests may have own
reasonable expectation of privacy…
Rawlings v. KY: Δ was denied standing for search of girl’s purse (in which he’d just stashed drugs). Δ
must have ownership interest in the thing to be searched.
Exclusionary Rule
The exclusionary rule in 4th Amendment setting generally states that evidence (through improper seizure
or improper search) must be excluded from trial, and cannot be used to prosecute the defendant.
Policy concerns:
 Deterrence: we want to deter police from violating Δ’s constitutional rights, not punish
the government—so Court will not punish but will take away the benefit of the unconst.
obtained evidence.
 Costs: society bears costs, because this exclusion may let Δ go free even though he’s
guilty (blow to Crime Control).
Exceptions: Independent source doctrine: Police would’ve gotten evidence from independent source
anyway, so should be admissible.
Impeachment:
While evidence illegally seized cannot be used in the prosecutor’s case-in-Chief, it can be used to
impeach Δ’s testimony, should he decide to testify:
1) to not allow it here, would be to allow Δ to commit perjury and subvert justice system.
2) Testimony can be impeached on direct or cross examination, if it’s in scope of direct
examination. (See generally Walder, Harris v. NY, and US v. Haven)
a. Can bring in Collateral crimes (past convictions) to impeach.
b. Δ statements made on direct exam on the charged crime were impeachable too.
c. So long as a “limiting instruction” is given to the jury they can introduce the illegally
seized cocaine for jury to decide if Δ had cocaine, supposedly ONLY to show Δ was
lying.
d. Δ statements on c-x can entitle prosecutor to impeach too.
e. Impeachment is ONLY applicable to Δ alone, and not Δ’s witnesses. (James v. IL)
3) No impeachment allowed for confessions that were coerced/involuntary.—not reliable.
4) Evidence brought in (to impeach Δ testimony) can not be used as evidence for charge, but
only to be used to prove Δ was lying.
5) Policy is that USSC doesn’t want the exclusionary rule to be a shield for perjury for Δ.
Fruit of the Poisonous Tree Doctrine: (FOPT)
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This doctrine states that, generally, not only must all evidence directly obtained through the
illegal search/seizure be excluded, but also evidence indirectly obtained as a product (fruit) of that
illegal seizure/search will be excluded. This is necessary to deter police from misconduct and
benefiting by getting hold of indirect evidence.
1) Exceptions:
a) Inevitable discovery doctrine:
b) Evidence so attenuated that “taint” is dissipated (no prox. Cause).
c) evidence may be used in impeachment of Δ’s testimony
d) Good Faith exception
2) How long does the taint last? Factors should be considered:
a) time
b) chain of events (break in chain=lack of proximate cause)
c) voluntary act of free will—witness coming forward with oral test.
d) Type of evidence: Court’s reluctant to exclude witness testimony
e) Flagrancy of police misconduct: how poisonous is the tree?
3) But-For Causation
a) Independent Source Doctrine
b) Inevitable Discovery Doctrine
4) Proximate (attenuation analysis)
Wong Sun v. US: 1963: Guy was released on his own recognizance for a few days and then comes
back, is Mirandized and then confesses. Ct. said here it was far enough away but normally
exclusionary rule is in effect b/c fruit of poisonous tree must be excluded. Here it was far enough
away to remove the taint.
Brown v. Illinois (1975): Cops had broken into guys house, found evidence and waited for him and
then arrested him. Cops then Mirandized him and he confessed. Miranda warnings by
themselves don’t dissipate the taint of an unlawful arrest. Δ was arrested without P/C.
1) Majority: allowing Miranda warnings to dissipate the taint of unlawful seizure goes against
policy considerations, so Ct won’t allow it. There would be no deterrent effect to officers if
this were allowed.
2) Must review the following factors for if taint still remains on subsequent evidence.
a. Relation in Time
b. Relation in place/location
c. Intervening causes (Chain of Events)
d. Nature of Evidence
e. Flagrancy of violation
f. Acts of free will
US v. Ceccolini: 1978: Police went in flower shop and searched/opened envelope looking for
evidence. Held UNCONST. Then police asked witness about envelope and she gave statement.
Was her statement fruit of poisonous tree? Distinguishes b/t testimonial and physical evidence
and the level of taint they CAN carry.
1) Witnesses are live and come forward, can do so of own free will—different from physical
evidence. Court is reluctant to exclude oral testimony for witnesses, and there’s little
deterrent effect on police, b/c witnesses can come to them. Taint dissipates quicker on
testimonial b/c the gun can’t feel guilty and walk to the PD.
22
NY v. Harris: Illegal arrest in home without an arrest warrant. Outside (on way to police car, and
later), Harris made incriminating statements and seeks to suppress as fruit of poisonous tree.
Violation of the Payton rule.
1) Mere continuing custody doesn’t necessarily constitute a continuing 4th violation. Court
found the statements admissible.
2) Causal break between the illegal seizure when you have PC to arrest. The incriminating
statements after arrest cut off FOPT. Don’t have to let criminal go after you get incrimination
evidence. Must give the evidence back- not let the criminal go.
3) Payton rule protects you inside the house, but once you leave the house and talk, it is at your
own peril.
4) Dissent says that but for the false arrest there would be NO confession and it shouldn’t be
allowed.
Inevitable discovery doctrine: (Hypothetical-Independent Discovery Doctrine)
This doctrine is hypothetical, and requires that gov’t show by a “preponderance of the evidence” that
they would have discovered the evidence anyway (but-for), even if the violation had not occurred.
Nix v. Williams: 1984: Δ was given “Christian Burial Speech” which violated 6th Amendment rights,
and Δ showed police where body was.
1) Gov’t showed that they would’ve found body anyway (search team was close to area and
working themselves that way). No exclusion.
2) Policy concerns: we want top put the prosecution in place they would’ve been had there been
no violation (they would’ve found evidence anyway), instead of punishing them.
---Circuit split over inevitable discovery rule: Some worry that this exception will foster misconduct.
Views:
1) Some circuits only allow exception for derivative evidence. These circuits would exclude
direct evidence.—provides more deterrence.
2) Some circuits require police be actively pursuing a warrant in order to take advantage of this
exception
3) Others say that if this exception is used by police to avoid getting a warrant, then the
evidence will be excluded.
4) MUST determine if the primary evidence (e.g. the confession) and derivative evidence (the
body found b/c of the primary evidence cause any issues when looking at the inevitable
discovery of the evidence.
5) There is NO “Good Faith” argument here b/c it put a positive burden on gov’t to show good
faith when it is not necessary if they were going to find it anyway (even if in bad faith).
Independent Source Rule:
--police need to show that the evidence came from a source independent of the original illegality.
Murray v. US: 1988: Police cannot get P/C for 2nd search from first illegal search. If so, any
evidence obtained in 2nd search is excluded.
1) Court wants to put gov’t in position it would’ve occupied had there been no illegal 1st search
[no worse of a position if illegal search hadn’t occurred]. If gov’t can show they had P/C to
search independent of first illegality, they can search 2nd time legally
2) Gov’t must show:
a) no evidence from illegal 1st search used to establish P/C for 2nd search
b) motivation for 2nd search must be independent (must convince court that they would
want to search even if they’d found nothing first time).
23
Segura v. US: 1984: but for illegal arrest, Δ could have destroyed evidence?
1) Court doesn’t buy this for one second. There’s no constitutional right to destroy evidence.
Good Faith Exception
US v. Leon: Magistrate issues warrant (in good faith) on mistaken belief that he had enough to
amount to P/C (here ct found not enough for PC) and PD act on it. Court later finds that there
wasn’t probable cause. Must the evidence be excluded?
1) NO. Court announces good faith exception because:
a) the exclusionary rule exists as a prophylactic rule to deter police misconduct, not
judicial misconduct. Judges aren’t in business of fighting crime, have no interest in
violating 4th Amendment, and exclusion won’t deter them. Magistrates’ jobs don’t
depend on evidence.
b) This acts as a double reasonableness test 1) magistrate’s judgment & 2) police’s
judgment.
2) Good faith exception not allowed if:
a) PD intentionally mislead magistrate (Bad Faith)
b) Warrant is facially deficient (Bad Faith)
c) Magistrate appears to have abandoned judicial role and was interested in fighting
crime (Bias)
d) Warrant was lacking indicia of P/C. (Bias/Bad Faith)
3) Objective Reasonableness Test
a) Would a reasonably well trained officer have thought the warrant was reliable.
b) Use Totality of Circumstances.
4) Majority demotes the exclusionary rule a “mere judge made rule” which allows them to
create exceptions.
a) Key here is that it is based on reliance of PD on magistrate so it would not apply to
just a cop who thinks he has PC (but doesn’t) because he is not relying on anyone for
that determination.
IL v. Krull (1987): Police officer CAN reasonably rely on legislature’s passage of a law (even if law
is unconstitutional). Creates a Good faith exception.
AZ v. Evans: (1995): Police officer CAN reasonably rely on computer records, like existence of a
warrant, to arrest persons (which were wrong b/c court clerk made a mistake and forgot to quash
a warrant). If the mistake is blatant then officer can NOT rely on it.
24
EXCLUSIONARY
RULE UNDER
THE FOURTH,
FIFTH, AND
SIXTH
AMENDMENTS
THE FIFTH &
SIXTH
AMENDMENTS
FOUR BASIS TO EXCLUDE STATEMENTS AND CONFESSIONS
Approach
Constitutional Basis
Voluntariness Approach – To
be admissible, a statement must
Due Process Clause of 5th and
be voluntary made based on the
14th Amendments
totality of the circumstances.
Miranda Standard –
statements made during
5th Amendment Privilege
custodial interrogation are
Against Self-Incrimination
inadmissible in the absence of
Miranda warnings.
Right to Counsel Approach –
statements made during any
6th Amendment Right to
“critical stage” of a criminal
Counsel
proceeding are inadmissible
unless the Δ is afforded a right
to counsel.
Fruits of Illegal Conduct –
even voluntary statements
4th Amendment Exclusionary
obtained as fruits or prior illegal
Rule
searches and seizures are
inadmissible
DIFFERENCES BETWEEN THE 5TH AND THE 6TH
5TH
dispel coercive atmosphere of
custodial interrogation
(MIRANDA)
available at custodial
interrogation (MIRANDA,
MURPHY)
does not apply to undercover
interrogation (PERKINS)
reasonable likely (obj) to elicit a
response (INNIS)
invocation must be clear and
unambiguous (DAVIS)
probably cannot invoke in
advance of custodial
interrogation
not offense specific
(ROBERTSON)
little or no fruit of the poisonous
tree (ELSTAD)
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6TH
legal guidance and advocacy to
inform Δ of the intricacies and
technicalities of law (6TH)
available at commencement of
formal judicial proceedings
applies to undercover
interrogation
(MASSIAH)
deliberate elicitation (subj)
beyond mere passive listening
(BREWER)
invocation can be implied or
inferred from acceptance &
retention of counsel (TX v.
COBB)
invoked at commencement of
judicial proceedings and goes
on after invoked at arraignment
offense specific (MN v. J,
McNeil)
full fruit of the poisonous tree
26
5th Amendment Text:
“No person shall be…compelled in any criminal case to be a witness against himself…”
6th Amendment Text:
“In all criminal prosecutions, the accused shall enjoy the right to …the assistance of counsel for
his defense.”
14th Amendment Text:
“…shall not be deprived of liberty…without due process of law…”
Interrogation: purposes and policy concerns:
A) Pro confessions:
1) Crime Control: we want confessions to make sure we have arrested correct guy (good
evidence of guilt), and makes judicial process more efficient.
2) Saves the prosecution and courts and taxpayers time and expense
3) Good for soul to confess. Retribution, Rehabilitation.
B) Concerns:
1) We want to protect rights of individual from coercion
2) Reliability (if using undue pressure, Δ will say anything to stop interrogation)
3) Human dignity and human rights
4) Integrity of our judicial system: supposed to be adversarial, not inquisitorial
Test of Voluntariness:
Prior to the 1960’s, the court used a voluntariness doctrine, based on a combination of 5th
Amendement and Due process. Voluntariness was determined by looking at totality of the
circumstances:
In cases such as Bram, and Ashcraft v. TN (36 hour interrogation): Court ruled that putting a
person under undue pressure makes confessions unreliable. Undue pressure comes from:
1) Use of Force by police
2) Threat of force
3) Extreme deprivation (long time without rest/food/water/breaks/etc.)
4) Deception about law and sentencing (police cannot lie and say they’ll drop charges if Δ
confesses, however they may be able to lie about facts—ex: “you’re partner has already
ratted you out.”)
5) Psychological Manipulate when EXTREME (simple manipulation is ok)
6) Totality of Circumstances
--the problem with this analysis is that as police practices became more advanced and they used
various psychological means on defendants, this rule provided little guidance, and leaves
decision up to trial judge. Examples:
a) Spano: 1959: Δ shoots boxer who’d beat him up earlier. Δ is arrested and
interrogated throughout the night, denied counsel, used friend to coerce him. Court noted that
regardless of reliability of the statement, these techniques violate human rights.
b) Connelly: 1986: Δ comes up to officer and confesses to murder. He’s crazy and
wants to suppress confession. Court rules that there was no coercion by police or state actor,
so it was voluntary under the T/C. Wouldn’t deter misconduct to exclude the confession
here.
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c) Mincey v. AZ 1978: Guy was in ER with tubs up his nose and in pain and cops kept
interrogating him, he finally wrote some things out. Ct. found this was inherently coercive.
[No right to be free from interrogation, only the use of statement]
i. Although there is no right to be free from interrogation, there is a “Shocks the
Conscious” test from Roachen that can protect criminals from coercive interrogation (Chavez
v. Martinez) [Guy in hospital, shot in head, from police shooting is interrogated]
d) **This is the new voluntariness test. In order to be a voluntary statement, Δ must
NOT have been coerced, and that coercion will be measured by looking at T/C.**
Protection against coercive interrogation is not your right, it is the exclusion of that evidence
(confession).
Massiah v. US: 1964: Δ’s arrested for drug smuggling, arraigned, gets out on bail. Co-def. turns
state evidence and goes to meet Δ (wired). Δ makes incriminating statements, which are
introduced in trial against him.
1) Majority: these incriminating statements are suppressed because Δ didn’t waive his 6th
Amendment right to counsel. After initiation of formal judicial proceedings against D,
his 6th Amendment right to counsel attaches. This applies to even surreptitious
interrogation, as Δ cannot waive right to counsel when he doesn’t know he’s dealing with
gov’t agent.
Escobedo v. IL: 1964: Court allowed 6th Amendment right to counsel to be pushed back to pretrial period—this is now bad law. Miranda covers pre-trial period.
Miranda v. AZ: Seminal 5th Amendment case: SCT - custody + interrogation = inherently
coercive atmosphere. Therefore, a practice/rule should be installed to protect Δ’s rights.
Statements made under this atmosphere without warnings will carry a presumption of
involuntariness, and will be excluded. The warnings give Δ notice and dispel the “coercive
atmosphere.”
1) Miranda Warnings:
a) right to remain silent: tells Δ that he can stop questioning at any time, and that
police will observe his wishes to stop questioning
b) anything said can and will be used against Δ in court: notice of legal
consequences of talking
c) right to counsel: right to get legal assistance (this is NOT the 6th amendment
right to counsel)
d) if you cannot afford one, an attorney will be provided by state: right to legal
counsel for poor.
2) Waiver of Miranda Rights:
a) Can be express/implied
b) Must pass Zerbst test:
i. Must be voluntary (T/C test)
ii. Must be knowing and intelligent
3) If Δ requested Counsel, they go through Edwards analysis.
Miranda has been challenged, but held to be a constitutional Rule, and here to stay.
(Dickerson, where Congress attempted to legislate Miranda away). Miranda is a
Constitutional Rule: somewhere between a judge-made prophylactic rule and a
constitutional right (which Congress can not legislate). We get no explanation of what this is
(a similar debate could apply to Exclusionary Rule and 4th Amend). All dissents challenge
this concept and the policy arguments (kicks out good confessions).
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--Fruit of poisonous tree has limited application under 5th Amendment. Witnesses that are
found because of statements of Δ w/o having warnings are still admissible, and dicta says that
even physical evidence found this way is admissible also.
--5th Amendment doesn’t require suppression of evidence where Δ made statements and then
was Mirandized, and then confessed. Early non-Miranda admissions do not taint later
evidence.
Definition of Miranda custody:
Berkemer --What constitutes Custody?
1) Terry/Traffic stops and small violations do NOT need Miranda warning.
2) Full custodial arrest (from the suspect’s perspective) requires Miranda.
Orozco v. TX: 1969: SCT set standard: “Whether a R/P in Δ’s position would have believed
himself to be deprived of his freedom in a significant manner by the police.”
MN v. Murphy: 1984: meeting w/ probation officer is not custody. Δ’s not under control to the
same extent, it can be rescheduled, Δ can leave anytime, not adversarial relationship (not as
intimidating).
Definition of interrogation:
Rhode Island v. Innis: 1980: 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. SCT reviews and states that Δ’s been
interrogated if:
1) D was asked a direct question; or
2) Functional equivalent of questions:
a) Statements “reasonably likely to illicit an incriminating response.”
i.
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?”
b) 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]
*SCT said the present case wasn’t coercive enough to illicit incriminating response.
Pennsylvania v. Muniz: 1990: DUI suspect involved. SCT talked about Schmerber and the fact
that 5th only protects oral, testimonial evidence.
1) Where driver is slurring speech, those characteristics can be introduced without Miranda
warnings.
2) Any actual content from driver, must’ve been preceded by warnings, even if Δ was asked
“What year is your 6th Birthday?”
Police Trickery: Interrogation and custody implications under Miranda
IL v. Perkins: 1990: Δ’s held in jail cell. Police put undercover cop in cell, who elicits
incriminating statements from Δ, “have you ever killed anyone?”
1) Court held that Δ’s definitely in custody, and was asked questions, but there was NO
coercive atmosphere here b/c Δ didn’t know he was talking to an officer. Therefore, No
warnings needed.
29
2) Under 5th Amendment self-incrimination, surreptitious questioning w/o Miranda warning
ok, b/c Δ can’t be coerced when he doesn’t know he’s dealing with an agent.
AZ v. Fulminante: police go into jail and promise Δ (a suspected child killer) protection from
other inmates if Δ confesses: SCT ruled that this was coercion, and his statement wasn’t
voluntary by T/C test. If in custody, then no Mirada so use T/C test to determine if it is
voluntary. This was going too far and went beyond Perkins. [Likewise cops can’t pose as
lawyers or priests in interrogation]
*After Miranda, the evidence still must satisfy the DP Clause and Voluntariness test
Waiver: under the 5th
Johnson v. Zerbst: this is current test of whether Δ waived his 5th Amendment constitutional
rights:
The waiver must be:
1) Voluntary
2) Knowing and intelligent  basic understanding of Miranda rights
*Both these factors are determined by T/C test.
**Waivers can be express (oral or written), or implied. If waiver is implied, go through Zerbst
test again.
Factors to consider for if person could have knowingly/voluntarily waived:
a. Children = Not likely “intelligently”
b. Intoxication = would probably be admitted
c. Mental incompetence = likely admitted
d. Other forms of limited understanding.
NC v. Butler: SCT ruled that express waiver isn’t necessary (D didn’t sign waiver form but
wanted to talk). Here, Δ verbally waived right to silence.
**Zerbst waiver test states that Δ’s waiver must be voluntary, knowing and intelligent, seen
by T/C and proved by gov’t by preponderance of the evidence.
CO v. Spring: Δ picked up for arms sale, Mirandized, and he waived. Police then ask him about
other crime and he talks. Δ challenges.
1) knowing and intelligent: SCT says this is a low/simple standard—D only has to
understand the right, and not necessarily that he used good judgment/prudence in
waiving.
2) Police don’t have to inform of what they’ll question him about.
Moran v. Burbine: 1986: Δ arrested, and doesn’t know that sister has hired attorney for him.
Police know but don’t tell him. Attorney calls and says “don’t interrogate.” Δ waives right
and talks in the meantime.
1) SCT said there’s no information requirement in the Constitution. Here Δ waived
voluntarily and talked. Police don’t have to inform that counsel has been hired for him.
2) Knowing and intelligent: This really only means that you understand what’s on the
Miranda Card and little more.
Public Safety exception to Miranda
NY v. Quarles: 1984: Δ raped woman, had gun, in supermarket. Police officer knows he had
gun, but when he catches D, Δ doesn’t have it anymore. Fearing that Δ stashed it in
30
supermarket and someone will find it and get killed, Officer asks Δ where gun is before
Mirandizing.
1) SCT: this public safety exception is allowed only if officer “reasonably believes” that the
public may be in danger.
2) D can still make argument that not public safety matter, and if he wins, it’d be fruit of
poisonous tree, etc….
3) O’Connor doesn’t think the exception is necessary, because 5th only protects testimonial
evidence, not physical.
Implications of Invoking 5th Amendment R/C or R/S
Silence Invocation:
Michigan v. Mosley: Δ arrested for robbery and invokes R/S. Then later, another officer comes
to his cell and Mirandizes, and questions about a different murder. This time the Δ talks. Δ
wants to suppress 2nd instance saying that first invocation should be complete bar to further
questioning.
1) Majority: police must “scrupulously honor” Δ’s invocation.
2) This case is an exception, and confession upheld only because it was not coercive, based
on the following factors:
a) Considerable time had passed (several hours)
b) Questioning done by a different officer
c) Δ was questioned about different matter
d) Questioning done at different location
3) If these factors are not met then you must carefully review waiver test to see if it was
actually voluntary or was that waiver coerced (cops basically saying you have to talk no
matter what).
4) These factors combine to show that Δ was in control of his rights (different
interrogation), and therefore the situation wasn’t coercive.
Counsel Invocation:
Edwards v. AZ: Δ asked for attorney before talking to police. Later, police come to cell and
question, he invokes R/C again and they won’t take “no” for an answer and he talks.
[Edwards Rule]
1) police cannot question again (without counsel present) after R/C invocation, unless:
a) D initiates (and there’s valid Zerbst waiver)
b) Counsel is present
2) Majority: this invocation of counsel is a “cry for help” and shows that Δ is vulnerable.
3) Once counsel is invoked, PD can not question again “until counsel is present at
interrogation” (not simply made available). [PD can not ask about anything/any charge at
all until counsel is present]
4) Dissenters say that Zerbst waiver test should be used  b/c they don’t endorse Miranda,
which the majority’s ruling is based on. They also make policy arguments: effective
Crime Control.
Bradshaw: What does Δ initiating mean? Initiate conversation and meet Zerbst test, V/K/I.
“Would a reasonable officer construe this as a willingness and desire of Δ to speak to
police?”
Minnick v. MS: What does counsel made available mean? Counsel MUST be present. Police can
initiate a second round of interrogation but after 5th invoked, must have attorney.
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Davis v. US: Δ makes ambiguous statement about attorney: “maybe I should talk to a lawyer”.
Police try to clarify and he says he doesn’t want one. He talks some, then makes another
ambiguous statement, and police stop Q. Δ then tries to suppress statement saying he earlier
invoked.
1) If Δ makes ambiguous statement, Police should try to clarify, but can ignore all together.
Clarification would help police, b/c if they’re judgment is wrong (about ambiguity), then
the rest could be suppressed. Q can continue until/unless Δ clearly, unambiguously,
and unequivocally requests counsel.
2) D bears burden to assert Right clearly
3) D must assert clearly enough for officer to understand that Δ’s invoking R/C
4) SCT doesn’t buy argument that lawyer is magic word—would imprison Δ’s personal
constitutional rights, and hinder law enforcement.
T/C  C + I=
CA
 dispelled by Miranda
Voluntary.



1. if invoke RS
Spanno Connelly Innis Berkemer Perkins

SH- Mosley
Edwards
& waiver
(no inter w/o attny)
 Waiver- Zerbst
3. if invoke RC
T/C- V/K/I

can be implied- Butler
6th Amendment R/C
The 5th Amendment S/I is concerned with the “cruel trilemma”:
1) D’s silence in court could’ve had him held in contempt
2) If Δ testifies and lies, it’d be perjury
3) If Δ tells truth, he’s going to be found guilty
*C/L doctrine of unreliability was also at issue with coerced confessions.
Miranda addressed the cruel trilemma, and unreliability and dealt with both.—concerned with
dispelling coercive atmosphere.
6th Amendment right to counsel at trial:
1) It’s thought that Δ needs expert legal advice to help them through complex judicial
proceedings/legal system.
2) Lawyer can be advocate for Δ at trial
3) Lawyer acts as a go-between, advises D, and helps keep Δ from doing things that would
prejudice/obviate the need for a trial.
Massiah: 1964 (this is pre-Miranda, but 6th area is still good law). Drug trafficker via the ship
Santa Maria, out on bail after arraignment. Co defendant comes in wired and gets statements
from Δ at home.
1) 6th Amendment right to counsel attaches immediately upon commencement of judicial
proceedings against Δ -- No particular invocation necessary.
2) State interrogated by deliberately eliciting statements from D, post-indictment (after
formal proceedings have begun against him).
3) D didn’t waive, b/c it was surreptitious—D can’t waive right when he doesn’t know he’s
dealing with the gov’t.
4) Miranda is NOT applicable here, it is different b/c commencement of formal charges (not
just arrest).
a. Note that Miranda would not have protected D, as he’s not in custody and not
coerced.
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5) The incriminating statements by Δ are excluded (that was Δ’s 6th amend right) but
susequent investigation based on his statements are admissible, no FOPT problem with
evidence later uncovered.
***note analysis of all our cases:
a) There’s no 4th Amendment violation, b/c Δ assumed the risk by giving info to 3rd
person (who could and did share with police).
b) There’s no 5th Amendment violation, b/c Δ didn’t know 3rd party was agent, and
wasn’t coerced, nor was he in custody.
c) 6th was violated: Δ was questioned after commencement of formal judicial
proceedings w/o attorney present.
i. Policy = Our legal system is adversarial, and when you ask for counsel,
he is your expert and will be an advocate and state can’t mess with that
ONCE formal legal proceedings are commenced against you (as soon as
you are charged, indicted, arraigned, pre-liminary hearing or
information) [NOT arrest].
***6th Amendment is offense specific: Δ can be questioned w/o attorney about any other
offenses, just not the ones formally charged.
Brewer v. Williams: (same case as Nix v. Williams): Δ abducts and kills little girl, goes to
Davenport and turns self in, is arraigned there. While there is gets counsel for both locations
and they tell cops, don’t question Δ. On way back to the other town, police give Christian
Burial Speech. Δ stops them and shows where body is.
1) 6th Amendment R/C violated.
a) Did officer subjectively want Δ to talk by doing/saying what he did? YES. This
was “deliberate elicitation,” (not like 5th Amend. Objective “reasonably likely”
test).
i. Christian Burial speech is per se deliberate elicitation.
b) Had formal judicial proceedings been initiated? YES -- Δ arraigned.
c) Was there a waiver? No. Waiver under 6th must be express.
i. The burden of proving a Zerbst waiver is on the STATE, not the Δ.
ii. Here Δ had escaped from mental institution and consent is questionable.
Michigan v. Jackson: this is the 6th Amendment’s Edward’s rule: Δ cannot be questioned after
counsel right has attached unless attorney is present, but this rule is offense specific. Ct. is
reluctant to find a waiver once R/C requested by Δ. PD can’t initiate questioning once R/C
requested.
Assertion of No Request for Counsel: (give Miranda warnings and get Zerbst waiver)
Patterson v. IL: Δ can waive 6th rt. to counsel but it must be clear and unambiguous. Not needed
in Miranda but in this scenario (Both Miranda and Brewers R/C apply): Δ will need to be told
that formal charges have been commenced. Δ may also need to be told that a lawyer is
available.
Implied Invocation of 6th R/C: No case. Probably, from dicta, Patterson. Assume it is an
invocation, no need for express invocation, implicit that want R/C must give Miranda
warnings and get waiver. ?
Also don’t know if Δ must be warned that he has been indicted b/f 6th waiver will be valid?
33
Henry: Δ’s arrested, arraigned, put in cell with informant who doesn’t ask any real questions, but
does make conversations and statements, and reports back to police:
1) Was this “deliberate elicitation”? yes. “Deliberate” doesn’t mean simply with a purpose.
It’s more like a “reckless” state of mind. (State creates a situation they know will likely
elicit information).
2) Informant had established relationship of trust and made conversation. That was enough.
Δ’s statements excluded.
3) Focuses on government’s mental state, not informant’s.
Kuhlman v. Wilson: almost same as Henry, except Δ loses, because there was no deliberate
elicitation. In this case, the agent only passively listened, and didn’t strike up conversation or
build a trust relationship.
Elicitation means more than passive listening.
McNeil v. Wisconsin: 1991: Brewer case rule is Offense specific rule, Δ can be questioned after
arraignment if it’s on another matter, as long as he meets all 5th Amendment criteria.
(Miranda, Edwards, Zerbst).
1) D seeks to suppress, b/c he thought his 5th Amendment rights attached when his 6th
Amendment ones did at trial. SCT says NO.
1) 5th and 6th apply to different time-frame and conditions
2) 5th invocation here was not clear and unambiguous.
3) This would be bad for Crime Control. Police should be able to investigate
unrelated matter.
4) This is bad for Δ’s autonomy: he should be able to talk about other acts, and
have ability to assert 5th R/C or not on this secondary matter
5) If 5th attached at trial, 6th would be moot!
Texas v. Cobb: Guy robs, kidnaps and then kills a mother and her child. He is indicted on
robbery and invokes R/C but later talks about the murder and kidnapping. He wants all
statements excluded. Ct. said sure, we will exclude the robbery statements but we will keep
the robbery and murder because you were not indicted for those. Issue: how removed does
2nd offense have to be to allow questioning?
1) Generally, if there is a factual difference about the second offense, you can question.
2) If both offenses arise from same set of facts and elements are same as first offense, no
questioning allowed.
3) If 2nd offense arises from different facts, or at least one element of the crime is different,
then police can question.
Blockburger Rule: If different crimes have same statutory elements, it is the same crime.
• If another crime is an extension or lesser crime (Assault and Assault with a deadly weapon)
it is the same crime.
• If the state has a messy statute and one crime is called different things, then those too are
the same crime.
“we have permitted a Miranda waiver to stand where a suspect was not told that his lawyer was
trying to reach him; in 6th this would not be valid. Likewise a surreptitious conversation b/t
an undercover police officer and an un-indicted suspect would not give rise to any Miranda
violation as long as the interrogation was not in a custodial setting; however once the accused
is indicted, such questioning would be prohibited.”
Attach 
Interrogation  Express = Jackson & Zerbst
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
Implied (no invocation- retained lawyer)= prob. Patterson, maybe Jackson
No Assertion= Patterson & Zerbst- Miranda

commencement of
judicial proceedings

“deliberate elicitation”- Henry
elicitation- more than passive listening
“deliberate”—MS is not intentional, but reckless.
offense specific- McNeil
Inferred Percentage Standards
Beyond Reasonable Doubt (95%)
Preponderance of Evidence (51%)
Probably Cause (30-40%)
Reasonable Suspicion (15-20%)
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