CRIMINAL PROCEDURE – Cheh – Fall 2011
I.
Background
a. The Civil/Criminal Distinction: Heightened procedural protections for criminal
cases
i. Borderline cases: Mimic criminal punishment, serve the same objectives
as the criminal law, e.g. deterrence.
1. E.g. Regulatory statues that require self reporting violate the 5A
right against self incrimination if they are criminal
2. E.g. Involuntary commitment of people who committed sex crimes
after they have served the sentences for those crimes violates the
Article I, Section 9 prohibition on ex post facto laws if the
commitment is criminal
ii. Courts give deference to the legislature on whether a law is civil or
criminal
b. Crim Pro as a Body of Con Law: Majority of the provisions of the Bill of Rights
have been incorporated against the states. So:
i. American criminal procedure system is largely administered by the
Supreme Court.
ii. State and local jurisdictions do not have flexibility to construct/administer
different systems
1. No “laboratories of democracy”
c. Rule on Retroactivity: A decision applies retroactively to cases that are pending in
the judicial system and have not been finally decided by a denial of a writ of
certiorari.
i. Habeas cases: new decisions generally do not apply retroactively to them
d. Two Models for Criminal Procedure Systems:
i. The Crime Control Model: Focus on factual guilt and achieving factually
reliable convictions.
1. Justice is: when guilty people are convicted
2. Favors: flexibility for police and prosecutors to gather evidence
3. Favors: efficiently identifying possible criminals and processing
them through the system quickly
4. Favors: finality
5. Disfavors: multiple filters or formal proceedings
6. Disfavors: Multiple stages of post-conviction review
7. The Presumption of Guilt: FACTUAL guilt: at some point, the
investigative record should reveal that the accused is most likely
guilty
ii. The Due Process Model: Focus on legal guilt and demonstrating the
legitimacy of the system—that it treats people fairly and produces reliable
results
1. Justice is: when guilty people are convicted after a correct process
2. Favors: skepticism about the facts, and about whether true facts
can ever be ascertained
3. Favors: procedural protections for the accused
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II.
4. Favors: questions about the criminal law’s impact on those who
live on the margins of society, questions about the state’s use of
punishment against its citizens
5. Favors: skepticism about authorities in the criminal system and
their capacity for following proper procedures
6. Disfavors: over-emphasis on efficiency or factual guilt
7. The Presumption of Innocence: LEGAL innocence: the state must
follow proper procedures in proving its case against the accused
beyond a reasonable doubt
FOURTH AMENDMENT: SEARCHES AND SEIZURES:
a. The Reasonableness Clause: The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures
shall not be violated, and
i. What searches are reasonable?
1. Probable cause defines the essence of reasonableness
2. Having a warrant was assumed to be part of the requirement of
reasonableness, but this is subject to many exception.
b. The Warrant Clause: No warrants shall issue, but upon probable case, supported
by oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
i. Probable Cause for Searches: A fair probability* that a crime was
committed, and that the evidence of that crime can be found in a particular
place.
ii. Probable Cause for Seizures: A fair probability* that a crime was
committed, and that the person sought committed it.
1. *A fair probability need not be more probable than not.
2. *But, a fair probability must be more than mere speculation
c. A Framework for Thinking about 4A:
i. STEP ONE: What is protected?/(Is this a search or seizure?)
1. If no, 4A does not apply
a. If 4A does not apply, no restrictions of government action
2. If yes, 4A does apply
a. If 4A does apply, the government must act reasonably
ii. STEP TWO: What level of suspicion justifies the intrusion?
1. E.g. Probable Cause? Reasonable Suspicion?
iii. STEP THREE: What procedures must be followed?
1. E.g. Should a warrant be obtained?
iv. STEP FOUR: What is the proper scope for the government’s actions?
1. E.g. Was the scope of the search appropriate? Was the conduct of
the arresting officers appropriate?
v. POSSIBLE STEP FIVE: If a violation occurs: What is the proper remedy
for the 4A violation?
1. E.g. Exclusionary rule, civil suits for violations
d. STEP ONE: What is protected?/Is this a search or seizure?
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i. Requirement of state action: Burdeau v. McDowell (1921): A search or
seizure conducted by a private citizen is not a search or seizure within the
meaning of the 4A
ii. Katz v. United States (1967): Placing an electronic listening and recording
device on the outside of a public phone booth is a search
1. Search did not comply with constitutional standards: Although
search was justified by probable cause and police acted with
restraint, government was required to obtain a warrant in advance
a. Adequacy of the evidence should be judged by a neutral
decision maker and not by the police themselves
i. Danger of looking backwards and relying on
evidence found during search to bolster evidence
initially justifying search
b. Magistrate should set out the scope of police action in
advance, rather than relying on police to exercise their own
restraint
2. TEST: from Harlan’s concurrence:
a. 1) Did the person manifest a subjective expectation of
privacy?
b. 2) Is that expectation one that society is prepared to
recognize as reasonable?
i. N.B. As a society, we can be gradually conditioned
to have a lesser expectation of privacy.
iii. Related Issues: NO SEARCH
1. Manifesting a Subjective Expectation of Privacy vs. Abandonment:
You no longer have an expectation of privacy in an area/thing that
you abandon
a. E.g. denying ownership in the face of police inquiries
2. Open Fields: You assume the risk that people will wander onto
your property, even in violation of state trespass laws (including
the police)
a. Oliver v. United States (1984): Oliver did not have a
reasonable expectation of privacy in the field of marijuana
approximately a mile from his house, despite erecting a
locked gate with a “No Trespassing” sign around the field
i. No reasonable expectation of privacy even if the
police violate state trespass laws
ii. Society does not recognize a reasonable expectation
of privacy in open fields
b. But: society recognizes a reasonable expectation of privacy
in curtilage:
i. Proximity of area to home?
ii. Is area included within enclosure surrounding the
home?
iii. Uses to which area is put?
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iv. Steps take by resident to protect area from
observation by passersby?
1. United States v. Dunn (1987): A barn 50
yards from a fence around a residence is
outside the curtilage. No reasonable
expectation of privacy, despite outer fence
around property, interior barbed wire fences.
c. But: Visually inspecting property inside the curtilage from
a vantage point outside the curtilage is NOT a search.
United States v. Hatfield (10th Cir. 2003).
3. Trash: You assume the risk that the public will get into your
garbage
a. California v. Greenwood (1988): Society does not
recognize reasonable expectation of privacy in property to
which public has access, even when Greenwood was
required to set out garbage and police engaged in sustained,
targeted search of garbage.
i. N.B. This ruling not based on abandonment of trash
because no showing in case of voluntary
relinquishment
4. Aerial Surveillance: You assume the risk that members of the
public flying in public airspace can observe your property
a. California v. Ciraolo (1986): No reasonable expectation of
privacy from aerial observation of back yard containing
marijuana from an altitude of 1,000 feet, despite two fences
to obscure view on the ground
b. Dow Chemical Co. v. United States (1986): No reasonable
expectation of privacy despite extensive measures to bar
views of plant from the ground, use of enhanced
photography with specialized cameras
c. Florida v. Reilly (1989): White Plurality: No law
prohibiting public from hovering 400 feet over property in
helicopter, so no reasonable expectation of privacy
i. O’Connor Concurrence: Proper test for
reasonableness of expectation of privacy:
1. Does the public ordinarily have access to the
information sought by the police?
a. Not, is it legally possible for public
to obtain the information.
5. Transmitting information to third parties:
a. To Friends and Associates: United States v White (1971):
You voluntarily transfer information to them and assume
the risk that a person you talk to will betray you
i. False friends/undercover officers
ii. Informants or coconspirators who wear
wires/snitches
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b. To Financial Institution: Financial records: California
Bankers Ass’n v. Shultz (1974): You voluntarily transfer
information to the bank about your transactions
c. To Telephone Company: Pen registers (record numbers
called from telephone): Smith v. Maryland (1979): You
voluntarily transfer information to the phone company
about the numbers you call
i. Here, lack of 4A protection from use of pen
registers leads to greater statutory limits on use of
pen registers by Congress (could come from state
legislatures)
iv. Related Issues: SEARCH
1. Manipulating Bags in Public Transit: Bond v. United States (2000):
While other passengers/employees might handle/move Bond’s
canvas bag in overhead compartment of bus, officer’s exploratory
manipulation/squeezing of bag exceeded this casual contact and
was a search
v. Related Issues: Dogs:
1. Canine sniffs of closed luggage: United States v. Place (1983): Not
searches:
a. No reasonable expectation of privacy in an illegal activity
b. Sniff discloses nothing other than presence or absence of
contraband narcotics
i. Privacy interest in legitimate private contents of
luggage not disturbed
2. BUT, opening of luggage after a positive alert by a dog is a search
a. Could uncover legitimate private activity
i. Must have magistrate assess whether positive alert,
alone or with other evidence, constitutes probable
cause (e.g. reliable track record of dog)
1. But dog tearing into package was a natural
occurrence, and not a search, absent an
police misconduct in causing the dog’s
action. United States v. Lyons (8th Cir.
1992)
3. Canine sniffs of places:
a. Outside the home: Search. Greater expectation of privacy
in the home. United States v. Thomas (2nd Cir. 1985)
b. Outside an Amtrak sleeping compartment: Not a search.
United States v. Colyer (DC Cir. 1989)
4. Canine sniffs of cars during traffic stops: Illinois v. Caballes
(2005): Not a search. Driver was lawfully stopped for traffic
violation when one officer processed ticket and other officer
walked dog around car.
a. No reasonable expectation of privacy in possession of
contraband
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b. Dog sniff did not change nature of otherwise lawful stop
vi. Related Issues: Testing for Drugs:
1. Testing a substance: Not a search: United States v. Jacobsen
(1984): Chemical test that reveals whether or not a substance
obtained from a package opened by FedEx employees is cocaine
does not compromise any legitimate interest in privacy
2. Testing a person’s urine: Search: Skinner v. Railway Labor
Executives Ass’n (1989):
a. Testing of urine samples may uncover innocent secret
information, e.g. pregnancy, use of prescription drugs
b. Process of collecting urine samples is intrusive and
embarrassing
vii. Related Issues: Sensory Enhancement Devices/Other Technology:
1. Thermal Detection Devices: Search: Kyllo v. United States (2001):
Using thermal imaging device aimed at private home from a public
street to detect relative amounts of heat within the home is a search
a. Obtaining information about the interior of the home that
would not otherwise be knowable by using senseenhancing technology is a search where the technology is
not in general public use
i. Special protection for the home: all details revealed
are intimate details
2. Beepers (and GPS) to Track Public Movements: No Search:
United States v. Knotts (1983): No reasonable expectation of
privacy in public movements
a. But, Beepers to track property in the home: Search: United
States v. Karo (1984): Reasonable expectation of privacy in
the home
3. Flashlights: No search: Texas v. Brown (1983): Can use artificial
means to illuminate the interior of a darkened car
e. STEPS TWO THRU FOUR: What level of suspicion justifies the intrusion?
What procedures must be followed? What is the proper scope for the
government’s actions?
i. Establishing Probable Cause for a Search:
ii. Where officer avers firsthand knowledge of facts: Magistrate will inquire
whether sworn facts establish PC
iii. Where officer relies on a paid informant or snitch, or an anonymous
informant* for some/all information:
1. *These cases do not apply where a crime victim or eyewitness
reports a crime
2. Aguilar v. Texas (1964): Insufficient for police officers to swear
that they had reliable information from a credible person and the
believe narcotics were stored on the described premises
a. Warrant application must set forth underlying
circumstances to allow magistrate to independently judge
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validity of officers’ conclusion that narcotics are on
premises
i. Must include FACTS, not merely conclusion
b. Officers must support claim that informant is credible/his
information is reliable
i. Draper v. United States (1959): Warrantless arrest
case, but demonstrates that detailed information
from informant, some of which was independently
corroborated by the police, can be basis for
probable cause
1. Matters that informant gave predictive
information about a future event, not merely
descriptive information about current event
a. Gives rise to assumption that
informant has intimate knowledge of
target’s plans
3. Spinelli v. United States (1969): Not sufficient to say that
informant knows that Spinelli is a bookmaker, even when there is
some corroboration, e.g. that he has two phones with particular
numbers.
a. TWO-PRONGED TEST:
i. Reliability: Who is the source of the information?
Is the source reliable?
1. If source is not known to be reliable, police
may demonstrate reliability by corroborating
details provided by the informant
ii. Credibility/Basis of Information: What are the
bases and details of the source’s knowledge?
1. If the basis is unclear, it may be sufficient
that the information is so detailed that it
could only have come from personal
observation
b. If information provided by informant falls short of PC,
police can gather other information to include in warrant
application
4. Illinois v. Gates (1983): Magistrate must make a common sense
decision about the existence of PC, based on the totality of the
circumstances:
a. TOTALITY OF THE CIRCUMSTANCES FACTORS:
i. Nature of the information?
ii. Opportunity for the police to see or hear the matter
reported?
iii. Veracity of the informant? Basis of the informant’s
knowledge?*
1. *Spinelli Test
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iv. Independent verification of matters reported
through police investigation?
1. Corroboration need not be as extensive as
contemplated in Spinelli
b. Standard of review of magistrate’s determination of PC:
Was there a substantial basis for concluding PC existed?
iv. Establishing Probable Cause for an Arrest: PC is ALWAYS Required for
an Arrest:
1. Probable Cause to Arrest: United States v. Valez (2nd Cir. 1986):
a. Description: Failure to mention drug seller was cleanshaven was not unreasonable oversight when detailed
description of clothing was given (Hispanic male in
twenties, black leather jacket, grey pants with comb in back
pocket, white v-neck t-shirt with dark trim on collar)
b. Close proximity in time and space: arrest was made in
immediate vicinity of drug sale within 10 minutes of
description.
2. NO Probable Cause to Arrest: United States v. Kithcart (3rd Cir.
1998):
a. Description: Insufficient fit between description of two
black men in a black sports car/Camaro Z-28 and two black
men arrested in black Nissan 300ZX.
b. Proximity in time/space not established
3. Multiple Suspects: Maryland v. Pringle (2003):
a. F: Pringle was front seat passenger and non-owner of car
containing 3 people, pulled over for speeding late at night.
Large wad of money observed in glove compartment.
Drugs found behind back seat armrest after consent search.
Nobody admits to possession of drugs and all are arrested
b. H: PC to believe Pringle committed crime of possession of
cocaine, either solely or jointly.
i. Reasonable to believe any or all three occupants had
knowledge of and control over the drugs.
ii. Passengers in car often engaged in common
enterprise with driver
v. Is a Warrant Required for the Arrest?: (While warrant may not be required
for arrest, PC is ALWAYS required for arrest):
1. Arrests in Public: United States v. Watson (1976): Can arrest
suspect in public without a warrant.
a. After a warrantless arrest, 4A requires a prompt* judicial
determination of probable cause as a prerequisite to pretrial
detention. Gerstein v. Pugh (1975) (30 day+ detention
prior to PC determination unreasonable)
i. *Providing the probable cause determination within
48 hours of arrest will generally be considered
prompt. City of Riverside v. McLaughlin (1991)
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2.
3.
4.
5.
1. If arrestee receives hearing within 48 hours,
he must prove that there was an
unreasonable delay in order to prevail
2. If arrestee does not receive hearing within
48 hours, government must demonstrate a
bona fide emergency or other extraordinary
circumstances in order to prevail
a. Remedies for McLaughlin violation:
Damages. Evidence is excluded only
if it is obtained as a result of an
unreasonable detention
i. No exclusion if magistrate
would have found PC if
hearing had been promptly
conducted
ii. No exclusion if evidence was
obtained independent of
unreasonable detention, e.g.
at time of arrest
Arrests in the Home: Payton v. New York (1980): Absent exigent
circumstances, cannot arrest suspect in the home without a
warrant.
a. Payton’s warrant requirement applies to arrests in properly
rented hotel/motel rooms during the time of the rental.
Arrests of Overnight Guests: Minnesota v. Olson (1990): Must
have a warrant to arrest suspect who is overnight guest in home of
a third party.
Arrests of Temporary Visitors: Minnesota v. Carter (1998): Do not
need a warrant to arrest temporary visitors to a home. Factors
here:
a. Purely commercial nature of visit (cutting up cocaine)
b. Short period of time on the premises (a few hours)
c. Lack of previous connection with the home
Arrests in the Home of Another When Third Party Does Not
Consent to Have Officers Enter Home: Steagald v. United States
(1981):
a. In One’s Own Home: Arrest warrant permits search of
suspect’s home to arrest him there
b. In Another’s Home: Search warrant required to search third
party’s home for suspect, in addition to arrest warrant
required to arrest him
i. But where suspect lives in another’s home for a
significant period of time, it becomes his home
1. Protects third party’s privacy interest in
home
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vi. Arrests for Minor Offenses: Provided there is probable cause, 4A imposes
no bar to warrantless full arrests, even for very minor criminal offenses.
Atwater v. City of Lago Vista (2001)
1. Acceptable to arrest Atwater for misdemeanor seatbelt violation
punishable only by a fine
vii. Excessive Force in Arrests: All claims of excessive force in arrests are
governed by 4A standards of reasonableness. Graham v. Connor (1989)
1. Factors in Reasonableness Inquiry:
a. Severity of crime at issue
b. Whether suspect poses immediate threat to safety of
officers or others
c. Whether suspect is actively resisting arrest or attempting to
evade officers by flight
i. Ramming suspect’s car: In determining
reasonableness, can balance risk to suspect of
ramming car with risk to public of high speed chase,
and can consider culpability of suspect vs.
innocence of public in balancing. Scott v. Harris
(2007).
2. Police not required to use the least intrusive degree of force
possible: Forrester v. City of San Diego (9th Cir. 1994): Police
could use pain compliance/nonchakus to arrest protestors rather
than less painful drag and carry method
3. Deadly Force: Tennessee v. Garner (1985): May not be used to
prevent escape of felon unless:
a. Necessary to prevent escape AND
b. Officer has PC to believe that suspect poses significant
threat of death or serious physical injury to officer or others
f. Establishing Reasonable Suspicion* for a Stop and Frisk: Terry v. Ohio (1968):
i. *POSSIBLE CAUSE: Reasonable suspicion is a fair possibility that a
crime is being committed/has been committed and that the person sought
is committing it/has committed it.
ii. H: It was a seizure to grab Terry and spin him around.
1. Forcible stop: Not free to leave: Any time a police officer
restrains person’s freedom to walk away, it is a seizure
a. Seizures need not rise to the level of arrests to be governed
by 4A.
iii. H: It was a search to pat down the outside of Terry’s clothing in an
attempt to find a weapon
1. Frisk: Scope is limited to confirming safety of police officer
through pat down of outer clothing.
a. Frisks are governed by 4A even though less intrusive than
full searches for evidence of the crime that can go under
clothing
iv. N.B. Stops and frisks are separate. Each requires its own RS to justify it.
v. TEST: 1) Was officer’s action justified* at its inception? AND
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2) Was officer’s action reasonably related in scope to
circumstances justifying the interference?
1. *BALANCING TEST for objective reasonableness/justification of
police action that is not subject to the warrant requirement:
a. Need to search or seize VS. (usually viewed across all
similar cases)
b. Invasion search or seizure entails (usually viewed in this
specific case)
i. Police officer must point to specific, articulable
facts warranting the intrusion
1. Subjective good faith of officer in taking
action is not enough
2. Facts must cause reasonable officer to think
crime was being committed.
ii. Policy behind Terry doctrine: Officers who observe
behavior indicating crime is about to occur
shouldn’t have to wait for it to occur before acting
vi. N.B. Court may conduct the balancing test in one case and then create a
per se rule for a particular category of similar cases
1. Automatic right to order driver out of legally stopped vehicle:
Pennsylvania v. Mimms (1977):
a. 1) Officer was justified in stopping Mimms for traffic
violation
b. 2) Officer was justified in frisking Mimms for weapon once
he observed bulge in sports jacket
c. 3) Officers were justified in ordering Mimms out of the car:
BECOMES PER SE RULE:
i. Balancing: safety of officers stopping cars vs.
additional intrusion to stopped driver of having to
step out of car
d. Power to frisk not automatic: requires RS that driver is
armed and dangerous
2. Automatic right to order passengers out of legally stopped vehicle:
Maryland v. Wilson (1997): Balancing: officer safety vs.
inconvenience to stopped passenger of having to step out of car
a. Power to frisk is not automatic: requires RS that passenger
is armed and dangerous
3. Automatic right to require occupants of a premises to be searched
pursuant to a warrant to remain on the premises while the search
warrant is executed: Michigan v. Summers (1981):
a. Balancing: interest in preventing flight, preventing
destruction of evidence vs. being asked to stay in home
i. Can use reasonable force to effectuate this detention
1. Can handcuff person during warranted
search of home of suspected gang members.
Muehler v. Mena (2005)
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a. Can question her about immigration
status while detained.
b. No seizure because detention not
prolonged by questioning
i. 4A not implicated
vii. Totality of the Circumstances in Assessing Existence of Reasonable
Suspicion:
1. A determination that RS exists need not rule out the possibility of
innocent conduct. United States v. Arvizu (2002)
a. Factors leading to determination of RS may be considered
together, although each of them alone may be subject to an
innocent explanation
i. Arvizu: Minivan, registered to area known for drug
smuggling, driver acting stiff, children sitting high,
abnormal waving, turn taken before checkpoint
ii. Barron-Cabrera: Ryder truck unaccompanied by
other vehicle, lightly traveled road in known
smuggling corridor, driver acting stiff and agitated
iii. BUT SEE Rodriguez: NO RS: Driver did not
acknowledge officers, known smuggling route, car
seemed heavy going over bump
1. Court found officers’ testimony in
suppression hearing to be too similar to
testimony in other cases
a. Policy: Concern that officers are
using prefabricated profile of
suspicious behavior likely to ensnare
too many innocent individuals
viii. Applying Terry: Adams v. Williams (1972).
1. RS for Stop: Known informant’s tip that Williams is sitting in car
and has gun at waist and drugs in car may be insufficient for arrest
or search warrant, but is still be sufficient to justify forcible stop.
2. RS for Search: Reaching into spot where gun is supposedly hidden
is limited intrusion, designed to ensure safety of officer, so is
reasonable.
ix. Anonymous Tips and Reasonable Suspicion:
1. H: Where an anonymous informant’s tip is significantly
corroborated by officers, it provides RS for a stop. Alabama v.
White (1990)
a. Tipster said White would leave particular apartment, get
into particular car, and driving to particular motel with
attaché case full of cocaine.
i. Gates “totality of the circumstances” factors are
highly relevant, but RS requires a lesser showing of
suspicion than PC
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1. Did not know if informant was reliable, but
basis for information can be inferred from
predictive quality of tip (like Gates)
ii. Partial corroboration of car and direction of trip
sufficient for RS, not determinative that tipster
wrong about carrying attaché case
1. RS can arise from information that is less
reliable than information required to show
PC
2. Where an anonymous informant’s tip provides no predictive
information and leaves police without means to test informant’s
knowledge or credibility, it DOES NOT provide RS for a stop.
Florida v. J.L. (2000).
a. Tipster said young black man wearing a plaid shirt at a
particular bus stop had a gun
i. Court refuses to make a firearm exception to the
requirement of RS for a stop
ii. Court leaves open possibility of making a
dangerousness exception to the requirement of RS
for a stop, e.g. in the case of a tip about a bomb.
3. Nature of crime can lower/eliminate requirement of corroboration
to establish RS from anonymous tip
a. Drunk driving: dangerous, mobile suspects may injure
people before corroboration can occur
b. Domestic violence: special reliability inherent in reports of
ongoing emergencies
g. Using Race or Profiles to Establish Reasonable Suspicion:
i. Race:
1. In Descriptions: Obviously acceptable and relevant to descriptions
of perpetrators
2. Racial incongruity: Race/racial incongruity cannot be the ONLY
factor in supporting a stop. But it CAN be considered along with
other suspicious factors.
a. No RS to stop vehicle of white suburbanite in driving late
at night in predominantly minority area with known high
prostitution. City of St. Paul v. Uber (Minn. App. 1990).
b. RS to stop young black man who was only black on flight
from LA to KC when gangs of young black men in LA
were flooding KC market with cocaine, LA was source city
for drugs, Weaver had no ID, seemed nervous. United
States v. Weaver (8th Cir. 1992)
ii. Profiles: Profiles are an acceptable administrative tool of the police
1. A match between characteristics on a profile and suspect’s
characteristics does not automatically establish RS
2. The fact that a characteristic of a suspect appears on a profile does
not preclude its use in establishing RS
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3. Due regard for OFFICER’S EXPERIENCE is key, and RS must be
evaluated in the totality of the circumstances in each case. United
States v. Berry (5th Cir. 1982), United States v. Sokolow (1989).
h. Using Flight to Establish Reasonable Suspicion:
i. Unprovoked flight from officers in a high crime area is a sufficient basis
for reasonable suspicion. Illinois v. Wardlow (2000).
i. Terry “Stops”/Detentions of Property: R: Some detentions of property can occur
upon reasonable suspicion: United States v. Van Leeuwen (1970).
i. Detention of mail: Can detail mailed package for 28 hours, or for 3 days
where post office was in remote location.
1. But can NOT detain mail for 7-23 days when could have reduced
delay to 32 hours with diligent officer action
ii. Detention of luggage: 90 minute detention of luggage for dog sniff was
unreasonable. Was seizure requiring PC. United States v. Place (1983).
1. Officers were not diligent in investigation because did not have
drug dog at airport in advance, though RS existed in advance.
2. Detaining Place’s luggage was like detaining Place, because it
interfered with his liberty to proceed with his activities.
a. Place was not informed of what was going on with the
luggage or how long he would be detained without it.
j. Is an Incident an Encounter (No 4A) or a Stop/Seizure (4A/RS)?
i. Airport Cases: NO Stop/Seizure: United States v. Mendenhall (1980):
Agents stop Mendenhall on airport concourse, look at her license and
ticket, give them back to her, and ask her to accompany them to the airport
DEA office.
1. The Free to Leave TEST: Considering totality of the
circumstances, would a reasonable person have believed that he
was not free to leave?
ii. Airport Cases: Stop/Seizure: Florida v. Royer (1983): Agents stop Royer
on the airport concourse, look at his license and ticket, DO NOT give
them back to him, and ask him to accompany them to a room adjacent to
the concourse. They also retrieve his checked luggage without his consent
and bring it to the room.
1. Royer was stopped/seized when agents took his license and ticket
and walked away because at that point he would have believed he
was not free to leave
iii. Classic Encounter: United States v. Cardoza (1st Cir. 1997): No
stop/seizure when police drive wrong way up one-way street, pull over,
roll down window, and ask, “What’s up, Freddie? What are you doing out
this time of night?”
1. The Free to Leave TEST Plus Officer Coerciveness Test: Few
people ever feel free to walk away from any police question. So:
a. Considering totality of the circumstances, did police
conduct objectively communicate that officer exercising
official authority to restrain person’s liberty?
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iv. Bus Sweeps: R: 4A permits officers to approach bus passengers and
request their consent to search if rxable person would understand that he is
free to refuse. Florida v. Bostick (1991).
1. R: Officers need not advise passengers of their right not to
cooperate. United States v. Drayton (2002).
a. Drayton: F: No weapons or intimidating movements by
officers. Aisle left free so passengers could exit. Spoke to
passengers in polite, quiet voice.
v. Suspects Who Do Not Submit:
1. Flight: California v. Hodari D. (1991): NO seizure where officer
pursues youth who runs away when he sees officer, youth drops
crack rock, officer tackles and handcuffs youth.
a. R: Physical Show of Authority: When officer engages in
physical show of authority, there is a stop/seizure even if
suspect does not submit.
b. R: Non-Physical Show of Authority: When officer engages
in non-physical show of authority, no stop/seizure unless:
i. Reasonable person would not feel free to leave
AND
ii. Suspect actually submits
1. Policy: Public should be encouraged to
comply with police orders and should not be
rewarded for noncompliance by finding
stops/seizures
k. Is an Incident a Stop (RS) or an Arrest (PC)?
i. Important Factors:
1. Time: No absolute time limit for Terry stops. United States v.
Sharpe (1985).
a. RULE: Did police diligently pursue means of
investigation likely to confirm/dispel suspicions quickly?
2. Investigation: Some preliminary investigation may occur during
stop. E.g. preliminary investigation of suspect’s identity, E.g.
questions concerning suspicious circumstances giving rise to stop
a. BUT, if officers move beyond scope of circumstances
justifying stop, this is arrest requiring PC
i. Ok to run vehicle check, license check, search for
outstanding warrants during traffic stop
ii. Ok to detain suspects while drug dog comes
because of RS that drugs were in car
iii. NOT ok to search for evidence. Stop must end
when reason for stop ends, unless there is
independent justification (RS or PC) for
continuation.
1. Stop After a Stop: If RS as to crime B arises
during stop for crime A, stop can be
15
extended to investigate crime B, although
initial reason for stop no longer exists.
a. See United States v. Erwin (6th Cir.
1998): RS that Erwin driving drunk.
During stop, realize that Erwin not
drunk, but RS arises that Erwin drug
dealer. Can extend stop to do
preliminary investigation.
2. Consensual Encounter After a Stop: No
requirement that suspect be told that stop is
over and he is free to go
a. Ohio v. Robinette (1996): After a
speeding stop, can ask if driver is
carrying drugs or guns and can ask
for consent to search. Suspect no
longer detained when he consented.
b. Right to Demand ID: Officer has right to demand ID as part
of investigation during stop. Hiibel v. Sixth Judicial
District of Nevada (2004).
c. Field Sobriety Tests: If extensive/physically demanding,
PC is required. If less extensive/less demanding, RS is
sufficient.
3. Show of Force: Officers may use handcuffs/guns during stop
where there is RS to believe they are necessary to protect officer
from harm during stop
a. BUT, is their use is excessive, arrest will be found. E.g.
United States v. Novak (7th Cir. 1989): Arrest where officer
drew gun and pointed it at head of suspect who had just
deplaned and could not be carrying gun.
4. Forced Movement: Some forced movements may occur during a
stop. E.g. for safety/security reasons, E.g. to transport suspect a
short distance for a witness to ID
a. BUT, if officer forces suspect to move to further
investigation or to put more pressure on suspect, this is
arrest requiring PC. Florida v. Royer (Airport case with
seized luggage)
5. Detention for Interrogation/Fingerprinting: Police cannot detain
suspect and transport to stationhouse without PC, even if detention
is not arrest under state law (no booking/arrest record). Dunaway
v. New York (1979).
a. Removing person to stationhouse for fingerprinting is arrest
requiring PC. Hayes v. Florida (1984).
l. Establishing Reasonable Suspicion for a Protective Sweep: Maryland v. Buie
(1990):
i. Protective Sweep: Quick and limited search of premises incident to
arrest, conducted to protect safety of police officers or others
16
ii. H: Protective sweet can be justified by reasonable suspicion that area
swept harbors dangerous person
1. Scope: Space: Cursory inspection of spaces where person might
hide
2. Scope: Time: No longer than necessary to dispel reasonable
suspicion of danger
a. Need not be in context of arrest: United States v. Gould (5th
Cir. 2004): Officers who were given consent to search a
room could do protective sweep of entire house to ensure
not walking into trap
iii. Compare: United States v. Colbert (6th Cir. 1997): Facts giving rise to RS
justifying protective sweep under Buie must be facts indicating danger of
attack from third party, not facts indicating dangerousness of arrestee
1. Colbert: Protective sweep not permitted where no indication that
anyone other than arrestee was on premises
2. Buie: Protective sweep permitted where RS that accomplice in
armed bank robbery was on premises
m. Search Incident to Arrest: A warrantless search incident to a valid arrest was
acceptable at common law at the time of the Founding
i. Scope of Search Incident to Arrest: Chimel v. California (1969):
1. Can search arrestee to remove weapons threatening officer’s safety
2. Can search arrestee for evidence of crime to prevent concealment
or destruction
3. Can search “grab area” of arrestee for weapons or evidence under
same rationale
a. Grab area is determined at the time of the ARREST, not at
the time of the search.
i. So, e.g. can search part of room that was within
arrestee’s grab area at time of arrest, even if arrestee
has been removed from room at time of search
Davis v. Robbs (6th Cir. 1986); United States v.
Abdul-Saboor (DC Cir. 1996).
4. CANNOT search rooms in which arrest does not occur
5. CANNOT search closed or concealed areas of room in which
arrest does occur
a. N.B. If there is reasonable suspicion that dangerous person
is hiding on premises around arrestee, Buie protective
sweep that goes beyond scope of search incident to arrest is
acceptable
i. But protective sweep must be limited to places
where person could hide, and time necessary to
dispel suspicion of danger
ii. Automatic Entitlement to Search Incident to Arrest: United States v.
Robinson (1973); Washington v. Chrisman (1982):
1. Officer may conduct automatic search for weapons and evidence
on arrestee/within grab area, even without affirmative indication
17
that arrestee has weapon or might attempt to escape or destroy
evidence
a. N.B. Mere fact of an arrest does not create exigent
circumstances giving rise to risk of destruction of evidence
and permitting broader search
iii. Search of Car Incident to Arrest:
1. New York v. Belton (1981): Passenger compartment of car is grab
area, so officers are entitled to search it incident to arrest.
a. Officers are also entitled to open all containers in passenger
compartment during search incident to arrest
i. Passenger compartment does NOT include trunk
b. Clarified in Arizona v. Gant (2009): A Belton search may
only take place when arrestee is unsecured and passenger
compartment is within arrestee’s reach at time of search
i. Belton search may NOT take place if arrestee is
secured, in squad car
ii. Contrast with lower court holdings on right to
search grab area of residence at time of arrest, not
time of search
2. Thornton v. United States (2004): Belton’s entitlement to search
applies when arrestee was recent occupant of car to be searched
a. Thornton got out of car, was arrested a few feet away, and
passenger compartment was searched incident to arrest
b. Clarified in Gant: Circumstances unique to car context
justify search incident to arrest when there is RS that car
contains evidence of OFFENSE OF ARREST**
i. * Circumstances unique to car context: reduced
expectation of privacy, heightened law enforcement
need to gather evidence of crime of arrest (not
merely prevent its destruction)
ii. N.B. **If arrest is for traffic violation, there cannot
be Thornton-Gant search incident to arrest because
there will be not evidence of offense of arrest in car
iii. If there is PC to believe car contains evidence of
ANY offense, can search any area (including trunk)
in which evidence might be found. United States v.
Ross (1982)
n. Pretextual Stops and Arrests: Whren v. United States (1996) There is no 4A
problem with pretextual stops and arrests, provided the stop/arrest is otherwise
constitutional under 4A.
i. Subjective intent alone does not make otherwise constitutional conduct
unconstitutional
1. Officers will almost always be able to stop motorists for traffic
violations
2. Traffic stops might be used as means to investigate other criminal
violations for which no PC or RS exists
18
3. Officers might decide which motorists to stop based on
impermissible factors, such as race
a. Intentionally discriminatory application of laws is
prohibited by the EPC, not the 4A
o. Plain View Doctrine: An extension of whatever an officer’s justification for
access to an object might be (warranted or warrantless search or arrest, or Terry
stop, e.g.)
i. If officers have a right to be in a place and come upon evidence they have
PC to believe is subject to seizure, they may seize it. Coolidge v. New
Hampshire (1971)
1. TEST: 1) Is officer in place he is lawfully entitled to be?
2. 2) Is it immediately apparent to officer that thing in plain view is
evidence?*
a. Horton v. California (1990): Officer had warrant to search
for stolen rings and discovered weapons used in armed
robbery in plain view in course of that search
i. Plain view discovery need not be inadvertent: Does
not matter that officer expected/hoped to find guns
b. *Moving components of stereo system in order to view
underside for serial numbers exceeded scope of plain view
doctrine and was a search requiring PC. Arizona v. Hicks
(1987).
p. Plain Touch Doctrine: TEST:
i. 1) Is officer patting down subject lawfully?
ii. 2) Is it immediately apparent to officer that thing touched is contraband?
1. Minnesota v. Dickerson (1993): Officer conducting lawful Terry
stop and frisk felt pea-shaped object resembling crack rock in
suspect’s shirt pocket, but exceeded scope of plain touch doctrine
by pushing and prodding the object to see if it was contraband,
although it had already been determined that it was not a weapon.
q. Exceptions to the Warrant Requirement
i. The Automobile Exception: aka The Carroll Doctrine: Carroll v. United
States (1925): Police may search car without warrant if they have PC to
believe it contains evidence of crime
1. Policy: Not practicable to secure warrant for search of car because
car is highly mobile and can be moved out of jurisdiction
a. Immobilized Car: Chambers v. Maroney (1970):
Automobile exception applies even though car was
searched at police station after occupants were arrested.
i. No exigency requirement/no requirement to find car
will be moved or evidence will be destroyed.
Pennsylvania v. Labron (1996).
2. Policy: Reduced expectation of privacy with respect to car
a. Reduced expectation because of pervasive regulation of
mobile vehicles. California v. Carney (1985) (adding to
Carroll mobility policy)
19
3. The Motor Home Exception: Carney: Motor home parked in lot in
downtown area was validly searched without warrant but with PC.
a. In this case, was reasonable to conclude that motor home
was not being used as a residence
i. Factors: location?, is vehicle licensed?, connected to
utilities?, have access to public road?
4. Mobile Containers Exception: Mobile containers may be seized
upon probable cause, but they may not be searched without a
warrant, except in exigent circumstances. United States v.
Chadwick (1977) (footlocker seized).
a. Mobile containers in car: Mobile containers in cars may be
seized searched without a warrant where there is probable
cause to believe they contain contraband or evidence.
California v. Acevedo (1991)
i. Search must remain within the scope of PC
5. Search of a Passenger’s Property: Wyoming v. Houghton (1999):
Officer can search containers owned by passengers when there is
PC to search vehicle and containers owned by passengers may
conceal the object of the search.
a. Policy: Passengers have reduced expectation of privacy
b. Policy: Passengers engaged in common enterprise with
driver, have interest in concealing evidence of crime
c. Policy: Opposite rule would allow criminals to shield
evidence by saying it was passenger’s property
ii. Exigent Circumstances: ALWAYS FACT SPECIFIC: A warrant is not
necessary where there is PC to search/arrest AND where immediate action
was necessary to:
1. Prevent flight OR
a. Hot Pursuit:
i. Hot Pursuit: Officers approached woman standing
in her doorway with PC to arrest her. Could follow
her into her home to arrest her after she quickly
went inside. United States v. Santana (1976)
ii. No Hot Pursuit: Suspect must be aware that he is
being pursued by officers for there to be hot pursuit.
Welsh v. Wisconsin (1984) (cannot go to home of
drunk driver who walked off of scene and arrest
him without warrant because he did not know he
was being pursued)
2. Safeguard police officers or the public OR
a. Public Safety Exception: Brigham City v. Stuart (2006):
Was there an objective risk to public safety at the time of
the search?
i. Officers’ subjective motivations irrelevant if there is
an objective risk to public safety
20
1. May also be interested/may be more
interested in making arrests vs. assisting
people who are injured or threatened with
injury
3. Prevent the destruction of evidence
a.
4. N.B. There must still be PC to search/arrest
5. PLUS there must be PC to believe that one or more exigent
circumstances exist
i. KEY QUESTIONS: 1) Were there exigent
circumstances?
ii. 2) Did police act within the scope of the exigent
circumstances?
1. Police cannot impermissibly create exigent
circumstances by revealing their presence
and then take advantage of exigent
circumstances to evade warrant requirement
a. In general, when officers act lawfully
they do not create exigent
circumstances
i. E.g. Knock and announce on
door of drug operation does
not impermissibly create
exigent circumstances if it
causes criminals to start to
destroy evidence
r. Administrative and “Special Needs” Searches: Reasonableness Clause of 4A
rather than Warrant Clause of 4A applied to searches conducted for purposes
other than traditional criminal law enforcement
i. Administrative Searches of Homes: Camara v. Municipal Court (1967):
4A covers administrative searches of homes, e.g. health inspectors
inspecting homes for building code violations
1. Warrant is required.
a. BUT, warrant need not be based on PC that particular home
is in violation of safety
b. INSTEAD, warrant can be issued upon finding that search
is in compliance with reasonable administrative scheme.
i. No requirement of individualized suspicion for
administrative searches
ii. INSTEAD, can have area-wide warrant
1. Questions for issuing officer: 1) Does an
established inspection program exist?
a. Some regularized, non-arbitrary
method for inspection
2. 2) Does the inspection for which the warrant
is sought fit within that program?
21
ii. Administrative Searches of Businesses: See v. City of Seattle (1967): 4A
covers administrative searches of businesses.
1. But administrative searches of areas open to the public are not
searches at all
2. Administrative searches of areas not open to the public require the
area-wide warrant
3. Closely Regulated Businesses: No warrant is required for an
administrative search of a closely regulated business, if the
warrantless search is reasonable. New York v. Burger (1987):
a. Criteria of reasonableness:
i. Substantial government interest informing
regulatory scheme under which search is made?
1. Junkyards used to fence stolen cars. Burger.
ii. Warrantless inspection necessary to further
regulatory scheme?
1. Element of surprise important in finding
stolen cars.
iii. Does regulatory scheme provide adequate substitute
for warrant?
1. Does it advise owner that search is made
pursuant to law and has a definite scope?
a. Statute places owner on notice of
possibility of inspection, who will
perform it, scope, how to comply
with inspection
2. Does it limit discretion of inspecting
officers?
a. Can only conduct inspection during
regular business hours, can only
inspect records and vehicles or parts
on premises
b. N.B. Irrelevant for 4A purposes whether administrative
scheme may uncover evidence of crimes in course of
inspections
i. State can address social problem, e.g. car theft,
through administrative scheme AND penal
sanctions
ii. Police officers can enforce the administrative
scheme
iii. BUT, the administrative scheme MUST NOT BE
PRETEXT for criminal law
enforcement/investigation
iii. “Special Needs” Searches of People: Suspicionless drug testing without a
warrant is acceptable in certain circumstances.
1. Suspicionless Drug Testing of Employees:
22
2. Skinner v Railway Labor Executives Ass’n (1989): Can test urine
of all railroad personnel involved in train accidents without
individualized suspicion or a warrant
a. Urine test is a 4A search because of the act of taking test
invades privacy and private information can be discovered
b. BUT, because of special needs, individualized suspicion
and warrant are not needed in this case
i. BALANCING: privacy interest minimal vs.
government interest strong
1. Privacy interest minimal:
a. Diminished expectation of privacy in
pervasively regulated industry
b. Samples need not be furnished under
observation by a monitor
2. Government interest strong:
a. Deterring drug use by railroad
employees
b. Gathering evidence about the cause
of accidents
ii. EFFICACY: How well does the scheme serve the
government’s need?
1. Drug testing program was response to
document drug problem among railroad
employees, not hypothetical interest
2. Requiring individualized suspicion and
warrant would frustrate goals of scheme
because cannot gather such evidence in the
aftermath of a railroad accident
iii. PRETEXT: Program was not a pretextual means of
enforcing the criminal law
a. See also Von Raab: Can test urine of
Customs Service employees
involved in drug interdiction or jobs
requiring them to carry a firearm
without individualized suspicion or a
warrant
i. Among other factors, agents
are in the field, so detecting
drug use without mass
suspicionless testing would
be difficult
3. Contrast Chandler v. Miller (1997): Can NOT test urine of
candidates for state office without individualized suspicion or a
warrant
a. Suspicionless searches should be a “closely guarded
category.”
23
i. Scheme here not well designed to identify drug
users because can easily be evaded by abstaining
from drug use prior to scheduling test
ii. Unlike Von Raab, candidates for public office are
subject to constant scrutiny
4. Suspicionless drug testing of schoolchildren:
5. Vernonia School District v. Acton (1995): Warrantless,
suspicionless testing of student-athletes is acceptable
a. BALANCING: Privacy Interest: Students’ privacy interest
is limited in school environment because state is
responsible for maintaining discipline, health, and safety
i. School stands in loco parentis and parents approved
testing scheme
b. Student-athletes voluntarily subject themselves to serious
intrusions on their privacy
c. Manner of production of urine sample is not especially
intrusive.
d. Government Interest: Preventing drug use among school
children. Special concern of heightened risk of sports
injuries.
e. EFFICACY: Documented drug problem in the district, with
student-athletes as leaders of drug culture and admired
student leaders in general
f. PRETEXT: Test results not turned over to law enforcement
authority
6. Board of Education v. Earls (2002): Warrantless, suspicionless
testing of student who participate in competitive extracurricular
activities is acceptable
a. BALANCING: Privacy Interest: Students’ privacy interest
limited
i. Parental approval of policy
b. Students who do extracurricular activities voluntarily
submit themselves to some intrusions on their privacy.
c. Manner of production of urine sample is not especially
intrusive. Test results are kept in confidential files separate
from other student records.
d. Government Interest: Preventing drug use among school
children.
e. EFFICACY: Less evidence of drug problem, less
connection to group of students tested than Vernonia
f. PRETEXT: Test results not turned over to law enforcement
authority
iv. Special Needs Suspicionless Searches in Airports, Subways, Public
Buildings, etc.
1. Reasonable
a. BALANCING: Privacy interest: minimally intrusive
24
i. All travelers searched, minimizing embarassment
1. Randomness can also be an asset both in
terms of efficacy and lack of invasiveness
ii. Notified in advance
iii. Can refuse search and choose another form of travel
b. BALANCING: Government interest: state interest in
protecting safety is high
c. EFFICACY: state interest would not be served by requiring
individualized suspicion
i. Some people pose safety risk without intent to
violate law
1. E.g. security guard bringing weapon on
board that could be stolen by hijacker
ii. Some people who are threats do not initially appear
suspicious
v. Special Needs Stops/Roadblocks/Checkpoints:
1. Individual Stops to Check License/Registration: NOT acceptable
without individualized suspicion. Delaware v. Prouse (1979)
a. Efficacy/pretext: Unconstrained discretion to stop
problematic
b. Efficacy/privacy interest balancing: Ad hoc stops not
sufficiently effective program of ensuring vehicle
registration/safety to justify intrusion
2. Roadblocks to Check License/Registration: Presumably acceptable
without individualized suspicion. Prouse
3. Permanent Border Checkpoints: Acceptable without individualized
suspicion. United States v. Martinez-Fuerte (1976)
a. Privacy interest: minimally intrusive
i. Fixed checkpoints do not surprise drivers
b. Government interest: regulating flow of illegal aliens/other
dangerous items
c. Efficacy/pretext: discretion limited because location is not
determined by field officers
4. Temporary DUI Checkpoints: Acceptable without individualized
suspicion. Michigan State Police v. Sitz (1990)
a. Government interest in highway safety and not merely
criminal law enforcement
5. Temporary Drug Interdiction Checkpoints: NOT acceptable
without individualized suspicion. City of Indianapolis v. Edmond
(2000)
a. No immediate safety interest
b. Primary purpose must not be criminal law enforcement
i. Secondary purpose may be criminal law
enforcement
1. E.g. could have a permanent border
checkpoint with a drug sniffing dog, e.g.
25
United States v. Moreno-Vargas (5th Cir.
2002)
2. E.g. could have roadblock to remedy traffic
problems created by drug trade with
secondary effect of catching drug
dealers/buyers. United States v. Davis (DC
Cir. 2001)
c. Temporary Emergency Roadblocks to Catch Dangerous
Criminal: Acceptable despite criminal law enforcement
purposes, likely because of public safety interest
i. E.g. DC sniper
6. Temporary Checkpoints to Investigate Crime: Acceptable.
Individualized suspicion does not have an important role to play
obtaining information from public while investigating crime.
Illinois v. Lidster (2004)
vi. Administrative/Special Needs Searches and Pretext:
1. NOT a Special Needs Search: Public hospital may not perform
warrantless drug tests without a quantum of individualized
suspicion on maternity patients. Ferguson v. City of Charleston
(2001)
a. Chain of custody was followed in obtaining and testing the
urine samples to make results usable in court
b. Results were turned over to police for use in prosecutions
c. NOT a Special Needs Search: Criminal law enforcement
actions cannot be the means of achieving the ultimate goal
of forcing women into substance abuse treatment and
ending their drug use
i. All criminal law enforcement serves broader social
goals, so this cannot justify use of criminal law
enforcement as an initial step in a broader “special
needs” regulatory scheme
vii. Administrative/Special Needs Searches and Tailoring: Government need
not use least intrusive means/scheme to effectuate government interest
s. Consent Searches: Valid consent makes any search reasonable, even in the
absence of any articulable suspicion, even in the absence of a warrant
i. Requirements of valid consent: Sneckloth v. Bustamante (1973): In the
totality of the circumstances:
1. Voluntariness: Did the suspect voluntarily consent to the search?
a. Voluntariness here means lack of coercion/does not mean
absence of any pressure to consent
i. Is person lawfully stopped/under arrest?
1. Consent that is the product of prior illegal
action (stop, arrest, search) is derivative of
that illegality and invalid
a. E.g. Royer: Where luggage was
illegally seized, Royer’s consent to
26
its search did not override the prior
illegality
2. Fact that person is in custody does not
render consent involuntary but voluntariness
of custodial status is a factor
3. Person need not be told that they are free to
go after a stop in order for consent to be
voluntary. Robinette (1996)
ii. Did police falsely threaten to get a warrant when
there was no lawful basis for a warrant? / Or did
police state that they would get a warrant when
there was a lawful basis and one could easily have
been obtained?
iii. Was there coercive police procedures, physical
mistreatment, or extreme behavior?
1. N.B. Even after valid consent, if manner in
which search is conducted becomes
unreasonable, 4A may be violated. E.g.
tearing up suspect’s house after consent to
search
iv. What was the extent and level of the suspect’s
cooperation with the police?
v. What were levels of suspect’s education and
intelligence?
b. Knowledge of right to refuse consent is relevant to
determining voluntariness but not dispositive
i. No requirement that suspect be given warning that
he has the right to refuse consent
c. Consent that is given against self-interest (e.g. when
suspect knows he has drugs) is not categorically
involuntary. United States v. Mendenhall (1980)
d. N.B. On totality: Where initial response to request to
consent is ambiguous, e.g. responding “Sure” to the
question of “Do you mind if I take a look in the car?”,
subsequent failure to object to search indicates consent.
United States v. Price (7th Cir. 1985)
e. N.B. Voluntariness of consent to search is NOT the same as
voluntariness of waiver of trial rights, e.g. waiver of 5A
right against self incrimination
i. Some trickery is permitted to elicit a voluntary
confession
ii. NO trickery is permitted to elicit a voluntary
consent to search
1. E.g. police cannot dress up as Pepco guy,
ask to come into house, and search
2. Capacity
27
ii.
iii.
iv.
v.
vi.
a. Youth
b. Intoxication
c. Mental illness
Scope of Consent to Search: Person consenting can always specify scope
of consent. Absent specification, scope of consent is determined by
objective reasonableness, in light of object that is target of search
1. Reasonable for officer to conclude that general consent to search
car for narcotics included consent to search paper bag on floor of
car. Florida v. Jimeno (1991)
a. Separate consent to search each container not necessary.
i. Would result in fewer consents, which is contrary to
interest in encouraging cooperation with police
2. BUT NOT reasonable to conclude that consent to search of trunk
extended to breaking open of locked briefcase found in trunk
a. Destructive activity/activity that renders object completely
useless is likely beyond scope of consent, unless there is
explicit consent to destruction
3. It is responsibility of citizen, rather than officer, to clarify any
ambiguity concerning scope of consent to search
Withdrawal of Consent to Search:
1. Withdrawal must occur before search is completed. Consent
cannot be withdrawn retroactively after incriminating information
is found. United States v. Dyer (7th Cir. 1986)
2. Withdrawal must be clear and unequivocal. United States v. Gray
(8th Cir. 2004).
a. Expression of impatience with length of consent search is
not sufficient for withdrawal
3. Withdrawal, even when done in a suspicious manner, cannot
provide basis for reasonable suspicion.
a. Similarly, specifying scope of consent, or withdrawing
consent to some scope cannot provide basis for reasonable
suspicion
Government Bears Burden of proving that consent was voluntary.
Bumper v. North Carolina (1968)
1. Burden is not discharged merely by showing acquiescence to claim
of lawful authority (must prove voluntariness using factors above,
e.g.)
2. N.B. Voluntariness determinations often turn on credibility
determinations of officer vs. suspect
a. Problem of Testilying
No Penalty for Refusal to Consent: Refusal to consent to a search is
privileged conduct that cannot be considered as evidence of criminal
wrongdoing. United States v. Prescott (9th Cir. 1978)
Third Party Consent:
28
1. Actual Authority: When a co-inhabitant has joint access to or
control of a property for most purposes, he/she has actual authority
to consent to the search. United States v. Matlock (1974)
a. Suspect has assumed the risk that co-inhabitant might
permit common area to be searched
2. Apparent Authority: When officers has a reasonable belief that a
person has authority to consent to a search, that consent is valid
because the search is reasonable under the circumstances
a. E.g. Friend had moved out of Rodriguez’s apartment a
month prior and had retained a key without permission.
She referred to apartment as “ours” to officers and let them
in. Illinois v. Rodriguez (1990)
3. Ambiguous Situations: In situations in which person’s authority to
consent is ambiguous, agents must make further inquiries to
determine existence or absence of authority. United States v.
Dearing (9th Cir. 1993); United States v. Kimoana (10th Cir. 2004)
4. Where Suspect Is Present and Objecting: Where co-inhabitant
suspect is physically present and objecting to search, other coinhabitant cannot validly consent to search. Georgia v. Randolph
(2006)
a. Widely shared social expectations shed light on what is
reasonable in this situation
b. N.B. Must be present to object; police need not take
affirmative steps to find potentially objecting co-inhabitants
before obtaining consent.
i. When suspect is arrested outside premises and
removed from scene, and police did not deliberately
remove to avoid his objection to search, suspect was
not present and objecting United States v. Wilburn
(7th Cir. 2007)
ii. When suspect refused to come to door to avoid
arrest he was not present and objecting United
States v. Alama (8th Cir. 2007)
iii. Ease with which officers could have consulted
suspect for consent is irrelevant if not present and
objecting. United States v. Lopez (2nd Cir. 2008)
1. Need not wake up suspect who is asleep and
ask for consent to search, e.g.
c. N.B. After they are denied consent, officers may return at a
time when they know the non-objecting co-inhabitant will
be home and the objecting co-inhabitant will not
5. N.B. Scope of Third Party’s Consent: Co-inhabitants may lack
authority to consent to searches of particular areas
a. E.g. bedrooms, drawers in bedrooms
t. The Exclusionary Rule as a Sanction for 4A Violations: A constitutionallybased prophylactic rule to protect 4A rights:
29
i. ER in federal prosecutions: 4A bars the use of evidence obtained through
illegal search/seizure in federal prosecutions. United States v. Weeks.
ii. ER in state prosecutions: 4A bars the use of evidence obtained through
illegal search/seizure in state prosecutions. Mapp v. Ohio (1961).
1. ER is a constitutionally-based, judge-made rule designed to
safeguard 4A rights through deterrent effect. United States v. Leon
(1984)
a. ER is NOT a personal constitutional right of individual
subjected to illegal search/seizure
iii. Limiting the Application o the Exclusionary Rule:
1. Only Applies to Certain Proceedings: Can use illegally
obtained/excluded evidence before the grand jury, can use it to
impeach the defendant if he takes the stand and lies
2. Good Faith Exception: Exclusion is not required at all where
officers acted in objectively reasonable reliance* on search warrant
issued by magistrate but later found to be unsupported by PC.
United States v. Leon (1984)
a. Reliance on magistrate’s PC determination and technical
sufficiency of warrant must be objectively reasonable
i. Not reasonable to rely on warrant if magistrate was
misled by information that affiant knew was false or
was reckless as to its truth or falsity
ii. Not reasonable to rely on warrant if magistrate
wholly abandons judicial role, e.g. magistrate who
participated in search
iii. No reasonable to rely on warrant based on affidavit
wholly lacking in indicia of PC
iv. No reasonable to rely on facially deficient warrant,
e.g. warrant that does not specify place to be
searched or thing to be seized
b. Here, illegally obtained evidence can be used in
prosecution’s case-in-chief
i. No new 4A harm from introducing evidence at trial
1. ER is not designed to/does not cure invasion
of D’s rights from illegal search/seizure
c. How to determine when the ER should apply?
i. COST-BENEFIT analysis
1. Cost: Possibility of guilty person going free,
blow to legitimacy of system
2. Benefit: deterrence of bad police behavior
a. Here, not much to deter because
police got warrant, magistrates don’t
need to be deterred from issuing
warrants lacking PC
i. N.B. Analysis generally turns
on whether ER as applied to a
30
particular category of cases
will lead to deterrence of
illegal police behavior. Cost
is always very heavy.
d. The Good Faith Exception and Other Types of Errors:
i. ER not required when action was taken in
reasonable reliance on court clerical personnel’s
mistaken statement that there was outstanding
warrant for suspect’s arrest. Arizona v. Evans
(1995)
1. ER might be required to deter reliance on
recordkeeping system known to be rife with
error. Evans (O’Connor and Souter
Concurrences)
ii. ER not required when action was taken in
reasonable reliance on police personnel’s mistaken
statement that there was outstanding warrant for
suspect’s arrest. Herring v. United States (2009)
1. ER only deters conduct that it intentional,
reckless, grossly negligent, or sometimes
recurringly or systemically negligent (not
simply negligent)
iv. Standing to Invoke the Exclusionary Rule: Person seeking to suppress
evidence must have had his own 4A rights violated. Rakas v. Illinois
(1978)
1. Does person have a reasonable expectation of privacy in the
invaded place/thing?
a. Being legitimately on a premises does not establish a
reasonable expectation of privacy in a particular area of
that premises that is searched.
i. Rakas: Car with 4 people stopped. Defendants were
passengers, owner was driving car. No standing to
exclude rifles and shells in robbery prosecution
because Ds did not demonstrate ownership of rifles
or shells.
ii. Minnesota v. Carter: No reasonable expectation of
privacy when legitimately in apartment, but for the
first time, only for a short period, and only to
package cocaine
b. If person dissociates himself with property/disavows
ownership, he loses right to object to search of that
property. United State v. Boruff (5th Cir. 1990)
2. Ownership of property does not necessarily confer standing to
object to search absent reasonable expectation of privacy in
property. Rawlings v. Kentucky (1980)
31
a. Ownership of property DOES confer standing to object to a
seizure, provided person has a legitimate possessory
interest, e.g. no legitimate possessory interest in contraband
v. The Exclusionary Rule and Derivative Evidence:
1. Brown v. Illinois (1975) Rule: Did the evidence come by means
distinguishable from primary illegality?
a. Aka Did something else happen that could more readily
account for the derivative evidence than the illegality
could? Or, was the officer exploiting the original
illegality?
i. Factors: Miranda warnings
ii. Time between arrest and confession
iii. Presence of intervening circumstances
iv. Purpose and flagrancy of the official misconduct
1. Wong Sun: derivative evidence rule not
applied where suspect was released and
returned days later to make a confession
2. Brown: derivative evidence rule applied
where officers laid in wait in dark with guns
and arrested Brown without a warrant, quick
confession after Miranda warnings, no
intervening circumstances
3. Harris: derivative evidence rule not applied
where, unlike Brown, violation was illegal
search of home, not illegal arrest, thus
violation was complete when suspect
confessed at police station
4. Hudson: derivative evidence rule not applied
for violation of known and announce rule
prior to search. Balancing value of deterring
knock and announce violations (low) vs.
cost of excluding evidence obtained after
tainted searches (high)
a. Knock and announce rule does not
protect suspect against police with
warrant and probable cause from
collecting evidence, only protects
interest in collecting yourself prior to
their entry, which is minor
5. Ceccolini: Witness’s willingness to testify
almost always breaks chain of causation and
means derivative evidence rule does not
apply
6. Independent Source Doctrine: Murray:
a. Where facts x and y have been
learned from unlawful event, but fact
32
III.
z has been learned by other means,
fact z is admissible because it came
from an independent source
b. Where facts x and y are learned from
an unlawful event, but then they are
learned from a lawful event, they are
admissible because they come from
an independent source
i. E.g. discovered through
illegal search, but later
discovered through legal
search, where PC to search
was not supported by
illegally obtained evidence
7. Inevitable Discovery/Aka Hypothetical
Independent Source: Derivative evidence
rule not applicable where government can
show by a preponderance that illegally
obtained evidence would have been
discovered through legimate means
independent of official misconduct
a. E.g. Williams/Christian burial case,
where search party was shown to
have been searching area where
Williams pointed out body
b. Focus is on what officers actually
would have done, not merely what
they could have done
CONFESSIONS/INCRIMINATING STATEMENTS:
a. The Due Process Clause and Voluntariness: 5A and 14A:
i. Involuntary confessions are inadmissible for ANY purpose
1. Not admissible for impeachment
2. Derivative evidence not admissible (fruit of the poisonous tree)
ii. Brown v. Mississippi (1936): Confessions obtained through physical
torture (hanging, whipping) violate due process notions of fundamental
fairness in criminal proceedings in a civilized society.
iii. Colorado v. Connelly (1986): Connelly approaches uniformed officer on
street and says he wants to confess to murder. He is mirandized.
Homicide detective arrives and mirandizes him again. Connelly
confesses. The next day, he appears disoriented and says voices told him
to confess. No Due Process violation.
1. Focus in due process voluntariness inquiry is on police misconduct
a. Here, police did not do anything to induce this confession
2. Focus is NOT on personal characteristics of the accused, except to
the extent that they have interplay with the effect of police
misconduct.
33
a. Here, fact that the accused my have been unable to exercise
rational volition because of mental illness not relevant
because of lack of police misconduct
b. Same result of no violation if person were drunk/high on
drugs
3. Totality of the Circumstances relevant to the DP Voluntariness
Inquiry: 1) Have the police engaged in some action that caused the
statements to be given? 2) Were the statements involuntary?
a. Characteristics of the accused
i. Age
ii. Education
iii. Mental Capacity
iv. Mental Illness
v. Veteran of Criminal Proceedings
b. Physical deprivation or mistreatment
i. Denial of food or sleep
c. Psychological pressure
i. Threats
ii. Humiliation
iii. Isolation (from family, friends, counsel)
iv. Trickery
1. Factual lying ok: We have your DNA and
your prints at the crime scene.
a. Fabricating a DNA report NOT ok
2. Legal lying NOT ok: If you just tell us what
happened we won’t charge you and you can
go home
a. Honest promises of consideration for
cooperation ok
d. Whether accused had been warned of rights
i. N.B. Miranda is an independent bar but also
functions as an important component of
voluntariness analysis
ii. Spano v. New York (1959): Confession was
involuntary in the totality of the circumstances.
1. Personal characteristics weigh against
voluntariness
2. Was subject to leading questions of
prosecutor instead of making narrative
statement
3. Was questioned incessantly throughout night
4. Questioning persisted after refusals to
answer on advice of his attorney
5. Requests to contact his attorney were
refused
34
6. Officers used Spano’s friend who was a
rookie cop to extract confession by saying
Spano had gotten him in trouble
b. The Privilege Against Self-Incrimination During Custodial Interrogation:
Miranda and 5A:
i. “No person shall…be compelled in any criminal case to be a witness
against himself.”
1. “Person”—5A does not apply to corporate persons
2. “Compelled”—in Miranda cases, the compulsion is being held in
incommunicado detention
3. “Witness against himself”—you can only claim the 5A right
against self-incrimination on your own behalf. Only applies to
testimonial evidence, not demonstration/exhibition of physical
evidence, e.g. being asked to make voice recording, being asked to
give lock of hair, even if incriminating
4. 5A applies any time person is interrogated in custody, even prior to
being criminally charged
5. Unlike 6A, 5A is not temporally limited to criminal prosecutions
ii. Prophylactic Rule: Miranda v. Arizona (1966): Statements made during
custodial interrogation of a suspect are not admissible absent procedural
safeguards to protect the 5A privilege against self-incrimination.
1. Unless other fully effective means are devised, these warnings are
required:
a. Right to remain silent. Any statement made may be used
against him.
i. DO NOT NEED TO BE TOLD that silence can
NOT be used against him
b. Right to an attorney. Right to have attorney appointed if he
is indigent.
i. Not merely right to consult with attorney but also
right to have attorney present at questioning
1. No required magic wording for warnings if
they reasonably convey substance of
warnings Egan (Extra line: “We have no
way of giving you a lawyer but one will be
appointed for you if and when you go to
court.”)
c. DO NOT NEED TO BE given Miranda warnings over
course of questioning, e.g. as different officers take over
d. DO NOT NEED to tell person what will question them
about. Can move from crime to crime in questioning.
NOT CRIME SPECIFIC (unlike 6A right to counsel)
2. NO STATEMENTS made are admissible without the warning.
a. Does not matter if/to what degree they are incriminating
3. Invocation Generally:
35
a. Cannot invoke either Miranda right (right to silence or to
counsel) prior to custody and interrogation/Miranda
circumstances McNeil
b. Police questioning suspect can continue interrogation
where suspect has made ambiguous or equivocal invocation
of Miranda right to counsel. Davis (Right to silence not
specifically decided by SCOTUS).
i. No requirement to scrupulously honor suspect’s
right to remain silent unless invocation is
unambiguous/unequivocal. Banks (7th Cir)
ii. Not invocation: “Maybe I should talk to a lawyer.”
(Police ask clarifying questions and he says he does
not want a lawyer.) Davis
iii. Invocation: “I think I want a lawyer before I say
anything else.” Davis
iv. Invocation: When asked whether he understood
right to have lawyer present, suspect said, “Uh,
yeah, I’d like that.” Smith
1. Police should not have asked clarifying
questions that got equivocal responses
because this was sufficiently clear
invocation that more questions ran risk of
causing equivocation, not clarity.
4. Invocation of Right to Silence: Must be scrupulously honored by
police. But invocation of right to silence is not per se bar to
resumption of interrogation.
a. Factors for allowing renewed police interrogation:
i. Immediate cessation of questioning at invocation
ii. Resumption of question after a significant period of
time (2 hours)/cooling off period
iii. New giving of Miranda warnings (this is factor both
for scrupulously honoring invocation and for
KVness of any waiver)
1. And in this case: Restricted renewed
questioning to crime that had not been
subject of earlier interrogation.
b. Scrupulously honored: Mosley: Suspect arrested for
robberies, mirandized, invoked. Two hours later, different
detective mirandized and questioned about unrelated
murder. Suspect signed waiver form and made
incriminating statements
c. Did not scrupulously honor: Tyler: Suspect left in room
with timeline/evidence of murder investigation for hours
after invocation.
36
d. Did not scrupulously honor: Lafferty: After invocation,
suspect was put in interrogation room with accomplice who
had agreed to confess.
e. Need not scrupulously honor: ambiguous or equivocal
invocations of counsel. Also, police are not
obligated/required to ask suspects to clarify them, despite it
being good practice to do so.
5. Invocation of Right to Counsel: Interrogation* ON ANY
CRIME/SUBJECT cannot resume unless/until:
a. Counsel is present OR
b. Suspect initiates** further
communication/exchanges/conversations with police AND
c. This waiver is KV in the totality of the circumstances
i. These requirements apply even after suspect has
invoked and then met with counsel. Police still
cannot initiate unless counsel is present. Minnick
ii. *Edwards: Disabled kid/gun case: Police can renew
contact if that contact does not rise to the level of
interrogation
iii. **Initiation difficult factual question:
1. Ambiguity construed in favor of finding
initiation because government still has
burden of proving KV waiver
2. Initiation: Asking “Well, what is going to
happen to me now?” on ride to police
station. Discuss where being taken and
charges. Officer suggests polygraph.
Suspect agrees to take and confesses after
lying result. Bradshaw
3. Not initiation: Requests for things like
telephone, restroom that relate to routine
incidents of custodial relationship, asking
for belongings to be kept separate from
those of Co-D
4. Not initiation: Asking “Where are my
children?”
iv. Suspect only invokes Miranda right to counsel prior
to being formally charged with a crime. After
formal charge, suspect who invokes right to counsel
is invoking 6A right to counsel. McNeil
1. Initiation requirement is only a protection of
Miranda right to counsel, NOT 6A right to
counsel
a. Officers can initiate if it is a 6A
invocation
37
v. Invocation of Miranda right to counsel does not
remain in effect when suspect is released and time
passes.
6. Justification for Stricter Requirements to Resume Interrogation for
Invocation of Counsel vs. Invocation of Silence:
a. When invoke counsel, imply that feel disabled in dealing
with police alone and want advice of counsel. This
implication of disability persists regardless of passage of
time, giving of fresh warnings, discussion of different
crime, etc.
b. When invoke silence, merely stating that don’t want to talk
right then. Might be time specific. Might be crime
specific. Might just be in a bad pissy mood at the moment.
7. Waiver: Suspect may waive right to silence and/or to Miranda
counsel during questioning (different from waiving 6A right to
counsel)
a. Waiver is fact specific inquiry: intelligent, knowing, and
voluntary
i. Knowing: Rock bottom requirement of knowledge:
Can you understand the warnings themselves? (This
is a SUBJECTIVE test: Did this suspect actually
understand the warnings) (Knowing DOES NOT
mean knowing all the implications of your crappy
choice to waive)
1. Were warnings given in language suspect
understands?
2. Was person so deranged or mentally
defective that he could not comprehend the
warnings?
a. Not knowing that interrogation is
being videotaped does not invalidate
knowingness of waiver. Beasley
ii. Voluntary: Was there an absence of police
overreaching? (Voluntary DOES NOT equal free
choice)
1. More protective than voluntariness under
DPC
a. Under DPC, can use factual trickery
on suspect and still have voluntary
statement. Here, cannot trick person
into making voluntary waiver.
i. Clearly, cannot coerce into
waiver (violates DPC
voluntariness)
ii. Warned suspect made
involuntary confession when
38
statement was taken at
hospital while he was in great
pain. Perry (PA state case)
b. Suspect may make valid waiver and still make involuntary
confession that must be suppressed under DPC
i. Suspect made valid waiver after Miranda warnings,
but statements were suppressed under DPC
involuntariness because suspect was told her young
children at station could not be picked up by
relative until she confessed. Syslo
c. Cannot be presumed from silence of suspect after warnings
or from fact that confession was eventually obtained.
i. But can be presumed from totality of circumstances
even if suspect never signs formal waiver, where
suspect said he understood rights and then made
incriminating statements.
d. Failure to inform suspect that lawyer his sister retained
attempted to contact him did not invalidate waiver:
Burbine:
i. Misrepresentation to lawyer that questioning would
not take place was not a Miranda problem
1. Court also says it’s not a due process
“fundamental unfairness” problem because
it doesn’t shock the conscience
2. It would be a 6A right to counsel problem if
he had already been arraigned for the crime,
but he had not
ii. Failure to tell Burbine about lawyer was not
Miranda problem because Burbine voluntarily
waived and did not invoke right to counsel. Events
outside interrogation room cannot affect
voluntariness of waiver.
1. Police need not supply suspect with
information to help him calculate his self
interest in waiving Miranda protections
iii. Some states have rejected Burbine as matter of state
constitutional law and require informing suspects of
concrete offers of assistance from counsel.
Stoddard (Conn.)
e. Waiver is not permanent: Can make some statements and
then re-invoke 5A privilege.
f. Testilying: Whether and how warnings were given and
what happened afterwards
8. N.B. Miranda is an independent bar, as well as an important
element of the DP analysis of voluntariness of confessions.
39
9. Rationale: inherent coerciveness of incommunicado detention in
police-dominated atmosphere.
a. Per se rule for administrability, rather than inquiring into
whether individual suspects needed to be made aware of
their rights
iii. Miranda Is Constitutionally Based Rule: Dickerson v. United States
(2000): Miranda is not a mere prophylactic for 5A rights. It is a
constitutionally based rule and cannot be overruled by an act of Congress
(§ 3501) attempting to return to the voluntariness test.
1. Constitutional rights include not only the specific language of the
rights as stated in the Amendments but also the cases explicating
those rights.
2. Congress can limit the McNabb-Mallory rule: Requires prompt
presentment before a magistrate of suspects in custody
a. §3501 stated that confessions made within 6 hours of arrest
(or longer if reasonable) shall not be inadmissible solely
because of delay in presentment, if the confessions are
voluntary
iv. Limiting Miranda:
1. Impeachment: Does not apply to impeaching defendants who take
the stand. Harris v. New York (1971)
a. Miranda is a shield, not a sword—cannot be a license to use
perjury as a defense
b. N.B. Involuntary (DP) confessions are inadmissible for
ANY purposes, including for impeachment.
2. Impeachment with Pre-Arrest Silence: Does not apply to prior
silence, where reasonable person would have spoken at the time
about a matter D testifies to. E.g. person does not come forward
after supposed killing in self-defense. Jenkins v. Anderson (1980)
a. Impeachment with Post-Arrest, Pre-Miranda silence:
Acceptable in situations in which person is in custody but
not subject to interrogation, e.g. when suspects make
unprompted statements in car on way to station
b. Impeachment with Post-Miranda Silence: Unacceptable.
Doyle v. Ohio (1976)
c. Waiver: Can also impeach with inconsistent pretrial
statements when D waives Miranda rights after receiving
warnings
3. Admitting Evidence Derived from Miranda-Defective Confession
a. Leads to witnesses: Witnesses’ testimony admissible
b. Subsequent confessions: Can be admissible. E.g. First unMirandized confession was made under circumstances that
were later found to be custodial. Warnings were given,
suspect made another confession. Good faith Miranda
violation in obtaining first confession does not bar use of
40
second confession. (Use of first confession still barred
under Miranda.) Oregon v. Elstad
i. May be inadmissible if obtained through “Missouri
Two-Step” of questioning un-Mirandized suspects
until they confess, Mirandizing them, and then
leading them over the same ground they covered in
their prior confession. Missouri v. Siebert (2004).
1. TEST: Were officers acting in bad faith in
not giving warnings before first confession?
AND
2. Did second confession proceed directly from
first?
c. Physical Evidence: Admissible. Self-incrimination clause
of 5A is not violated by admission of physical fruit of
voluntary statement. United States v. Patane (2004)
4. Emergency/Public Safety Exception: TEST: would a reasonable
officer in the circumstances perceive danger to the officer or the
public? New York v. Quarles (1984): If overriding considerations
of public safety justify officer’s failure to warn, unwarned
confessions may be admitted in the prosecution’s case in chief
despite Miranda violation. E.g. Witness said she had been raped
by man with gun who was in supermarket. Police tracked him, lost
him, ordered him to stop, handcuffed him, noticed empty holster
and asked him where the gun was and he nodded and said “over
there”. Immediate necessity to find gun. Quarles.
a. Questions must be relevant to public/officer safety
i. E.g. Where is the gun? NOT Who did you shoot
with the gun?/Where did you get the gun?
b. There must be some sort of exigency to the risk of danger
to public/officer safety
i. E.g. in the very act of apprehending the subject
c. Per se acceptable to ask arrestee before conducting a search
of his person if he has any guns/sharp objects/needles/etc.
on his person
i. Statement “I don’t do drugs, I sell them” admitted
as response. Carillo
ii. Statement “I’m not but there’s a gun in the car”
admitted as response. Lackey
v. Miranda Is Only Applicable If: 1) Suspect Is In Custody AND 2) Suspect
Is Being Interrogated:
1. What Is Custody?: TEST: Would reasonable (innocent) person*
perceive that he is deprived of his freedom of action in any
significant way?
a. *Reasonable person can take into account particular
characteristics of subjects like perhaps age.
41
b.
c.
d.
e.
f.
g.
i. But youth is irrelevant in terms of subjective inquiry
into young person’s perception. Alvarado (17 YO
who was brought to station by parents to be
questioned about robbery and murder)
ii. Particular person’s psychological frailties are
irrelevant (contrast with their relevance to
interrogation—are police trading on psychological
vulnerabilities?)
iii. Officer’s undisclosed perception about whether
person being questioned is suspect is irrelevant to
custody
Per se YES: person under arrest is in custody
Per se NO: person who has been Terry stopped is NOT in
custody (unless PC arises and stop escalates into arrest)
Custody: police-dominated atmosphere/coercive
atmosphere contemplated by Miranda Court.
i. E.g.: Person was in custody when 4 armed
policemen entered his bedroom at 4AM and tried to
elicit incriminating information from him (and he
was under arrest) Orozco
1. Custody need not be police station if
atmosphere coercive
Not custody: IRS agents arrived at suspect’s home, sat at
his table, and discussed their investigation of his income
tax returns while investigating criminal tax fraud Beckwith
Not custody: Agents met with suspect at restaurant of her
choice, were not in uniform and did not display weapons,
she was not told she had to meet with them, and she was
allowed to leave afterwards. Courtney
Place is not determinative of custody.
i. Jail: TEST: Would prison officials’ conduct cause a
reasonable person to believe freedom of movement
had been FURTHER diminished?
1. Not custody: Prisoner who set fire to cell
taken out of cell and asked by guard why he
set fire. Garcia
2. Not custody: Talking to your cellmate who
is actually an undercover officer/talking to a
paid informant. (Not coercive)
3. Custody: Prisoner taken out of cell and
interrogated in office, and leaving
interrogation would have been violation of
prison rules. Chamberlain
ii. Police station: Not necessarily custody.
1. Not custody: Mathiason, suspect agreed
over phone to talk to officer, didn’t care
42
where met, officer suggested police station,
went voluntarily, was told he was not under
arrest, officer lied about fingerprints at
scene, left station after confessing.
h. Factors in determining custody Brown (8th Cir) and Griffin
(9th Cir):
i. Suspect informed at time of questioning that was
voluntary/that suspect was free to leave or ask
officers to leave?
ii. Suspect informed that not under arrest?
iii. Unrestrained freedom of movement during
questioning?/Physical surroundings of
interrogation?
iv. Suspect initiated contact with authorities?
v. Suspect voluntarily acquiesced to official request to
respond to questions? What language used to
summon?
vi. Suspect confronted with evidence of guilt?
vii. How long was detention?
viii. Were strong arm tactics or deceptive strategies used
during questioning?/Degree of pressure applied to
detain suspect?
ix. **Was atmosphere of questioning police
dominated?**
x. *Was suspect placed under arrest/vs. allowed to
leave at end of questioning?*
2. What is Interrogation?: Interrogation is either express questioning
or the functional equivalent
a. TEST: Are the words or actions on the part of the police
(other than procedural ones normally associated with arrest
and custody—e.g. booking) such that police should know
they are reasonably likely to elicit an incriminating
response? Innis (1980)
i. Talking about disabled kids: Not interrogation:
Police conversation that god forbid a disabled kid
from nearby school came upon missing gun. Innis
volunteered to show where gun was.
1. No express questioning/direct address of
suspect
2. No special knowledge about his concern for
disabled kids=police should not have known
reasonably likely to elicit incriminating
response
ii. Non-testimonial evidence: Not interrogation:
1. Asking suspected drunk driver to count to
ten
43
2. Asking suspected drunk driver to walk the
line
iii. Allowing suspect to talk to wife in presence of
police officer who was recording statements: Not
interrogation: No evidence that police sent wife in
with purpose of eliciting statements. Fact that
police realized suspect might make incriminating
statements does not amount to interrogation. Mauro
iv. Startled jailer: Not interrogation: sees prisoner with
neck slit and asks “What happened!?!” Asking not
part of strategy designed to elicit incriminating
response
c. The Right to Counsel for Defendants Already Charged with Crimes: 6A
i. “In all criminal prosecutions, the accused shall enjoy the right…to have
the assistance of counsel for his defense.”
ii. 6A right to counsel does not depend upon request by D. Williams
1. Unlike 5A, can initiate discussions with Ds who have counsel and
ask them if they want to waive 6A right
2. BUT cannot just question them without indication that they want to
waive. Williams
iii. Unlike 5A, 6A is temporally limited to criminal prosecutions
1. Person must have been formally charged with a crime to invoke
6A right to counsel
a. Methods of charging: Complaint or information from
prosecutor
b. Grand jury indictment
c. Presentment before a magistrate
iv. 6A IS OFFENSE SPECIFIC!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1. Are there elements of one offense that are not common to the other
offense?
a. Different offenses for 6A: Kidnapping and murder require
proof of different elements. Williams.
b. Same offenses for 6A: Lesser included offenses
v. 6A right to counsel is fundamentally a trial right, but it also applies to
certain pre-trial stages that fundamentally affect the defendant’s ability to
receive a fair trial when the time comes
vi. SO, 6A right to counsel applies at critical confrontations/stages after
charging and prior to trial
1. Adversary relationship between parties (gov’t and D) has been
cemented with charges and depriving D of counsel is depriving
him of parity in that adversarial relationship
vii. What Violates the 6A Right To Counsel? :Massiah: F: Was indicted,
retained counsel, was released on bail. Co-conspirator flipped and
allowed government to install radio transmitter under seat of his car. Coconspirator and agent arranged for convo between Massiah and Co in car
that agent could listen in on.
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1. H: 6A right to counsel was violated when federal agents
deliberately elicited* incriminating statements from Massiah in
absence of his counsel after he had been indicted
a. *Deliberate elicitation can be direct police questioning,
BUT ALSO other methods of attempting to get
incriminating statements from D, as here
i. BUT, deliberate elicitation requires action on part of
agent of the state. If co-conspirator or random
person had independently decided to gather and
bring police info on Massiah, that would be ok.
b. No deliberate elicitation: Bey: Death row inmate is friends
with and has conversations with guard, eventually
confesses to two murders, is released and retried.
Statements come in.
c. N.B. As in Massiah, deliberate elicitation does not depend
on custody/atmosphere of coercion. E.g. is violation of 6A
right to deliberately elicit information from defendant at his
house without waiver
2. Re: Continuing Investigation: Proper to conduct continued
investigation of D’s criminal activities after indictment BUT
cannot do what did in Massiah.
a. Moulton: Deliberate elicitation where police use informant
to obtain incriminating statements on ANY crime, even if
police intended to investigate crime B—plan to kill a
witness (uncharged—can use those) and got statements
about crime A—auto theft ring (charged—can’t use those)
b. N.B. Had Miranda been decided at this time, no Miranda
violation because no custody. Trickery ok.
3. Jailhouse Plants: N.B. No waiver: Are you an ear (no deliberate
elicitation) or a mouth (deliberate elicitation)?
a. Contrast Henry with Kuhlmann: Not deliberate elicitation:
Informant in Kuhlmann merely listened to him make
incriminating remarks. No serious effort on informant’s
part to elicit.
i. At one point informant said D’s version of events
“didn’t sound too good.”
1. De minimis: informants need not reveal
themselves by saying nothing in flow of
normal conversations.
viii. Waiver: You can waive the 6A right to counsel. Williams (Christian
burial). Making a Miranda waiver of counsel is sufficient to waive your
6A right to counsel as well. Patterson. Officers do not need to inform
you that you have been indicted before seeking your waiver. Chadwick
1. Unlike invocation of Miranda right to counsel, officers can
approach you to see if you would like to waive 6A right to counsel.
Montejo
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IV.
2. Decision to waive need not be counseled.
3. F: DM Lawyer tells Williams to surrender to Davenport police.
Williams does. DM Lawyer tells Williams DP officers will not
interrogate him and tells him not to talk to them. Williams brought
before magistrate in Davenport and charged with abduction.
Williams consults with DP lawyer who tells him not to talk to
police. Asks to ride with them to Des Moines and gets denied.
Tells detective not to question Williams. Williams does not
express willingness to be interrogated without counsel. Detective
knows Williams is former mental patient, v. religious, makes
Christian burial speech. Williams directs detective to shoes,
blanket, body.
a. Here: Charged?: Yes
b. Deliberate Elicitation?: YES! (said before trip that was
going to be talking to Williams during trip, admits on stand
that wanted to get information during trip)
c. Waiver?: NO!: Voluntary relinquishment of a known right
i. Prior to attempting to elicit statements, detective did
not determine that Williams wanted to waive 6A
right.
4. N.B. Ds like Massiah cannot waive because they do not know they
are being confronted by the government
5. N.B. Ds like Burbine (lawyer was trying to call) cannot waive
because they have not been told counsel has been trying to reach
them
ix. The Exclusionary Rule and the 6A: 6A violative confessions can come
in for impeachment
EYEWITNESS ID:
a. Eyewitness ID and the 6A Right to Counsel
i. The Wade-Gilbert Rule: Post-indictment lineup is critical stage of
prosecution at which D is entitled to counsel.
1. The lineup ID/prior ID will ALWAYS be excluded. (e.g. Gilbert,
where hundreds of people in auditorium made IDs in one another’s
presence and talked about IDs)
2. To protect D’s right to counsel at lineup, if that right is violated,
must prohibit in court IDs unless they come from independent
source*:
a. Prior opportunity to observe crime
b. Discrepancy between pre-lineup description and D’s
description
c. “Incorrect” ID of another person prior to lineup
d. ID of picture of D prior to lineup (which way does this
cut?)
e. Failure to identify D on prior occasion
f. Time between crime and lineup ID
g. Factors regarding conduct of the lineup
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i. *Pros must prove that ID came from independent
source by clear and convincing evidence
ii. 6A Right to Counsel Only Applies After Charges Have Been Brought:
Kirby: If charges have not been brought, the DPC is the only protection
against unduly suggestive lineups
1. Don’t want to introduce lawyers into routine investigative
practices, e.g. IDs on the street moments after the crime
iii. 6A Right to Counsel DOES NOT APPLY to Photo IDs Before OR After
Charges: Ash: D is not present at photo display and has no right to be
present. No critical confrontation with adversary at which D needs his
lawyer. Accurate recreation of photo array at trial is possible.
1. When D is identified from a photo of a lineup, Ash applies, NOT
Wade-Gilbert.
b. Eyewitness ID and Due Process: Requirement of fundamental fairness, governs
majority of IDs. Applies to standard IDs, voice IDs.
i. If pretrial ID violates DP, there can be NO in court ID because the ID has
been tainted with suggestiveness to the extent that it may be mistaken and
is fundamentally unfair to admit.
ii. Stovall: TEST:
1. Necessity: Was it necessary for police to act as they did?
a. Here, was only feasible procedure because victim was in
hospital, could not travel to station, might not live, there
was no time to collect people for a lineup, was only person
who could ID perpetrator
b. Simmons: Need for fast action
2. Suggestiveness: Was ID so unnecessarily suggestive that it was
fundamentally unfair?
a. Court does not address this in Stovall, except to extent that
any suggestiveness was acceptable under circumstances
b. Not impermissibly suggestive to do one-on-one showup
when officers claim nobody fit suspect’s unusual physical
description, even though court felt officers did not exhaust
all possibilities to find such people. Biggers
c. Simmons: Although procedure was not ideal, was not
unnecessarily suggestive because basis for ID was so strong
that it was unaffected by any suggestiveness
d. In general, street IDs after crime are necessarily
suggestive—suspects are handcuffed, in presence of law
enforcement offices, illuminated by flashlights/headlights.
Bautista
e. In general, in court IDs are suggestive, but they are
acceptable if witness has in independent source for ID
(usually viewing perpetrator at crime)
3. Reliability: Linchpin of determining admissibility of ID testimony
under the DPC. Manson (Narcotics officer ID’d suspect from
single photo—procedure was suggestive and unnecessary.) Was
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V.
the ID so conducive to irreparable mistaken ID that it was
fundamentally unfair?
a. Court does not address this in Stovall despite cross-racial
ID, fact that suspect was handcuffed
b. Balancing reliability with suggestiveness: Biggers: ID was
reliable because victim had independent source for ID,
despite suggestiveness of showup.
1. Factors in reliability: What was the
witness’s opportunity to view suspect?
2. What was witness’s degree of attention?
3. How accurate was witness’s description?
4. How certain was witness at time of ID?
5. How much time passed between crime and
ID?
6. Circumstances in which ID was made?
Manson (allowed care and reflection)
c. Simmons: suspect was readily identified, identification was
made soon after crime
iii. Sole Case Where SCOTUS has found DP Violation in ID: Foster: Three
person lineup, Foster was with two men who were six inches shorter.
Foster was only one who wore jacket like perpetrator. Victim cannot ID.
Foster brought into office for showup. Victim cannot ID. A week later
victim views second lineup with only Foster as a repeat and makes ID.
1. Suggestiveness made ID unreliable and admitting it or in court ID
against D fundamentally unfair
c. Nonconstitutional Methods of Dealing with Eyewitness IDs:
i. Methods of conducting lineup:
1. Instructing witness that person who committed crime might not be
present, that it is just as important to clear innocent people as to
identify guilty people
2. Instructing witness to state in own words how certain witness is
3. Sequential instead of simultaneous presentation
4. Blind adminstration
ii. Expert witnesses on unreliability of eyewitness IDs/cross-racial IDs
iii. Jury instructions on eyewitness IDs/cross-racial IDs
GRAND JURIES
a.
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