Criminal Procedure Notes - Lee
4th amendment –
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable search and seizures, shall not be violated, an no warrants shall issue, but upon
probable cause, supported by an oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
(1) Definitions:
a. Seizure (property) = a meaningful interference with an individual’s possessory
interests in the property
b. Seizure (person) = Physical force or show of authority that restrains the liberty of a
citizen
c. Search = when the government intrudes on a subjective expectation of privacy, that
society is ready to recognize as responsible
(2) Exclusionary rule
a. Evidence obtained in violation of the 4th Amendment is inadmissible in a criminal trial.
b. Exclusionary rule applies to the states (Mapp v. Ohio)
(3) Exceptions to Exclusionary Rule
a. Good Faith exception (US v. Leon)
i. If a police officer relies on a search warrant later found to be defective, then
Exclusionary Rule doesn’t apply.
1. Extended to statute later found to be unconstitutional (Illinois v. Krull)
2. Extended to a non-existent warrant (Arizona v. Evans)
ii. Not applicable when:
1. If police officer knowingly or recklessly made false or misleading
statements
2. If magistrate wholly abandons his judicial role
3. When the warrant is based on an affidavit is so lacking in probable cause
that official belief in its existence is entirely unreasonable
4. If the warrant is so facially deficient that the executing officers could not
reasonably have presumed it to be valid.
b. Private Search
i. No government action (4th Amendment requires government action)
ii. Not applicable when:
1. Government policy/regulation of the private sector
2. Government actor
a. Look to totality of circumstances
b. Look at actor’s purpose
c. Gov’t knowledge/acquiescence/encouragement
c. Inevitable Discovery
i. When evidence is obtained illegally, but because of circumstances the evidence
would have been found by legal means, the evidence will be allowed in court.
d. Attenuation
i. When the taint of the 4th amendment violation has dissipated, the evidence may
be admitted
e. Public Source
Criminal Procedure Notes - Lee
i. When evidence is obtained by two methods, one being illegal and the other being
legal, the evidence will be allowed in court.
(4) When does the 4th Amendment attach?
a. Katz two part test:
i. Did ∆ exhibit an actual (subjective) expectation of privacy
ii. Is this expectation of privacy and that society is willing to recognize as
reasonable (objective)
b. Open fields doctrine
i. There is no reasonable expectation of privacy in an open field
ii. Curtilage may be protected, see Dunn factors.
iii. Dunn factors:
1. Proximity of area to home
2. Enclosure
3. Nature of uses
4. Steps taken to protect the area from observation.
c. Cases
i. California v. Greenwood  Trash
1. No objective expectation of privacy in one’s discarded garbage
ii. Florida v. Riley  Helicopter
1. Not a search if an instrument merely illuminates what is already available
iii. US v. Karo  Barrel in Car
1. No reasonable expectation of privacy when driving
iv. Kyllo v. US  Thermal imaging
1. Thermal imaging device not in general public use
v. US v. Jones  GPS device
1. A physical intrusion would have been considered a search within the
meaning of the 4th amendment at the time it was adopted
vi. US v. White  recorded conversation between suspect & informant
1. No reasonable expectation of privacy in a conversation
(5) Probable Cause
a. To search = reasonable grounds to believe that evidence of a crime is presently in the in
the place to be searched
b. To arrest = reasonable grounds to believe that a crime has or will be committed and the
person to be arrested committed it.
c. Assessed by the totality of the circumstances (Illinois v. Gates)
i. Also look to Aguilar-Spinelli test as two important factors
1. Basis of Knowledge
a. Personal observation?
2. Reliability of informant
a. Statement against interest?
b. Used before?
d. Magistrate makes determination
(6) Search Warrants
a. Generally required for any, search, seizure, or arrest. See exceptions below.
b. 4th Amendment incorporates the common law requirement that police must knock &
announce before forcibly entering a dwelling (Wilson v. Arkansas)
Criminal Procedure Notes - Lee
i. Exceptions:
1. Physical Violence
2. Destruction of Evidence
ii. Courts need to decide on a case-by-case basis whether knocking and announcing
would be dangerous or futile
th
c. 4 Amendment does not require an arrest warrant for a felony arrest in public based on
probable cause (US v. Wilson)
d. 4th Amendment requires a prompt judicial determination of probable cause as a
prerequisite for extended restraint after an arrest (Gerstein v. Pugh)
e. An arrest warrant based on PC is generally required for a home arrest (Payton v. NY)
i. PO executing an arrest warrant must have reason to believe that the arrestee is
within the dwelling.
ii. Police have an arrest warrant for A; A is in B’s home  Police cannot enter B’s
home to arrest.
(7) Search Incident to Arrest
a. Elements:
i. Valid custodial arrest
1. Requires: (1) probable cause; (2) arrestee must be taken into custody
ii. Substantially contemporaneous
iii. Within the immediate vicinity; scope (as expanded by case law)
b. Scope:
i. Arrestee’s person (Chimel v. California)
ii. Arrestee’s Wingspan (Chimel v. Calfornia)
iii. Closets & space immediately adjoining the place of arrest (Maryland v. Buie)
1. Applies if the arrest must take place within the home
iv. Protective Sweep of house (if reasonable suspicion of danger)(Maryland v. Buie)
v. Containers (US v. Robinson)
vi. Automobiles (Arizona v. Gant)
1. Can search IF:
a. Arrestee is unsecured at the time of the arrest
b. Arrestee is within the reaching distance of passenger
compartments, OR
2. Reason to believe evidence is in the car
(8) The Automobile Exception
a. Police may search an automobile and the containers within it where they have probable
cause to believe contraband or evidence is contained (California v. Acevedo)
b. Mobile home = automobile, if
i. Ready mobility of vehicle
1. Could be moved beyond reach of police?
2. License to operate in public streets?
3. Serviced in a public place?
4. Subject to regulation and inspection?
ii. Reduced reasonable expectation
1. Would objective observer think that it’s being used as a residence?
(9) Terry Stops
a. A stop – lawful if: the officer has reasonable suspicion that criminal activity is occurring
Criminal Procedure Notes - Lee
(10)
(11)
b. A frisk – lawful if: the officer has reasonable suspicion that the suspect is armed &
dangerous
i. Not required if PO has reasonable suspicion that ∆ involved in a violent crime
c. Reasonable suspicion requires specific & articulable facts
d. Automobile terry stop
i. Only weapons,
ii. Limited to passenger areas,
iii. Reasonable suspicion needed
e. Anonymous tip
i. A tip must be reliable in its assertion of illegality, not just in its tendency to
identify a determinable person. (Alabama v. White)
f. Flight (Illinois v. Wardlow)
i. High crime area + flight = reasonable suspicion of criminal activity.
g. Seizure of person (Florida v. Royer)
i. Factors:
1. Length of detention
2. Less intrusive means available?
3. Manner of detention
h. Investigative detention (Florida v. Royer)
i. Temporary and last no longer than necessary to effectuate the purpose of the
stop
ii. Investigative technique must be the least intrusive means reasonably available
for the officer to verify or dispel his suspicion
iii. State had the burden of proving that the detention was limited in scope and
duration
Consent Searches
a. Consent valid if voluntarily given
i. Determined by the totality of the circumstances
ii. Factors:
1. Violence/abuse
2. Knowledge of right to refuse (actual knowledge not required)
3. Location
4. Lack of warning
5. Drunk
6. Mental capacity
7. Minimal schooling
8. Police action (coercion)
b. Scope of the consent (reasonable observer test)
i. What a reasonable person would perceive based off the exchange between the
individual and the officer
Third party consent
a. A third party with “common authority” over the property may consent to search of that
property
i. Common authority = mutual use with joint access or control for most purposes
b. Police can rely on 3rd party consent if they reasonably believe he/she has common
authority
Criminal Procedure Notes - Lee
c. 3rd party consent ≠ one occupant of the property is present and objecting
(12) Administrative Searches
a. Threshold question – whether special needs make the warrant & PC requirements
impracticable, beyond the normal need for law enforcement
b. If special needs exist – then the court will balance
i. The government interests against
ii. The individual’s privacy interest
c. Inventory searches
i. Routine or standardized criteria
ii. Not using inventory as a pretext to fond evidence of a crime
(13) Plain View Doctrine (Arizona v. Hicks)
a. An officer may seize evidence of a crime if:
i. Lawful initial intrusion/law position to view
1. Search warrant, consent, exigent circumstances, SIA, any other exceptions
ii. Incriminating nature of item must be immediately apparent
iii. Probable cause
(14) Plain Feel Doctrine (Minnesota v. Dickerson) – applies to Terry stop
a. An officer may seize contraband (even if non-threatening) if:
i. Officer in a lawful position to feel
ii. Incriminating nature is immediately apparent
iii. Probable cause
(15) Exigent Circumstances Exception
a. Police may enter any building and search if:
i. Emergency circumstances that make it impracticable to get a warrant
ii. Scope limited to/by the exigency
iii. Probable cause
b. Nature and seriousness of the offense  The more serious, the more permissible
(16) Emergency Aid Doctrine
a. Police may ender a building and search if:
i. Reasonable Belief
ii. Someone inside home
iii. Is seriously injured or being imminently threatened with serious injury
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6th Amendment –
“In all criminal prosecutions, the accused shall enjoy right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation to be confronted with the witness against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
(1) 6th Amendment - Right to Council violation
a. Elements:
i. Deliberate elicitation (Massiah v. US)
1. Purposeful, direct and surreptitious interrogations as well as those
conducted in the jail house;
Criminal Procedure Notes - Lee
2. Intentional systems in place reasonably calculated to elicit an
incriminating statement;
3. Knowing circumvention of the 6th amendment; or
4. Subjective intent of the officer
ii. After adversarial proceedings have commenced (Brewer v. Williams)
1. Examples: Initial appearance, grand jury proceedings, indictment,
preliminary hearing, arraignment, etc.
iii. In the absence of council
b. Actual Imprisonment Rule
i. Indigent ∆ charged with a misdemeanor has a right to appointed counsel (Gideon
v. Wainright)
ii. Extends as far as the first statutory right of appeal
c. Offense Specific
i. Police violate the 6th Amendment if they deliberately elicit incriminating
statements from ∆ on a charged offense
d. Blockburger Test (from Brewer v. Williams)
i. Two offenses are not the same if each person requires proof of an element,
which the other does not.
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5th Amendment –
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service, in time of War or public danger; nor shall any person be subject
for the same offense to be put twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.”
(1) Due Process Voluntariness (of a confession) Test (for 5th and 14th amendments)
a. Not coerced, will is not overpowered
b. Based on the totality of the circumstances
i. Length of interrogation
ii. Threat on family members
iii. Physical torture/ threats of physical abuse
iv. Mental coercion
v. Mental state of ∆
vi. Age of ∆
vii. Physical condition of ∆
viii. Deprivation of food, water, sleep
(2) Miranda Rights – 5th Amendment Protection
a. Prosecution may not use statements from a custodial interrogation of the ∆ unless it
demonstrates procedural safeguards, effective to secure the privilege against selfincrimination. (Miranda v. Arizona)
b. Warnings (must be given prior to custodial interrogation):
i. You have the right to remain silent
Criminal Procedure Notes - Lee
c.
d.
e.
f.
ii. Anything you say can and will be used against you
iii. You have the right to consult with a lawyer and have the lawyer present with
you during interrogation
iv. If you can’t afford an attorney, one will be appointed to represent you
Custody (Berkmer v. McCarty)
i. “Would a reasonable person in S’s shoes have thought his freedom of action was
curtailed to a degree associated with formal arrest?”
ii. A detained motorist during a traffic stop is not “in custody”
iii. Officer’s subjective intent is irrelevant
iv. Age is a relevant factor to consider as long as it is known or reasonably apparent
(J.D.B. v. North Carolina)
v. Being in prison is not “in custody” for purposes of Miranda. (Illinois v. Perkins)
Interrogation (Rhode Island v. Innis)
i. Express questioning or its functional equivalent –
1. Words or acts by the police (other than those normally attendant to
arrest and custody) reasonably likely to elicit an incriminating response
from the suspect.
2. The later portion of this definition focuses primarily upon the perceptions
of the suspect, rather than the intent of the police.
ii. Routine booking questions not “interrogation” for Miranda.
iii. Only extends to words or actions that police officers should have known were
reasonably likely to elicit an incriminating response.
1. Recording a conversation between ∆ and his wife not “interrogation”
(Arizona v. Mauro)
iv. Miranda warnings are not required when S is unaware he is speaking with a law
enforcement officers (Illinois v. Perkins)
1. But see Massiah (6th amendment - once charges are filed, there can be no
deliberate elicitation)
Waiver
i. Must be:
1. Voluntary, and
2. Knowing and intelligent
a. Events occurring outside the presence of the subject and entirely
unknown to him are irrelevant (Moran v. Burbine)
ii. Waiver will not be presumed from (Miranda)
1. Silence,
2. The fact that a confession was obtained, or
3. By answering questions
iii. No waiver if there is any evidence that the accused was threatened or tricked
iv. Waiver need not be clear or unambiguous
Silence
i. S must clearly and unambiguously invoke his right to remain silent to stop the
police questioning. (Berghius v. Thompkins)
ii. Process:
1. Police must give Miranda warnings, then
2. May interrogate without affirmative waiver; then
Criminal Procedure Notes - Lee
3. Any statement used thereafter constitutes waiver.
iii. Silence + answering questions = implied waiver
g. Edwards Rule
i. Once S requires counsel, police must cease questioning “until counsel has been
made available to him”
1. Counsel must be present in the room
2. Consultation with counsel does not satisfy the rule
ii. Once S requests counsel, all interrogation must case until counsel is present or S
initiates conversation with authorities
1. Initiating = statement or question that indicates a desire to open up a
conversation about the investigation
iii. S must clearly and unambiguously request counsel (Davis v. US)
iv. 14 day break in custody terminates the Edwards rule (Maryland v. Shatzer)
h. Public Safety exception (New York v. Quarles)
i. Police officers do not need to issue Miranda warnings when police ask questions
reasonably prompted by a concern for public safety.
ii. Exception does not depend on the motivation of the individual officers involved
i. Question first – warn later strategy (Missouri v. Seibert)
i. Souter (plurality) – statement is inadmissible unless the Miranda warnings were
effective
1. Effectiveness factors:
a. Completeness and detail of the questions in the first round of the
interrogation
b. Overlapping content of the two statements
c. Timing and setting of the first and second round
d. Continuity of police personnel
e. Differences between the questions in the first and second round
ii. Bryer – 2nd warned statement should be inadmissible unless the failure to warn
was in good faith
iii. Kennedy – If police deliberately fail to warn, 2nd statement inadmissible unless
curative measures taken.
1. Curative measures’
a. Lapse in time
b. Change in setting
c. Change in integrator
d. Shift in the focus of questioning
2. BUT, incriminating statements obtained in violation of Miranda are
admissible if:
a. Public safety exception
b. For impeachment
iv. O’Connor (dissenting) – Just apply Oregon v. Elstad test to all 2 stage
interrogations. The 2nd warned statement is admissible as long as both
statements were voluntary
j. Constitution
i. Miranda is a constitutional decision and cannot be overruled by an Act of
Congress (Dickerson v. US)
Criminal Procedure Notes - Lee
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Criminal Procedural Violation’s – Compared
(1) When does the violation occur?
a. Due Process Clause (5th/14th Amendments)
i. The moment it happens
b. 6th Amendment Right to Counsel
i. Once proceedings occur
c. 5th Amendment Privilege from Self-Incrimination
i. Once the statement is admitted into evidence at trial
(2) Elements of each
a. Due Process Violation
i. Coerced (not voluntary) under
ii. totality of circumstances
b. Right to Counsel Violation
i. Deliberate Elicitation (≠ Interrogation)
ii. After adversarial proceedings have begun
iii. In the absence of council
c. Self-Incrimination Violation
i. Option 1- No warning issued
1. Custodial interrogation
2. Incriminating statement made by ∆
3. No Miranda warning issued, or issued after incriminating statement
4. Statement admitted into evidence at trial against ∆
ii. Option 2 – Warning issued, rights asserted, but interrogation continued
1. Miranda warnings issued
2. Custodial interrogation
3. Clear and unambiguous assertion of right to silence/request for counsel
4. Questioning or functional equivalent continues
5. Incriminating statement made by ∆
6. Statement admitted into evidence at trial against ∆
iii. Option 3 – Question first, warn later
1. Custodial interrogation
2. Incriminating statement made by ∆
3. Miranda warnings issued
4. Custodial Interrogation
5. Incriminating statement repeated by ∆
6. Statement admitted into evidence at trial against ∆.
iv.