Criminal Procedure Outline
Table of Contents
Searches and Seizures ......................................................................................................................................... 2
Definition of a “search”.....................................................................................................................................................2
Definition of a “seizure” ...................................................................................................................................................5
Search Warrants and Probable Cause.........................................................................................................................5
Warrantless Arrests and Searches of Persons ...................................................................................................... 10
Warrantless Entries and Searches of Premises .................................................................................................... 14
Warrantless Seizures and Searches of Vehicles and Containers.................................................................... 16
Stop and Frisk (Terry stops) ........................................................................................................................................ 17
Consent Searches ............................................................................................................................................................. 19
Special Needs .................................................................................................................................................................... 21
Remedies (the Exclusionary Rule) ................................................................................................................ 21
The Exclusionary Rule ................................................................................................................................................... 21
Undercover Investigations........................................................................................................................................... 24
Law of Interrogations ........................................................................................................................................ 24
Doctrinal Foundations ................................................................................................................................................... 24
The Miranda Framework.............................................................................................................................................. 25
Due Process and Involuntariness .............................................................................................................................. 29
Grand Jury Investigations ................................................................................................................................ 30
Doctrinal Foundations and Procedures .................................................................................................................. 30
GJ Procedure and 4th, 5th Amendment Limits ........................................................................................................ 31
The Right to Counsel .......................................................................................................................................... 35
Right to Appointment of Counsel (Gideon)............................................................................................................. 35
Ineffective Assistance of Counsel............................................................................................................................... 37
Line-Ups, Show-Ups, and Photo Arrays ....................................................................................................... 38
Sources of Law
1) Potential Sources of Criminal Procedure
a) James Madison, The Federalist Papers, No. 10
2) most US criminal procedure law is judge-made Constitutional law
a) Contrasts with most of rest of world, where statutory rules prevail
b) binding on law enforcement at every level
3) History of rights
a) early common law
i) defendants put on the stand and asked whether he committed crime, jury to decide
whether telling the truth
ii) no defense lawyers allowed – thought that they would just mislead the jury
b) around 1700 – right to hire defense attorney (not provided)
c) around 1750 – abuses by English king lead to some reforms
i) Entick v. Carrington – Found a trespass in government officials entering the plaintiff's
home and breaking open his boxes and examining his papers, court held that search
warrant was not valid without some proof to back it up, i.e., probable cause
d) 1770s – American Revolution, US Constitution
i) Bill of Rights responds directly to English king’s abuses
(1) 4th Am. – no unreasonable searches or seizures; warrants only on probable cause and
no general warrants (must be specific)
(2) 5th Am. – cannot be compelled to be a witness against yourself
(3) 6th Am. – trial rights (speedy, jury, etc.); assistance of counsel
e) Late 1800s – Constitution begins to be applied to the states
i) 14th amendment, reconstruction, ect.
f) Early 1900s – police force grows rapidly, becomes professional
g) 1930s-1950s – SCOTUS toying with Due Process Clause to restrict states through the Bill of
Rights
i) Powell v. Alabama (1932) – All citizens have 14th Am. DP rights, which is meaningless
without a lawyer (can’t say 6th Am. violated directly b/c doesn’t apply to the states)
ii) Palo v. CT (1937) – rights incorporated if “implicit in concept of ordered liberty
iii) Adamson (1947) – “required by immutable principles of justice as conceived by a civilized
society”
iv) Duncan (1968) – “fundamental to the scheme of American justice
v) Rochin v. California (1952) – police forcibly pump suspect’s stomach to get the drugs he
swallowed; police conduct that “shocks the conscience” violates DP
h) 1960s – Warren Court, procedural revolution
i) 4th Am. incorporated – Wolf v. CO (1949) incorporates, Mapp (1961) recognizes remedy
for violation
ii) 5th, 6th Am. incorporated
iii) 2nd Am. Maybe incorporated?
(1) Heller – striking down DC handgun ban; individual right to own handgun in your
home for self-defense
(2) McDonald v. City of Chicago (pending)
1
Searches and Seizures
Definition of a “search”
4) Case Overview:
a) Katz – bugging pay phone (search)
b) Kyllo – thermal imager on home (search)
c) Bond – squeezing duffel bag (search)
d) Dunn – open fields/physical land (not a search)
e) Greenwood – trash left out by curb (not a search)
f) Caballes – dog sniff on car (not a search)
g) Fla. v. Riley – aerial surveillance (not a search)
5) Pre-Katz precedents:
a) 1928 case – wiretapping not a search
b) Ex Parte Jackson – opening your mail is a search
c) Goldman – not a search if govt eavesdrops on neighboring room using detectaphone b/c no
actual entry; must enter into “constitutionally protected area” to be a search
d) Silverman – search when govt drills hole in wall to listen through heating duct b/c entering
the area
6) General principles:
a) Restricts civil as well as criminal authorities (New Jersey v. T.L.O.)
b) Does NOT protect foreign nationals (United States v. Verdugo-Urquidez)
i) Also not applicable to deported aliens returning to US (United States v. EsparzaMendoza)
c) Does not protect what person knowingly exposes to the public (Katz)
i) IE outside of car, trash on the street, ect
7) Rule: a search is police activity which violates a reasonable expectation of privacy or constitutes
a trespass
a) A “reasonable expectation of privacy” exists where
i) the individual has exhibited an actual expectation of privacy, (subjective)
(1) in fact, this part of the test is largely objective as well
(a) Harlan describes as “exhibited subjective expectation of privacy”
(b) would be very hard for govt. to prove purely subjective
ii) which society is prepared to recognize as reasonable (objective)
(1) if you attempt to keep something hidden from public, expectation of privacy is
reasonable (doesn’t matter if it will be practically difficult to keep from public)
(a) government squeezing of duffle bag violates privacy rights (Bond)
(2) private homes have a right to privacy
(a) a thermal imager violates privacy rights in one’s home (Kyllo)
(b) Surveillance from a helicopter of yard at 400 feet is not a search (FL v. Riley)
(c) There is no right to privacy in your trash outside the curtilage of the home (CA v.
Greenwood)
(3) Curtilage is protected while “open fields” are not
(a) curtilage = area around home that is effectively “inside”
(i) practical necessity b/c otherwise cops could just surround your home
(b) open fields = area physically and practically distinct from the home
(c) 4-factor test to decide which one
(i) proximity to the home
(ii) whether included in enclosure
2
(iii)nature and uses of area (intimate activities of the home?)
(iv) steps taken to protect from observation
(d) policy: equating privacy with trespass would be too broad
(4) Prison:
(a) There is no right to privacy in prison cells (Hudson v. Palmer)
(b) Strip/body-cavity searches of pretrial detainees after contact visits with outsiders
are not unreasonable (Bell v. Wolfish)
(c) however, prisoners still have rights “of a diminished scope (Bell)
(5) Vehicles:
(a) 4th Amendment protects the interior of a car (New York v. Class)
(b) No 4th Amendment search in examining tire treads or taking paint sample from
exterior of car (Cardwell v. Lewis)
(c) No 4th Amendment protection for a vehicle’s VIN number, i.e., police may search
for it (New York v. Class)
(d) No 4th Amendment protection in smells outside of car (Caballes) at least by dog
(6) Enhanced senses:
(a) Not a search for police to detect something by one of her natural senses (Mankani
(2d Cir. 1984)).
(i) Not a search for police to use a common means of enhancing the senses, e.g.,
flashlight or binoculars.
(b) Not a search to use drug detection dog (Caballes)
(i) However, may be in context of outside of house (Jardines)
(c) Short term GPS tracking not a search, but four weeks is (US v. Jones, Alito
concurrence)
(d) General public use test: Search to use technology not in general use
(i) Use of thermal imager on home is a search, not in general public use (Kyllo)
(7) On the wall vs. off the wall:
(a) Devices that tell you nothing about what’s going on inside the house are ok
(i) Ambient radiation detection device that only measures radiation emanating
from a building is NOT a search (Cops in DC case)
(b) If it tells you about things in which you have legitimate expectation of privacy,
then it IS a search
(i) Thermal detector telling you about heat inside house IS a search, tells you
when lady of the house has her bath (Kyllo)
(8) No legitimate privacy interest in possessing contraband
(a) Binary search doctrine: Searches that can only detect contraband are not
searches for 4th Amendment
(i) Dog sniff of car not a search because can only detect drugs (Caballes)
(9) Third parties: No right to privacy in information turned over to third parties
(a) Does not matter if information was given with the expectation that third party
would keep it secure
(b) Use of pen register to obtain the numbers dialed from phone did not violate his
reasonable expectation of privacy (Smith v. Maryland)
(c) There is no right to privacy in your trash outside the curtilage of the home (CA v.
Greenwood)
(10)
Businesses and commercial premises have a right to privacy (See v. City of
Seattle)
b) Trespass test: A trespass is a search where…
i) The police engage in a “physical occupation of private property for the purpose of
obtaining information”
3
(1) Installing GPS tracker on car AND tracking it is a trespass (United States v. Jones)
(2) Tracking the transmission of electronic signals without trespass is subject only to
“reasonable expectation of privacy” analysis
(3) Home:
(a) Trespass is that which goes beyond the common law implied license
(i) Bringing a drug dog to the front porch goes beyond the implied license (FL v.
Jardines)
(ii) Standard “knock and talk” is not a trespass
(b) Question: can defendant alter scope of license with signs or physical barriers?
8) Kerr’s Four Models of 4th Amendment Analysis
a) probabilistic model
i) looks to chances item discovered would maintain privacy based on prevailing social norms
and practices
ii) cases utilizing model:
(1) Bond v. US – squeezing the duffle bag; don’t expect people to feel your luggage in that
way
(2) Minnesota v. Olson;
(3) California v. Ciraolo
(4) rejected in Caballes – K9 sniffing drugs in car; legit expectation of privacy is
normative question not probability
b) private facts model
i) looks at nature of info obtained, whether private or not
ii) cases utilizing model:
(1) Caballes – K9 sniffing drugs in car; no REP in presence or absence of contraband, info
itself not entitled to privacy
(2) United States v. Jacobson;
(3) Dow Chemical Co. v. United States;
(4) United States v. Karo
(5) rejected in Arizona v. Hicks
(a) facts – govt agent going through the apt. where shot had been fired, sees
expensive stereo equipment he suspects is stolen; lifts up turntable to see serial
number
(b) court holds the serial number is private info
c) positive law model
i) whether govt violated some law outside 4th Am. to get to observe what it observed
ii) cases utilizing model:
(1) FL v. Riley – helicopter legally in airspace, so no REP
(2) Rakas v. Illinois
(3) Dow Chemical Co. (dissent)
(4) rejected in Cal. v. Greenwood – trash case; rejects arg. that state law said privacy
interest in trash
d) policy model
i) looks directly to whether govt conduct should be regulated as a matter of public policy –
balance pros/cons of regulating and not regulating under 4th Am.
(1) never rejected, although sometimes ignored
ii) cases utilizing model:
iii) Hudson v. Palmer – inmates don’t have legit interest in privacy b/c govt necessity
iv) Kyllo;
v) Smith v. Maryland (dissent)
4
Descriptive Normative -
Micro-Scale
Positive Law
Private Facts
Macro-Scale
Probabilistic
Policy
Definition of a “seizure”
9) Case Overview:
a) Brendlin v. CA – pulling over a car constitutes a seizure of passenger
b) Winston v. Lee – removing bullet from robbery suspect constituted seizure
10) Seizure of property:
a) Rule: police conduct constituted “meaningful interference with possessory interest in
individual’s property”
i) Police copying serial numbers of stolen radio equipment is not a seizure (Arizona v.
Hicks)
b) can seize something…
i) without searching it
ii) without touching it – ex: govt controlled, taking it out of stream of delivery
11) Seizure of persons:
a) Rule: police “terminated or restrained person’s freedom of movement” “through means
intentionally applied”
i) Test when person desires to leave:
(1) whether reasonable person would feel free to leave the scene
(a) Passenger in car which cop pulled over would not feel free to leave the scene
(Brendlin)
ii) Test when person does not desire to leave (for reasons unrelated to police presence):
(1) whether a reasonable person would feel free to decline the officers' requests or
otherwise terminate the encounter
iii) Show of force is sufficient, actual use of force not necessary
iv) Actual submission required:
(1) Without actual submission, merely attempted seizure
(2) Test: “What may amount to submission depends on what a person was doing before
the show of authority: a fleeing man is not seized until he is physically overpowered,
but one sitting in a chair may submit to authority by not getting up to run away.”
b) Exception:
i) A fleeing suspect is generally not considered seized
Search Warrants and Probable Cause
12) Fourth Amendment: “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized”
13) The probable cause test:
a) Search v. arrest
i) for search – to believe that there’s evidence of a crime or contraband
ii) for arrest – to believe person committed an offense
b) Effect of establishing probable cause:
i) 99% of the time, government may conduct a search or seizure if it possesses probable
cause
ii) Probable cause makes the search or seizure reasonable in terms of the 4th Amendment
5
c) Nature of inquiry:
i) fact-intensive inquiry – practical, commonsense assessment of whether evidence is
enough
ii) will never be certainty – “fair probability”
iii) Requires a “particularized belief of guilt
(1) Proximity alone is not enough
iv) judge cannot consider the fact that he knows outcome of search
d) Old Test for probable cause (Aguilar-Spinelli):
i) A search warrant is valid only if the issuing magistrate is informed of…
(1) the reasons to support the conclusion that such an informant is reliable and credible,
and
(a) fact that person was known as bookie to the feds and informant was “reliable” was
insufficient (Aguilar)
(2) some of the underlying circumstances relied on by the person providing the
information
e) New Test for probable cause (Illinois v. Gates):
i) Based upon the “totality of the circumstances” there must be a “fair probability” that
contraband or evidence will be found
(1) probable cause = practical, common sense judgment that “fair probability” exists on
the facts”
(a) facts about couple coordinating trip to and from Florida was sufficient (Illinois v.
Gates)
(b) Independent police verification of facts supplied by an informant can salvage an
otherwise inadequate showing of cause (Draper v. United States)
(2) more like equity than percentages
(3) probable cause will be attributed to a group when they share control of the area
searched (see “scope of the search” infra)
(a) drugs found in a car is sufficient to arrest all occupants of the car (Maryland v.
Pringle)
(b) drugs found in a bar is NOT sufficient to search all patrons of the bar (Ybarra)
14) Requirements for the issuing of a search warrant:
a) Requirements for all warrants:
i) Probable cause (see supra) supported by oath or affirmation
ii) A detached/neutral magistrate
(1) Not in text of the Constitution, but Court implies this requirement
(2) applies to judge, not the police
(3) Test: magistrate must be both
(a) Neutral and detached, AND
(i) no vested interest in warrant being executed (ex: can’t be paid based on issue)
(b) capable of determining whether probable cause exists for the requested arrest or
search
(4) if a judge denies a warrant, cannot seek warrant from another judge on the same info
iii) sufficient particularity regarding
(1) the place to be searched
(a) specific place, i.e. house or individual apt
(b) occasionally more general, but usually not
(c) Test: “officer with a search warrant can with reasonable effort ascertain and
identify the place intended.” (Steele v. United States)
(i) “Objectively reasonable” exception: Warrant is invalid only if when
obtained “the officers had known, or even if they should have known, that
6
there were two separate dwelling units on the third floor.”
1. Police obtained and executed a search warrant for “the premises known as
2036 Park Avenue third floor apartment,” only to discover thereafter that
the third floor was divided into two apartments and that the contraband
they had discovered was in the apartment of a person not theretofore
suspected, SC says “execution of warrant” was valid, as “the officers’ failure
to realize the overbreadth of the warrant was objectively understandable
and reasonable.” (Maryland v. Garrison)
(ii) Warrant must describe particular unit to be searched in a multi-occupancy
structure (State v. Blackburn)
1. Exception: Warrant is not defective for failure to specify a particular unit
if…
a. (1) the building looks like a single-occupancy structure AND
b. (2) neither the affiant nor the investigating officer knew or had reason
to know otherwise until execution of the warrant was underway.
(2) the things to be seized
(a) 4th Amendment – No warrants shall issue except those “particularly describing
the... things to be seized.”
(b) can’t be “all evidence of crime”
(c) but don’t need exact description of item
(i) most search warrants describe an item and add “related” items
(d) Affidavit exception: A defective description in the warrant sometimes may be
saved by an adequate description in the affidavit.
(i) Test: “if the warrant uses appropriate words of incorporation, and if the
supporting document accompanies the warrant.”
b) Anticipatory warrants:
i) Rule: to comply with probable cause an anticipatory warrant must meet two
prerequisites (United States v. Grubbs)
(1) There must be a fair probability that contraband or evidence of a crime will be found
in a particular place, AND ALSO that the triggering condition will occur.
(2) The supporting affidavit must provide the magistrate with sufficient information to
evaluate BOTH aspects of the probable-cause determination.
ii) Anticipatory warrants are no different in principle from ordinary warrants
c) Material Witness Warrants:
i) Rule: Arrest warrant for material witness must be based upon PC, which is tested by two
criteria:
(1) The testimony of a person is material; and
(a) May be satisfied by “a mere statement by a responsible official, such as the United
States attorney.” (United States v. Oliver)
(2) It may become impracticable to secure his presence by subpoena
d) Challenging a warrant (Franks v. Delaware):
i) D makes preliminary showing
(1) Requires “substantial” preliminary showing that “a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by an affiant in a
search warrant affidavit” which was necessary to probable cause
ii) Hearing held at D’s request
(1) D must establish “perjury or reckless disregard”
(a) Burden is a preponderance of the evidence
(2) Court then determines whether there was probable cause absent the false material
iii) Search warrant is voided
7
(1) Fruits of the search excluded (fruit of the poisonous tree analysis)
15) Requirements for the execution of a search warrant:
a) Expiration of warrant:
i) A valid warrant expires when…
(1) About ten days have passed OR
(2) The basis for probable cause is invalidated (goes stale)
b) Timing of execution:
i) must be executed in the daytime unless warrant states otherwise (most jurisdictions)
(1) exceptions for necessity or emergency (complete exemption?)
(a) ex: where evidence only there at night
ii) special nighttime requirements:
(1) Nighttime searches are more intrusive and must comply with stricter PC standards
(Gooding v. United States)
(2) May need concurrence of two magistrates; showing that property is definitely in place
to be searched; showing need for prompt action.
iii) “Sneak and Peak” warrant requirements:
(1) Two limitations on “SNEAK-AND-PEAK” search warrants; which allow police to
enter, search, and leave without giving any notice of search:
(a) “The court should not allow the officers to dispense with advance or
contemporaneous notice of the search unless they have made a showing of
reasonable necessity for the delay.”
(b) “If a delay in notice is to be allowed, the court should nonetheless require the
officers to give the appropriate person notice of the search within a reasonable
time after the covert entry.”
c) Knock and announce rule: police must knock-and-announce their presence
i) Rule: In the normal execution of a warrant, police must knock and announce their
presence before entering
(1) Police may enter the home when whether it would appear, to a reasonable police
officer, that “an occupant has had time to get to the door.”
(a) 15-20 seconds normally sufficient (Banks)
(b) Determined by facts known to police at the time.
(i) Would not matter whether occupant was in the shower if police did not know
this.
(2) Exception – exigent circumstances:
(a) If the police claim a legitimate exigent circumstance, the courts will examine the
exigency rather than the amount of time waited after knocking
(i) Flushing drugs, someone being injured, ect.
ii) NOTE: no exclusionary remedy for this violation (Hudson v. Michigan)
iii) Exception – no knock entry test:
(1) For no knock entry, police must have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances, would
(a) be dangerous or futile, or
(b) would inhibit the effective investigation of the crime by,
(i) IE allowing the destruction of evidence (flushing drugs)
(2) Test is very deferential to police
(a) Still, must be made each time
d) Presence of Third Parties:
i) Rule: presence of third parties is permitted “for the purpose of identifying the stolen
property”
(1) Common-law tradition
8
ii) Rule: presence of third parties is NOT permitted for unnecessary invasions of privacy
(1) 4th Amendment was thus violated when police entering a private dwelling to execute
an arrest warrant allowed members of the news media to accompany them (Wilson v.
Layne)
e) Delivery of warrant
i) General Rule: Officer executing search must deliver a copy of warrant at place searched
(1) 4th Amendment is violated when police delivered at the conclusion of the search a
copy of a warrant that did not specify the things to be seized (Groh v. Ramirez)
16) Scope of the search
a) Rule: A search may be as broad as necessary to find items described in the warrant, where
evidence might be located
i) can include breaking open locks, closets, etc.
(1) property destruction doesn’t violate 4th Am. if warrant is valid – but state law may
provide remedy
ii) cannot look in places that physically cannot fit the evidence (Ross)
(1) this is modest limitation – drugs can be anywhere, govt will often say looking for
records stored on comp.
iii) once the sought after item(s) is found, search must cease
b) Cursory inspection: “A truly cursory inspection—one that involves merely looking at what
is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment
purposes (Arizona v. Hicks)
c) Exception: Unanticipated persons on the premises may not be searched or arrested without
probable cause
i) Proximity alone is insufficient – “mere propinquity to others independent suspected of
criminal activity does not, without more, give rise to PC to search that person”
(1) Search of bar patron based on drug possession of bartender is insufficient (Ybarra v.
Illinois)
(2) Requiring white couple to stand naked for two minutes during search of house for four
black suspects IS reasonable (Los Angeles County v. Rettele)
(a) Possibility that couple was hiding weapons under bedsheets, could have been
joint criminal activity
ii) Exception to exception: officers can conduct limited searches/seizures to ensure officer
safety
(1) Frisking: Surface frisk to detect weapons, Terry frisks, are allowed (Terry)
(2) Detention: Detention of persons at the scene of a search warrant execution is
permissible incident to that execution if (Michigan v. Summers):
(a) those persons are “occupants”, and
(i) typically meaning “residents”
(b) the warrant authorizes a “search for contraband” rather than a “search for
evidence.”
(3) Temporarily handcuffing when officer has no alternative is allowed (Muehler v. Mena)
(a) Particularly justified in inherently dangerous situations and/or when the officer is
outnumbered
d) Exceptions:
i) “grabbable area” doctrine
ii) “protective sweep” doctrine
iii) both under “arrest of persons” infra
17) Plain view doctrine (items not named in warrants):
a) Rule: Police may not search or seize anything outside the scope of the warrant
b) Exception: officers are permitted to make warrantless seizure of items officer sees while
9
engaged in lawful arrest, entry, or search
i) Applies ONLY to seizures – doesn’t justify search to find evidence
c) Three part test to determine whether doctrine applies:
i) The underlying search must have been legitimate (no 4th Amend. violation)
ii) The evidence seized must have been in plain view
iii) The incriminating nature must be immediately apparent
(1) Incriminating nature of weapons is immediately apparent (Horton v. California)
(2) The incriminating nature of drugs is immediately apparent
d) Police officer’s state of mind is irrelevant (Horton v. California)
e) Policy:
i) Should there be an “inadvertence requirement”?
(1) Would mean plain view would only apply to things cops saw inadvertently
(2) Pro:
(a) Otherwise, gov’t can use pretext of lower-level crime to search for evidence of
something more massive
(b) Requirement would give police incentives to include all items in the warrant
(i) means can look for it, rather than just hope for plain view
(3) Con:
(a) SC response: “The suggestion that the inadvertence requirement is necessary to
prevent the police from conducting general searches, or from converting specific
warrants into general warrants, is not persuasive because that interest is already
served by the requirements that no warrant issue unless it ‘particularly describes
the place to be searched and the persons or things to be seized.’”
(b) Also, requiring that things cops are looking for be put in a warrant would include
things small or easily concealed, which can significantly expand scope of permitted
search
ii) biggest limit is that illegal nature must be “immediately apparent”
18) Remedies for defective warrant (as created or in execution):
a) Governed by good-faith exception of United States v. Leon
b) See “exclusionary rule” infra
Warrantless Arrests and Searches of Persons
19) Right to probable cause hearing
a) There is a 4th Am. right to prompt post-arrest hearing to determine probable cause (Gerstein
v. Pugh)
i) Standard: gov’t “must provide a fair and reliable determination of probable cause as a
condition for any significant pretrial restraint of liberty, and this determination must be
made by a judicial officer either before or promptly after arrest”
b) The time frame is presumptively 48 hours (Riverside v. McLoughlin)
20) Arrest without warrant
a) Old rule (Watson):
i) Police must have probable cause to arrest a person a crime (may not arrest for
misdemeanors) without a warrant
(1) officer did not need warrant to arrest defendant for stolen credit cards even though he
had time to get one (US v. Watson (1976))
ii) However, for misdemeanors, warrant necessary for arrest
b) News rule (Atwater):
i) With probable cause, police may make warrantless arrest for any crime (includes
10
misdemeanors)
(1) No crime is too small
(a) officer may arrest driver for not wearing seatbelt even though the largest
available penalty is a $50 fine (Atwater v. City of Lago Vista)
(2) Probable cause for any offense suffices, not simply the one D was arrested for
(Devenpeck v. Alford)
(3) Does not matter that defendant may not be arrested for crime under state law (VA v.
Moore)
(a) 4th Am. doesn’t care what state law says
(b) touchstone is reasonableness – arrest is always reasonable when there is PC to
believe a crime was committed
c) don’t need warrant to arrest person in public place
i) in their own home, need an arrest warrant
ii) in another person’s home, need an arrest and search warrant
d) Policy:
i) Why do we have the “any crime is arrestable” rule?
(1) preference for bright-line rule
(a) police might not know what’s jailable, might depend on factors not knowable at
arrest site (ex: weight of drugs, whether 1st offense)
(i) distinction is not administrable in the field
(b) Court wants to avoid flood of litigation.
(c) Police would be confounded by need to determine the existence of special
circumstances justifying a taking of custody.
(2) “dearth of horribles demanding redress”
(3) other checks exist to protect D’s
(a) Post-arrest PC determination within 48 hours (Gerstein)
(b) States have developed “more restrictive safeguards through statutes limiting
warrantless arrests for minor offenses”
(c) political accountability of local police officials
(i) really abusive arrests are very newsworthy
(d) peer pressure, every officer must bring in person for booking and explain why
arresting
(4) History: SC says history “is of two centuries of uninterrupted (and largely
unchallenged) state and federal practice permitting warrantless arrests for
misdemeanors not amounting to or involving breach of the peace.”
ii) Alternative (O’Connor dissent in Atwater):
(1) if fine-only misdemeanor, officer should issue citation unless meats reasonableness
requirement (specific and articulable facts)
(2) otherwise, there is grave potential for abuse of this police power
(a) especially racial profiling
(3) Custodial arrest is a severe intrusion.
(4) Liberty and privacy interests trump clarity interests.
(5)
iii) Alternative (D in Atwater):
(1) Police officers should only be able to arrest for breaches of the peace
21) Traffic stop without a warrant:
a) Rule: police may make a traffic stop when they have probable cause to believe any traffic
violation has occurred
i) A sudden right-hand turn and speeding off is sufficient (Whren v. US)
b) The actual motives of the officer in making the traffic stop are irrelevant
11
i) Exception: “subjective intent” can come into play only in the case of warrantless action
not based upon individualized suspicion”
(1) No constitutional violation by John Ashcroft because right to nonpretextual
application of the statute was not “clearly established” at the time of the challenged
conduct (Ashcroft v. al-Kidd)
22) Search of person incident to arrest:
a) Rule: a person may be searched when they are arrested for any crime
i) Subjective intent of the officer is irrelevant
(1) Patdown of driver for driving without license leads to discovery of heroine, SC says
this is fine (US v. Robinson)
ii) What crime the person is arrested for is irrelevant
iii) Scope of search includes anything “on the person” of the arrestee
iv) Timing of search
(1) May be before arrest as long as arrest follows “quickly on the heels” (Rawling)
(2) Search may be conducted at any time following arrest (even long after)
(3) However, arrest MUST occur or search is invalid
(a) Police cannot search incident to arrest if officer has no intention of arresting the
individual (Knowles v. Iowa)
v) Exception: search warrants are normally required for intrusions into the human body
(1) Exigent circumstances: Court engages in balancing test to determine whether law
enforcement need for evidence overcomes privacy interest
(a) taking of a blood sample by a physician at police direction from the defendant over
his objection after his arrest for drunken driving (Schmerber v. California)
(b) the threat of losing evidence based on dissipation of alcohol does not overcome this
requirement (Missouri v. McNeely)
(c) need for surgery to remove bullet from victim over victim’s objection was
unconstitutional where police did not have a great need for the evidence (Winston
v. Lee)
b) Scope of search: the police may search the person and anything within his “grabbable area”
i) “grabbable area” includes:
(1) “arrestee’s person and the area ‘within his immediate control’”
(a) “area from within which he might gain possession of a weapon or destructible
evidence”
(b) the space in which a person might be able to reach to grab a weapon, destroy
evidence, or leave evidence behind
(i) Usually 5–10 feet
ii) does NOT include:
iii) subjective characteristics of D do NOT matter
(1) long arms, tall, ect.
(2) Other Rooms/Drawers/Closed Areas
iv) Can also take a DNA sample as part of the normal booking procedure
c) Protective sweep doctrine:
i) Two-Part Protective Sweep Rule:
(1) Light sweep – “As an incident to the arrest the officers could, as a precautionary
matter and without probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from which an attack could be
immediately launched”; and
(a) Cursory inspections, only to the extent necessary to determine no one is there
(i) may not rifle through the contents of the closet, ect.
(b) Between Mattresses – Many courts allow police to search between the mattress
12
and the box spring to look for people. Unsurprisingly, they often find drugs.
(2) Extensive sweep – “there must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those on
the arrest scene.”
(a) Still a cursory search, but it may extend beyond the space immediately adjoining
the place of arrest.
ii) Scope: “A protective sweep, aimed at protecting the arresting officers, if justified by the
circumstances, is nevertheless not a full search of the premises, but may extend only to a
cursory inspection of those spaces where a person may be found.”
iii) Duration: “The sweep lasts no longer than is necessary to dispel the reasonable
suspicion of danger and in any event no longer than it takes to complete the arrest and
depart the premises.”
iv)
d) No judicial review of officer decision to search incident to arrest
e) Policy:
i) reasons officers might want to search
(1) safety (nearly always valid)
(2) evidence of arresting crime
(3) evidence of unrelated crime
(a) like substituting PC to arrest person for PC to search them
(b) warrant-less search
ii) Question: is it possible to craft rule that allows #1 and #2 but not #3?
(1) Majority says no, police need discretion
(2) Dissent claims reasonableness test would do this
f) Claims of excessive force
i) Whether force was excessive under the 4th Amendment requires a balancing test looking
at all factors of the situation
(1) Suspect fleeing police, officer shot him; court says excessive force; private tort action
(TN v. Garner)
(2) 8-mile, 100-mph car chase, officers run D off road and is badly injured; court says not
excessive force b/c driver dangerous to others so reasonable for officers to try to
disable him (Scott v. Harris)
ii) Remedy is a civil action tort claim for monetary damages
(1) Court will not grant motion to suppress because conduct didn’t lead to discovery of
evidence
23) Authority to use force in making arrest:
a) Rule: deadly force against fleeing felony suspects is patently unreasonable
i) Exception: Officers may use deadly force where he has probable cause to believe that
the suspect poses a threat of serious physical harm, to the officer or others
(1) A police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth Amendment
(Scott v. Harris)
b) Excessive force test: The Fourth Amendment reasonableness standard applies (Graham v.
Connor)
i) (1) to “all claims that law enforcement officers have used excessive force—deadly or not—
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen”;
ii) (2) “requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
13
attempting to evade arrest by flight”;
iii) (3) “must embody allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation”; and
iv) (4) asks “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or
motivation.”
Warrantless Entries and Searches of Premises
24) Rule: entry into home requires a warrant
a) Entry into the home to make an arrest requires a warrant
i) PC to believe crime had been committed and PC to believe suspect was inside a home
(evidenced by lights and music playing) was insufficient (Payton)
ii) A warrant for a neighboring premises does not qualify
(1) Court says using arrest warrant to enter D’s friend’s home where think D might be
hiding is unconstitutional (Steagald)
iii) Exception: arrest in the doorway is ok
(1) police make warrantless arrest of D while in doorway getting pizza, SC says ok
(Santana (2d Cir. 1976))
b) Exception: where exigent circumstances exist, police may enter a home to make an arrest
without a warrant
i) Test: decision to enter the premises must be objectively reasonable in light of emergency
(1) Public safety may cause an exigency
(a) Officers may break into house to stop brutal fight they see through the window, in
order to prevent injury (Stewart)
(b) Includes need to assist persons who are seriously injured or threatened with such
injury (Bringham City v. Stuart)
(2) Hot pursuit may create an exigency
(a) police may follow robbery suspect who had entered premises 5 mins earlier
(Warden v. Hayden)
(b) police may NOT enter into home of person suspected of drunk driving based on
depletion of blood from his system (Welsh v. Wisconsin)
(i) only a traffic offense, and actual need for evidence was modest
(c) Exception: suspect standing in doorway may be enough
(i) Arrest Commenced in Public & Suspect Retreats into Residence – Police may
follow suspect into residence to effectuate the arrest without a warrant, even if
the police are not in “hot pursuit.” (United States v. Santana)
(3) Securing home while awaiting search warrant
(a) Police may seize suspect outside home, supervise him within, in order to make
sure he doesn’t destroy drug evidence while warrant obtained (Illinois v.
MacArthur)
(i) police had PC to believe drugs were inside and good reason to fear D would
destroy evidence if unsupervised
(b) Police made a warrantless entry of an apartment, arrested all the occupants (who
were promptly removed from the scene), and then remained within 19 hours until
a search warrant was obtained and executed, SC says this is fine (Seguara v.
United States)
(4) Risk of evidence being destroyed
14
(a) Interpreted very narrowly
(b) A warrantless search of a dwelling for evidence may be undertaken in “an
exceptional situation.”
(i) Police were surveying suspect’s house, he came out and made drug deal, they
arrest him, then go in and search house for drugs once mother and brother
come home, SC says unconstitutional, no exigent circumstance (Vale v.
Louisiana)
(c) Relevant factors (United States v. Rubin):
(i) The degree of urgency involved and the amount of time necessary to obtain a
warrant;
(ii) Reasonable belief that the contraband is about to be removed;
(iii)The possibility of danger to police officers guarding the site of the contraband
while a search warrant is sought;
(iv) Information indicating the possessors of the contraband are aware that the
police are on their trail; and
(v) The ready destructibility of the contraband and the knowledge “that efforts to
dispose of narcotics and to escape are characteristic behavior of persons
engaged in the narcotics traffic.”
ii) Court inquiry is fact-sensitive and objective
(1) actual subjective intent of officer doesn’t matter
(2) Police-created exigencies are invalid
(a) Police banging on door and shouting “Police!” was a manufactured exigency and
did not justify warrantless entry into home
(3) Overall factors considered (Dorman v. United States (DC Cir 1970)):
(a) Whether “a grave offense is involved”;
(i) Non-criminal DUI charge is not that serious (Welsh v. Wisconsin)
(b) Whether “the suspect is reasonably believed to be armed”;
(c) Whether there is “a clear showing of probable cause” of the person’s guilt;
(d) Whether there is “strong reason to believe that the suspect is in the premises”;
(e) Whether there is a “likelihood that the suspect will escape if not swiftly
apprehended”;
(f) Whether the entry is “made peaceably”; and
(g) Whether the entry is “made at night,” which on the one hand is more intrusive
and on the other may show the impracticality of getting a warrant.
c) Cursory inspection exception: “A truly cursory inspection—one that involves merely
looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth
Amendment purposes (Arizona v. Hicks)
25) Scope of home searches incident to arrest
a) See “arrest of persons” supra
b) Rule: arrest warrant for an individual allows only search arrestee’s person and area within
his immediate control, NOT entire home
i) Scope of “area within immediate control” is a fact-intensive inquiry
(1) from where might gain possession of a weapon
(2) may include same room where arrested
(3) even if D in handcuffs, within a couple of feet allowed
c) Exception: protective sweep doctrine (for people, not evidence)
i) arrest must be inside the house – arrest on porch does not justify entry for protective
sweep of the house (Vale v. Louisiana)
ii) Police may make “cursory inspection” to determine whether people there without any
cause (MD v. Buie)
15
(1) Limited to spaces immediately adjoining place of arrest that could harbor a person
Warrantless Seizures and Searches of Vehicles and Containers
26) The Auto Exception: cars may be searched upon probable cause without the need to obtain a
warrant (United States v. Carol)
a) The auto exception covers anything that moves
i) The rule covers a mini motor home that was defendant’s primary residence (CA v.
Carney)
ii) Has been extended to airplanes, bicycles and trains
iii) if applying to public transportation, rare to search more than 1-person area
b) Scope of search: extends to all property in the car (Ross)
i) can rip open upholstery body panels, etc.
ii) Container rule: extends to all containers in the car
(1) otherwise dealers will just put stuff wherever police can’t search
(2) police saw suspect leave house with package, put it in trunk, drove off, police arrest
and open package, SC says this is fine (California v. Acevedo)
(3) Limitation: Police may search only containers in which such items may be hidden
(large enough to contain sought-after item)
iii) NOTE: this makes containers searchable when in cars, but NOT when out in the open
(duffel bags, ect)
c) Police may search packages of all passengers, not just driver (Wyoming v. Houghton)
i) Police may search passenger’s purse of rear seat passenger left in car when police ask
passenger and driver to step out of car (Wyoming v. Haughton)
27) Search of car incident to arrest
a) Old Rule (Belton): when officer arrests auto occupant, may search interior (“passenger
compartment”) of auto and any containers therein
i) based on assumption that these will generally/inevitably be in “immediate control” area
ii) Officer may order four occupants out of car, patted down, some handcuffed, upon finding
probable cause for marijuana possession (Belton)
b) New Rule (Gant): warrantless search of arrestees vehicle only if…
i) arrestee within reaching distance of passenger compartment at time of search (not at
time of arrest), OR
(1) narrow b/c officer unlikely to search car while arrestee is standing nearby, will move
away for officer safety
ii) reason to believe vehicle contains evidence of offense of arrest, OR
(1) difference btwn “reason to believe” and “probable cause” = unclear
(2) driving with suspended license is no reason to search for drugs (Arizona v. Gant)
iii) another warrant exception applies
c) inventory search exception (Bertine):
i) inventory search of items found in a car is allowed if:
(1) it follows standardized procedures applied when something impounded
(a) usually written down but doesn’t have to be
(b) while waiting for tow truck, cop searched car to inventory contents, found
backpack with cocaine, SC says ok (Colorado v. Bertine)
(2) the search is not in bad faith
(a) done for policy reasons (preserve property, protect police from suit or from
physical danger);
(b) pretty much a toothless requirement
16
28) Inventory search doctrine:
a) Rule: “Reasonable police regulations relating to inventory procedures administered in good
faith satisfy the Fourth Amendment”
i) Procedures need to be reasonable
(1) Need not be the most reasonable that could have been adopted
(a) May extend to all inventory in a backpack within the vehicle
(2) Must have some kind of recorded policy (Florida v. Wells)
(a) Need not be in writing, but must be testified to by an inventorying officer
ii) Police conduct must comply with those regulations
(1) Must be following their own rules
iii) Must be conducted in good faith
(1) Officer’s subjective intent matters
(2) Must be motivated by inventorying the items, not improperly searching for evidence
b) Time frame: If inventory search is postponed for a substantial amount of time after
impoundment (e.g., four days) the inventory may be invalid
c) Applies to inventory searches of
i) Vehicles
ii) Affects of arrestee at police station (Lafayette)
29) Policy:
a) Validity of the motor vehicle exception
i) Court’s reasoning:
(1) Ready Mobility – Related to exigent circumstances
(2) Lower expectation of privacy than w/r/t home or office
(a) passenger compartment being open to plain view and
(b) pervasive regulation of vehicles capable of traveling on the public highways
ii) Carney reasoning – nowadays can get warrant quickly via cell phone; circular arg. (lesser
expectation of privacy exists b/c of auto exception!); “lesser”? like less pregnant
iii) Should there be a lesser expectation of privacy?
(1) pro – person brings car into public, like walking down the street
(2) anti – but like walking down street w/ wrapped package (reas. expectation)
iv) rule trying to restore pre-automobile balance in terms of what police can see
v) best arg. probably just that better than alternatives
b) Practical effects of the exception
i) more searches b/c police able to do without warrant
ii) incentives for police to enforce criminal laws through auto stops (unlimited under Whren)
(1) 1/3rd of 4th Am. cases start with auto stop
iii) rules about what they can ask
(1) however, can still ask “are there drugs in the car?”
(2) anything short of full denial (“maybe”) = probable cause to search the car
iv) can always get driver out of the car for officer safety
Stop and Frisk (Terry stops)
30) Rule: Short-term restraint for interrogations and cursory weapons checks (stop and frisk)
require only reasonable suspicion (not PC)
31) Terry Seizure:
a) Seizure – brief detention for purpose of questioning
b) When is someone seized under Terry?
i) Reasonable person would not feel free to leave or decline an officer’s request to answer
17
questions
ii) Flight from cops: when person is fleeing they are seized only when they submit to
authority by stopping or officer physically restrains them
iii) Traffic stop: both driver and passenger are seized, either one can be ordered out of car
iv) Dog sniffs are permissible during terry stop if doesn’t delay the stop unreasonably
(Caballes)
c) Triggering police actions: Terry stops are triggered by a clear articulation of force or
command
i) Types of conduct triggering Terry stop:
(1) police says “stay here” or says not free to leave
(2) other verbal/physical signs that officer taking control
ii) INS visiting factories and questioning employees re: immigration status, and staking out
the exits, is NOT a seizure – restraints based on employment status are irrelevant, only
police conduct matters (INS v. Delgato)
iii) armed officers doing drug sweep of bus, questioning Bostick and eventually searched his
luggage is NOT a search/seizure under Terry (FL v. Bostick)
iv) There is no seizure when there is “no application of force, no intimidating movements, no
blocking of exists, no threat, no command, not even an authoritative tone of voice”
(Drayton)
v) No seizure where subject fleeing b/c not yielding to show of authority or application of
force (Hodari)
d) Length of stop: A Terry stop will be considered a full seizure if it exceeds the time
“reasonable to effectuate the stop”
i) routine stop usually 15-30 mins – 90 mins too long (US v. Place)
ii) lower courts are lenient – tailored to govt’s interest or de minimis extensions past
e) Movement of defendant: moving the defendant typically extends the Terry stop to a full
seizure
i) Asking a suspect to accompany the police to a small room about 40 feet away, consent
search of luggage, was a full seizure and therefore unconstitutional (FL v. Royer)
ii) Seeking bag at airport and bringing them to another airport for drug testing was an
unconstitutional seizure (US v. Place)
iii) picking up suspect for questioning in attempted robbery and homicide; taken to station
for questioning and given Miranda warnings, but not booked, illegal seizure (Dunaway v.
NY)
32) Terry frisks:
a) Pat down of the body justified by belief that suspect is armed and dangerous
i) Drugs can come into evidence IF officer doesn’t physically manipulate something to
determine whether it’s contraband
(1) If you know its contraband without manipulation, it can come in
ii) Officer can frisk passenger compartment of car in places where weapon could be placed or
hidden
b) Scope of frisk: an officer should only be looking for weapons or things dangerous to them,
not other evidence
i) Courts (technically) don’t consider the subjective intent of the police officer
ii) Search techniques clearly not necessary to determine whether weapons exist are not
allowed
(1) Manipulating suspect’s pocket, determining that substance was crack cocaine, then
removing it is a full search requiring probable cause (Minnesota v. Dickerson)
iii) A complete lack of evidence that a suspect posed a threat may be dispositive
(1) officer observed D conversing with several narcotics addicts, approached D in a
18
restaurant and brought outside, officer did not have evidence suspect had weapons
(Sibron v. New York)
iv) police can search passenger compartment for car of weapons if have reason to believe
person armed & dangerous during traffic stop
(1) driver meets them at back of car and gives license but goes back to get registration;
police saw large hunting knife through open door, frisk him and look in car,
constitutional (Michigan v. Long)
33) Evidentiary standard: reasonable suspicion
a) Reasonable suspicion (of weapons or other danger) must be based on particular facts; about
½ as stringent as PC
i) Information that any public observer could obtain is insufficient
(1) Search based on anonymous tip that young black male in plaid shirt at bus stop is
carrying gun was insufficient (FL v. JL)
ii) Flight from police is evidence of RS but no per se rule
(1) Suspect’s “head-long flight” from 4-car police car in high-crime area was sufficient
(Illinois v. Wardlow)
b) Officer’s subjective intent is irrelevant
34) other permissible activity during Terry stop:
a) Police have wide discretion to act for officer safety (ex: handcuff, point gun) as long as
reasonable under the circumstances
b) run warrant check, driver’s license check
c) drug-sniffing dog is not search/seizure as long as doesn’t delay traffic stop (Caballes)
d) in absence of state statute, police officer can ask anything (as remain in Terry stop
timeframe)
i) police don’t have to tell people they are free to go or that they don’t have to respond to
make consent voluntary (Robinette) (1996) (only in Miranda setting)
35) Policy:
a) Why don’t judges in Terry just use PC standard?
i) couldn’t make it fit these circumstances
ii) didn’t want to water down PC in other cases
b) Judges now have “in between” option between nothing and full search/seizure
i) searches – no search b/c REP; Terry frisk; “full” search
ii) seizures – no seizure; Terry stop; “full” seizure (arrest)
Consent Searches
36) Largest exception to Fourth Amendment search and seizure
37) Rule: voluntary consent obviates police’s need for PC or a warrant
a) The government may ask for consent at any time
b) The consent must be “voluntary”
i) Voluntariness is determined based upon the totality of the circumstances
(1) Knowing you have the right to refuse is merely a factor
(2) Threatening to arrest:
ii) D doesn’t need to know they have right to refuse, and officers don’t have to tell them
(1) distinguishes from “knowing and intelligent waiver” req. for const. rights in other
contexts (ex: right to counsel)
(2) consent given by passenger at a traffic stop is voluntary, regardless of knowledge of
right to refuse (Schneckloth v. Bustamonte)
iii) consent by deception may be invalid
19
(1) police can’t pretend to have a warrant (Mapp v. Ohio)
(2) Threatening to get a warrant may be invalid unless police had grounds to do so
(Boukater (5th Cir. 1969))
(3) a little bit of misleading OK – but if mislead into thinking looking for something
unrelated to D will usually be involuntary
c) The scope of the consent granted is judged by an “objectively reasonable observer” standard
i) what a reasonable, typical person would’ve been consenting to through exchange (FL v.
Jimeno)
ii) “can I search your car?” includes the trunk
d) Consent may be withdrawn at any time if done reasonably
i) but when is it too late to withdraw?
ii) officers will sometimes avoid problem by making sure suspect not there during search
e) 3rd parties may consent if have common or apparent authority
i) common authority – “mutual use of property by persons generally having join access or
control for most purposes”
(1) anyone with common authority may consent to a search of the premesis
(a) both husband and wife normally presumed to have common authority
(b) employer can consent to search of employee space
(c) roommate can consent to common space, but maybe not other’s bedroom (depends
on if keep look on it, etc.)
(d) landlord doesn’t have common authority over tenant’s space
(e) hotel clerks don’t have common authority over hotel rooms
(2) exception: if another person with common authority is present and objecting,
consent is defeated
(a) married couple fighting; wife and husband on doorstep; wife says there are drugs
in house and consents to search while husband at same timer refuses, SC says this
defeated consent (Georgia v. Randolph)
ii) apparent authority – police could reasonably believe that suspect has common authority
(1) police reasonably believed that (ex?) girlfriend had common authority b/c she called it
“our apt” and had key (Illinois v. Rodriquez)
iii) policy:
(1) target/suspect assumed risk by permitting another to live in same place
(2) sharing place reduces REP, limited expectation of privacy as to roommate
(3) apparent authority – might discourage police from asking very many Qs; some
Circuits require officers to ask Qs if there’s ambiguity
iv)
38) Policy
a) Rationale behind the rule
i) closely tied to notion of something being in the open
ii) makes it similar to bringing something in plain view
iii) people can usually waive their const. rights
b) Why do so many people consent to search? Good or bad?
i) ignorant of right to refuse
ii) set up of Qs makes seem hard to say no
iii) some people think if cooperative, police won’t search
iv) pros – govt can investigate and solve more crimes, public safety, fewer intrusive searches
by force (with warrant/exception)
v) cons – encourages more pre-textual stops in hope of obtaining consent
20
Special Needs
39) Court allows searches for special needs beyond normal law enforcement
40) Warrantless searches with no individualized suspicion
41) Three contexts
a) Drug testing
i) Railroad employees
ii) Customs agents
iii) Public school children engaging in any extracurricular activities
(1) Can also make warrantless searches of schoolchildren and their effects
42) Does not apply to law enforcement programs and practices whos primary purpose is to gather
criminal evidence for general use by law enforcement
a) Can’t set up checkpoint for drug interdiction
Remedies (the Exclusionary Rule)
The Exclusionary Rule
43) History:
a) 1914 – SC creates exclusionary rule for federal system only?
b) 1949 – 4th amendment incorporated against states, the exclusionary rule is not (Weeks v.
Colorado)
c) 1961 – Exclusionary rule incorporated (Mapp v. Ohio)
44) Policy:
a) What other ways could 4th Amendment be enforced?
i) civil suits against policy or city
(1) P hugely prejudiced if evidence resulted in criminal conviction
(2) how do you calculate damages? wouldn’t necessarily include being put in jail
(3) disadvantages poor people
(4) §1983 allows, including against state officers, but limited to cases in which wouldn’t
undo a criminal conviction (so usually innocent)
ii) internal police discipline (suspended, pay docked, etc.)
(1) officers have incentive to lie
(2) accused officer and investigating authority have aligned motives
iii) criminal sanctions against police
(1) DA has to choose to prosecute, which is not politically or practically expedient (need
coop of police to prosecute other crimes)
b) Exclusionary rule is foreign to common law and most other countries
c) Advantages/disadvantages of the rule:
i) creates incentives for police to follow the law, otherwise embarrassment of court
testimony and opinion revealing it’s your fault that evidence gets thrown out
ii) but major cost that sometimes guilty people go free
iii) reasons given in Mapp:
(1) most states had adopted (from about 2/3rds opposed to 1/2 opposed)
(2) other remedies not sufficient, rights became “mere form of words”
(3) need for judicial integrity (“the law will set you free!”)
(4) has worked at federal level – refutes state args. that will create total chaos in courts
45) Exclusionary Rule: evidence gathered in violation of the Constitution may be suppressed from
21
trial
a) Police culpability requirement: there may be a requirement of police culpability before
the exclusionary rule will be applied (uncertain)
i) “evidence should be suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the 4th Amendment.” (Heller)
ii) gross or criminal negligence is required
(1) mere negligence by police is insufficient (Heller)
b) Exception – “fruit of the poisonous tree”:
i) Evidence obtained pursuant to a constitutional violation is admissible when connection to
violation is too attenuated
ii) What constitutes a break in the causal link?
(1) Factual holdings from (Wong Sun v. US):
(a) Confession obtained from person unconstitutionally arrested is NOT admissible
(b) Confession obtained from person arrested based on previous confession is NOT
admissible
(c) Confession obtained from person arrested based on second confession, who then
left police station and confessed a few days later, IS admissible
(2) Confession made two hours after an illegal arrest is NOT admissible (Brown v.
Illinois)
(a) NOTE: no per se rule as to evidence obtained after an illegal arrest
(3) In-court ID based on ID pursuant to illegal arrest and photo ID, IS admissible (US v.
Crews)
(4) A confession in a police station after an illegal arrest in defendant’s home IS
admissible (NY v. Harris)
iii) The government bears the burden of proving evidence not tainted by the constitutional
violation (usually illegal arrest and confession)
iv) Two ways link usually broken:
(1) Inevitable discovery
(2) Attenuation
(a) Passage of time and intervening events purged the taint of illegality and restored
the defendant’s free will (proximate cause)
c) Exception – independent source:
i) If the government has an independent source for the evidence totally separate from
constitutional violation, evidence admissible
(1) Evidence potentially admissible when discovered first by unconstitutional search of
home and then again after police obtained warrant and re-searched home (Murray v.
US)
d) Exception – inevitable discovery:
i) If the government hypothetically would have found evidence anyway, constitutional
violation is overlooked
(1) Information about where body was buried obtained without defendant’s lawyer
present (6th amendment violation) would have been found anyway because police were
conducting a grid search that had the body within it, evidence was admissible (Nix v.
Williams)
e) Exception – reasonable reliance (good faith):
i) When an officer’s unconstitutional reliance was objectively reasonable, evidence is
admissible
(1) Evidence gathered pursuant to defective warrant allowed because officer reasonably
believed in good faith that he had probable cause (US v. Leon)
22
(2) Officers went in wrong apartment and found drugs, drugs come in because cops
mistake was reasonable
ii) In general, if there is no clear precedent against the search or seizure, officer’s conduct
falls within this exception
iii) Inquiry is into the deterrent value of the evidence (Davis v. United States)
(1) Strong Deterrent Value – “When the police exhibit deliberate, reckless, or grossly
negligent disregard for Fourth Amendment rights”
(2) Weak Deterrent Value – “But when the police act with an objectively reasonable goodfaith belief that their conduct is lawful [i.e., no culpability], or when their conduct
involves only simple, isolated negligence”
f) Exception – knock-and-announce violation:
i) The exclusionary remedy is not available for constitutional violations of the knock and
announce rule
(1) Officers waiting for 5 seconds after knocking instead of normal 20 was not sufficient
to invoke exclusionary rule (Hudson v. Michigan)
g) Exception – database violations:
i) Violations caused by clerical errors in electronic databases will not lead to exclusionary
rule
(1) police call another jurisdiction to check if search warrant, say yes in database; but
after arrest turns out warrant was withdrawn, SC says no exclusion of evidence
(Herring)
h) Exception – Grand Jury violations:
i) Exclusionary Rule Does Not Apply in Grand Jury Settings
ii) a grand jury witness may not refuse to answer questions on the ground they are based
upon illegally seized evidence (United States v. Calandra)
iii) policy: “incremental deterrent effect which might be achieved by extending the
[exclusionary] rule to grand jury proceedings is uncertain at best.”
i) Exception – impeachment:
i) Excluded evidence can come in to impeach D
46) Standing to exclude evidence: a defendant must have standing to exclude the evidence used
against him
a) A defendant has standing if the individual defendant has a reasonable expectation of privacy
which was violated in gathering the evidence
i) Defendant has REP in:
(1) hotel rooms (courts split after check out time)
(2) storage space if have legit K (but if behind in payments maybe not)
(3) overnight guests (but not for briefer visits, see Minnesota v. Carter)
(4) His personal office space (Mancusi v. Deforte)
(a) Possibly not in shared/general office space
ii) Defendant has NO REP in:
(1) glove compartment and under front seat of car in which defendant is merely a
passenger (Rakas v. Illinois)
(2) the briefcase of bank official of which he is an account holder (US v. Payner)
(3) the purse of a friend you’ve known only a few days and which you do not normally use
(Rawlings v. KY)
(4) home they are simply invited onto without intent to stay at least overnight, or simply
on for commercial purposes (Minnesota v. Carter)
23
Undercover Investigations
47) General Rule: There is no Fourth Amendment right against the use of government informants
a) Information that is voluntarily disclosed to a third party is not protected
i) FBI informant and criminal legally testified against criminal defendant in exchange for
pardons from heinous crimes (Hoffa)
b) There is no reasonable expectation of privacy in those you share information with
i) The strength of the defendant’s trust in his colleague is irrelevant (US v. White)
48) Entrapment: undercover evidence will be suppressed when the government engaged in
entrapment
a) Entrapment is a matter of statutory interpretation – NOT regulated by the Constitution
b) Question is of fact, to be determined by the jury (in most jurisdictions)
c) 2 approaches: subjective v. objective
i) Subjective (fed gov’t, ~half states):
(1) Part 1 – inducement: was the defendant induced to commit the crime by the
government? (if no, defense fails)
(a) Did the government pressure D to commit a crime he would not have otherwise?
(i) Repeatedly being approached by a government agent to procure prescription
drugs is inducement (Sherman v. US)
(b) Simply giving D the opportunity is not enough
(2) Part 2 – predisposition: if defendant was induced, was he already predisposed
(a) Prior to the government’s inducement, does the evidence shoe that this defendant
was predisposed to commit this type of crime?
(i) Government’s evidence of defendant’s interest in child pornography after
beginning of government solicitation was irrelevant (Jacobson v. US)
(b) Hypothetical inquiry
ii) Objective (~half states):
(1) Single inquiry – did the government’s conduct go too far?
(a) Largely follows the inducement analysis above?
Law of Interrogations
Doctrinal Foundations
49) Traditional common law standard: voluntariness
a) 1920s-30s – era of police brutality
i) often not known to the public
ii) no established right to counsel, 6th Am. only applies in the federal system
iii) difficult to sue the police (§1983 not given modern broad meaning until 1961, Monroe v.
Pate)
iv) only right at stake was DP voluntariness claim
v) would become word of D vs. word of police, police almost always won
b) McNabb-Mallory rule (1949)
i) Interpretation of Fed Crim Pro Rule 5
(1) upon arresting someone, police must take person to judge for presentment of charges
“without unnecessary delay”
ii) good law today – applies if individual has been held for more than six hours (Corley,
2009)
c) 5th Amendment not part of the picture
24
i) person being interrogated is not “compelled” because no legal consequences attach to
their decision not to testify
d) ‘40s and ‘50s – voluntariness
i) only remedy to defendants is in some states with the voluntariness rule
ii) voluntariness based upon a totality of the circumstances
iii) not voluntary:
(1) D interrogated for 36 consecutive hours until confessed
(2) hypnotist posing as doc, trying to hypnotize into confession
(3) stripping D naked
(4) govt used truth serum (govt argued “whatever’s on their mind” will just come out)
e) 1962-69 – federalization of crim pro
The Miranda Framework
50) Rule of Miranda:
a) prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of D…
i) Test for “custody”:
(1) Miranda definition – “questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in
significant way”
(2) Test is objective, doesn’t take into account the particular defendant
(a) Age and prior criminal history ignored (Yarborough v. Alvarado)
(b) But isn’t there a recent case taking into account age?
(3) Key factor: the coerciveness of the environment
(a) NOTE: test is more favorable to the government than 4th Amendment seizure test
of whether a reasonable person would feel free to leave
(i) traffic stop is not custodial for Miranda
(b) Factors evidencing coercion:
(i) Police say D is under arrest
(ii)
(c) Factors negating coercion:
(4) Freedom of movement test
(a) Wouldn’t have felt free to leave
(5) Whether environment is inherently coersive
(a) When talking to someone you believe is a friend, Miranda doesn’t apply (Illinois v.
Perkins)
(6) Considerations: court considers multiple factors including…
(a) where interview occurs
(i) A traffic stop is NOT custodial (Berkemer v. McCarty)
(ii) A probation officer’s office not necessarily custodial (Minn. v. Murphy)
(iii)A police station interview may be custodial, no per se rule
1. officer arranging to meet D at stationhouse; telling D he’s not under arrest
but questioning for extended period is NOT custodial (Oregon v.
Mathiason)
2. parents taking D (17 years old) to station, private interrogation in separate
room for two hours, offered two breaks, not necessarily custodial
(Yarborough v. Alvarado)
(b) whether police said D was under arrest
25
(c) how much time passed after interview began
(d) whether D is treated like a suspect
(e) whether D is physically restrained
(i) Someone in general prison population is not in Miranda custody, only the
interrogation itself is considered (MD v. Shatzer)
(f) other evidence of police coercion
ii) Test for “interrogation”:
(1) Express questioning OR
(2) “functional equivalent” – something else that police should know is reasonably likely
to illicit incriminating response from suspect
(a) includes only words or conduct that the police should have known would
reasonably influence an individual to respond
(i) D in back of cop car, officer tells another how it would be shame if students
from nearby handicapped school found gun and injured themselves, D
confesses where gun is hidden, SC says not likely to illicit an incriminating
response (Rhode Island v. Innis)
iii) Exceptions (when custodial interrogation established):
(1) NOTE: general trend on more conservative court to limit Miranda through exceptions,
balancing tests, ect.
(2) Undercover setting – no Miranda requirement
(a) D arrested and put in prison (for separate crime) with undercover agent did not
violate sixth amendment (Illinois v. Perkins)
(3) Routine booking procedures – no Miranda requirement
(a) Includes routine questions to determine identity, level of intoxication
(i) D arrested for DUI; before Miranda warnings, officer gave field sobriety test
and asks routine Qs to determine level of intoxication; delivery and content of
answers incriminating (PA v. Muniz)
(4) Public safety necessity – no Miranda requirement
(a) Questions asked must address immediate need for public safety, not part of
scheme to illicit confession
(i) May ask, before searching pockets, “is there anything dangerous there?”
(ii) rape suspect cornered in back of supermarket; frisk him and discover empty
shoulder holster; after handcuffing, asked D where gun was and suspect said
“over there”, SC says this statement admissible pre-Miranda (NY v. Quarles)
b) unless gov’t demonstrates use of procedural safeguards effective to secure privilege against
self-incrimination
i) safeguards require informing defendant of:
(1) “right to remain silent”
(a) somewhat ambiguous, could mean:
(i) you don’t have to speak, OR
(ii) can’t be legally punished for failure to speak?
(2) “anything said can and will be used against you in court”
(a) explaining right to remain silent, puts people on notice
(i) note: SC doesn’t really know will be used against D
(3) “right to counsel, and if you can’t afford one, one will be appointed for you”
(a) No right to counsel during police interrogation existed pre-Miranda
(i) Miranda court establishes it under 5th Am.
(b) Includes the right to
(i) consult with lawyer before questioning
(ii) have lawyer present during questioning
26
(iii)be appointed counsel if D can’t afford it
ii) When is defendant adequately informed?
(1) Unnecessary portions:
(a) no need to inform suspect of right to attorney if known to have representation
(Miranda)
(b) no need to inform suspect of right to appointment of attorney if known beyond
doubt to have means to hire one (Miranda)
(2) Functional equivalent of the Miranda warnings:
(a) Test: warnings must “reasonably convey” the substance of the right
(i) “one will be appointed for you, if you wish, if and when you go to court”,
nothing about lawyer being present during interview, is sufficient (Duckworth
v. Eagen)
(ii) FL district used written form, which didn’t track exactly; said could talk to an
atty before and could invoke rights at any time; but didn’t expressly say during
interview, SC says this is sufficient (FL v. Powell)
iii) lack of warnings creates presumption of involuntariness
iv) warnings must be given in every single case (even if have been arrested 32 times)
51) Downstream issues:
a) potential responses after defendant has been read his rights
i) D waives his rights – must make express stmt, usually satisfied by written waiver
ii) D does nothing – not enough to waive rights
iii) D asks for atty – questioning must stop
iv) D affirmatively asserts right to remain silent – questioning must stop
b) Waiver of rights – what constitutes a waiver?
i) Old Rule: need clear (affirmative?) evidence of waiver
ii) New Rule: waiver must be (1) knowing and intelligent as to nature of rights and
consequences of waiving them and (2) voluntary (free from police coercion)
iii) Executing the waiver:
(1) Waiver is effected by
(a) “course of conduct indicating waiver” is enough (NC v. Butler)
(b) Making uncoerced statements to the police constitutes waiver
(c) Signing a dated waiver is definitive evidence of waive (common practice of states)
(i) Exception: defendants who don’t speak English
(2) Waiver is NOT defeated by
(a) Refusing to sign a written waiver
(i) suspect acknowledging rights, refusing to sign waiver but agreeing to talk
constitutes waiver (CT v. Barrett)
(b) remaining silent or otherwise exhibiting lack of cooperation
(i) D refused to sign an acknowledgement that he had been informed of his
Miranda rights and rarely made eye contact with the officer throughout the
three hour interview, SC says rights waived (Berghuis v. Thompkins)
iv) Waiver may be defeated by clear, unambiguous conduct invoking right to remain silent or
right to counsel (Berghuis v. Thompkins) (see “invoking right to counsel”)
c) Invoking right to counsel – what constitutes invoking the right?
i) Rule: suspect must unambiguously request counsel
(1) Test = “sufficiently clearly that a reas. police officer in the circumstances would
understand the stmt to be a request for an attorney”
(a) Saying “maybe I should talk to a lawyer,” then saying, “no, I’m not asking for a
lawyer” and “no, I don’t want a lawyer” does not invoke right (Davis v. US)
(2) Right must be invoked separately for each crime being investigated (McNeil)
27
(3) asking for lawyer at 1st appearance before judge counts as requesting lawyer for
interr. dealing with that crime (Jackson)
ii) right to counsel cannot be invoked by an attorney hired on the defendant’s behalf
(1) lawyer is intentionally not allowed to see D; hired by D’s sister so D doesn’t know;
police tell lawyer they’re done with D for the night and don’t mention murder
suspicions or questioning, SC says no Miranda violation (Moran v. Burbine)
d) Consequences of invoking right to counsel:
i) Bright line rule: “when counsel is requested, interrogation must cease, and officials may
not reinitiate interrogation without counsel present, whether or not the accused has
consulted with his attorney”
(1) Police may not restart questioning at another time with new evidence, if attorney is
not present
(a) D arrested and says he will make a “deal” with the prosecution after he talks to a
lawyer; questioning ceased; police came back the next morning and re-Mirandaized D; D, knowing already implicated by another suspect, confessed, SC says
confession inadmissible (Edwards v. AZ)
(b) Counsel must be present at all times, even if you sign the waiver (
(2) Police may not restart questioning after D has consulted with his attorney, if attorney
is not present
(a) D refuses to sign waiver but makes incriminating statements, then invokes right
to remain silent and counsel, appointed lawyer meets with D several times, 2 days
later, Miss. deputy sheriff interviews – refuses to sign waiver but makes
incriminating stmts, SC says statements inadmissible (Minnick v. Miss.)
(b) Attorney must be present even if waiver later signed (Kerr MC question)
(3) Scope of right: Right is NOT offense specific –
(a) interrogation is prohibited as to all topics discussed without attorney present
(4) Length of attachment: after release, police cannot question D without lawyer for 14
days
ii) After invoking right, D can only waive right in the presence of his requested attorney
(Edwards v. AZ)
iii) Exception – D initiates further communication:
(1) Police MAY restart questioning if D “evinced willingness and desire for a generalized
discussion about the investigation” and officer so understood
(a) Look to the totality of the circumstances
(b) D agreed to talk, but when implicated requested a lawyer, questioning stopped,
few mins later in squad car, D asks officer: “what’s going to happen to me now?”
officer says: “don’t talk to me unless of your own free will b/c you asked for a
lawyer” D says: “I understand” and agrees to take polygraph (where makes incrim.
stmts), SC says evidence will not be excluded, but no majority op. (Oregon v.
Bradshaw)
(2) Police may NOT restart questioning based upon inquiries “relating to routine
incidents of custodial relationship”
iv) Exception – break in custody:
(1) When there is a break in custody, previous invocation of right to counsel is defeated
(a) Break in custody must be 14 days or more? (Shatzer)
(b) Releasing back into the prison population breaks custody (Shatzer)
e) Consequences of invoking right to remain silent:
i) Rule: when RtRS invoked police questioning may cease
ii) Exception: unlike right to counsel, this right lapses almost immediately
(1) D arrested in connection with robberies; after Miranda warnings, D declined to talk;
28
placed in holding cell; after 2 hours, another detective questioned D about an
unrelated hold-up murder and he made incrim. Stmts, SC says statements admissible
(MI v. Mosley)
52) Remedies for Miranda violations:
a) Rule: Statements which violate Miranda rights are inadmissible at trial (exclusionary rule)
i) Bright line – applies ONLY to statements which themselves violate Miranda rules
(1) There is no “fruit of the poisonous tree” doctrine in Miranda warnings
(2) Defendant says “I was there” pre-Miranda, police give rights, then ask again, says
same thing, SC says first statement inadmissible, second statement admissible
(Oregon v. Elstad)
ii) Exception: evidence can come in to impeach
b) Exclusionary rule applies only to testimonial (not physical) evidence
i) D arrested outside his home; interrupted agent and said “I know my rights” and then told
police where gun in his house was, SC says statements not admissible but gun is (US v.
Patane)
ii) Open question: what about when police violate Seibert (technically comply with Miranda
but in bad faith)?
(1) Presumably evidence comes in
c) Exception: statements which comply with Miranda will be excluded when D lacked
meaningful choice about whether to continue to talk (inherently coercive conduct)
i) Test: if police are intentionally undermining Miranda rights (bad faith) statements
inadmissible unless
(1) There is a substantial break in time btwn the two interrogations OR
(2) Police give additional warnings that explain the inadmiss. of 1st confession
ii) Only excludes information confessed before Miranda warnings given
iii) Plurality objective test (not law): whether a reasonable D would “not have understood
that Miranda warnings meant to convey message that D retained a choice about
continuing to talk”
iv) D’s son dies in fire, D arrested at 3AM in hospital, deliberately not given Miranda
warnings, questioned for 30-40 mins – D admission #1: “plan was for son to die in the
fire” – 20 minute break, then officer came back with tape recorder and gave D Miranda
warnings – tried to get D to admit again, but D resisted, officer said, “didn’t you tell me
son was supposed to die in his sleep?” – D admission #2: “yes”, SC says statement
inadmissible (Missouri v. Seibert)
Due Process and Involuntariness
53) Due Process/Voluntariness violations:
a) Even if Miranda is technically complied with, due process or voluntariness may limit police
ability to use particularly egregious tactics to extort confessions
i) ex: not interrogation, but still pressure-filled situation
ii) ex: warnings + waiver but govt still applying lots of pressure
b) Rule: voluntariness depends on the egregiousness of police actions, not based on
characteristics of the defendant
i) D waived Miranda rights; intense psychological interrogation, confessed and then
collapsed into shock, 3rd Circuit says this is still admissible (Miller v. Fenton)
ii) D traveled to Denver and approached policeman to confess murder; psych eval reveals
“voice of God” told him to, SC says statement admissible because mental illness is
irrelevant to regulating the police’s behavior (CO v. Connelly)
29
(1) Will of suspect was not overborne by police coercion
54) Policy:
a) warranted or unwarranted judicial activism?
i) police abuses in 30s and 40s, case-by-case approach not working
ii) practical success, decision has stood for 40 years (though somewhat watered down)
b) is Miranda sufficient?
i) purely procedural – govt can still do almost anything, as long as give warnings
ii) about 80% of Ds waive their rights
iii) police techniques (except for most egregious) remain very similar
c) other possible approaches
i) set time period for govt interrogations
ii) rule out certain police techniques
iii) totality of circumstances approach
iv) rely on Massiah, no questioning allowed when indicted
v) no interrogations at all
d) What are the goals of Miranda?
i) trying to deter violations of Miranda or underlying const. right?
ii) if underlying right, which right?
(1) Common law voluntariness? – bolstering old CL test – this would inspire more
searching analysis of voluntariness of waiver
(2) Self-incrimination? – stop person from being compelled to testify against themselves
under 5th Am. – would just require procedures without another analysis
Interrogation Outside of Miranda
Grand Jury Investigations
Doctrinal Foundations and Procedures
55) Overview – critical points
a) Historically
i) group of citizens charged with investigating crimes and deciding when to charge
ii) practical necessity with fewer law enforcement officials at the time
b) often disconnect btwn what courts say grand juries do and what they actually do
c) Different jurisdictions handle GJ differently
i) All jurisdictions vest in some other body of govt
(1) Some have no citizen involvement
(2) ex: FL doesn’t have grand juries, but state give prosecutors the grand jury power
d) Practical purpose: “sword and shield”
i) Sword – gives special powers to prosecutors that investigators wouldn’t have
(1) Subpoenas, calling witnesses to testify
ii) Shield – group of citizens stand between prosecutor and criminal charges
(1) But in reality, basically run by the prosecutor’s office (even though in theory “the
people”)
(2) if called as grand juror, usually just passively listen to witnesses
(3) used as discovery tool, prosecutor creating record that can later be used for cross-
30
examination at trial
e) Investigative advantages of Grand Jury:
i) Subpoena ad testificandum;
ii) Psychological pressure imposed by the grand jury setting;
(1) moral weight of the community.
(2) Hostile, intimidating interrogation setting.
(3) Questioning may be wide-ranging.
(4) Potential for perjury prosecution impels witnesses to be truthful
iii) Immunity grants;
iv) Subpoena duces tecum;
v) Grand jury secrecy requirements; and
vi) Public confidence attributable to lay participation.
vii)
GJ Procedure and 4th, 5th Amendment Limits
56) Subpoena procedures:
a) Definition: order to do something the government wants you to do
i) duces tecum “bring it with you” = to produce docs or objects
(1) even though says must produce at certain time, can just send to prosecutor who then
gives to grand jury
(2) sometimes (rarely) “forthwith” where govt comes to biz and gives an hour to do
(3) recipient doing the search rather than the govt
ii) ad testificantum “to testify” = to come testify
(1) must testify in person at a specific place and time
b) Subpoena power belongs to the grand jury
i) Prosecutor has no subpoena power himself
ii) Court clerks must sign off on subpoenas (judge not typically [never?] involved)
c) Method of challenging subpoenas: motion to quash
i) Hearing before a judge where both parties make their case
ii) If subpoena successfully challenged, gov’t can just try again
(1) Gov may negotiate with party to find accommodating solution
d) Penalty for failure to comply or only partial compliance
i) Gov’t moves for sanctions
(1) Typically “hold in civil contempt”
(2) May be obstruction of justice
ii) recipient can raise objections to subpoena if has them
57) 4th Amendment limits on subpoenas
a) Default rule: the government’s subpoena need only be reasonable
i) Subpoena duces tecum is invalid if its breadth is “far too sweeping . . . to be regarded as
reasonable.” (Hale v. Henkel)
ii) Government has broad power to issue broad subpoenas under this standard
iii) Touchstone: reasonably tailored
(1) Essentially a particularity requirement
(2) However, far more lenient than particularity requirement for warrants
b) Exception: probable cause required when a party (including a third party) has a reasonable
expectation of privacy in the documents
i) There IS a reasonable expectation of privacy in a blood sample taken by police
ii) There is NO reasonable expectation of privacy in information disclosed to a third party
31
(Hoffa)
iii) Plaintiff had NO reasonable expectation of privacy in his bank’s records of his
transactions (US v. Miller)
iv) There is no reasonable expectation of privacy in one’s voice or a voice exemplar (Dionisio)
v) Exception: if the third party is given prior notice allowing them to challenge the
subpoena, the government’s subpoena need only be reasonable
c) Exception: subpoena ad testificantum
i) There are no Fourth Amendment limits on subpoenas to give testimony
(1) grand jury investigating fed gambling violations; govt wiretapping recorded people
placing and receiving bets; but not sure who was on the phone; subpoenas 20 people
asking them to provide voice exemplars, SC says no 4th Amendment interest at stake
(United States v. Dionisio)
d) Policy:
i) Why such a deferential 4th Amendment standard?
(1) It would produce tons of litigation if suspects were allowed to challenge every step of
the grand jury process.
(a) No testifying until the motion to quash had been litigated by SC
(2) This arguably could impede law enforcement
58) 5th Amendment limits on subpoenas
a) Subpoenaed evidence is protected under the 5th Amendment if it is…
i) Compelled, AND
(1) by force of law or threat of some legal punishment
(2) basically a given in the subpoena setting
ii) Testimonial, AND
(1) Testimonial evidence
(a) reveals the contents of the person’s mind
(b) belief, state of mind, thoughts (something person thinks as opposed to facts)
(c) Actions as testimony: An act is testimony only where the government’s objective
is to seek to have the actor, through that act itself, “relate a factual assertion or
disclose information.”
(i) A court order requiring an individual to sign a form directing any foreign bank
to release the records of any account he might have at that bank did not
compel “testimony” for 5th Amendment purposes (Doe v. United States)
(d) Act of Production Doctrine – the act of responding to a subpoena may be
testimonial
(i) in complying with subpoena, recipient is being forced to testify to doc’s:
1. existence
2. possession by him
3. authenticity
(ii) Rule: the act of replying to a subpoena is testimonial if government is seeking
proof of the documents’ existence, possession by D, or D’s assertion of
authenticity
1. Corporate custodians: The act of production may be used to infer testimony
on the part of the corporate custodian, which may be applied to the D (may
be corporate executive) by analogy
2. Physical evidence: the act of producing physical evidence may be both
testimonial and incriminating (Baltimore City Department of Social
Services v. Bouknight)
a. Subpoena requiring production of infant son would be testimony as to
her “implicit communication of control over [the child] at the moment of
32
production might aid the state in prosecuting Bouknight [for child
abuse].”
(iii)Exception: foregone conclusion doctrine
1. Rule: production is not testimonial where the existence and possession of
the documents to be produced are a “foregone conclusion,” and the act of
production “adds little or nothing to the sum total of the government’s
information”
a. If gov’t already knew of existence, possession, and authenticity of docs,
and wasn’t relying on testimonial aspects of production, evidence is not
considered testimonial
2. Prosecution’s use of 13,000 pages of subpoenaed documents was not a
foregone conclusion because using to prove D knowingly committed fraud,
Government was not pre-aware of the existence and authenticity of the
documents (US v. Hubbell)
a. Needed Hubbell to authenticate his income statements, financial
records, etc. in order to prove a discrepancy with what he had disclosed
earlier
3. The password to D’s computer was a foregone conclusion since D had
already admitted to cops that this was his computer (Bouchet (2d. Cir
2010))
a. Note: it seems other courts have held differently
4. Test: Ask
a. Is complying with the subpoena equivalent to a statement?
b. If so, were the facts to which the defendant implicitly assented by
complying with the subpoena a foregone conclusion?
(2) Non-testimonial evidence
(a) handwriting samples, fact that speech slurred
(b) subpoena of voice exemplars to identify for match to voice recording was not
testimonial (Dionisio)
(c) Voluntary preparation: where documents themselves were prepared
voluntarily, the contents of the documents are not compelled testimony
(i) Still may be testimonial under “act of production doctrine”
(d) Personal compulsion limitation: statements that D voluntarily commits to
writing and is not personally forced to produce are not testimonial under 5th
Amendment (Andresen v. Maryland)
iii) Incriminating
(1) Rule: Evidence is incriminating if it tends to expose one to criminal liability
(a) Would give respondant a “reasonable apprehension of danger” in answering or
would put him in a “real and substantial danger” in answering
(i) Defendant’s fear of answering about his occupation was a reasonable fear,
given that the truthful answer was “racketeer” (Hoffman)
(ii) D’s reticence to give his name was not a reasonable apprehension (Hiegel v. 6th
Judicial District Court)
(b) Does NOT protect information which might incriminate a third party
(2) Corporate exception:
(a) Self-incrimination privilege was not available to a corporation (Hale v. Henkel)
(b) NOTE: corporations retain 5th amendment
(3) Immunity exception: if government grants derivative immunity not to prosecute
based on testimony, evidence is no longer considered incriminating
(a) Transactional immunity (promising to never prosecute for the crime the
33
investigation is about) is not required
(b) Immunity grant need be no greater than privilege itself
(4) Required records exception: records that a person or entity is required to keep are
not protected by the 5th Amendment provided…
(a) The purposes of the United States’ inquiry is essentially regulatory;
(b) The information is to be obtained by requiring the preservation of records of a
kind which the regulated party has customarily kept; and
(c) The records themselves must have assumed “public aspects” which render them at
least analogous to public documents.
b) No “general privacy” protection:
i) How personal the documents are is irrelevant for constitutional purposes
(1) No general right of privacy in tax records or business papers (Fischer)
ii) However, concurrence in Fishcer left open protection for very personal things (diaries,
pocket calendars)
c) Entity exception: privilage against self-incrimination is NOT available to a corporation
(corporations have no 5th Amendment rights)
i) Applies to labor unions and unincorporated entities
ii) NOTE: corporations retain 4th amendment “reasonableness” requirement
iii) Collective entity rule: no individual may claim protection of documents held by a
corporation if the entity is sufficiently detached from private/personal interests
(1) Test is totality of the circumstances – does this type of org. have a character so
impersonal in scope of membership/activities that cannot be said to embody/represent
purely private/personal interests of its constituents, but rather to embody
common/group interests only
(a) Whether the organization is “recognized as an independent entity apart from its
individual members.” (Bellis v. United States)
(2) if test not met, an individual may claim 5th Amendment protection for documents
demanded of corporation/entity
(a) typically can claim protection for sole proprietorship
d) Testimonial waiver:
i) Rule: testifying to the Grand Jury constitutes a waiver of the 5th Amendment right
ii) A witness is not allowed to disclose a basic incriminating fact and then claim the privilege
as to “details.” (Rogers v. United States)
e) Witnesses (not investigation targets):
i) Rule: Privilege against self-incrimination extends to Grand Jury witnesses
ii) Witness may be compelled to appear before GJ, even if exercising 5th Amendment rights
(majority rule)
f) Policy:
i) Why no protections for corporations:
(1) Self-incrimination privilege is designed in large part to protect interests unique to the
individual.
(2) State’s greater regulatory power over corporations, which were merely “creature[s] of
the state.”
ii) SC rejects “zone of privacy” analysis
(1) No general right of privacy in tax records or business papers
(2) Have to do a precise 5th Amendment analysis for testimonial self-incrimination each
time
59) Attorney-client privilege:
a) Rule: “Confidential disclosures by a client to an attorney made in order to obtain legal
assistance are privileged.” (Fisher v. United States)
34
i) protects only those disclosures, necessary to obtain informed legal advice, which might
not have been made absent the privilege
b) Rule: when the client himself would be protected, the lawyer is not bound to produce
i) Lawyer in Fischer could be compelled because client did not have privilege
c) Exception: Pre-existing documents which can be obtained by court process from the client
when he is in possession may also be obtained from the attorney by similar process following
transfer by client in order to obtain more informed legal advice
The Right to Counsel
Right to Appointment of Counsel (Gideon)
60) History
a) common law – not allowed to have an attorney
b) 1695 – can have atty in treason cases b/c king using to attack political opponents; beginning
of idea that atty can be engine for truth-finding
c) Framing – right to lawyer if you can afford one
d) Powell v. Alabama (1932)
i) Due Process era, before incorp. of crim pro amendments
ii) prosecution of young black boys framed for rape of white woman; not given lawyer until
morning of their trial, facing the death penalty
iii) SC finds this is unconstitutional under 14th Am. Due Process,
(1) holding limited to capital cases
e) Johnson v. Zerbst (1938)
i) D never given a lawyer and never formally waived
ii) with little discussion, SC says contrary to 6th Am. right to lawyer
(1) unclear what happens if he can’t afford one
f) Betts v. Brady (1942) (p. 80)
i) SC refuses to incorp the 6th. Am.; case-by-case approach whether person needs lawyer
(based on ensuring fairness of trial)
61) Role of attorneys:
a) What do they do for clients?
i) Interview witnesses.
ii) Collect evidence about witnesses.
iii) Gather evidence for motions to suppress.
iv) Navigate 4th Amendment rules; Miranda rules; Massiah rules.
v) Advise client about sentencing or plea offers.
vi) Hiring and preparing expert witnesses.
vii) Processing bail issues.
viii) Preparing for trial: opening statement, direct examinations, cross examinations,
closing argument, motions to dismiss, etc.
62) Rule: criminal defendants have a right to a lawyer appointed by the gov’t
a) Scope: right extends to all trials (fed and state) where jail time might be imposed
i) Imposition of jail time determined by prosecutor and/or judge
(1) If prosecutor states he’s seeking jail time, judge appoints lawyer
(2) If prosecutor not seeking jail time, judge must decide if he might decide to impose it
35
anyway
ii) The court considers only the sentence actually imposed
(1) The mere potential for jail time is irrelevant
(a) D charged with shoplifting (punishable by up to 1 year in jail); convicted but only
$50 fine and no jail time; later said error not to appt lawyer, SC upholds
conviction (Scott v. Illinois)
(2) NOTE: suspended sentences qualify as jail time, require appointed lawyer
(a) indigent D charged with assault, no lawyer appointed, sentenced to 30 days
suspended jail, SC throws out conviction (Alabama v. Shelton)
(3) there is no de minimus exception for misdemeanors (short sentences)
(a) FL rule requiring appt only for offense punishable by more than 6 mo., SC says
unconstitutional (Argersinger v. Hamlin)
iii) Right does not extend to discretionary appeals or collateral attacks
b) Trigger: when Miranda right invoked (5th Amend.) OR targeted investigatory/charging
proceedings (6th Amend.)
i) Rule: when government has used the judicial machinery to begin prosecution
(1) When formally charged
(2) Attaches after right to article 15.17 hearing, by Texas standard (Rothgery)
(3) Normally attaches at initial hearing before a judge
ii) For Miranda right, see “Miranda” supra
iii) Initiation of the adversarial judicial process
iv) right triggered “when investigation is no longer general inquiry and begins to focus on
particular subject” (Escobedo v. Illinois, 1964)
v) “whenever a defendant learns of the charges against him and has his liberty subject to
restriction” (Rothgery v. Gillespie County, TX)
(1) arrest hearing in Texas proceedings
vi) Inquiry is fact intensive, may be different depending on the procedures of the
jurisdiction/state
vii) Right triggered by:
(1) Being arrested, released, and coerced into making incriminating statements by coconspirator (Massiah v. US)
(2) Getting a lawyer, then getting released and arrested again, and being set up to
confront co-conspirator (Escobedo v. Illinois, 1964)
viii) Right NOT triggered by:
(1) Arrest hearing before magistrate judge to determine probable cause for arrest (5.17
hearing) (Gurstein v. Pugh)
c) Waiver: D must show “intentional relinquishment or abandonment of a known right or
privilege” to waive 6th Amend. right to counsel
i) Ambiguous conduct will not constitute a waiver of 6th Amend. right to counsel
(1) D had attys in Davenport and Des Moines; arranged before judge in Davenport
(started adversarial proceedings); during ride police questioned D (even though
promised attys that wouldn’t and wouldn’t let atty ride along), SC says violates 6th
Amend. right (Brewer v. Williams I)
d) Downstream issues (once right has been triggered):
i) Right is offense-specific: it “cannot be invoked once for all future prosecutions, for it
does not attach until a prosecution is commenced.”
(1) Provides no protection for uncharged criminal activity
(2) Can question about uncharged crimes even when right invoked for other crimes
ii) Counsel MUST be present at all times D talks to police after the right invoked
iii) Applies at all critical stages of the prosecution
36
e) Statements are excluded under this standard if they are
i) Deliberately elicited
ii) Without valid waiver of right to counsel
63) Remedy for violation of 6th Amendment right to counsel
a) Exclusion of physical evidence?
64) Right to Self-representation:
a) Rule: everyone has a right to self-representation (Faretta v. CA)
b) Exception: right does not include right to be at trial alone, only includes right to direct your
own defense
i) SC upholds states right to appoint counsel as advisor to give help if D asks for it
(McKaskle v. Wiggins)
c) Exception: no right to self-representation on appeal
65) Policy:
a) Why harder to waive 6th Amend. right to counsel than Miranda or consent to search?
i) unseemly to let govt sneak around protection of lawyer
ii) want gov’t to gather evidence before charging decisions actually made; forces govt to show
restraint in bringing formal charges
iii) system actually functions better when D has a lawyer
b) Purposes of Massiah rights v. Miranda rights
i) Whole point of the Miranda right to counsel is the environment of compulsion.
ii) Point of the Massiah right to counsel is preventing interference with defense counsel’s
preparation of her case
Trigger
Once triggered,
when does it
apply?
Scope of offenses
covered
Waiver of right
Remedy
Miranda Right to Counsel vs. 6th Am. Right to Counsel
5th Am. (Miranda)
6th Am.
unambiguous invocation of right during unclear, but certainly by filing of
custodial interrogation
formal charges
during custodial interrogations by
at all times during criminal
police
adversary proceedings
all – not offense-specific – but lapses 14
days after released
easy
suppression of incriminating stmts but
not physical evidence
those where jail-time actually
imposed – offense-specific –
doesn’t lapse
difficult
suppression of incriminating
stmts and physical evidence
Ineffective Assistance of Counsel
66) Rule: all citizens have a right to effective assistance of counsel at a criminal trial
a) D must prove that
i) Counsel was deficient AND
(1) “unreasonable under prevailing professional norms”
(a) D rejected counsel’s suggestion to have advisory jury, waived right to jury trial
37
and plead guilty, during sentencing phase, D testified had no significant criminal
record and crime spree caused by stress (banking on good graces of judge), SC says
no ineffective assistance (Strickland v. Washington)
(2) strong presumption in favor of reasonableness
(3) burden is on D to show specific actions/omissions
(a) fact-sensitive inquiry, totality of circumstances
ii) The deficient performance prejudiced the defense
(1) reasonable probability that, but for counsel’s unprofessional errors, result of
proceeding would’ve been different
(2) standard is objective: how would a reasonable judge have ruled
(a) NOTE: those who are obviously guilty will rarely get relief, even if their lawyer is
terrible b/c cannot prove prejudice
Line-Ups, Show-Ups, and Photo Arrays
67) Basic problems with eye-witness IDs
a) juries often find eyewitness IDs very persuasive
b) out-of-court ID usually right after crime and long before in-court ID
i) can be subject to police manipulation
c) in-court IDs often uncontroversial, even though trials occur years later
d) fruit of the poisonous tree problem – in mind, earlier out-of-court ID might replace at-sceneof-crime ID
e) strong social pressure, once in court, to ID the D
68) General rule: ID procedures must include defense counsel only if (1) post-indictment and (2) D
physically present
69) Due Process Limitations on ID Procedures
a) NOTE: DP is an outer limit, highly deferential, courts rarely find DP violated
b) Rule: ID procedures violate due process when they are so unnecessarily suggestive that it
creates a substantial likelihood of misidentification
c) DP is violated where ID procedure is
i) unnecessarily suggestive AND
(1) inquiry is fact-specific, totality of the circumstances
(2) practical necessity gives the police more leeway
(a) stabbing victim hospitalized for major surgery; without giving D time to retain
counsel, police arranged for D and victim to meet in hospital; victim ID-ed him
while handcuffed in room with 7 officers (only black man), SC says no DP violation
(Stovall v. Denno)
ii) Unreliable (conducive to irreparable mistaken ID)
(1) Again highly deferential “totality of the circumstances” approach
(a) at time of crime, undercover saw D for few minutes from 2 feet away through an
open door; out-of-court ID = undercover described suspect, and then superior
brought him 1 photo and asked “is this the guy?”, SC says sufficiently reliable
(Manson v. Braithwaite)
(b) Brining suspect to witness seven months later is sufficiently reliable (Neil v.
Biggars)
(2) Factors considered (Manson):
(a) opportunity to view
(b) degree of attention
38
(c) accuracy of description
(d) witness’s level of certainty
(e) time btwn crime and confrontation
70) 6th Amendment Right to Counsel limitations on ID Procedures
a) Rule: D has right to counsel present during a physical lineup
i) Wade and 2 others indicted and arrested, FBI agent did line-up without telling Wade’s
lawyer, all had tape on face and read perp’s statement, SC says unconstitutional (US v.
Wade)
ii) Exception: no right to counsel for pre-indictment lineups
(1) Ds arrested for robbery; victim IDs at station and in court, SC says constitutional
even though lawyer not there (Kirby v. Illinois)
iii) NOTE: lawyers have no formal ability to influence proceedings
(1) Purpose of counsel’s presence:
(a) lawyer’s presence may deter abuses
(b) lawyer can effectively cross-examine witness re: line-up
b) Remedy for unconstitutional line up:
i) Out-of-court ID evidence excluded
ii) In-court ID not allowed unless prosecution can prove an independent basis for knowledge
c) Rule: D has no right to counsel present in a photo lineup
i) Presence during photo lineup does nothing to assist D (US v. Ash)
71) Remedy:
a) Exclusion of the witness’s in-court ID
b) Exception: witness can make in-court ID if can prove that witness’s ID is based upon
something other than the unconstitutional procedure
i) Factors indicating independent basis:
(1) Witness’s opportunity to view the defendant at the crime scene
(2) Specificity of description given to the police
(3) Certainty of the witness’s identification
c) Policy: if evidence is obviously reliable, we’re going to let it in
39