CrimPro Kerr Outline

US v. Jones (2012)
a. GPS tracking device on underside of Jeep held to be a SEARCH (needed a warrant)
b. 4th Am reflects close connection to property, which is still a valid rational alongside
the Katz R.E.P. test
c. Concurrence – new tech alters REP, longer use offends this expectation
d. Slightly amended by Jardines “physical invasion” – now the standard
US v. Miller – 4th Am does not protect info willfully revealed to a 3d party
Katz v. US (1967)
a. Listening to convo was 4th Am violation
b. Created objective test – reasonable expectation of privacy that society is prep’d to
recognize. Consider:
i. Likelihood of exposure – what do you expect others to see/hear
ii. Policy balancing
iii. Rights to access (institutional)
iv. How much detail is being observed/found
c. Changing tech and circumstances impact R.E.P.
Smith v. Maryland (1979)
a. Monitoring numbers dialed on home phone through pen register at phone company
b. No REP b/c number dialed are voluntarily conveyed to 3d parties – diff from content
c. Also b/c general awareness of common purpose of ability to track #s - advertised
that ppl should contact police to track and stop harassing calls.
US v. Dunn (1987) – CURTILAGE
a. Barn is not curtilage of the house, and thus receives no 4th Am protection; once at
vantage point not req’d to shield eyes
b. Curtilage extends to area immed surrounding home that harbor intimate activity
assoc w/ sanctity of home and private life, but not open fields. Factors
i. Proximity of area to home
1. (subst dist btwn home and barn and not same fencing)
ii. Nature of uses
1. (not being used for intimate activities assoc w/ the home)
iii. Steps taken to protect from observation
1. (Did little to protect from observation – dinky fence for cows)
California v. Greenwood (1988) – WILLFULLY CONVEYED TO 3d PARTY
a. Going through trash not a 4th Am search b/c not an expectation society prep’d to
b. Rationale applies to person’s physical characteristics
US v. Kyllo – use of thermal imaging a search b/c could see what was going on inside of
house, both illegal AND legal activities.
VIII. Illinois v. Caballes (2005)
a. Use of drug dog during routine stop not a search (does not change char of stop)
b. Discloses only presence/absence of items – no R.E.P. in contraband
Florida v. Jardines (2013)
a. Taking drug dog to front porch was a trespass, making the search illegal
b. Violated curtilage – exceeded implied license to approach house (and knock)
c. “Physical Intrusion” is now the standard.
Models of 4th Am Protection – usually mix and match; lower courts apply by analogy
a. Probabilistic Model – chance sensible person predicts he would maintain privacy
i. Cases: Bond (luggage squeeze): Olson (overnight guest); Ciraolo (1000ft
aerial observation)
ii. Reject: Caballes (drug dog at traffic stop); Misplaced Confidence cases
b. Private Facts – Focus on what info gov’t collects and considers if it is private
i. Cases: Jacobsen (field test can only reveal crime or not)
c. Positive Law – does some law prohibit/restrict gov’t action
i. Cases: Rakas (no property right as passenger); FL v. Riley (FAA regs)
ii. Reject: Oliver v. US (open field doctrine still a trespass)
d. Policy Model – should particular practice be regulated
i. Cases: Katz, Kyllo, Hudson v. Palmer (prison cells)
Florida v. Riley (1989) – viewing greenhouse from 400ft in air not a violation (assuming
FAA regs were followed) b/c anyone could have observed it from that height and did
not interfere w/ normal use of property (maybe diff outcome if below 400ft)
See v. City of Seattle – business and commercial premises covered by the 4th Am
XIII. Hudson v. Palmer – detention facilities not covered by 4th Am – inherent loss of freedom
and privacy
XIV. Bond v. US – squeezing bag a search: expected bag might be moved, but not expected it
would be felt in an exploratory manner
Enhancing the senses – not a search if detected with natural senses or means of
enhancement commonly available.
XVI. Private areas in public places MAY be covered (see Katz)
XVII. Vehicles
a. Cardwell v. Lewis – exam of tires/paint in public lot NOT infringe R.E.P.
b. NY v. Class – viewing obscured VIN not a search; reaching in car was.
c. Jones – physical invasion a trespss
XVIII. Hypos
a. Driving to mosques w/ Geiger counter
b. USPS photo’s every package and stores data – is mass aggregation and data mining a
c. Cell phones – usually need court order for intercepting communications
d. Hard drives
i. Reasonableness Req – many files, mult devices at IP address, mislabeled files
ii. Personal v. work computer
iii. Plain view doctrine
iv. Deleted folders/files (has been held similar to trash in Greenwood v. CA)
v. Ability for rummaging
Brendlin v. Cali (2007) – Seizure of People
a. “Seized” when by means of physical force or show of authority, terminates/restricts
freedom of movement.
i. Req’s actual submission, but not physical restraint
ii. What counts as submission depends on activity before show of authority
iii. Totality of Circumstances test
b. Traffic stop also subjects passenger to Seizure b/c norm not feel free to leave
c. Cali v. Hodari – pursuit of a fleeing person is not a seizure b/c no physical force or
submission to authority.
Arizona v. Hicks – Seizure of Property
a. Meaningful interference in possessory interest in property
b. Act of copying serial numbers not a seizure
a. Search – substantial probability certain items fruit, instrumentalities, or evidence,
b. Arrest – substantial probability crime committed and person committed it
c. Eval of what is now probable – PC may be “stale” or “premature” – US v. Grubbs
d. Scope of PC defined by definition of and scope of the law/crime being investigated
Establishing Probable Cause
a. Spinelli v. US (1969) – Overruled by Gates
i. 2 prong Aguilar Test to determ if informant’s statements establish PC
1. Veracity – enough facts set forth to independently support statement
2. Informant shown to otherwise be credible.
b. Illinois v. Gates (1983) – TOTALITY OF CIRCUMSTANCES
i. Elements of Spinell/Aguilar only relevant considerations, not a separate test
ii. Tip itself inadequate, but corroboration estab sufficient indicia of reliability
to constitute reasonable suspicion and thus permit investigative stop
iii. Here, when did PC attach?
1. Got letter, verify Gates’ existence/address, flies to FL, goes to hotel,
starts to drive north, arrives home (attaches btwn last 2)
iv. Standard used for search and arrest warrants, with or without informant
c. Florida v. Harris (2013)
i. Use “common sense judgment” to determine if dog sniff suffic to estab PC;
not req’d to submit exhaustive evidence of dog’s credentials
ii. Defendant needs opportunity to challenge evidenc/particulars of search.
d. Massachusetts v. Upton (1984) – no one piece of evidence is conclusive
PC still req’s for warrantless search/seizure (Wong Sun v. US) – after the fact hearing
Maryland v. Pringle (2013) – PARTICULARIZED SUSPICION
a. PC deals w/ probabilities by looking at totality of circumstances
b. Must be particularized to person being searched/seized.
c. Here, entirely reasonable all 3 had knowledge of and control over the drugs – could
be one person or all 3.
d. Disting from Ybarra – in car, likely to have common enterprise
e. Disting from DiRe – here, not singled out/admit ownership until after arrest
If have search warrant, can only be challenged if evidence supporting PC wholly lacking
or warrant obtained via fraud
Conditional anticipatory warrant (US v. Grubbs). Req’s:
a. If triggering event occurs, fair probability contraband will be there
b. Prob cause triggering event will occur
a. Neutral and Detached Magistrate
i. Shadwick v. City of Tampa – 2 req’s for auth to issue: 1) neutral and
detached; 2) capable of determ PC exists (eg – clerk)
ii. US v. Master – state judge lacked auth to issue warrant executed in diff cnty
iii. US v. Davis – improper to go to 2d judge after being denied by first.
b. Particular Description of Place to be Searched
i. Okay if officer can “w/ reasonable effort ascertain and ID the place” – good
faith exception (reasonable effort)
ii. Necessary level of particularity depends on the place being searched.
iii. State v. Blackburn – no doubt intended door w/ “ECURB” – couldn’t be
confused about that, but could be about “#2”
iv. MD v. Garrison (1987) – 3d floor had 2apts; overbreadth understandable
given bldg. characteristics
c. Particular Description of Things to be Searched
i. More particularity req’d than “place” – orig left not discretion to officer
ii. General Principle – prevent vague/exploratory searches – good faith
exception (facially deficient)
iii. US v. Bradley (11th Cir) – pervasive fraud doctrine allows all records search
warrant where there is a demonstrated “pattern of illegal conduct”
d. Reliance on Affidavit
i. Groh v. Ramirez – description needs to be in warrant; reason – so suspect
knows limits of search as well
ii. Situations that may justify reliance on elaborating language – few items on
list of many omitted; mis-described few of several items; technical mistake
e. Time of Execution
i. Most juris have time limit on execution (fed – 10days)
ii. State v. Miller – violated 10d period, but PC not dissipated, so no suppression
iii. Most juris allow execution only during daytime – interp broadly (eg: 10pm)
iv. Gooding v. US – no special showing req’d for nighttime narcotics search
Gaining Entry Into the Home to Search
a. Wilson v. Arkansas – generally have to knock and announce, unless have exigency
b. Richard v. Wilson – proving exigency is not a high showing
c. US v. Banks – time req’d for wait varies, based on totality of circum (here, 15-20sec)
d. Hudson v. Michigan – no suppression remedy if wait time violated
People on Premises During Search
a. To search, need particularized suspicion; mere propinquity does not estab PC
b. Detention of Persons – relevant interests: officer safety, orderly completion of
search, concern for flight, destruction of evidence
i. Michigan v. Summers – wide authority to detain ppl during search
ii. Bailey v. US – person must be in immed vicinity of search
iii. Muehler v. Mena – handcuffing for mult hours reasonable b/c gov’t interest
outweighed marginal intrusion.
iv. Limits to Detention
1. If causes pain/discomfort, need to alter
2. Remove restraint if reasonably apparent justification no longer exists
Intensity and Duration of Search
a. Can only look in places where items particularly described might be
b. Once items found, search must cease
Preference for Warrants b/c
a. After-fact-bias in PC determination (“we found it so clearly there’s PC”)
b. Lack of credible opponent leads to false testimony by police about circumstances
Plain View Exception – Horton v. California
a. “Not a search b/c it is a seizure of something already discovered”
b. Inadvertence not req’d for plain view seizure – intent doesn’t matter
c. Req’d Elements
i. 4th Am not violated in leading police to item – intrusion lawful
ii. Lawful right of access to object itself – w/in permissible scope of intrusion
iii. Incrim character of item “immediately apparent” – a hunch is not sufficient
Warrantless arrest is the rule, and obtaining warrant is the exception.
a. Only time warrant actually req’d is for in-home arrest
b. If residence of 3d party, need separate search warrant to enter that premises – need
PC to believe that suspect is there.
Warrantless Arrest
a. US v. Watson (1976) – no warrant req’d when arrest made in public and there is PC
b. Gerstein v. Pugh – need “prompt” review of PC to have extended restraing
c. McLaughlin – “prompt” is usually 48hr
i. Also may violate promptness if delay was unreasonable – for purpose of
gathering more info, motivated by ill-will, delay for dealy’s sake.
d. Powell v. Nevada – violation of time does not necessarily mean D must be set free
e. Atwater v. City of Lago Vista (2001) – arrest can be for any offense; no
misdemeanor/felony distinction as long as it is “arrestible offense”
Probable Cause Requirement for Warrantless Arrest
a. Rosenbaum v. Washoe County – PC must be for a particular offense
b. Devenpeck v. Alford – arresting officer’s state of mind irrelevant in determ of PC
Arrest of Material Witness – Bacon v. US
a. Permissible only on need-for-custody showing; based on PC, tested by:
i. Testimony that person is material – can be based on statement of official
ii. May become impractical to secure presence by subpoena
Excessive Force
a. Graham v. Connor – objective balancing, reasonableness standard
a. US v. Robinson (1973) – pat down after arrest valid; found crumbled cig pack w/
i. Policy – Need to disarm and need for add’l evidence
ii. Even if unlikely to have weapon, danger to officer during extended
detainment is greater than that of relatively fleeting contact of Terry
b. Gustafson v. FL – doesn’t matter whether may arrest or have to arrest
c. Limited by Knowles v. Iowa
i. If could arrest, but do not arrest then search NOT ALLOWED
ii. Threat to officer very low
iii. Need for add’l evidence doesn’t exist here (speeding violation)
d. Search Without Prior Seizure – Cupp v. Murphy
i. Voluntarily appeared for questioning; blood under nails, took scraping
ii. Search valid b/c of exigent circumstances – highly fleeting evidence
Prison and More Intrusive Searches
a. Full search of person/effects usually made at detention centers – upheld on 2 basis:
delayed Robinson search incident to arrest; inventory search.
b. Florence v. Board of Chase Freeholders – can search anyone brought to prison, even if
wrongfully arrested
c. US v. Edwards – once arrested, effects in possession at place of arrest may be
lawfully searched w/o warrant, even if substantial time has passed
d. Strip Search – circuit split:
i. Powell v. Barrett (11th Cir) – allowed for all inmates
ii. Jimeney v. Wood (5th Cir) – minor offense req’s reasonable suspicion of
weapons or contrabadn
e. Bodily Intrusions
i. Missouri v. McNeely – no bright line for when blood draw allowed
ii. Schmerber v. Cali – need warrant for intrusion of body, unless have
emergency (rule for normal intrustions)
iii. Winston v. Lee – reasonableness of intrusion a case-by-case analysis (rule for
major intrusion – remove bullet from body)
iv. Maryland v. King (2013)
1. DNA sampling is a lawful search – recognized social benefits and
statute is limited to prevent abuses (violent crimes, only if arraigned,
only for police purposes)
2. If arrested, proper ID plays a crucial role – a more advanced form of
Hypo – search of cell phone after arrest
a. US v. Finley (5th Cir) – call records/texts found during search admissible
b. State v. Smith (Ohio) – high expectation of privacy in cell phone contents
a. Entry into home to arrest
i. Payton – general rule – need warrant
ii. KY v. King – exigent circumstances
b. Search once in home
i. If warrant, see warrant section above
ii. Incident to Arrest – Chimel
iii. Protective Sweep – Buie
a. US v. Payton (1980)
i. Combo 2 cases
1. PC for murder, knock, hear music, go in – not there but find bullets
2. Son opens door, saw father on bed, enter/arrest, search door before
allowing him to dress, found drugs
ii. Entry into home to arrest is a Const Violation – PC not good enough b/c of
special importance placed on homes.
b. Richards v. Wisconsin – same limits as entry to search (eg: need to announce)
c. Vale v. Louisiana – arrest on porch, search home NOT VALID – arrest on street does
not create exigency to enter home (no curtilage doctrine for seizure)
d. US v. Santana – can attempt warrantless arrest if in doorway
i. Calling person out of their home violates Payton. – inside v. outside a tricky
a. Objectively reasonable evaluation, based on totality of circumstances.
b. Lower courts have held there needs to be a belief person there (SCT has not)
c. To enter under exigent circumstances, most courts require PC + Exigent Circum
d. Relevant Factors:
i. Degree of urgency involved
ii. Reasonable belief suspect armed
iii. Clear showing (more than PC) suspect committed crime
iv. Strong belief suspect on premises
v. Entry made peaceably
vi. Time of Entry
e. Brigham City v. Stewart – state of mind doesn’t matter (entered to stop fight)
f. Kentucky v. King (2011)
i. Police created exigency not a valid search (knocked, heard noises)
ii. Rule – Exigency applies where entry not gained by actual/threatened 4th Am
1. Knock-and-announce not a police created exigency
2. Does no more than ordinary citizen could do.
iii. Occupants didn’t have to open door – could have relied on 4th Am and not
iv. On Remand – no police-created exigency, but no exigency at all: standard
g. Mincey v. AZ – seriousness of offense does not create exigency (no homicide scene
exigency) – probably an exigency when first happened, but prob not for re-entry
h. Welsh v. Wisconsin – arrest in home after drunk driving tip not valid – posed little
remaining threat (reason for exigency dissipated)
i. Hot Pursuit Rule
i. Warden v. Hayden – police not req’d to delay investigation when to do so
would gravely endanger others.
j. Preservation of Evidence
i. US v. Grummel - proper to search premises to extent necessary to preserve
evidence while waiting on warrant
ii. US v. Rubin – must have belief evidence present
k. Denial of consent is not an exigent circumstance.
a. Steagold v. US
i. Properly entered home w/ warrant to arrest, then “plain view” drugs
ii. Need separate warrant to search 3d party’s home.
b. Segura v. US –PC to enter house, securing premises in good faith not 4th Am violation
c. Illinois v. McArthur
i. Wouldn’t let resident back in w/o officer present
ii. Restriction reasonable b/c believe house had contraband and prevent
destruction of that evidence.
d. State v. Hendrix – can use subterfuge to get suspect to remove evidence to place
warrantless search allowed on showing of PC (eg: car)
e. Chimel v. California – SEARCH INCIDENT TO ARREST
i. Warrantless search of entire house not justified
ii. Rule – can search area w/in immediate control of where arrestee could attain
weapons or destroy evidence
f. Hufnagel – irrelevant whether arrestee can physically reach place being searched
g. Courts generally allow a 4 to 6 foot radius – doesn’t consider size of arrestee or
whether they are restrained
h. Maryland v. Buie – PROTECTIVE SWEEP
i. 2 rules
1. Cursory inspection of areas near arrest where people might be located
a. Extensive limits, but still based in reasonableness (under
2. If reasonable suspicion someone else around, may search other rooms
ii. Must be based on articulable facts and rational inferences
i. Giacalone v. Lucas – can look in dresser drawer arrestee about to open
Plain View Exception applies to entire in home search scenario
a. Whren – stop allowed for any traffic violation (allows pretext – racist issues an
Equal Protection issue, not 4th Am)
b. Atwater – arrest of driver/passenger for any (arrestable) offense
i. Knowles v. Iowa – if can arrest, but don’t then not able to search
c. Carney – auto exception allows search of car w/o warrant if have PC
d. Acevedo – no container/vehicle distinction during search
e. Gant – search incident to arrest
f. FL v. Wells – inventory search, pretext not allowed
Traffic Stops and Arrests
a. US v. Whren (1996) – can stop auto when have reasonable suspicion traffic violation
or other crime is occurring (same standard as Terry)
i. Motive never used to invalidate a search.
ii. Takes very little to uphold traffic stop (Robinson – improper lane change; Lee
– straddled center line for 1 second)
b. US v. Watson – can arrest for violation if PC it occurred
c. Robinson – allows search (of person) incident to arrest
d. Virginia v. Moore – even if statute doesn’t allow arrest, not a 4th Am violation
(assuming still have reasonable suspicion to pull over)
Search of Vehicle
a. California v. Carney – AUTO EXCEPTION
i. Rationale for exception
1. Ready mobility justifies lesser degree of protection – focus on
potential for movement, not likelihood
2. Lesser expectation of privacy – can easily see passenger area;
pervasive regulations
ii. Is RV a vehicle? – YES: licensed to operate as a vehicle, and positioned such
that reasonable observer would believe it is operating as a vehicle
iii. “Objectively mobile” test
iv. Applies to any car, does not depend on if crime is actually committed.
b. Chambers v. Maroney – PC of warrantless search req’d to ascertain whether search
properly lmt’d in scope/intensity.
c. Moving truck w/ home possessions gets auto exception.
d. Arizona v. Gant – INCIDENT TO ARREST
i. Can search car when
1. Arrestee unsecured and w/in reaching distance; OR
2. Reasonable to believe evidence of crime might be found in car
ii. Circumstances eval’d at time of search
iii. Holding – search not allowed; was handcuffed and in squad car for driving
with a suspended license
iv. If have separate PC for vehicle/container – see Acevedo/Carney
e. Chamberlain – driving under restraint offense necessarily req’s proof of awareness,
making documentary evidence potential object of search (allows search of car)
f. Florida v. Wells – INVENTORY SEARCH
i. Req’s for inventory search:
1. Need standardized criteria or established routine (through
statute/admin rules)
2. If follow guidelines, subjective intent of officer doesn’t matter
3. Discretion allowed only if exercised according to standard criteria and
based on something more than suspicion
ii. Holding – did not have sufficient regulations
a. California v. Acevedo (1991) – VEHICLE/CONTAINER DISTINCTION
i. No distinction btwn PC for car and PC for package in the car
ii. Determinant is if it breaks “plane of the car” – in car no warrant req’d
iii. Limited only by reasonableness of where items of search may be hidden
b. Wyoming v. Houghton (1991) – no ownership distinction
i. If have PC for entire vehicle, no need to show individualized suspicion to
search belongings of each occupant
ii. Passenger, as well as driver, have decreased expectation of privacy.
iii. Holding – doesn’t matter that officer should have known purse belonged to
passenger, and not to driver.
c. Illinois v. Andreas (1983)
i. Privacy interest in container diminishes after container opened by police
ii. Resealing container does not restore privacy
iii. Interruption in surveillance re-estab privacy interest when there is a “subst.
likelihood contents of container have been changed” based on a workable,
reasonable, and objective standard
d. State v. Brereton (WI 2013) – install of GPS (as in Jones) is disting from typical
search under auto exception b/c concern is not w/ contents of the vehicle.
e. Some containers – by their very nature – cannot hold a R.E.P. – eg: gun case
Hypo – does Acevedo apply to all types of containers? Computer hard drive? – issue
raised but not resolved by US v. Burgess.
Terry v. Ohio (1968)
a. May approach a person on the street and seize (not arrest) them upon showing of
reasonable suspicion person involved in criminal activity – current or past
b. May subject person to limited weapons search upon showing reasonable suspicion
person armed and dangerous
c. Must be based on specific and reasonable inferences; and must be confined in scope
Rules the same for approach and talk and traffic stop
WHEN IS A TERRY STOP MADE? – seizure is made
a. US v. Drayton – bus driver allows police onto bus to question passengers – not a
seizure b/c no application of force, intimidating movement, brandishing of weapons,
blocking of exits – a reasonable person would have felt free to leave.
b. Cali v. Hodari – pursuit of a fleeing person is not a seizure b/c no physical force or
submission to authority.
c. Brendlin v. Cali – traffic stop also seizes person.
d. Taking ID is not a per se seizure, but is only a consideration.
a. US v. Cortez – must consider totality of circumstances to estab a particularized and
objective basis (person presently or previously involved in criminal activity)
b. Sibron – suspicion that person a drug addict is not enough
c. US v. Sokolow – factors estab reasonable suspicion may be set forth in a profile
d. IL v. Wardlow – Officers not req’d to ignore characteristics of location, but it alone is
not suficient
i. Chasing down and frisking fleeing suspect not violate 4th Am – fleeing estab
e. Florida v. JL – anonymous tip alone seldom demonstrates informant’s basis of
knowledge or veracity; needs to be corroborated
f. Virginia v. Harris – stopping erratic drivers based on tip allowed in most states b/c
of increased dangers and decreased invasiveness (rejection of certiorari)
g. Courts are split on whether holding person’s credentials is a seizure.
WHEN CAN A FRISK OCCUR? – reasonable suspicion person armed and dangerous
a. US v. Lewis – can order everyone out of vehicle even if driver only one under
b. Arizona v. Johnson – diff rule for known gang member not answering questions
Time/Duration/Length – General Rule: long enough o achieve initial purpose of stop
a. US v. Sharpe – 20-30min not too long, esp b/c it was prolonged due to evasive acts
b. US v. Place – 90 minutes too long
c. Illinois v. Caballes – an initially lawful stop can become unlawful if purpose
d. Ohio v. Robinette – notice that seizure terminated not req’d
e. Temporary seizure can also apply to effects, but same rules apply
Intrusiveness – how far can stop and frisk go? – generally related to investigative
a. Hible – state stop and identify statute not unconstitutional b/c of relation to
purpose, rationale, and demands of Terry stop.
b. Mimms (can order driver out of vehicle) & Wilson (can order passengers out)
c. May handcuff if necessary for officer safety
d. MN v. Dickerson – can fish around in pocket until know what object is, but once
confirmed it is not a weapon, search has to stop
i. Plain Feel Doctrine – if PC something felt is evidence of crime, then can be
seized – but cannot manipulate object until you know it’s evid of a crime if
you already know it’s not a weapon.
e. MI v. Long – search of auto limited to where weapon might reasonably be
f. Flynn – suspect would not ID self, so got walled to look at ID; plain view of drugs –
seizure allowed.
Schneckloth v. Bustamone (1973)
a. 4th Am test for consent – Voluntary
i. General test (5th and 6th Am) is Knowing, Intelligent, and Voluntary
b. Totality of Circumstances test for “voluntary”
Relevant factors for consent (none are determinative):
a. Claim or show of authority (Bumper v. NC – cannot pretend to have warrant)
b. Threat of incarceration
c. Prior Illegal Action
d. Mental/Emotional state of person (Commonwealth v. Anivoni)
e. Denial of Guilt (Higgins v. US – discovery of contraband of someone who denied guilt
manifests that consent was not voluntary)
f. Custody – 4th and 5th Am warning (whether they’re told they could refuse/Miranda)
g. Deception – okay, as long as not too much deception (US v. Lewis)
Third Party Consent
a. Allowed b/c not always sure what’s going on – similar to good faith exception.
b. Illinois v. Rodriguez (1990)
i. Req’s reasonable belief consent given by someone who could properly give
consent due to “common authority” – apparent authority suffices
ii. “Common authority” rests on mutual use of property by persons generally
having joint access or control for most purposes
iii. Often comes down to whether police entitled to make reasonable assump
about co-occupants R.E.P.
Specific Instances of Third Party Consent
a. Husband-Wife – no per se rule; assume authority exists, but can be rebutted (for
certain areas of premises) – US v. Duran
b. Parent Child
i. Child living at home – head of house can consent to search of room; maybe
diff if it is an adult
ii. Child may allow mere entry, but cannot consent to search of entire home
c. Landlord-Tenant – LL cannot consent to search of residence, only common areas
d. Hotel Employee cannot consent to search of guest room
e. Employer-Employee
i. Employer consent depends on expectation of privacy in area
ii. Employee consent depends on their authority (position)
f. Joint Tenant can consent to search of entire house
g. Joint user can give consent to search (Frazier v. Cupp)
Limits to Third Party Consent
a. Antagonism –courts split (essentially need a want to put other person in jail)
i. Gonzalez v. Valle – where have spite, no right to waive spouse’s protection
ii. Martin – equal auth doesn’t lapse/revive with amicable relations
b. Defendant’s Instructions
i. If police know, search NOT allowed
ii. If police do not know, search is good
c. Refusal/Failure to Consent
i. Georgia v. Randolph (2006) – H refused, removed; W consented – invalid
ii. If not present to make objection, the lose out on ability to object
d. Other options if cant search – deliver evidence, give info for PC, exigency
Scope of Consent
a. FL v. Jimeno – objective reasonableness; what would a normal person have
understood to be the consent
b. Search of person (Rodney) – cannot be more intrusive than Terry
Is Second Search Allowed?
a. Nawrock – consent allowed search at any time after CAR impounded
b. Brochu – where passage of time greater and second search involved re-entry of
HOME, search not allowed.
If get consent and all evidence, then warrant obtained before consent probably now
Entick v. Carrington (Eng 1765) – every invasion a trespass, so warrants need certain
limits; basis for 4th Am.
Weeks v. US (1914) – introduces exclusionary rule
Betts v. Brady – 4th Am Exclusionary Rule does not apply to the states
Wolf v. Colorado (1949) – incorporates 4th Am, but not the exclusionary rule
Anderson v. Creighton (1987) – qualified immunity for good faith belief search
comported w/ 4th Am – depends on officer’s mindset.
Heck v. Humphrey (1994) – can only bring S.1983 claim if innocent in crim case
US v. Paynor (1980) – Const rights are personal (deals w/ who can ask for exclusion)
MAPP V. OHIO (1961) – applies exclusionary rule to the states
a. Admitting unlawfully seized evidence encourages disobedience (goal is to deter
improper police conduct)
b. Reasons – deterrence, no civil remedy at the time, states adopting exclusionary
rules, it’s part of the 4th Am
Limits on the Exclusionary Rule
a. US v. Leon (1984) – evidence not barred when officers acted in reasonable reliance
on what they believed to be a valid search warrant (later determ to not have PC)
b. Hudson v. Michigan (2006) – announced presence at door, only waited 3-5 seconds;
NO SUPPRESSION b/c costs would outweigh benefits of suppression, nothing to
Suppression is a 2 step test: 1) is there a Const violation? 2) severe enough to warrant
Gov’t has burden to show evidence is not fruit of the poisonous tree by a preponderance
of the evidence.
Who Can Seek Suppression?
a. Rakas v. IL – only if have R.E.P. can person seek suppression – 4th Am rights are
b. Rawlings v. KY – Assertion of ownership doesn’t supply standing – depends on area
being searched, not ownership of item.
c. Minnesota v. Carter (1998) – No R.E.P. in apt.
i. No suggestion of prev. relationship w/ apartment or owner
ii. Can have such relationship w/ workplace, but that doesn’t exist here
iii. Purely commercial transaction, over short time period
d. Olson – overnight guest has R.E.P. in premises.
e. Only have the two extremes – not sure where the middle is.
a. But For – if causal act not occur, result not occur (Wong Sun – attenuation)
b. Prox Cause – direct connection btwn cause and result (Indep source and inev disc)
c. Cases
i. Wong Sun – WS statements not suppressed b/c coming back to the station
was due to his own decision; release from custody an intervening factor
ii. Brown v. IL – giving Miranda warnings does not per se elim causation taint –
totality of circumstances evaluation
iii. US v. Crews – In-court ID not suffic related to const breach to warrant
iv. NY v. Harris – warrantless arrest in home did not cause out of home
statements – purpose of suppression (deterrence) not satisfied
Independent Source
a. Applies less freq than inevitable discovery b/c req’s that evidence actually be found
by a second method
b. Murray v. US (1988)
i. Broke into house, saw bales; got warrant, but didn’t rely on what they saw
ii. If evidences use to get warrant wholly unconnected to const. violation, then
no need to suppress
iii. Needs to be “genuinely independent” – remanded on this point
c. Segura v. US – arrest in hallway, then go into apt; wait to search until warrant
arrives – independent source
d. US v. Ceccoline (1978) – Tainted Witness
i. Exclusionary Rule evoked w/ greater reluctance where involves live witness
ii. Greater willingness of witness to freely testify, greater likelihood would have
been discovered by legal means.
Inevitable Discovery
a. If P can estab preponderance of evidence that info would inevitably had been
discovered by lawful means, then no suppression.
b. Nix v. Williams (Williams II) (1984)
i. Discovery of body allowed at trial – search so good they were almost to body
ii. Must estab through normal police practices/what steps they would do – not
necessarily have to already be underway
Culpability Exception (to Suppression)
a. Not quite related to qual. Imm, but getting closer.
b. Herring v. US (2009)
i. Warrant recalled, but officer didn’t know until after arrest made
ii. No suppression where officer not guilty of any internal wrongdoing
c. Davis v. US (2011) – lawful car search under Belton; waiting on appeal, Gant handed
down – no suppression
i. Main concern is with deterrence.
ii. Req’s an understanding of when cases handed down.
d. IL v. Rodriguez – no suppression b/c police thought she had authority
e. US v. Leon – have warrant, but turns out no PC, no suppression
Cases suggest SCT expanding “good faith” exception, but not sure how far it reaches.
Not a 4th Am violation to use an undercover
Focus is on HOW police use undercovers, not when they can be uses
Misplaced Confidence Rationale
a. Hoffa v. US (1961)
i. Voluntarily convey info to 3d party – do something illegal and tell ppl, you
take the risk
ii. Hoffa relying on security of hotel suite, but Partin not enter through stealth,
force, or as an eavesdropper
b. US v. White – reaffirmed Hoffa after Katz
i. Diff btwn Hoffa and Katz – voluntarily and knowingly conveyed to 3d party
ii. No difference if convo recorded – prob better b/c more reliable.
c. Gouled v. US – can come in and listen, but CANNOT search
a. Criminal Law defense; defendant’s burden to show that “criminal design originated
w/ undercover and was implanted into mid of innocent person”
b. Sorrels v. US (1932)
i. Multiple references to alcohol and undercover offered to buy for him
ii. Entrapment – Cong not intend to prohibit possession in such a context
c. Sherman v. US (1958)
i. Several accidental meetings; appeal to emotion of overcoming addiction
ii. Entrapment occurred – criminal conduct product of gov’t action
iii. No evidence of pre-disposition: multi-year old conviction insufficient, and
was trying to overcome addiction
d. 2 approaches
i. Subjective (Sorrels, feds, majority of states) – focus on whether gov’t actually
caused D to commit crimes; factual inquiry based on particulars of D
ii. Objective – focus on whether gov’t conduct goes too far; social policy Q
Predisposition (Inducement)
a. Gov’t burden to show that D had a state of mind which readily responded to
opportunity furnished by the gov’t
b. US v. Gendron - req’s opportunity plus something else
i. Examples on p 485-86
ii. Incl. threats, play to sympathies, repeated suggestion of hard times
c. US v. Jacobson (1992)
i. Entrapment existed; gov’t failed to show predisposition (and that
predisposition was not the result of gov’t action)
ii. Need more than “generic inclination”
Background to Miranda
a. Voluntariness Standard (Confessions Wrongfully Attained)
i. Totality of Circumstances approach under Due Process
ii. Combo aspects of suspect’s personal characteristics and the manner of interr
iii. Req’s a showing that coercive conduct overbore defendant’s will.
iv. Primary basis was “untrustworthiness” of coerced confessions.
v. McNabb-Mallory Rule – if detained for long period of time btwn arrest and
prelim hearing, then confessions during that time not admissible
1. 3501(c) – 6hr unless otherwise proven reasonable.
2. Now have strong protections under Miranda, so rule not really used.
b. Evolution of Right to Counsel
i. Croker v. Cali (1958) – no right to counsel at state level
ii. Spano v. NY (1959) – once formally charged, right to counsel you obtain
iii. Townsend (1963) – shifts focus to circum of interrogation.
iv. Massiah (1964) – once formally charged, right to counsel attaches
v. Escobedo v. IL (1964) – “focus of investigation” gets counsel.
a. When does Miranda apply? – custodial interrogation; testimony
b. The Rights
i. Right to Remain Silent
1. Silence cannot be used against you (FN37) – not told to suspect
ii. What is said can and will be used against you
1. Ensures full understanding of adversarial setting (know consequence)
iii. Right to an Attorney – before and at interrogation (interr can easily overbear
iv. State will provide attorney if you don’t have one or cannot afford one
1. Might otherwise be understood as meaning only get your own
c. Must read D all their rights – even if they say stop
i. Can’t presume knowledge
ii. Exception – if know they have attny or wealthy enough (FN 43)
d. Warnings only have to be given if gov’t intends to use statements at trial.
e. Congress and states can exercise own rule-making to achieve protections, but have
to be “at least as effective”
i. Duckworth v. Eagan (1989) – “if and when” go to court – NOT ILLEGAL b/c
touches all req’d bases
ii. When giving rights in heat of the moment, expected might be some variation
in delivery.
f. Evoking either right causes interrogation to stop.
a. Silence is not waiver
b. Gov’t has burden to show D knowingly and intelligently waived privilege
c. State v. McKnight – encourages exploiting ignorance/stupidity to get waiver
d. Implied Waiver – waiver can be inferred from conduct
i. CT v. Barrett – ambiguous actins not suffic; desire for counsel did not serve as
invocation for all purposes.
ii. Fare v. Michael C. – request to see probation officer is not a request for
counsel b/c of special role played by counsel in adversarial process.
e. Colorado v. Spring – suspect does not need to know the subject matter of the
When Does Miranda Apply? – custodial Interrogation; testimonial evidence only
i. 2 Prongs – “feel free to leave” and coercion of police station.
ii. Objective Test – would reasonable person believe themselves to be in
1. Officer’s subjective and undisclosed views irrelevant (Stansbury)
2. Might be different if views were communicated to suspect
3. Questioning on street not custody – Terry stop, traffic stop – don’t
have the inherent coercion of police domination.
4. Diff if there are “special circumstances” – eg: gun drawn
iii. JDB v. North Carolina (2011) – age exception
1. Age should be taken into account in reasonable person determination
– can be accounted for w/o damaging subjective nature of analysis
iv. Illinois v. Perkins (1990) – PRISON INMATE
1. Placing agent w/ inmate doesn’t require Miranda warnings
2. Lacks police dominated atmosphere and compulsion
v. Howes v. Fields (2012)
1. Interviewed about something not in jail for; told he could leave
2. No Miranda Warnings req’d b/c not inherently coercive (could leave)
vi. Where is Custody triggered? (Hypo)
1. Consensual encounter – NO
2. Traffic Stop – NO
3. Invitation to station, 30min interview, told not under arrest – NO
4. Invitation, 30min, nothing about arrest – MAYBE, use totality test
5. Invitation, 5hr interr, nothing about arrest – YES
6. Taken to police station – YES
i. Rhode Island v. Innis (1980) – definition of interrogation
1. Evokes right to counsel, back of squad car; officers talking about
wanting to find gun b/c of handicapped children in area – Innis
interrupts and takes them to gun.
2. Not a Miranda Interrogation
3. Rule – express questioning or functional equivalent, that police should
know are reasonably likely to elicit an incriminating response.
4. In part depends on suspect’s personality.
ii. Arizona v. Mauro – not a Miranda violation to allow suspect to speak with
wife (also a suspect) in presence of officer and tape recorder in plain view.
1. Not likely there’d be incrim statements – no coercion or compelling
i. Related to conveying what is in one’s mind.
ii. Pennsylvania v. Muniz (1990) – Routine Booking Exception
1. First 7 Qs admissible – failure to articulate proper speech is not
testimonial – doesn’t look into mind of suspect, but is only a physical
2. 6th B-Day Question testimonial b/c could infer confused mental state
from answer
3. Statements made during field test admissible b/c Qs carefully scripted
and not intended to illicit response.
iii. Heibel (2004) – Identity is so insignif and universal, only incriminating in
unusual circum
iv. NY v. Quarles (1984) – PUBLIC SAFETY EXCEPTION
1. Statements leading to gun allowed b/c of overriding public safety
2. Still have due process protection for statements
3. (Essentially irrelevant b/c of Chavez and Patane)
Right to Remain Silent – How Applied
a. Level of Protection – Michigan v. Mosley – cease immed, but can come back later
i. Admissibility of subsequent questions depends on whether right to cut off
questioning honored
ii. 3 basic req’s: immed cease interr; signif period of time; new warnings given
iii. Here, Qs focused on crime of specific nature, time, place, occurrence diff from
that of prev. interrogation.
b. Waiver Standard – Berghuis v. Thompkins – more req’d to invoke than to waive
i. Invocation of rights must be Unambiguous – same as right to counsel
ii. Not talking is not invoking the right
iii. Answering the “god” question is waiver, b/c knowingly, intelligently, and
voluntarily answered.
Right to Counsel – How Applied
a. Level of Protection – Edwards v. Arizona –can only be subject to further questioning
if suspect initiates himself.
b. What counts as initiating further communication? – Oregon v. Bradshaw –
“willingness to discuss”
i. Back of car: “what happens to me now?”
ii. Only “generalized discussion” which means Edwards/Miranda not indicated
1. Asking for water generally not a “willingness to talk”
iii. 2 steps: initiates convo (repudiates right to counsel and takes back to ground
zero), then must waive rights.
iv. Case estab. a broad standard for “willingness to discuss”
c. Asserting the Right – Davis v. US (1994)
i. Must unambiguously request counsel
ii. If suspect only hints at a lawyer, the prosecutor can back off the ledge
(consider in re State v. McKnight)
d. Not Crime Specific – Arizona v. Roberson – after evoking right, cannot be interr about
other crime
i. Concern w/ coercion extends to any questions, not just about that crime.
e. Minnick v. Mississippi – protection continues after initial consultation w/ lawyer;
lawyer gets to be there for everything.
f. Maryland v. Shatzer (2010) – break in custody ends evocation of Miranda
i. Bright Line Rule – 14 days
ii. Can occur in prison population.
Remedies – a lot narrower than normal Const violations
a. No Fruit of the Poisonous Tree Doctrine – Oregon v. Elstad
i. Arrested/questioned at home w/ no Miranda; taken to jail, given Miranda
ii. First confession is a clear Miranda violation
iii. No Suppression for second statement – warnings properly given
b. Suppression of Subsequent Statements -- Missouri v. Seibert (2004)
i. Gets confession w/o Miranda, leaves room for 30-40min, returns and gives
Miranda, confronted w previously made incrim statement
ii. Suppresses confession b/c midstream warning did not comply w/ Const req
iii. Focus is on officer’s intent and whether warnings could effectively function.
iv. Considerations – essentially, is it the same questioning?
1. Completeness fo first round of questioning
2. Overlapping Nature of questions
3. Time/Setting
4. Continuity of personnel
5. Degree to which questions the same.
v. This is the current guidance for “2 Step” remedy
1. If try to take advantage of Elstad, then breach Siebert
2. Focus is on intent of officers.
3. If intent is to circumvent, then look at effectiveness of warnings.
c. Chavez v. Martinez (2003) – only get suppression/Miranda only violated when seek
to use statements at trial
i. Charges not filed, so no Miranda violation
ii. Also no due process issue – ceased Qs when doctors were working.
d. US v. Patane (2004) – non-testimonial evidence
i. No Miranda given, questioned about handgun - NO EXCLUSION
e. Effect of Chavez + Patane
i. If invokes right, can keep questioning, but cannot use statements – only use
physical evidence (as long as no due process violation)
ii. Will use depending on need for physical v. testimonial evidence.
f. Exception –can be used at trial to impeach witness – Harris v. NY.
Due Process voluntariness test
a. Most interrogation techniques (eg: trickery) still valid after Miranda
b. Miller v. Fenton (3d Cir 1986)
i. Statements Voluntary if will was not overborne, consid totality of circum
ii. Lies must be analyzed in context to determ how manipulative.
iii. Most courts – cannot outright lie, but can stretch/pretend – appeal to religion
c. State v. Cayward – cannot falsify docs
d. Arizona v. Fulminante (1991) – promise to protect prisoner deemed coercion
e. Colorado v. Connelly (1986) – Coercive police action necessary for involuntary; D’s
state of mind is not alone sufficient
f. Salivian v. Texas (2013) – Can uses silence against suspect during non-custodial
interrogation – diff if invoked Miranda (Oakton)
g. Commonwealth v. Mahnke (Mass 1975) – Rules apply to interr by private citizens
Historical Progression
a. Powell v. AL (1932) – “such as this”; extreme facts of case warranted counsel
b. Johnson v. Zerbst (1938) – guaranteed right to appointed counsel for federal D
c. Betts v. Brady (1942) – states only req’d to appoint counsel when would otherwise
be “fundamentally unfair”
d. Bute v. IL – flat req for capital cases; incl. arraignment (Hamilton v. AL)
Gideon v. Wainwright (1963)
a. Abandons capital/non-capital distinction for appointed counsel in felony cases.
Extending Gideon
a. Argersinger v. Hamlin (1972) – removes felony/misdemeanor line – if subject to jail,
all cases get counsel
b. Scott v. IL (1979) – must have actual imprisonment for counsel; not suffic that it
“may” be imposed
c. AL v. Shelton (2002) – suspended prison term req’s counsel – if prison triggered,
jailed for underlying offense, not for violating probation.
d. Nichols v. US (1994) – uncounseled conviction in 1 case can be used in 2d case, even
if jail imposed in 2d case.
Delivery Systems
a. 1964 Criminal Justice Act – fed dist cts have to adopt local plan which must incl.
appointment of private attny; also allowed for alternative systems to be incl.
b. States vary – choice made by group providing funding, not courts
Indigence – most juris have legislation/court rules setting (financial) standards
a. ABA Standard – only when used fraud to get attny
b. Fuller v. OR (1974) – upheld recoupment statute auth repayment on condition of
probation, but only for those who could repay.
c. James v. Strange (1972) – statute mandating recoupment invalid
When Does the Right Attach?
a. Rothgery v. Gillespie County (2008)
i. Right attaches w/ “initiation of adversarial judicial criminal proceedings,”
determ by when gov’t commits self to prosecute and suspect finds self faced
with prosecutorial forces.
ii. Counsel must be appointed w/in reasonable time after that moment
iii. Here, 15.17 hearing that moment – determ PC, set bail, informed of charges
iv. Req’d that attny be present if it is a “critical stage”
b. Estelle v. Smith (1981) – have right to meet w/ counsel before submitting to psych
exam – considered a “critical stage”
i. Must be confronted w/ need to make “decision req distinctively legal advice
OR need to defend self against prosecution”
ii. Doesn’t address whether counsel can be present during psych exam
c. Hurnell-Harring v. NY (NY 2010) – time btwn arraignment and trial is “critical”
d. In practice – most states have statutory line for early attachment
Runs parallel to Miranda, some overlap
a. Trigger
i. Miranda – custodial interrogation
ii. Massiah – beginning of judicial proceedings
b. Remedies
i. Miranda – only get suppression if seek to use at trial; no fruit and no physical
evidence suppression
ii. Massiah – normal 4th/5th Am remedies
c. Crime Specific
i. Miranda – Not Crime Specific (Arizona v. Roberson)
ii. Massiah – Crime specific (Texas v. Cobb)
d. Waiver/Invocation
i. Miranda – implied waiver
ii. Massiah – follows Miranda
Brewer v. Williams (Williams I) (1977)
a. “Christian burial speech” – conversation in police car deprived W of right to counsel
b. Massiah is triggered by beginning of judicial proceedings (Rothgery)
c. 6th Am test for interrogation – deliberately elicit incrim info (happened here)
Fellers v. US – underscores diff btwn interrogation (Miranda) and deliberate elicitation
a. SCT assumed that fruit doctrine applies to Massiah
Waiver – Patterson v. IL (1988) – waiver standard for Massiah is the same as that for
a. 2013 – standard is Burghuis (most be unambiguous; not talking is not invoking
rights) changed Miranda standard – presumably changes Massiah
b. Invocation must be unambiguous; knowingly, intelligently, and voluntarily
answering is considered waiver
Maine v. Moulton (1985)
a. Statement about killing witness not excluded b/c no judicial proceeding for that
charge initiated; Massiah is crime specific
Informants – passive v. action
a. Miranda – jail house snitch not coercion
b. US v. Henry (1980) – undercover cannot stimulate convo; Massiah violation
c. Kuhlmann v. Wilson (1986) – No Suppression if informant does nothing to stimulate
Closely Related Offenses – Texas v. Cobb (2001)
a. Massiah right is crime specific
b. 6th Am is offense specific and cannot be invoked once and for all for future
proceedings (McNeil v. Wisconsin)
c. Uses Blockburger double jeopardy test to determ if same offense/crime – “related” if
same crime, plus element (diff elements, diff crimes)
Ultimate Rule
a. Only post-indictment line-up gets counsel (not post-indictment photo array)
b. Nothing pre-indictment gets counsel
c. Right to have counsel present is only the right to be there
d. Due Process applies to all phases
Fruit Doctrine – if ID completely clean, no suppression
a. If pre-trial ID is bad, but can show in court ID is based on original ID, then it is good
b. Courts easily find independent course
c. Self-incrim does not apply b/c it is not testimonial (physical characteristics)
i. P may comment on refusal to cooperate, and can use contempt to force it
US v. Wade (1967)
a. Rule – any post-indictment line-up, suspect has right to counsel and counsel can be
there b/c it is a “critical stage” – only get counsel when in-person
b. Reasons counsel allowed to be there:
i. Degree of suggestion inherent in manner in which prosecution presents
suspects to witness (either intentionally or unintentionally)
ii. Ensures counsel knows what happened so can mount a defense in court if
Hayes v. FL – no 4th Am violation when person lawfully in custody and ordered into lineup for a diff crime, even when have no PC
Kirby v. IL (1972) – refused to apply Wade to pre-indictment show-up
a. Judicial proceedings not yet initiated
b. No custodial Interrogation
US v. Ash (1973) – Wade does not apply to post-indictment photo ID
a. Accused not present at ID, and did not request to be there, no possibility might be
misled by officers or overpowerd
b. Policy – extending Wade would have opened door to extending it to wide array of
other pre-trial phases, even though may be just as “critical”
Due Process Test (Stovall-Brathwaite) – difficult burden to meet
a. Req’s
i. Was procedure unnecessarily or impermissibly suggestive?
ii. Then consider reliability
iii. Perry adds: “arranged by law enforcement”
b. Stoval v. Deno (1967) – Unnecessarily Suggestive
i. In hospital ID, only black guy in room and handcuffed topolice
ii. Violates Due Process if “so impermissibly suggestive as to give rise to very
substantial likelihood of misidentification”
iii. Totality of Circumstances Test
c. Manson v. Brathwaite (1977) – Reliability
i. Purchased heroin through doorway; 2day later, single photo ID
ii. No per se exclusion for suggestive procedure – must be unnecessarily
suggestive: okay if reason for procedure, exigent circum, nothing culpable
1. Prejudice Prong – also have in IAC, fruit doctrine, exclusionary rule,
iii. Pick totality of circum over per se rule b/c:
1. Per se excludes reliable evidence, making error more likely
2. Totality just as good in influencing police behavior
iv. Reliability Factors
1. Chance to view suspect, at time of crime
2. Level of attention paid (to features)
3. Accuracy of description
4. Level of certainty
5. Amount of time btwn crime and confrontation/ID
6. Urgency/coercion
d. Perry v. New Hampshire (2012)
i. Improper police action req’d for suppression of out-of-court ID
ii. External suggestion not the only factor that casts doubt on trustworthiness –
passage of time, stress during encounter, time to observe suspect, presence
of weapon, distance, relative race
iii. Seems to suggest necessary level of police involvement is INTENT
IAC leads to chance for new trial; right to counsel does not exist for appeals
Cuyler v. Sullivan (1980) – ends distinction btwn retained and appointed counsel\
Strickland v. Washington (1984)
a. Failure to investigate was not IAC
b. 2 part test
i. Deficient performance
1. Objectively reasonable at time of counsel’s conduct
2. Professionally reasonable judgment (“reasonably effective”)
3. Presumption of adequate assistance
4. Detailed guidelines not determinative.
ii. Prejudice
1. Reasonable probability that but for inapprop conduct, outcome would
have been different; fact specific analysis
2. Rooted in test for materiality
3. Weakly supported verdict more likely to have been affected by error
c. In duty to investigate, choices made after less than complete investigation are
reasonable to extent reasonable professional judgments support limitations on
Wiggins v. Smith (2003) – not concentration on “difficult life” and “clean record” not
reasonable in light of inadequacy of investigation; were due to inattention.
Reasonableness and Attorney Practice – Prong 1
a. Professional norms/statements of practices are only guides
b. Bobby v. Van Hook (2009) – role of Court, not ABA to determine what attny must do
in a capital case
c. Padilla v. KY (2010) – described 2 sets of standards as reflecting “prevailing
professional norms”
Prejudice – Prong 2
a. Kinnelman v. Morrison (1986) – prong should be read in light of 6th Am objectives
b. Lockhart v. Fretwell (1993) – req’s more than simply looking to whether diff result
would have been reached
Constructive Denial of Counsel – Bell v. Cone (2002)
a. Absence at critical proceeding or lack of effort so extensive as to produce “complete
failure” of representation
VIII. Plea Agreements – Laffer v. Cooper (2012)
a. Plea stage receives normal IAC analysis – 6th Am req’s effective assistance at critical
pre-trial stages
b. For acceptance of plea – but for errors would not have pleaded
c. For rejection – plea would have been less severe than trial outcome.
Advantageous where investigators must gain assistance of victims/witnesses reluctant
to cooperate, complex crimes, or keep investigation from public eye
a. Subpoena ad testificandum – appear/testify
i. Can issue w/o judge’s approval
ii. Supported by authority to hold in contempt of court and made under oath
b. Subpoena duces tecum – produce documents
i. Can issue w/o judge’s approval
iii. Useful where using warrant would be impractical – lots of docs, mult location
c. Immunity Grants
d. Secrecy Req’s
e. Have public confidence
Initial Approach – Boyd v. US (1886) – overruled
a. Req to pay import tax; not complying a confession of guilt, and must pay/forfeit
b. Compulsory production of ledger the equiv of search, b/c had same objective
4th Am Limits on Subpoena Power
a. Can usually negotiate the scope of the subpoena
b. Subpoena to appear before GJ not a “seizure” – not kind of intrusion sought to be
protected by the 4th Am
c. Overbreadth Doctrine – Hale v. Henkel (1906)
i. Docs requested too broad – hard to see how corp could continue business
after being denied such mass of materials
ii. Production may eventually be req’d of all docs, but need to show some
iii. Application req’s specific factual analysis – exam scope in light of 3 criteria:
1. Commands on production of docs relevant to investigation
2. Specifies docs w/ reasonable particularity
3. Reasonable period of Time
iv. “Particularity” not really about particularity, but about necessity of docs
d. Third Party Objections – US v. Miller
i. Target of investigation may not raise 4th Am objection when not subject of
subpoena – fed standard. Req’d to turn docs over b/c
1. Not a confidential communication (would be diff if had attny-client)
2. Info on docs voluntarily written
3. Docs voluntarily conveyed to 3d party
ii. Some states have not applied Miller (giving 3d party full standing); and other
states have only applied it to certain types of records (non-personal info)
e. US v. Calandra – in deciding to extend Exclusionary Rule to GJ, must weigh potential
injury to historic role and function of GJ against potential benefits of rule
5 Am Limits
a. Compelling Testimony – US v. Dionision (1973)
i. Voice exemplar not a 5th Am violation - physical characteristic, as opposed to
content voluntarily exposed to public
ii. Other ID procedures:
1. Line-ups: allowed, but some courts req GJ approval
2. Blood Sample – usually need special showing.
b. Testimonial – cannot force D to give up contents of his mind.
i. Not testimonial – blood draw, voice exemplar, signing name, reading script
c. Act of Production Doctrine
i. Producing evidence has communicative elements, indep of contents of docs
1. Existence – incrim that docs exist
2. Possession – incrim that docs in your control
3. Authenticity – incrim that you know what docs are
ii. Fisher v. US (1976)
1. Summons to atty to produce tax docs given over by client Enforceable
2. Doesn’t require client to do anything
3. Docs voluntarily written down, so no compulsion
4. Docs/transfer to attny not immune by privielege
5. Already know what the docs are and who has them, so attny not req’d
to use anything in their mind to find them
6. “Already written down” rationale prob includes diary.
iii. US v. Doe (1984)
1. Cannot avoid compliance by asserting writing is incirm b/c writing
was Not Compelled
iv. Production by an Entity – Braswell v. US (1988)
1. Custodian of corp holds docs in representative capacity, thus
production not a personal act
2. Might be diff if D held a prominent position in the corp
v. Act of Production Immunity
1. Does not necessarily extend to contents of docs
vi. Authentication/Foregone Conclusion Doctrine
1. Fisher – applies to implicit existence/admitting possession
2. Doe I – extends to authentication
3. Rationale – not incrim b/c already has the evidence/know what it is
Non-Documentary Production
i. Bouknight – cannot claim privilege based on what exam of son might reveal
(not testimonial)
ii. US v. Hubbell (2000) – 5th Am protects against being compelled to disclose
existence of incrim docs gov’t cannot describe w/ reasonable particularity.
1. Would require use of own mind
iii. How Much Particularity is Needed?
1. US v. Ponds – docs related to payment of legal fees okay
2. Fisher – gov’t knew tax returns in attny’s possession
iv. Encryption – Grand Jury Subpoena Dated Mar 25 (11th Cir 2012)
1. Unencrypting files testimonial b/c req’s use of contents of mind
2. Not foregone conclusion b/c cant show Doe had access to files or that
files were actually on hard drive.
3. Disting from In re Boucher – didn’t know contents, but knew that files
under that name existed
Incriminating Testimony
i. Tests – when can 5th Am successfully be asserted:
1. Real and substantial danger of incrimination
2. Reasonable cause to apprehend danger of incrim
3. Suspect has good reason to think answer will provide gov’t with what
it needs to convict (“link in the chain”)
ii. Hoffman v. US (1951)
1. Relied on Privilege to refuse to answer Qs about current occupation in
racketeering investigation
2. Privilege extends to answers which furnish link in chain of evidence
needed to prosecute
3. Need only be evident implication of Q in setting in which it is asked,
that response or explanation of why can’t respond MIGHT BE
dangerous – rare case
iii. Also extends to the production of physical evidence
i. If waive privilege, need to keep talking about crime (eg: details)
1. Rogers v. US – disclosure of incrim fact waives privilege as to details
ii. If about different offense, need different wiaver
iii. Fed and most states – 5th Am only a refusal to answer, not a prohib against
any inquiry (have to show, but can opt not to answer)
Entity Exception
i. Hale v. Henkel –self incrim not avail to corporation b/c it is a personal right
ii. Does get 4th Am protection though (see Braswell above)
iii. US v. White (1944) – extended Hale to other entities
iv. Bellis – applies if group exhibits persona as well as group interests (law firm)
Required Records Exception – Shapiro v. US (1948) – business records must be
turned over if:
i. Records are essentially regulatory in nature
ii. Records must be of the kind which regulated party customarily keeps
iii. Must have assumed some public aspects