A. INCORPORATION AND RETROACTIVITY
Incorporation
 A right guaranteed by the Sixth Amendment which is fundamental to the
American scheme of justice applies to the states through the Fourteenth
Amendment (Duncan)
o A right is fundamental if it is implicit in the concept of ordered
liberty…selective incorporation
 Implicit in the concept of ordered liberty…without said right, one
could not have a fair criminal justice process
 It is very debatable as to which rights fall under this fundamental
fairness approach
o The right to an indictment by grand jury and the right to bail that is not
excessive are the only two criminal procedural rights NOT incorporated
 Rights to a speedy trial and a jury trial are incorporated
Retroactivity
 The benefit of a new rule is always given to the litigant who establishes it, even
though that constitutes retroactive application. The SC has done so for two reasons:
(1) to provide litigants with incentives to improve past decisions of the Court, because
few litigants would ask the Court to establish a new rule that they could not use; and
(2) to assure that there is a concrete case or controversy before the Court.
 In general, new constitutional rules are not retroactively applicable to cases on
collateral review. (Teague)
o Collateral review exception
 Applies only when the likelihood of an accurate conviction is
seriously diminished by not considering the new constitutional
measure
 Really will only apply in watershed moments in criminal
procedure
o Very, very infrequent
B. FOURTH AMENDMENT
 Searches and seizures are deemed unreasonable and presumptively
unconstitutional when done without a warrant
 Fourth Amendment is silent with regards to remedy
o However, violation of the Fourth Amendment leads to the exclusion of
unconstitutionally obtained evidence…exclusionary rule
 Government activity must be reasonable under the Fourth Amendment only if it is
deemed either a “search” or “seizure”
The Reasonable Expectation Test
 Katz
o Two-pronged test
 (1) the government conduct must offend the citizen’s subjective
manifestation of a privacy interest
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(2) the privacy interest invaded must be one that society is prepared to
accept as “reasonable” or “legitimate”
o “the Fourth Amendment protects people and not places”
o if both prongs are satisfied then the government has committed a search
(and if unreasonable [without a warrant or otherwise] it is a violation of
the Fourth Amendment)
Interests Protected by the 4th after Katz
 Searches threaten privacy interests, and seizures threaten property interests
o It is easier to figure out what a seizure is as opposed to what a search is
Applications of the Katz Principle
 Open fields doctrine
o open fields are not protected by the Fourth Amendment
 not going to be a case-by-case analysis, but instead a bright line
rule because police officers need clear guidance when engaged in
their duties
 Access by members of the public…public-access-therefore-police access
o Consensual electric surveillance
o Financial records
o Trash
o Manipulation of bag in public transit
 A law enforcement officer’s physical manipulation of a bus
passenger’s carry-on luggage violates the Fourth Amendment’s
proscription against unreasonable searches. (Bond)
 Distinguished from air travel
 Canine sniffs
o Canine sniffs of closed luggage for drugs are not searches (Place)
 not a search because
 there is no reasonable expectation of privacy in
contraband/illegal activity, and
 the dog sniff does not expose non-contraband
o If a dog positively alerts, this constitutes legally obtained information that
can be brought to a Magistrate in an attempt to obtain a warrant
 Luggage may be seized for a limited amount of time
 Use of technology to enhance inspection
o Where the government uses a device that is not in general public use to
explore details of the home that previously have been unknowable without
physical intrusion, the surveillance is a “search” and presumptively
unreasonable without a warrant. (Kyllo)
 Significance of “the home”
 Reopening permitted (Jacobsen)
o if an initial intrusion (at least into a container) is not covered by the 4th, a later
intrusion by police officers to the same extent is also free from 4th constraints
The tension between the reasonableness and the warrant clauses
The importance of the warrant clause generally
 A search and seizure in some circumstances is PRESUMED to be
unconstitutional if no prior warrant is obtained, but in many other
circumstances the prior warrant is unnecessary to justify a search or seizure
 The 4th requires that police officers obtain a warrant from neutral and detached
magistrate before searching a person’s living quarters. (Johnson)
o The natural magistrate is to decide whether the probable cause and
specificity requirements have been satisfied
 Used to ferret out competition between police and suspects
Obtaining a search warrant: constitutional prerequisites
 There is no clear definition for probable cause
 Aguilar-Spinelli Test…Two-prong test for determining whether hearsay
information provides the probable cause needed to make an arrest
o (1) Reliability of the informant
 reliable…police officers and law abiding citizens
 however, these citizens are often not the best sources of
criminal activity
 criminals or former criminals are reliable if they have a good track
record of providing information to police or they make declarations
against their own interest
o (2) Credibility (Reliability) of the information
 reliable…informant makes direct statement of personal knowledge
constitutes probable cause
 reliable…a statement containing such a wealth of detail that personal
knowledge is inferred and can create an inference of probable cause
o Both prongs are independent and must both be satisfied
 Determines the level of suspicion needed by police to invade our
privacy
o A defect in one or both prongs can be remedied by independent
corroboration of substantial or of suspicious facts
 In hearsay contexts
o Fairly tough standard
o Court formally overrules this test in the Gates case
 Gates is a much more permissive test, so courts still refer to the AS as a first threshold
 Gates…A magistrate may issue a search warrant if the “totality of the
circumstances” presented in the affidavit indicates probable cause for the
search, even if the “veracity” and “basis of knowledge” factor of the twopronged test of Aguilar and Spinelli cannot be satisfied.
o Probable cause is more of a common sense determination
 A-S was deemed to be too rigid
o Gates makes the warrant requirement easier in two areas
 (1) When one of the two prongs was not satisfied or is weaker than the
other
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(2) when the tip is insufficient on its own to establish probable cause,
but the information is corroboration
 Gates says the minimal corroboration is sufficient
o Four factors of Gates “totality of the circumstances” test:
 (1) the nature of the information;
 (2) whether there has been an opportunity for the police to see or hear
the matter reported;
 (3) the veracity and the basis of knowledge of the informant;
 (4) whether there has been any independent verification of the matters
reported though police investigation
Pringle… The passenger of a vehicle, even if separated from the drugs, has sufficient
constructive possession of drugs located in the vehicle to give rise to probable cause
for the passenger’s arrest
Devonpeck… An arrest does not violate the 4th when a police officer has probable
cause to make the arrest, even if the offense is not closely related to the offense
articulated by the officer at the time of the arrest
o There is no requirement for the offense for which you being held to be
“closely related” to the offense for which you were arrested
 There is a probable cause requirement for arrests.
 As long as there is probable cause for the reason D is being held, then
the arrest is lawful.
o The Court also says this result is good public policy
 If the “closely related” rule applied, then police would never tell
people why they were being arrested
The Warrant Clause: Probable cause
Probable Cause, Specificity and Reasonableness
 Warren, Zurcher, and Andresen seem to give police significant leeway
o Warren…abolishes “mere evidence” rule
o Zurcher…abolishes distinction between suspects and third parties
 The critical elements in a reasonable search is not that the owner
of the property is suspected of crime but that there is reasonable
cause to believe that the specific ‘things’ to be searched for and
seized are located on the property to which entry is sought.”
 Also, technology seems to expand this leeway considering that given
certain CSI techniques, “evidence” can be found almost anywhere
o Andresen… evidence of crimes which relate to or are relevant to proving the
crime under which a warrant is issued may be validly seized under the
warrant.
 Catch-all phrase in warrant deemed okay
 General warrants deemed okay
Executing the warrant
 The knock and announce requirement
o the announcement rule is not a rigid constitutional requirement, but
rather a component of the 4th ‘s reasonableness inquiry (Wilson)
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“Refused admittance”
o an officer can break open premises if he has announced his authority and
purpose and is refused admittance
Exceptions to the notice rule
o No “breaking”
o Emergency circumstances (Richards)
o No-knock warrants
o No-knock entries and destruction of property
Exigent circumstances after knocking
o Exigent circumstances can allow a police to break a door after knocking
Does the violation of the knock and announce requirement justify exclusion of
evidence?
o In Hudson, the SC held that a violation of the knock and announce
requirement does not justify exclusion of evidence found in the subsequent
search of the premises
The Screening Magistrate
Legal training
 Shadwick: issuers of warrants do not need legal training
 the issuer must only be neutral and detached and competent enough so as the
common sense to determine probable cause
To Apply or Not Apply the Warrant Clause
Exceptions to the warrant requirement
(1) Arrests
 Officials may make valid arrests based on probable cause without a warrant.
(Watson)
o Arrest warrants generally are required only in the absence of hot pursuit and
when the arrest is to be made in the suspect’s home. Warrantless arrests,
therefore, are the rule rather than the exception.
 Note on the use of excessive force in making an arrest
o Garner: SC held that under the 4th, deadly force may not be used to prevent
the escape of a felon unless it is necessary to prevent the escape AND the
officer has probable cause to believe that the suspect posses a significant
threat of causing death or serious physical injury to the officer or others.
 Use these factors for deadly force analysis
o Graham (after Garner): all claims of excessive force in the making of an
arrest (whether deadly or not) are to be governed by 4th standards of
reasonableness.
 Use these factors for non-deadly force analysis
 Relevant factors:
 Severity of the crime at issue, whether the suspect possesses
an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to
evade arrest by flight
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High-speed chases: (Scott)
o SC held a law enforcement official can, consistent with the 4th, attempt to stop
a fleeing motorist from continuing a public-endangering flight by ramming
them motorist’s car from behind
 Consider number of lives put at risk by D and their relative culpability
o A police officer’s attempt to terminate a dangerous high-speed car chase
that threatens the lives of innocent bystanders does not violate the 4th,
even when it places the fleeing motorist at the risk of serious harm.”
o Remember: 4th amendment does not require someone to take the best
possible measure in using force, it requires only that the police act reasonably
For an warrantless arrest, states must provide a judicial hearing on probable cause
within 48 hours of an arrest. (McLaughlin).
o Balancing test…trying to determine what’s reasonable
 Government interests
 Public safety
 Individual interests
 Not been held without a warrant or probable cause
o Courts have found that evidence can only be excluded if it was obtained as a
result of an unreasonable detention. Thus, exclusion is not required if the
magistrate would have found probable cause for the detention even if the
hearing had been promptly conducted.
o And exclusion would not be required if the evidence was obtained outside the
context of an unreasonably lengthy detention.
Arrests in the home (as opposed to in public, where Watson applies)
o In Payton, SC held that the exception to the warrant requirement for public
arrests did not extend to arrests in the home
Arrests in the home of a third party
o Steagald: SC concluded that a search warrant must be obtained to look for a
suspect in the home of a third party, absent exigent circumstances or consent.
 Again, the difference between an arrest warrant and a search
warrant in this context is that the arrest warrant only requires the
magistrate’s determination that there is probable cause to arrest a
person it is not specific to location. A search warrant would
require a magistrate to determine that there is probable cause to
believe that the suspect is location in the home of third party.
 If the requirement was only an arrest warrant, police
would be able to go anywhere they please in order to arrest
a given suspect
(2) Stop and Frisk
 Terry
o Police can stop someone when there is reasonable suspicion that criminal
activity is afoot, and they can frisk the person they stopped when they
have reasonable suspicion that the person they stopped is armed and
dangerous
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The sole justification of the frisk is to protect the police officer and
others around
 Officer safety v. individual rights balancing test
 To be asked to get out of the car is a de minimis intrusion once
you have already been stopped
 It is debatable whether officers are safer when the apprehended
get out of the car as opposed to when they stay in the car
o 2 reasons Terry is important
 (1) emergence of the reasonableness test
 (2) Terry governs many of the unpleasant interactions that people have
with police
Reasonable cause for a stop and frisk can be based on information supplied by
another person, rather than just personal observation (Williams)
The SC held that officers in the course of a legal stop of an automobile have an
automatic right under Terry to order the driver out of the vehicle (Mimms)
Summers: SC held that police officers with a search warrant for a home can require
occupants of the premises, even if leaving when the police arrive, to remain while the
search warrant is executed
When does a seizure occur? The line between “stop” and “encounter”
o Two kinds of seizures we have discussed?
 Arrests…Watson
 Stops…Terry
o The Mendenhall “Free to Leave” test
 DEFINITION OF A SEIZURE: A person has been “seized” within
the meaning of the 4th only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave.
 Examples of circumstances that might indicate a seizure, even
where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a weapon or
the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.
o Applying the “Free to Leave” test: (Royer)
 Police have the right to question WITHOUT reasonable suspicion
 This is an ENCOUNTER, not a stop
 because people like the police, they can use encounters to gather
information without reasonable suspicion
 they cannot use their power to coerce without reasonable
suspicion
o Factory sweeps: INS v. Delgado
 SC held that INS officer did not seize workers when they conducted
factory surveys in search of illegal aliens
 SC thought reasonable people here would have felt free to
leave
 Police questioning, in and of itself, is not likely to be determined a
seizure
o Can failure to cooperate lead to reasonable suspicion to justify a stop?
 it is true that the Court in Royer stated that the failure to
cooperate in a consensual encounter cannot be treated as
suspicious conduct that would justify a Terry stop
o Street encounters… Cardoza (1st Cir.)
 The court also held that the test for a Terry stop is not really whether a
reasonable person would feel free to leave, but rather whether the
police officer was acting coercively
 This description of the test seems more realistic, and
appear to track the case law
o Bus sweeps
 Bostick
 O’Connor’s test
o If a reasonable person would feel free to decline the
encounter than it is not a seizure
 Mendenhall is still good, just
modified/supplemented
 Drayton
 Law enforcement officers do not violate the Fourth
Amendment prohibition of unreasonable searches merely by
approaching individuals on the street or in other public places
and putting questions to them if they are willing to listen.
 Court does not want to produce a rule saying that police have
to announce peoples’ right to refuse questioning and their
freedom to leave as doing so would defeat the purpose of
questioning
o The suspect who does not submit: (Hodari D.)
 Where the officer engages in a non-physical show of authority, it must
be such that a reasonable person would not feel free to leave, and the
citizen must actually submit…seizure
 Scalia looks at common law and distinguishes between seizures
with physical shows of authority and those with non-physical
shows of authority
o Physical restraint….you have been seized
o Non-physical restraint…not seized until you submit
Reasonable suspicion
 Source of information
o Anonymous Tips: (White)
 an anonymous informant’s tip that was “significantly corroborated” by
a police officer’s investigation provided reasonable suspicion for a
stop.
 Reasonable suspicion is less stringent than probable cause
 Reasonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable
suspicion can be established with information that is
different in quantity or content than that required to
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establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
 Reasonable suspicion is considered within the totality of the
circumstances
o Anonymous tips concerning gun possession (J.L.)
 An anonymous tip that a person carrying a gun is not sufficient to
justify a police officer’s stop and frisk of that person.
 While an accurate description of a subject’s readily observable
location and appearance is reliable in helping the police to identify the
person the tipster means to accuse, it does not show that the tipster has
knowledge of concealed criminal activity. Florida (P) also argued that
there should be a “firearm exception” to the standard Terry analysis.
The Court declines to accept this proposition.
 Problems with the tip
 No predicative information provided
 No means to verify the tip
 However, the Court notes that the greater the potential danger,
the lower the amount of reasonable suspicion needed to make a
stop
The most important difference between reasonable suspicion and probable cause is
that reasonable suspicion is a less demanding standard of proof – a stop that is
permissible upon something less than the fair probability standard that defines
probable cause. Some courts have defined reasonable suspicion as a fair possibility
(as opposed to probability) of criminal activity. It is appropriate to think of
reasonable suspicion as “possible cause.”
Assessment of probabilities (Arivzu)
o Although separate acts of a suspect may be innocent in themselves, under
the totality of the circumstances test, when taken together, they may
reasonably constitute grounds for a search.
 Aggregating the factors (all of which alone may be innocent) can
produce reasonable suspicion
o For example, it is quite reasonable that a driver’s slowing down, stiffening of
posture, and failure to acknowledge a sighted law enforcement officer might
well be unremarkable in one instances (such as a busy SF highway) while
quite unusual in another (such as a remote portion of rural SE AZ). Officer
Stoddard was entitled to make an assessment of the situation in light of his
specialized training and familiarity with the customs of the area’s inhabitants.
Use of profiles
o A profile is a list of characteristics compiled by a law enforcement agency,
which have been found through experience to be common characteristics of
those engaged in a certain type of activity
Reasonable suspicion and flight from police
o Wardlow
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SC held that officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances
are sufficiently suspicious to warrant further investigation
 SC held that there was reasonable suspicion for the stop
o The D’s flight plus the high crime nature of the
neighborhood provided reasonable suspicion
 Handling flight – wherever it occurs – is the consummate act of
evasion: it is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such
 Common sense
Limited searches for police protection under the Terry doctrine
o One obvious concern is that an officer may use the Terry frisk doctrine as
a pretext to search for evidence of a crime.
o Dickerson: SC reaffirmed the principle that Terry frisks are justified only for
protective purposes and that a search for evidence is not permitted under Terry
o Protective searches beyond the suspect’s person (Long)
 Terry permits a limited examination of an area from which a person,
who police reasonably believe is dangerous, might gain control of a
weapon.
 You can search one’s “grab area”
 Thus while the doctrine is called “stop and frisk,” Long permits a
protective search beyond the suspect’s person
 E.g., his automobile, etc
 After Long the more accurate description of Terry is “stop and
protective search”
o Protective sweeps: (Buie)
 The SC considered the legality of a “protective sweep,” which it
defined as a “quick and limited search of a premises, incident to
an arrest and conducted to protect the safety of police officers or
others.”
Brief and limited detentions: the line between “stop” and “arrest”
o Terry allows a stop upon a standard of proof less than probable cause, in part
because a stop is less intrusive than an arrest. But it is often difficult to
determine when a intrusion cross over from a stop to an arrest requiring
probable cause.
o Forced movement of the suspect to a custodial area
 Royer: Some forced movements of a suspect might be justifiable
during a Terry stop; however, probable cause is required if the
officer forces the suspect to move in order to further the
investigation or to place more pressure on the suspect
 Royer: SC held that an officer can, within the confines of a Terry stop,
force the suspect to move for purposes of safety and security.
 Or for witness identification purposes
o Investigative techniques that are permissible within the confines of a
Terry stop
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The purpose of a Terry stop is to permit an officer to investigate the
facts on which reasonable suspicion is based, in order to determine
whether the suspect is involved in criminal activity. It therefore
follows that some preliminary investigation, designed to clear up or
develop reasonable suspicion, is permissible within the confines of a
stop. However, probable cause will be required if the officers are
using the stop for some purpose beyond that which justified the stop.
 Criminalizing the refusal to provide identification during a Terry
stop: Hibel v. Sixth Judicial District Court of Nevada
 SC upheld conviction and stressed that an officer has a
right to demand identification as part of an investigation
during a Terry stop
Detention of property under Terry
o Van Leeuwen: SC held that some detentions of property could occur upon
reasonable suspicion.
 Detention must be done for a reasonable amount of time
 Under Terry, the police can seize the package but must develop
probable cause in order to search it
Application of the Terry reasonable test outside the stop and frisk contest
o A search may be proper pursuant to a condition of probation whether the
purpose of the search is to monitor the probationer or to serve some other law
enforcement purpose. (Knight)
o Suspicionless searches of parolees found reasonable: (Samson)
 SC held that a condition of a parolee’s release can so diminish or
eliminate his reasonable expectation of privacy that a suspicionless
search by a law enforcement officer would be permissible under
the Fourth Amendment
Applying racial considerations to Terry
o Is it constitutional for police to pay more attention to you because of your
race?
 No definitive ruling by the US SC
 Majority rule (in most Js of the US)
 You can take race as a factor considered within the totality
of the circumstances
 Weaver rule
o Facts are not to be ignored simply because they may be
unpleasant … Race when coupled with other factors is
lawful factor in the decision to approach and ultimately
detain a suspect. We wish it were otherwise, but we
take the facts as they are presented to us, not as we
would like them to be.
 SC seems to hint acceptance of this rule, though the have
never accepted a case directly on this matter
 “racial incongruity”
o profiling of white people in ghettoes, etc.
 or profiling of blacks in affluent neighborhoods
o Views on racial profiling as public policy
 (1) It’s irrational and ineffective
 Butler
 (2) It rational and effective
 Police in Goldberg article
 (3) It’s rational, but immoral and should not be used
 Kennedy
 (4) Racial profiling should be used for terrorism, but not ordinary
domestic crimes
 Turley
(3) Search incident to arrest
 Spatial limitations
o A search incident to a lawful arrest is limited to the suspect’s person and the
area within which he could reach for a weapon or evidence. (Chimel)
 The rule: the police can search the grab area
 Purposes of the search of the grab area
o Maintain the officer’s safety
o Prevent destruction of the evidence
 This is a per se rule. It is an automatic power that the
police have.
o Protective sweep after an arrest
 Even in the absence of exigent circumstances, police may have the
authority, pursuant to the Terry doctrine, to search beyond the Chimel
spatial limitations in order to conduct a “protective sweep” of the place
where the arrest is made.
 In Buie, the Court defined a “protective sweep” as a “quick and
limited search of a premises, incident to an arrest and conducted
to protect the safety of police officers and others.”
 Searches of persons incident to arrest
o The fact of a lawful arrest establishes the authority to conduct a full-scale,
reasonable search under the 4th Amendment. (Robinson)
 The Court permits a more intrusive search then Terry here
because of the extended exposure of a custodial arrest that
subjects police to a greater amount of danger
 Custodial arrests for minor offenses
o The 4th does not forbid warrantless arrest for a minor criminal offense, such as
a misdemeanor seatbelt violation punishable only by fine. (Atwater)
 The arrest power rule applied to automobiles
o Police may search the passenger compartment of a vehicle incident to an
occupant’s arrest only if the occupant is within reaching distance of the
vehicle or if it is reasonable to believe the vehicle contains evidence in
support of the reasons for the arrest. (Gant)
 Court does balancing test weighing the private interest versus the
public interest
 The arrest power where no arrest takes place
o In Robinson, the Court established a bright-line rule permitting the fullblow searches when a person has been subjected to a custodial arrest;
Gant allows a search of a passenger compartment upon arrest if the
occupant has access at the time of search or if there is “reason to believe”
that evidence pertinent to the crime is located there.
o Officers may not conduct a full search of a car and driver when the police
elect to issue a citation instead of making a custodial arrest (Knowles)
 The search was not constitutional because neither of the 2 Chimel
purposes for search incident to arrest apply
 the argument that officers may more frequently arrest cuts against
those against increased government intrusion
(4) Pretextual Stops and Arrests
 The temporary detention of a motorist upon probable cause to believe that he has
violated the traffic laws does not violate the 4th’s prohibition against unreasonable
seizures, even if a reasonable officer would not have stopped the motorist absent
some additional law enforcement objective. (Whren)
o It was not unconstitutional to stop Whren and it was not unconstitutional to
arrest because they had probable cause to believe that he committed a traffic
violation
o Subjective motives
 Court holds that actual, subjective motives are not significant to the
constitutional analysis
(5) Plain View and Plain Touch Seizures
 The concept of plain view underlies much of the law and practice under the Terry
doctrine and the arrest power rule, and its applies as well during searches conducted
pursuant to a warrant or another exception to the warrant requirement.
 As the Court put it in Brown, the plain view doctrine is best understood “not as an
independent exception to the warrant clause, but simply as an extension of whatever
the prior justification for an officer’s access to an object may be.”
o Horton: Where the police have a warrant or other justification for a search, and
evidence of an immediately apparent incriminating nature is in plain view in a place
where the officers have a lawful right of access, the police may seize the evidence
whether or not they came upon it inadvertently.
o Two requirements of PV doctrine
 (1) Incriminating character of the object must be immediately
apparent; and
 (2) Officer must have lawful right of access to this object
o Horton holding
 Police may seize evidence in PV either advertently or inadvertently
 The plain touch doctrine (Dickerson)
o The plain touch doctrine has the same two requirements as the PV
doctrine
 (1) Incriminating character of the object must be immediately
apparent; and
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(2) Officer must have lawful right of access to this object
(6) Automobiles and other movable objects
The Carroll Doctrine
 The Court held that search of an automobile without a warrant is constitutional where
it is not practicable to secure a warrant because the vehicle can be quickly moved out
of the locality or jurisdiction in which the warrant might be sought.
o For automobiles, there doesn’t have to be a warrant, but there has to be
probable cause
o Chambers: Where there is probable cause to believe that vehicles are carrying
contraband or fruits of the crime, warrantless searches of automobiles are permissible,
even where the car itself is seized and held without a warrant for whatever period is
necessary to obtain a warrant for the search.
o This case is in accord with the proposition that the 4th is less strict with
cars than it is with homes. The ability of the car to be moved, the lesser
aspect of privacy, and the plain view of the auto on the highway
contribute to this.
 Also, diminished privacy rationale rooted in the fact that vehicles are
subject to pervasive government regulation
o Difference between Carroll and Gant searches
o Gant
 Police can search an auto when they have made a lawful arrest in or
near the car and the search is contemporaneous with the arrest
 Also, the interior of the car has to be in the “grab area”
o Carroll
 Police can search an auto when they have probable cause to believe it
is has evidence of a crime
o If person is 10 miles away…police can search under Carroll but not Gant
o Can police search trunk…
 Not under Gant, but yes under Carroll
 Movable containers – in and out of cars
o Chadwick
 Container can be seized without a warrant, but a warrant is needed to
search it
 Container probable cause…container cannot be search
without a warrant
o i.e. tip given about drugs in container
o Ross
 Carroll doctrine allows for car-wide search, including containers
 Car-wide probable cause…containers can be searched
o i.e. tip given about drugs in car
o Acevedo…LAW
 Holding: Police officers may search closed containers within an
automobile without a warrant, pursuant to a valid search of the
vehicle.
 Constitutional rationale

o Privacy is not that great in autos
 Public policy rationale
o Gives police one clear rule
 Dissent
 Ruling doesn’t make a whole lot of sense
 i.e. if you have probable cause to believe drugs are in a
container someone is carrying as they walk down the street,
you CAN NOT perform a search under Acevedo. However,
when this person places the container in her trunk and beings to
drive away, the police CAN stop the car and perform a search
on that container under Acevedo.
Search of passenger’s property: (Houghton)
o “We hold that police officers with probable cause to search a car may inspect
passengers’ belongings found in the car that are capable for concealing the
object of the search.”
(7) Exigent Circumstances
 The exigent circumstances cases concern fact-specific situations in which the
state must show that immediate action was reasonably necessary to prevent
flight, or to safeguard the police or public, or to protect against the loss of
evidence.
 the exigent circumstances exception excuses the officer from having to obtain a
magistrate’s determination that probable cause exists; it does not permit a
search in the absence of probable cause
 the exigent circumstances exception applies equally to arrests and to searches
Hot Pursuit
 The HP doctrine is based on the premise that the suspect, knowing that he is
being pursued, may seek to escape, destroy evidence or create a threat to public
safety.
o It follows that the HP doctrine cannot apply where the suspect is unaware that
he is being pursued by police officers.
o On the other hand, the HP doctrine can cover situations significantly short of
high speed car chases
Police and public safety
 A warrant is excused if the delay in obtaining it would result in a significant risk
of harm to the police or to members of the public
 Public safety and the relevant of a law enforcement objective: (Brigham City)
o Police may enter a home without a warrant when they have an objectively
reasonable basis for believing that occupant is seriously injured or imminently
threatened with serious injury.
 Another exigent circumstances exception to the 4th…this one
involves danger to an individual
 Application of Brigham City v. Stuart: Michigan v. Fisher
o They did not need ironclad proof of "a likely serious, life-threatening" injury
to invoke the emergency aid exception. The test was whether there was an
objectively reasonable basis for believing that medical assistance was needed,
or persons were in danger
o It sufficed to invoke the emergency aid exception based on a reasonable belief
that defendant had hurt himself (albeit nonfatally) and needed treatment that
in his rage he was unable to provide, or that he was about to hurt, or had
already hurt, someone else.
Impermissibly created exigency
 It is well-recognized that officers should not be allowed to evade the warrant
requirement by impermissibly creating exigent circumstances.
 Circuits are split over whether police can create exigent circumstances
o SC just granted cert to rule on this issue…King v. Kentucky
Seizing Premises in the Absence of Exigent Circumstances
 Prohibiting entry while a warrant is being obtained: (MacArthur)
o In determining whether a search is unreasonable and in violation of the 4th, the
court must balance the privacy-related and law enforcement-related concerns
to determine whether the intrusion was reasonable.
o In determining whether the Fourth Amendment is violated, the court invoke a
“reasonableness” inquiry. In general, seizures of personal property are
presumptively unreasonable unless conducted pursuant to a warrant issued by
a neutral magistrate after finding probable cause
(8) Special needs I: (Administrative Searches; Drug Testing)
 If the government search or seizure is designed to effectuate special needs
beyond criminal law enforcement, then the Court engages in a balancing of
interests under the reasonableness clause to determine what safeguards must
apply.
 remember: we are not dealing with the possibility that someone is getting
arrested here, but rather we are dealing with the possibility of a code violation
Safety inspections of homes
 Camara
o SC held that government safety inspectors were not required to have
probable cause to believe that a particular dwelling was in violation of the
code being enforced.
o Thus, while a warrant is required for an admin safety inspection of a home,
the warrant need not be based upon a finding of probable cause that a
particular home is in violation of a safety code. Instead, the warrant can be
issued upon a finding that a search is in compliance with a reasonable admin
scheme. Finally, the opinion noted that “nothing we say today is intended to
foreclose prompt inspections, even without a warrant, that the law had
traditional upheld in emergency situations.”
Administrative searches of businesses
o The Court applied the Camara protections to businesses in See, but it is apparent that
admin searches of businesses involved different issues from searches of residences.
 Burger: Admin inspections of closely regulated businesses fall within an exception to
the warrant requirement of the Fourth Amendment.
 Standard is generally the same for admin search for business as for admin
searches of home except when the business is pervasively regulated
 Probable cause nor warrants are not needed for the search of pervasively
regulated businesses because they have a more lower standard of privacy
 Remember: special needs exception is only good when the search goes
beyond the needs of criminal law enforcement
Searches and seizures of individuals pursuant to “special needs”
 Searches and seizures on the basis of reasonable suspicion rather than probable
cause
o T.L.O.: SC found that the reasonable suspicion standard was sufficient to
protect the student’s diminished expectation of privacy in the school
environment, while permitting the government the proper degree of
maintaining standards of school discipline.
 Limitations on strip searches of students
o In T.L.O., the SC required individualized suspicion for search of a student’s
handbag.
o A strip search of a student for drugs is unreasonable where there is no
evidence the sought-after drugs pose a danger to other students nor any reason
to believe the student may be hiding the pills in his or her underwear.
(Redding)
Suspicionless searches of persons on the basis of “special needs”
 Drug-testing of employees: (Skinner)
o SC upheld a program mandating drug tests for all railroad personnel
involved in certain train accidents. Thus, the plan called for suspicionless
testing of all personnel involved in the accident.
 The SC focuses on the deterrent effect of the drug testing.
 Seems like a bit of dubious rationale because the drug testing
would occur after a given train accident.
 Drug-testing of politicians
o A state law requiring that candidates for state officer pass a drug test does not
serve to protect public safety and is therefore a suspicionless search precluded
by the Fourth Amendment. (Chandler)
 Particularized exceptions are warranted only when public safety is
genuinely in jeopardy, such as at an airport or court entrance, or when
they can be otherwise justified based on “special needs.” When such
“special needs” are alleged, courts must undertake a context-specific
inquiry closely examining the competing public and private interests
advanced by the parties.
 Although the method of testing prescribed by the GA statute is
relatively noninvasive, GA (D) has failed to demonstrate a “special
need” that justifies the testing. The record does not indicate that the
hazards the statute aims to prevent are real and immediate. GA (D)


has asserted no evidence of a drug problem among the state’s elected
officials, and those officials typically do not perform high-risk, safetysensitive tasks. However well-intentioned, the statute diminishes
personal privacy in a manner incompatible with the 4th.
Drug-testing of schoolchildren
o Vernonia
 Suspicionless drug tests of school athletes was reasonable because
they was a drug problem at the whole school
 There was a hoped for trickle-down effect in which most students
would not choose to use drugs if athletes did not use drugs
o Earls
 The first and second failures of drug tests disallow students’
participation in extracurriculars. The third failure of a drug test results
in a suspension.
 The purpose of this drug testing program is to detect students who
were using drugs and deter them from doing so further.
 Reasonableness balancing test
 Individual interest is not very high because privacy is low in
this situation
 Government interest is high because there exists a
responsibility to keep students safe
 There does not have to be a demonstrated drug problem, but it
helps if there is
o Possible future case for the SC…drug testing of all public high school
students
Drug-testing for special needs, or for criminal law enforcement
o A state hospital’s performance of a diagnostic test to obtain evidence of a
patient’s criminal conduct for law enforcement purposes is an unreasonable
search if the patient has not consented to the procedure. (Ferguson)
o Different from the other cases, the results of the drug test were turned
over to the police in this situation
o Here, the SC determines that the primary purpose of the government
search and seizure is criminal law enforcement
o “special needs is a closely guarded category”
(9) Special Needs II
Roadblocks, Checkpoints and Suspicionless Seizures
 Permanent checkpoints
o Matinez-Fuerte: SC, invoking Terry principles, approved suspicionless stops
at permanent checkpoints removed from the border.
 Implemented to regulate the flow of illegal aliens
 Application of Terry reasonable balance states that state interest in
investigating illegal immigrants outweighs motorist’s interest
 Because the checkpoints are permanently located they are not that
much of a invasion of privacy




The police do not have much discretion in where the
checkpoints are located
Temporary Checkpoints to Check for DUI
o Sitz: SC upheld suspicionless stops at temporary sobriety checkpoints.
 Application of the “misery loves company” rationale
 Court relied on the Terry line of cases rather than on the “special
needs” line of cases.
 The police do not have much discretion in where the checkpoints are
located
Drug checkpoints
o In the following case, the SC essentially revised its analysis in Sitz and
distinguished sobriety roadblocks from checkpoints designed to check for
drugs. The SC invalidates a roadblock program because its primary purpose
was to enforce the criminal law.
o Edmond
 Where a vehicle checkpoint program is designed primarily to uncover
evidence of criminal wrongdoing, such a program constitutes an
unlawful search and seizure in violation of the 4th.
 Because the primary purpose was obtaining criminal evidence
these roadblocks were held to be unconstitutional by the Court
Suspicionless checkpoints to obtain information about a crime
o In the following case the SC distinguished Edmond and upheld a
suspicionless checkpoint.
o Lidster
 Information seeking highway stops do not per se violate the 4th.
 The Court’s distinction: the stop was not to find criminal evidence
but rather to seek out information about a crime that occurred
Inventory searches
 Community caretaking function
o Cady: SC found initial intrusion to search for the gun was reasonable as a
“community caretaking function,” to protect the public from the possibility
that it would fall into the hands of vandals. Therefore, the seizure of evidence
found in plain view was also justified.
 Inventory searches are reasonable because they are part of the
caretaking function of police
 Warrantless suspicionless searches: South Dakota v. Opperman
o SC upheld the warrantless, suspicionless inventory search of a car impounded
for a parking violation
o As in other special needs cases, the Opperman Court balanced the state
interest in making the search against the intrusiveness of the search to
determine whether inventory searches were reasonable.
 The SC found that three legitimate state interests supported an
inventory search.
 (1) protection of the police department from false property
claims


(2) protection of the property interests of the owner; and
(3) protection of the police and public from dangerous
items
 the purposes are not to arrest you for breaking the law
 the SC concluded that these state interests, which could only be
effectuated by a suspicionless search, outweighed the owner’s privacy
interests, especially given the diminished expectation of privacy in
automobiles
o there must be inventory search procedures instituted by the police for the
impoundment or search to be deemed reasonable
Border searches
 The most persuasive rationale is similar to that used in Skinner and Von Raab:
border searches serve a special need beyond the traditional criminal law enforcement.
The special need is the interest in protecting American borders, “in order to regulate
the collection of duties and to prevent the introduction of contraband into this
country.”
o Protection of our country and regulation of the flow of goods into our country
 Because the border search serves special needs, it is evaluated under the
reasonableness clause of the 4th. And given the heavy state interest just stated, as
well as the diminished expectation of privacy attendant to a border crossing,
border searches are ordinarily reasonable even without a warrant or probable
cause, and often without any suspicion at all.
 “Routine” border searches
o “routine” border searches are deemed reasonable because of the important
state interest involved in regulating the border, the diminished expectation of
privacy attendant to crossing the border, and the relatively limited
intrusiveness of a “routine” border search.
o In the following case, the SC criticizes the use of the labels “routine” and
“non-routine” – at least as applied to searches of vehicles – and finds a
relatively unusual search to be reasonable even in the absence of suspicion.
o There is no good definitions for routine and non-routine
o Flores-Montano
 Under the 4th, customs officers at the international border need not
have reasonable suspicion to remove, disassemble, and search a
vehicle’s fuel tank for contraband.
 What level of suspicion is required for the govt to search your gas
tank?
 No suspicion is needed
o Application of the special needs exception to the
warrant requirement
 Balancing test…national security is great;
individual privacy is at a low point at the border
(minimal governmental intrusion because they
are expected); everyone is subject to being
searched

Routine border search


Routine v. non-routine
 Routine border stops…no level of suspicion is required
The degree of suspicion required for a non-routine border intrusion
o Montoya de Hernandez: SC held that “the detention of a traveler at the
border, beyond the scope of a routine customs search and inspection, is
justified at its inception if customs agents, considering all the facts
surrounding the traveler and her trip, reasonably suspect that the traveler is
smuggling contraband in her alimentary canal.”
 Non-routine border stops…reasonable suspicion is required
(10) Consent
 Last major exception to the warrant requirement
o Probably the most commonly invoked exception to the warrant requirement
Voluntary Consent
 Voluntariness distinguished from waiver: Schneckloth v. Bustamonte
o A search based on voluntary consent is reasonable even in the absence of a
warrant or any articulable suspicion.
o Schneckloth
 The question whether a consent to a search was in fact voluntary or
was the product of duress or coercion, express or implied, is a question
of fact to be determined from the totality of the circumstances.
While knowledge of the right to refuse consent is one factor to be
taken into account, the government need not establish such knowledge
as the sine qua non of an effective consent.
o Valid consent…voluntary consent under the totality of the circumstances
o There is no requirement to inform an individual of his right to refuse
consent
 Informing one of his right to refuse consent is only one factor
 Totality of the circumstances
o Bumper: burden of proving consent to be voluntary is on the government
o Gonzalez- Basulto (5th Cir.) non-exclusive list of six factors relevant to
whether consent is voluntarily obtained:
 (1) the voluntariness of the D’s custodial status; (2) the presence of
coercive police procedures; (3) the extent and level of the D’s
cooperation with the police; (4) the D’s awareness of his right to refuse
consent; (5) the D’s education and intelligence; and (6) the D’s belief
that no evidence will be found.
 Widely used factors
o Obviously, none of these factors are dispositive.
Third Party Consent
 Frazier: SC upheld the search of a D’s duffle bag when his cousin, a joint user of the
bag, voluntarily consented.
 Actual authority: (Matlock)



o Third party consent to search a common area
o The authority which justifies the third-party consent does not rest upon the
law of property, with its attendant historical and legal refinements, but rests
rather on mutual use of the property by persons generally having joint access
or control for most purposes, so that it is reasonable to recognize that any of
the co-inhabitants has the right to permit the inspection in his own right and
that the others have assumed the risk that one of their number might permit
the common area to be searched.
Apparent authority: (Rodriguez)
o Entry was valid if officers had reasonable belief that the friend had authority
to consent
o The SC concluded that the question of authority to consent should be
governed by the same standard of reasonableness – and allowance for
reasonable mistakes – as had been applied in other areas of 4th jurisprudence,
such as probable cause, the execution of a warrant, and the existence of
exigent circumstances.
o Thinking about the constitutional analysis…so long as it is reasonable for the
police to believe that someone has authority to consent to a search, the search
is constitutional
Third party consent where the defendant is present and objecting: Georgia v.
Randolph
o Randolph
 Police can constitutionally search a home without a warrant when a
co-habitant consents, but the other co-habitant, who is present, does
not consent.
 However, evidence can be used only against the person who
consented to the search…evidence cannot be used against the
person who did not consent
 Only where the co-habitant who objects is present in the house
and verbally objecting does this rule apply.
Possible future of the consent exception…
o (1) get rid of consent exception
o (2) warnings informing one of the right to refuse consent
o (3) maintain status quo
C. REMEDIES FOR FOURTH AMENDMENT VIOLATIONS
 The 4th does not explicitly provide any remedies for its violation
THE EXCLUSIONARY RULE
 the exclusionary rule, in its broadest conception, provides that evidence obtained
in violation of the 4th must be excluded from trial.
o If police obtain evidence in violation of the 4th Amendment it cannot be used
against the D in his trial.
 Exclusionary rule for federal courts: (Weeks)
o SC held that evidence obtained in violation of the 4th must be excluded from
evidence in fed courts
o Two common themes articulated in Weeks…Exclusionary rule is the only
effective means of protecting 4th rights, and that the interest in judicial
integrity requires that the courts not sanction illegal searches by
admitting fruits of illegality into evidence
The exclusionary rule and the states
 Wolf
o Two holdings in the case
 (1) 4th Amendment is incorporated
 this is considered to be a fundamental right
 (2) Exclusionary rule is not incorporated
 this is not considered to be a fundamental right
o Here, the SC found that evidence must be excluded in fed cases because it was
the only effective means of enforcing the 4th
 Note on Wolf and the road to Mapp
o In between Wolf and Mapp what happened?
 Many more states had adopted the exclusionary rule because they
found other remedies to be “worthless.”
 The rise of the Civil Rights Movement
 Federalism after Brown seemed to become a less important
principle
 Also, there was a six member shift on the Court in between these cases
 Mapp
o Mapp overturned Wolf.
 Exclusionary rule applies to states
o Without the exclusionary rule, the “4th is just a form of words on paper”
Arguments for and against the exclusionary rule
 Purposes of the exclusionary rule
o Compel respect for the 4th (by deterring police conduct)
 What is the purpose of the exclusionary rule?
o Deter police misconduct
th
 4 is violated when the police engage in an unreasonable search or seizure
o it is not a new violation of the 4th when evidence obtained in contravention of
the 4th is presented in court
 exclusionary rule cannot undo the violation already done, so it attempts to deter future
violations
o it works as a deterrent by removing the incentive to violate the 4th
 Professor Amar…
o “The Fourth Amendment today is an embarrassment. Much of what the SC
has said in the last half century – that the Amendment generally called for
warrants and probable cause for all searches and seizures, and exclusion of
illegally obtained evidence – is initially plausible but ultimately misguided.
As a matter of text, history, and plain old common sense, these here pillars of
modern 4th case law are hard to support; in fact, today’s SC does not really
support them. Except when it does. Warrants are not required – unless they


are. All searches and seizures must be grounded in probable cause – but not
on Tuesdays. And unlawfully seized evidence must be excluded whenever
five votes say so. Meanwhile, sensible rules that the Amendment clearly does
lay down or presuppose – that all searches and seizures must be reasonable,
that warrants (and only warrants) always require probable cause, and that the
officialdom should be held liable for unreasonable searches and seizures – are
ignored by the Justices. Sometimes. The result is a vast jumble of judicial
pronouncements that is not merely complex and contradictory, but often
perverse. Criminals go free, while honest citizens are intruded upon in
outrageous ways with little or no real remedy. If there are good reasons for
these and countless other odd results, the Court has not provided them.”
 From handout
o Also, Amar does not like the fact the defendants are acting as private attorney
generals
Common public policy arguments in favor
o Judicial integrity
 Courts cannot make decisions based on unconstitutionally obtained
evidence
 How does Amar respond to the judicial integrity argument?
 It does not make the courts look any better to throw out
evidence that does not need to be thrown out
o Consider when it is especially probative
o Government should not be able to profit from its own wrongdoing
 Government should not reap the benefit of police officers, acting on
behalf of the government, who acted unconstitutionally
 How does Amar respond to the judicial integrity argument?
 Yes, the government should not be able to profit from their
wrongdoing, but criminals should also not be able to profit
from government wrongdoing.
o Only prevents evidence that police could not have gotten to in the first
place
 How does Amar respond to the judicial integrity argument?
 In many situations, it is far from clear that the illegality of a
search is indeed a but-for cause of the later introduction of an
item found in a search
o Deter police misconduct
 However, consider that we do not want to overdeter so as to
disencourage police officers from properly doing their job
 How does Amar respond to the judicial integrity argument?
 Makes the D the one who controls and punishes police, and we
do not want someone like that in such a position
Which arguments are most persuasive? Those is support of the exclusionary
rule or against it?
ALTERNATIVES TO EXCLUSION

It should be noted at the outset that an of these remedies could be used as
supplements to, rather than replacements for, suppression of evidence.
Civil Damages Recovery
Criminal prosecutions of offending officers
Police rulemaking and other administrative solutions
LIMITS ON EXCLUSION

There are a number of important situations in which evidence has been illegally
obtained, and yet it will not be excluded. This section considers those limitations
on the exclusionary rule.
(1) Good Faith
“Good Faith” – Reasonable reliance on the decisions of magistrates and others
 Leon
o The 4th exclusionary rule does not bar the introduction of evidence for use in
the prosecution’s case-in-chief which was seized by law enforcement officers
and reasonably relied on a warrant issued by a detached and neutral magistrate
which is ultimately found to be unsupported by probable cause.
o The question of the day…has their been police misconduct?
o Remember…there is no constitutional violation when unconstitutionally
obtained evidence is introduced in court
 the 4th violation occurs during the unconstitutional search/seizure not
during the introduction of the evidence at the trial
 the exclusionary rule does not undo the earlier violation of the
4th Amendment
 exclusionary rule is not required by the 4th
o Cost-benefit analysis of the exclusionary rule
 Cost…guilty defendants may go free
 Benefit…deter police misconduct
o Therefore, because there is no police misconduct, the evidence should not
be excluded…the cost of excluding the evidence outweighs the benefit of
doing so
o Exceptions to the good faith exception…thus, the exclusionary rule still
applies and the evidence is excluded
 (1) magistrate was misled by the police
 (2) magistrate abandoned his judicial role
 (3) officer relies on a warrant that is clearly so lacking in probable
cause that a reasonable officer could not reasonably rely on it
 (4) the warrant was facially deficient
o penalizing the officer for the error of the magistrate does not follow the
deterrence rationale of the exclusionary rule
The good faith exception and warrantless searches


The SC in Leon applied the good faith exception because an officer reasonably
relied on the magistrate’s decision. The SC reasoned that the magistrate, rather
than the officer, made the error, and that the magistrate cannot be deterred by
the exclusionary rule.
Good-faith exception applied where error was the result of negligence attenuated
from the arrest or search
o Herring
 When police mistakes leading to an unlawful search are the result of
isolated negligence attenuated from the search, rather than systemic
error or reckless disregard of constitutional requirements, the
exclusionary rule does not apply.
 The only issue here is whether negligence by the police, as opposed to
others, will lead to the suppression of evidence. The SC holds that it
should not. The exclusionary rule was created to deter police
misconduct. The conduct must have a deliberate or indifferent nature
to invoke he exclusionary rule. Those circumstances are not present
here. An error arising from nonrecurring negligence, as opposed to
systemic negligence, does not implicate the concerns the exclusionary
rule was designed to protect.
(2) Standing
Establishing a violation of a personal Fourth Amendment right
 4th rights are personal rights. It therefore follows that for a D to be entitled to
exclusion of evidence, he must establish that his own personal rights were affected by
the government’s search or seizure.
 Jones
o In the 1960s, the SC developed a generous view of a D’s entitlement to invoke
the exclusionary rule. Jones (1960), held that D had “automatic standing” to
challenge the legality of the search that produced the very drugs that he was
charged with possessing at the time of the search. The SC in Jones also stated
that a search could be challenged by anyone “legitimately on the premises
where a search occurs.” In the following case the SC substantially cuts back
on Jones, and more importantly, recharacterizes “standing” questions so that
they are now resolved by substantive standards of 4th law.
 Rakas
o A person may not move to suppress evidence in which he had no proprietary
interest nor expectations of privacy.
o Katz v. Rakas
 K analysis…Whether there has been a search by the government?
 R analysis…Whether one has standing to object?
 Same wording, but a different test
 Two prongs:
o (1) whether the individual expects privacy
o (2) whether that expectation is reasonable (or
legitimate)

 reasonable…empirical
 legitimate…normative
 …test might not always lead to the same result
 there may be a search of a person’s home, but someone inside
that house who is not the owner may not have standing to
object
Presence in the home of another
o Questions like this are determined, after Rakas, by whether you had a
reasonable expectation of privacy in the areas that were searched. What
follows is the SC’s most recent opinion applying the Rakas analysis.
o Carter
 In order to claim the protection of the 4th, a D must demonstrate that
he personally has an expectation of privacy in the place searched, and
that his expectation is reasonable.
 An overnight guest in a home must claim the protection of the 4th, but
one who is merely present with the consent of the householder may
not.
 Since they did not have any legitimate expectation of privacy
in the apartment, any search that may have occurred did not
violate their 4th rights.
 The Ds did not have standing, so a ruling on a potential 4th
violation is not even necessary.
 Some argues that this ruling lessens the bite of the exclusionary
rule.
(3) Causation and the exception for attenuation (fruit of the poisonous tree, which is
limited by the independent source doctrine and the inevitable discovery doctrine)
The requirement of causation and the exception for attenuation
 The exclusionary rule does not apply unless there is substantial causal connection
between the illegal activity and the evidence offered at trial. Deterrence is unjustified
in the absence of that causal link. Determining whether a causal connection between
proffered evidence and an illegal search and seizure to justify exclusion.
 In these cases, the D asserts that there is a direct link between the illegality and the
proffered evidence. The government, while admitting at least for argument’s sake
that there was an illegal search and seizure, nonetheless contents that the relationship
between the illegality and the proffers evidence is too attenuated to justify exclusion.
 Brown
o Where an illegal arrest leads to a search or confession which produces
evidence, that evidence is inadmissible as “fruit of the poisonous tree” unless
the causal connection between the illegal arrest and the discovery of the
evidence is so attenuated as to dissipate the taint. (However, the mere
recitation of Miranda warnings prior to confession does not dissipate the
taint.)
o Miranda warnings are only one factor in the determination of whether a
confession was obtained by exploitation of an illegal arrest or whether the


taint was dissipated. Other factors include how much time passed between
arrest and confession; the presence of intervening circumstances, especially an
act of free will by the D, and, particularly the purpose and flagrancy of the
police misconduct.
o There is no bright-line rule for determining whether derivative evidence
is fruit of the poisonous tree, but rather it is a case-by-case analysis based
on the totality of the circumstances
o Once an illegal search has been established, the government has the
burden of proof to prove that the evidence attained is not the fruit of the
poisonous tree
Wong Sun
o WS’s arrest was also tainted, but his confession was admissible in light of his
lawful arraignment and release on his own recognizance and his voluntary
return several days later to confess. The connection between WS’s arrest and
confession had become so attenuated as to dissipate the taint.
o WS test for causation…“We need not hold that all evidence is ‘fruit of the
poisonous tree’ simply because it would not have come to light but for the
illegal actions of the police. Rather, the more apt question in such a case is
whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.”
Insufficient causal connection between a knock-and-announce violation and
evidence found in the home: Hudson v. Michigan
o In the following case, the SC decides that a violation of the knock-andannounce requirement does not justify the exclusion of evidence found in the
warranted search.
o But the case may have broader importance as it seems to signal that the SC is
questioning whether the exclusionary rule is necessary at all given
developments since Mapp
o Hudson
 Violation of the knock-and-announce rule does not require suppression
of all evidence found in a warranted search.
 The purpose of the knock-and-announce is to protect police officers
from surprising residents who might retaliate in presumed selfdefense, to protect private property from damage, and to protect the
privacy and dignity of residents. The knock-and-announce rule has
never purported to protect one’s interest in preventing the government
from seeing or taking evidence described in a warrant. In addition, the
cost of excluding evidence based on knock-and-announce violations
would be serious, amounting to providing dangerous criminals with a
get-out-of-jail-free card.
 Two ways attenuation can occur:
 (1) when the causal connection is way remote
 (2) does not serve constitutional purposes
o this is the analysis used here

Holding
 The exclusionary rule does not apply when the police
violate the knock-and-announce rule
Independent Source
 Evidence will not be excluded if it is obtained independently and without reliance on
any illegal police activity. The “independent source” doctrine allows “the
introduction of evidence discovered initially during an unlawful search if the
evidence is discovered later through a source that is untainted by the initial illegality.”
 The independent source doctrine and the inevitable discovery doctrine limit the “fruit
of the poisonous tree” doctrine
 Murray
o Under the “independent source” doctrine, “evidence initially uncovered, but
not seized, during an illegal search will not be suppressed if the police later
obtain a search warrant which does not rely on any facts discovered during the
illegal search, and then seize the evidence during a second search pursuant to
the warrant.”
o If they do not already have probable cause, no information obtained during the
illegal search can be used to establish probable cause, and, moreover, if a
court does not believe that the officers would have sought a search warrant
absent the illegal search, then the evidence will be suppressed.
o The police did not mention to the magistrate that they had went into the
warehouse and saw the marijuana
o Seeing the marijuana did not disallow the issuance of the warrant because the
police could have provided probable cause to obtain the warrant based on
evidence derived independently of their illegal conduct
Inevitable Discovery
 The inevitable discovery exception has been termed the “hypothetical independent
source” exception.
 For the exception to apply, the government must show that the illegality obtained
evidence would have been discovered through legitimate means independent of the
official misconduct. Note that if the evidence is actually discovered through
legitimate independent means, the independent source exception would apply. So the
inevitable discovery exception is one step removed from the independent source
exception.
o The SC in Nix held that to invoke the inevitable discovery exception, the
government must prove by a preponderance that the challenged evidence
would have been discovered through independent legal means.
 Rejection of the more stringent clear and convincing standard
o The SC’s opinion strongly suggests that the inevitable discovery doctrine
limits the exclusionary rule under the 4th, 5th, and 6th
 US v. Andrade (9th Cir. 1986)
o was not a good search incident to arrest nor a good inventory search
o court refused to suppress bag with cocaine found later because the DEA
would have done an inventory search later


some refer to the inevitable discovery doctrine as “the hypothetical
independent source” doctrine
 court’s rationale: police should be in the same position, but
should not be in a worse position
Establishing inevitability
o Nix holds that the government must prove by a preponderance that the
illegally obtained evidence inevitably would have been discovered by legal
means.
o In deciding whether the inevitable discovery execution applies, courts must
focus on what the officers actually would have done, not on what they could
possibly have done.
Use of illegally seized evidence outside the criminal trial context
 Where it applies, the exclusionary rule operates to exclude evidence at a criminal
trial. But in a series of cases, the SC has held that the exclusionary rule generally
does not apply outside the context of a criminal trial on the merits. This is because,
according to the SC, exclusion from the criminal prosecution’s case-in-chief is all that
is necessary to deter 4th violations. The cost of exclusion in other “collateral”
contexts generally has been held to outweigh the benefits in deterrence that the rule
provides.
Use of illegally obtained evidence for impeachment purposes
D. FIFTH AMENDMENT…THE PRIVILEGE AGAINST SELF
INCRIMINATION
 “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 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.”
 It is the D’s decision, and his decision alone, to decide to testify at his own criminal
trial
o This is based on the privilege against self-incrimination provided by the 5th
THE PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION
The policies of the privilege against compelled self-incrimination
 The SC often flip flops on these rationales depending on how they want a given case
to come out
 Policies:
o Protection of the innocent
 The privilege protects an innocent D from convicting himself by a bad
performance on the witness stand
o The cruel trilemma

o
o
o
o
o
o
o
o
We are unwilling to subject those suspected of crime to the cruel
trilemma of self-accusation, perjury, or contempt
Deter perjury
 If there were no privilege, people compelled to testify would commit
perjury rather than incriminate themselves. Rampant perjury would
burden the courts.
Unreliability of coerced statements
 We do not trust self-deprecatory statements, particularly when they are
the product of coercion
Preference for accusatorial system
 We prefer an accusatorial rather than inquisitorial system of criminal
justice
Deter improper police practices
 Self-incriminating statements are likely to be elicited by inhumane
treatment and abuses. The privilege has historically protected against
such forms of torture.
Fair state-individual balance
 “the privilege contributes towards a fair state-individual balance by
requiring the government to leave the individual alone until good
cause is shown for disturbing him and by requiring the government in
its contest with the individual to should the entire load.”
Preservation of official morality
 “Any system which permits the prosecution to trust habitually to
compulsory self-disclosure as a source of proof must itself suffer
morally thereby”
Privacy rationale
 “our respect for the inviolability of the human personality and of the
right of each individual ‘to a private enclave where he may lead a
private life’” justifies the privilege.
First Amendment rationale
 The privilege affords “a shelter against governmental snooping and
oppression concerning political and religious beliefs.”
Scope of the privilege
 Requirements… (1) compulsion; (2) testimony; (3) self-incriminating; and (4)
subsequent case in which the compelled testimony is to be used is criminal
 4 main issues
o Is there compulsion?
o Is there testimony?
o Is it incriminating?
o Is the subsequent case criminal?
What is compulsion?
 The 5th protects against self-incrimination only if it is compelled by the government.
It is sometimes difficult to determine whether a particular pressure imposed by the
government on a citizen rises to the level of compulsion.





Use of the contempt power
o Use of the contempt power is the classic form of compulsion, because it
imposes a substantial punishment on the witness who is exercising the right to
remain silent, and it presents the witness with a cruel trilemma: remain silent
and face imprisonment; tell the truth and face imprisonment; or tell a lie and
face imprisonment for perjury. Thus, a witness cannot be subjected to
contempt for refusing to testify, if the testimony could create a risk of selfincrimination in a criminal case.
Other state-imposed sanctions
o The SC has extended the concept of compulsion well beyond its original
ground in the contempt power. For example, the Court in Miranda found
compulsion in the setting of custodial interrogation. The SC has also found
other state-imposed sanctions for silence, of less severity than contempt, to
constitute compulsion. The following case provides an example of the SC’s
approach.
Turley
o A state cannot compel testimony in violation of the 5th without offering
immunity from prosecution.
o there is compulsion here because there was a significant (economic, here)
penalty for invoking the privilege
o if given immunity, then the contractors could be required to answer the
questions presented
 the 5th does not prevent from people from being required to
provide incriminating information to be used in a civil case
The benefit-penalty distinction
o The basic answer is that denial of a benefit is not a penalty, and therefore
is not compulsion.
o It is not compulsion if one gets a benefit for testifying, rather than a penalty
for not testifying
The B-P distinction and penalties imposed on incarcerated sex offenders:
(McKune)
o A divided SC considered whether the BP distinction works when applied to a
program for rehabilitating incarcerated sex offenders. The SC also considered
whether certain inconveniences can be imposed on a prisoner for remaining
silent without rising to the level of compulsion.
o SC found that the consequences were not serious enough to compel himself to
be a witness against himself…changes in living conditions appeared to be
minor
 Not compulsion in the sense of Turley compulsion
 Some consequences…movement to a prison with less privileges, less
opportunity for work/wages, a more dangerous environment, etc.
o SC says B-P does not hold constitutional weight
To whom does the privilege belong?
 The privilege against self-incrimination is a personal right, belonging only to the
person who is himself incriminated by his own testimony.


Testimonial aspect
Who can assert the privilege against self-incrimination? What kind of evidence can
the privilege protect?

Fisher
o The 5th does not protect against compelled production of a taxpayer’s papers if
such production would not involve testimonial self-incrimination.
o It protects against “compelled self-incrimination,” not the disclosure of private
information.
o Court declined the attorney’s right claim the privilege on behalf of a
client, even though the attorney may be legally or ethically bound to
respect the confidence of the client
o Court rejects the privacy justification in this case
 Court jumps from one rationale to the other in analyzing cases
o The SC in this case recognizes that even if Fisher (D) himself had been
served with the subpoena, it would not violate his rights under the
Amendment. Therefore, if the principal could be compelled, his agents
clearly could be compelled to produce the documents.
Note on the collective entity rule
o The more closely a business is like a person, the more likely that business is to
receive 5th protection

What is protected?
 The privilege only protects a person when that person is being compelled to be a
“witness” against himself. Thus, it does not protect against all forms of compelled
self-incrimination. If a person is forced to given information other than what a
“witness” would provide, the privilege is inapplicable. In the cases that follow, the
SC attempts to define the scope of information protected by the privilege.
 Testimonial evidence is protected
 Non-testimonial evidence
o Schmerber
 Only evidence of a testimonial or communicative nature is subject
to the self-incrimination clause of the 5th.
 Government compelled, it is self-incriminating, so this issue is
whether on not the evidence is testimonial
 The Court held it to be non-testimonial
 When thinking about whether something is testimonial, you
divide the evidence in two categories
o Testimonial evidence v. physical evidence
 Physical evidence is not protected by the
5th…testimonial evidence is
 The sound of someone’s voice, your handwriting, and your picture are
all physical evidence and can be compelled according to the Court
 It may be incriminating, but it is not testimonial
 In 20-30 years, police may just put you under a machine to read your
brain waves to see if you committed a crime





The basis for the distinction between physical evidence and
testimonial evidence is rooted in the cruel trilemma…decipher
whether evidence is testimonial by applying the cruel trilemma
 Physical evidence cannot be true or false, it is just your
blood…the suspect is not faced with the option to commit
perjury and the 5th does not apply
 Arguments against the distinction and supporting the protection of
physical evidence
 Privacy rationale
Testimonial evidence and the cruel trilemma: PA v. Muniz
o SC finally articulated a rationale for understanding the Schmerber line of
cases.
o The SC held that the line between testimonial and non-testimonial
evidence must be determined by whether the witness faces the “cruel
trilemma” in disclosing evidence.
 Physical evidence does not face the cruel trilemma
o SC held the D’s slurred speech to by physical evidence, because its
relevance was divorced from the content of the words themselves
o With respect to the answer to the sixth birthday question, the SC held that the
D’s response was testimonial, and therefore that use of it as evidence at trial
was error
o Whenever a suspect is asked for a response requiring him to
communicate an express or implied assertion of fact or belief, the suspect
confronts the trilemma of truth, falsity or silence and hence the response
(whether based on truth or falsity) contains a testimonial component.
 Compelled statements that could be true or false bring are testimonial
evidence
o The incriminating inference of impaired mental faculties stemmed, not just
from the fact that Muniz slurred his response, but also from a testimonial
aspect of that response
Documents and other information existing before compulsion
o Fisher and Andresen in effect overrule Boyd
 Despite what Boyd says, there is no 5th protection for the content of
voluntarily prepared papers
 Voluntarily prepared papers are not compelled
Fisher
o The 5th privilege against self-incrimination does not prohibit the
production of records held by a third party.
Private papers
o Both Fisher and Doe held that the 5th does not protect the content of
documents that were voluntarily prepared; even if production of these
documents is compelled and the content would be incriminating, the 5th is
inapplicable because the government did not compel the preparation (as
opposed to the production) of the documents.
IMMUNITY; CONFESSIONS


When is the act of production incriminating?
o While every production of documents in response to a subpoena admits
existence, control, and authenticity, it does not follow that the 5th prohibits
every compelled act of document production. The 5th applies only if the
compelled testimonial act of production could incriminate the person
responding to the subpoena.
o A simple admission of the mere existence of documents is rarely
incriminating
 However, in certain unusual cases the fact that records exist can
itself tend to incriminate
Required records
o Exception to the privilege against self-incrimination
 Unlike in the 4th, were there is no exception to the 4th, there are
exceptions to the warrant requirement or exceptions to the probable
cause requirement
o Even if the documents are prepared under compulsion, their contents as well
as the act of production will be unprotected by the 5th if the government
requires the documents to be kept for a legitimate admin purpose that is
not focused solely on those inherently suspect of criminal activity.
Procedural aspects of self-incrimination claims
Determining the risk of incrimination
 In sum, the threshold for “tendency” to incriminate is not high, and as a practical
matter in most cases, it is self-executing. If a person says that testifying will tend to
incriminate him, or might lead to evidence that would do so, it is an unusual case in
which a court will disagree and compel that person to testify. But as the following
case illustrates, there are indeed some unusual situations in which a statement’s
tendency to incriminate is extremely doubtful.
 Compelled self-identification and the tendency to incriminate
o Hiibel
 Statutes requiring suspects to identify themselves during police
investigations do not violate either the 4th or 5th.
 SC was not persuaded that the evidence was not testimonial
 However, SC held that disclosing his name would presented no
unreasonable danger of incrimination
 4 Justices disagree with this in a dissent from the 5 person
majority
o reliance on the privacy rationale
 police can make you show ID when they stop you
 Immunity
o Transactional v. use
 T is broader…anything testified about cannot be used in
prosecution of the witness
 Prosecutors are not so crazy about this because it shuts doors


U is narrower… Government cannot use their statements against you
nor can they use your testimony to go get leads
 it is difficult to prove that the government did not actually
use any of their testimony in brining their case against a W
 often times, two teams of lawyers will be used in immunity
situations so that one team can independently prosecute so as to
not use the immunized testimony in building a case against a
W
Waiver of privilege
o Voluntary testimony waives the privilege for the simple reason that the person
is by definition not being compelled to testify. But there are sometimes
difficult questions about the scope and existence of a waiver of the privilege.
Confessions and due process
 About 90% of criminal prosecutions end in a guilty plea
 Why would people confess?
o Theory from natural law
 There is something unnatural about forcing people to be their
agent of self-destruction
 The US SC has relied on three constitutional provisions in regulating the admissibility
of confessions:
o (1) from 1936 to the present, the due process clauses of the 5th and 14th have
been used to exclude involuntary confessions
o (2) from 1964 to the present, the 6th right to counsel has been applied in
determining the admissibility of a confession obtained from a D who has been
charged with a crime
o (3) from 1966 to present, the 5th’s privilege against self-incrimination has
been applied to statements made during custodial interrogation, unless the
suspect, after receiving warnings, makes a knowing and voluntary waiver of
the right.
 The due process cases
o The involuntariness test: Brown v. Mississippi
 The due process clause requires that state action, whether through one
agency or another, shall be consistent with the fundamental principles
of liberty and justice which lie at the base of all our civil and political
institutions. It would be difficult to conceive of methods more
revolting to the sense of justice than those taken to procure the
confessions of these petitioners, and the use of the confessions thus
obtained as the basis for conviction and sentence was a clear denial of
due process.
 Facts…extraordinary police brutality
 Confessions were ruled involuntary because they violated their
rights to due process
 In addition to being involuntary, the confessions were
unreliable
o Due process analysis


Totality of circumstances analysis
 Three factors
o Personal characteristics
o Actions of the police
o Circumstances of the confession
o The continuing relevance of Due Process protection
 Despite the SC’s eventual regulation of confessions through the 6th
through Massiah and through the 5th in Miranda, the totality of the
circumstances voluntariness test is in some cases a suspect’s only
protection from police coercion. The 6th does not apply until the
suspect has been formally charged. Miranda applies only during
police “custodial interrogation,” and that term does not cover all
potentially coercive police practices. Moreover, Miranda rights
can be waived, while the right to be free from coercion cannot.
Thus, if the D has made a valid waiver of Miranda (and, if
applicable, 6th) rights, his only protection from subsequent police
pressure is the due process involuntariness test. Finally, the SC
has found several exceptions to Miranda, so that a Mirandadefective confession can be used for impeachment, the fruits of
such a confession are generally admissible, and the confession
itself can be admitted if obtained under emergency circumstances.
However, even where Miranda and Massiah are inapplicable, the
confession is still excluded under the Due Process Clause if
obtained through police coercion. Thus, the due process
involuntariness test retains vitality today, and cases are still being
decided under that doctrine.
Aside: This most important word in determining whether a confession is good is
voluntary
Miranda
 As discussed above, the SC became dissatisfied with the due process-totality of the
circumstances test as an exclusive means of regulating confessions. After Spano, the
SC applied the 6th right to counsel to exclude confessions. (Massiah. Escobedo.)
But 6th protection does not begin until there is a “criminal prosecution” – the SC came
to doubt whether the Amendment’s protections could apply to the investigatory
stage, before the D has been formally accused of a crime. And it is during the
investigatory stage that most police interrogation occurs and most confessions are
obtained. The SC therefore began to shift to a different constitutional amendment –
the 5th, which is no temporally limited to criminal prosecutions.
 Massiah
o D made incriminating statements while talking with someone wearing a wire
 Statements were voluntary, thus there is no due process issue
o SC ruled that the 6th right to counsel was violated
 6th amendment right only attaches once you’ve been formally
attached with a crime, or indicted





a government cannot pursue an undercover investigation of you
once you’ve been indicted
Escobedo
o Extended 6th right to Ds in custody
Miranda
o After Miranda, Massiah and Escobedo become irrelevant
Miranda
o The prosecution may not use statements from custodial interrogation of the D,
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.
o Facts
 Police interrogations were at issue here
 SC’s central concern…how can we trust confessions?
o Issue…Is this confession admissible?
o D were questioned before their indictment, after their arrest, and inside the
stationhouse
 Does the privilege against self-incrimination apply here?
 The SC holds that the 5th privilege does extend when you
are in custody because custodial interrogation is inherently
coercive
o Two things about this case
 (1) Its hard for reviewing courts to know what is going on in the
stationhouse room. The SC wants to impose some kind of order in the
stationhouse room.
 (2) People should not lose their rights unless they waive them.
 M requires police to educate people on their rights.
Miranda pop quiz
o 4 procedural safeguards of M
 right to remain silent; statement may be used against you in court;
right to an attorney; if you cannot afford an attorney one will be
provided for you
 if a person is know to have ample funds, he does not need to be
informed of the right to provided a court-appointed attorney
o CON requires that people be apprised of their rights against compulsory selfincrimination
o People do not have use particular wording when apprising people of their
rights
o Under
o Custodial interrogations are inherently coercive
o M creates a bright line rule that without the issuance of warnings, confessions
are deemed involuntary
o M attaches to custodial interrogation
o Both inculpatory and exculpatory statements are excluded without M
warnings
o Interrogation must cease when a lawyer is requested
o M gives suspect right to have a lawyer present during counseling


o Police stop questioning when someone asks for a lawyer, they do not run out
and get you a lawyer
o Police have to give warnings no matter the amount of circumstantial evidence
that people are aware of their rights
o The state of proving that a W has the heavy burden of knowingly and
intelligently waived her M rights
o If police trick a D into waiving his rights, the waiver is invalid
o The lawyer does not have to be present in the stationhouse, but if the suspect
invokes M rights, a lawyer must be present before questioning proceeds
o Vote was 5-4
Recap
o Very pro civil liberties/rights, suspicious of the police decision
o Not as controversial as it may have been because the FBI was already giving
Miranda-like warnings
Two ways the police can violate M
o (1) not reading the warnings
o (2) not abiding by procedure once the suspect invokes his M rights
Exceptions to the Miranda rule of exclusion
(1) Impeaching the defendant-witness
 Harris
o While the SC’s “non-constitutional” analysis is no longer viable after
Dickerson, the impeachment exception remains intact.
o The SC found that the cost of excluding Miranda-defective confessions when
offered for impeachment outweighed the benefit in deterring Miranda
violations.
o Why is it constitutional for the gov to use this defective statement?
 Remember: the Court has changed
 A violation of M is not a violation of the CON
o Reasoning here
 Cost-benefit analysis
 D is left with the dilemma of taking the stand and have the confession admitted
for impeachment (while the jury tends to use it for other purposes) or not taking
the stand and facing a greater risk of conviction.
 Involuntary confessions and impeachment
o Mincey
 SC distinguished Harris and Hass and held that if a confession is
involuntary, as opposed to merely Miranda-defective, it cannot be
admitted even for impeachment purposes. The SC reasoned that the
Due Process Clause operates to prohibit the use of involuntary
confessions for any purpose.
 Impeachment with prior silence
o Under standard evidentiary principles, a D can be impeached with prior
silence if a reasonable person would have spoken at the time about the matter
to which the D later testifies.
o Doyle
 SC held that after Miranda warnings are given, the Due Process
Clause prohibits the government from using the D’s silence
against him, even for impeachment purposes.
(2) Fruits of the poisonous tree



Admitting the fruits of a Miranda violation
o It is not okay to use fruit of the poisonous tree in violation of the 4th, but it is
okay in violation of M because M warnings are not required by the CON, but
rather are just procedural safeguards making sure the 5th right is being
respected.
Subsequent confessions: Oregon v. Elstad and Missouri v. Seibert
o Seibert
 The police technique of interrogating in successive, unwarned phases
violates the requirements of Miranda.
 No majority opinion in this case
 Does not overrule Elstad
 Distinguishes it on the grounds that the M warning was not
intentionally withheld in this case
o Questions after Seibert
 Seibert was a 4-1-4 decision. With no majority opinion, how is it to be
interpreted? The lower courts have held that Justice Kennedy’s
opinion is controlling because it is the narrowest view on which five
members of the Court could agree.
 This means that a confession made after a Miranda-defective
confession will be admissible unless, (1) the officers were in bad
faith in not giving the warnings before the first confession; and (2)
the second confession proceeded directly from the first.
 The bad faith of the interrogating officer is the controlling
factor
 if two factors are not met, then Kennedy would not exclude the
confession
 pretty pro-M decision
Physical evidence derived from Miranda-defective confessions
o In the following case, the Court holds that, even after Dickerson, the
exclusionary rule does not bar the physical fruits of a Miranda-defective
confession.
o Patane
 The Self-Incrimination Clause is not violated by the admission into
evidence of the physical fruit of a voluntary statement.
 If it is a confession, we do our Elstad/Seibert analysis


If police acted in bad faith, there is a presumption that the
evidence will be excluded
 If it is physical evidence, then it is admitted
An Emergency Exception
o New York v. Quarles
 SC concluded that “overriding considerations of public safety” can
justify an officer’s failure to provide Miranda warnings, and that an
unwarned confession obtained under such circumstances is admissible
in the government’s case-in-chief despite Miranda.
 The Quarles public safety exception to Miranda is apparently now
justified as a necessity exception to the constitutionally-based
Miranda rule – much like the exigent circumstances exception to the
4th requirement.
Open questions after Miranda
 What is “custody?”
 If the D who confesses is not in custody, Miranda does not apply, and the
admissibility of the confession depends on whether it was given voluntarily under
the totality of the circumstances.
 When the freedom of action is restricted in anyway.
 Arrest is custody
o According to Miranda, the test for custody is whether a person is deprived
of his freedom of action in any significant way.
o Classic instance of custody under M.
 Terry stops: Berkemer v. McCarty
o SC held that Terry stops are not custodial for Miranda purposes.
 EXAM QUESTION
o Thus, the law distinguishing Terry stops from arrests (e.g., Dunaway)
also determines whether custody exists under Miranda.
 What is interrogation?
o Harder than custody.
o In addition to the custody requirement, the police must also be
interrogating the individual before the need for Miranda warning arise.
Thus, the volunteered statements or “threshold” confessions (where the D
walks into the police station and immediately confesses) are not barred by
the fact that they were made without Miranda warnings.
 Miranda: (1) custodial (2) interrogation
o The following case sets forth the SC’s guidelines for determining when
interrogation can be found.
 Innis
 Any words or actions on the part of the police that they
should know are reasonably likely to elicit an incriminating
response from the suspect constitute “interrogation” under
Miranda and bring the Miranda safeguards into play.
 Test…M prohibits not just express questioning or its
functional equivalent
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SC held that the suspect was not interrogated
Two questions to think about
o Did the SC articulate the right test?
o Was the test fairly applied?
 Why did the majority find that the situation with the
suspect was not the functional equivalent of
interrogation?
o The suspect had no special interest in handicap
children that the police officers would know to be
reasonably likely to elicit an incriminating
response
o Also, consider that the SC held that the intent of
the police is not controlling, the focus is instead
on the perception of the suspect
Does Miranda apply to undercover activity?
o Bar examiners like this topic
o Perkins
 SC held that Perkins’s unwarned statement was admissible
because “Miranda was not meant to protect suspects from
boasting about their criminal activities in front of persons who
they believe to be their cellmates.”
 SC reasoned that Miranda was concerned with the pressures upon
a suspect in a police-dominated atmosphere. If the suspect does
not even know that he is talking to a police officer, the problems
with which the Court was concerned in Miranda do not exist.
 Miranda is concerned with pressure imposed by the police
 One of the virtues of Miranda, often recognized by the Court, is its
bright-line character.
 SC reasoned that the Perkins rule itself is a bright-line rule:
if there is an undercover investigation (and it is easy to
determine when there is one) then Miranda is completely
inapplicable.
Ambiguity about the right to have an attorney present throughout the
questioning: FL v. Powell
o although the advice given to the defendant was not the clearest possible
formulation of the right to counsel, the two advisements that the defendant
could consult counsel prior to questioning and invoke his right to counsel
at any time, in combination, reasonably conveyed the defendant's right to
have counsel present, not only at the outset of interrogation, but at all
times.
Waiver
 Waiver and the role of counsel
o The Miranda Court stated that the accused may waiver the rights to silence
and counsel, but only if, under all circumstances, the rights are waved
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“voluntarily, knowingly, and intelligently.” Thus, the validity of a waiver
is question of fact in any particular case.
 Three important words: knowing, voluntary, intelligently…waiver
o According to Miranda, a valid waiver will not be assumed from the silence of
the accused after the warnings are given, nor merely from the fact that a
confession is eventually obtained. However, in Butler, the SC later held
that neither an express statement of waiver nor a written waiver is
required, so long as there is sufficient evidence to show that the suspect
understood his rights and voluntarily waived them.
 Waiver does not have to be express and can be inferred from the
circumstances
Relationship of waiver standards to the test for voluntary confessions
o Even after Miranda warnings are given, a confession can sill be coerced
under traditional due process standards.
o Connelly
 SC held that coercive police activity is a prerequisite to a finding that a
confession is involuntary – that “there is obviously no reason to
require more in the way of a ‘voluntariness’ inquiry in the Miranda
waiver context than in the 14th Amendment confession context.”
Thus, “the voluntariness of a waiver of this privilege against selfincrimination has always depended on the absence of police
overreaching, not on ‘free choice’ in any broader sense of the
word.”
 Voluntary…the police did not force you to confess
 Definitions of knowing and intelligently are less clear
o The SC seemed more intent on saying what they are not
Information needed for an intelligent waiver: the scope for the interrogation –
(Spring)
o SC rejected the argument that the warnings must be tied to the planned subject
matter of the interrogation.
o You can make a knowing and intelligent agreement to be interrogated without
knowing everything the police intend to interrogate you about
Information needed for an intelligent waiver: efforts of a lawyer to contact the
suspect – Moran v. Burbine
o SC concluded that Burbine’s waiver was valid despite the fact that he was not
informed that an attorney sought to contact him.
o Once it is determined that a suspect’s decision not to rely on his rights was
uncoerced, that he was aware of the state’s intention to use his statements to
secure a conviction, the analysis is complete and the waiver is valid as a
matter of law.
o What could an intelligent waiver possibly mean if no criminal defense
lawyer would instruct someone to waiver their Miranda rights.
o Why did the Court think the waiver was knowing and intelligent?
 Because he responded that he knew and waived each of the rights
afforded to him by Miranda
The role of counsel under Miranda
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o It is the suspect who has the right to counsel under Miranda; and counsel has
a role only after the suspect has invoked the right. Because the D never asked
for counsel in Burbine, counsel had no independent rights to assert. His
presence at the police station was irrelevant.
o Miranda does not require deceptive of D’s attorney
 However, police cannot make an AFFIRMATIVE
MISREPRESENTATION…the waiver would no longer be
legitimate
 This is under Miranda
No requirement to inform the suspect of counsel’s efforts
o The Burbine Court declines to “extend” Miranda to require the police to
inform the suspect of an attorney’s efforts to reach him. Such a requirement
would be inconsistent with Miranda’s bright-line approach.
o The SC reasoned that the minimal benefit of being informed that counsel was
attempting to contact D would come at a substantial cost to society’s
legitimate and substantial interest in securing admissions of guilt.
o Policy grounds
 SC was concerned that confessions would be discouraged and
confessions are a good thing
 Consistent with the compromise reached in Miranda…attorney will
not be provided automatically, but it will be upon request and you will
be informed of this right to an attorney
Waiver after invocation of Miranda rights
o The government must show that this change of mind came from the suspect,
and not from police harassment. Where the suspect has invoked his right, the
SC has shown far greater sensitivity to the waiver issue than in cases where
there was no invocation.
o A suspect can invoke two rights in response to the Miranda warnings – the
right to silence, and the right to counsel. The SC has held that the rules on
waiver differ depending on which right is invoked.
o Invocation of the right to silence
 Mosley
 SC concluded that the Miranda Court could not have meant
that interrogation is forever barred simply because the D
invoked his right to silence at some point. The SC concluded
that the only sensible reading of above language was that the
suspect’s right to cut off questioning must be “scrupulously
honored.” If the right to silence was scrupulously honored,
then police interrogation could be permitted and a knowing and
voluntary waiver could be found.
 SC indicated that the Court would not tolerate repetitive and
continuous attempts to interrogate a D who wanted to remain
silent. But he concluded Miranda should not be a per se bar to
resumption of question.
 What about the person who invokes their 5th right to silence
but no his 6th right to counsel?
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The SC produces a very fact-dependent analysis
o Police immediately stopped asking questions after M
invocation; different police came in 2 hours later and
asked about a different crime
 2 conditions for a post-M invocation confession to be
admissible
o (1) police have “scrupulously honored” suspects right
to remain silent
o (2) waiver must be knowing and voluntary
 not a lot of guidance given here about what an officer can do
after one invokes their right to silence
Right to silence must be clearly invoked; waiver can be implied from the
confession itself; and interrogation after warnings is permissible so long as
waiver is ultimately found: Berghuis v. Thompkins
o Facts
 D was largely silence as police spoke to him for 3 hours
o SC held that this was not a violation of his M rights…you have to
unambiguously invoke your right to silence
Invocation of the right to counsel: Edwards v. Arizona
o Edwards
 Additional safeguards are necessary when the accused asks for
counsel; and we now hold that when an accused has invoked his right
to have counsel present during a custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded
to further police-initiated custodial interrogation even if he has been
advised of his rights. We further hold that an accused, such as
Edwards, having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless
the accused initiates further communication, exchanges or
conversations with the police.
 This is a different case according to the SC
 Police can bother somebody in some circumstances if you
invoke your right to silence
 If you are invoking your right to counsel, you are suggesting
that you need help
o The Court seems to think that such a person would
not change their mind about this absent police
pressure
 Very broad reading of Miranda by the SC
Defining initiation: Oregon v. Bradshaw
o Edwards requires that a suspect “initiate” further communication before a
waiver can be found. Whether a suspect had initiated reinterrogation is often
quite a difficult question.
o The plurality clarified that a finding of initiation by the suspect was not
enough to constitute a waiver under Edwards. The SC stated that even if the
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suspect initiates communication, “where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent events
indicated a waiver of the 5th right to have counsel present during the
interrogation.”
o Thus, the SC uses a two-step analysis to determine whether a suspect waives
his rights after invoking the right to counsel:
 The first step is the bright-line prophylactic safeguard of the suspectinitiation requirement.
 The second step is the familiar totality of circumstances test of a
knowing and voluntary waiver. (Burbine test)
 “What’s going to happen next?”… sufficient for initiation
Application of Bradshaw
o Lower courts have consistently followed the view that any ambiguity in
whether the suspect expressed an intent to reopen the dialogue should be
construed in favor of finding an initiation.
Ambiguous invocation of the right to counsel: Davis v. US
o As with invocation of the right to silence, questions sometimes arise as to
whether the suspect has in fact invoked a right to counsel. If there is no
invocation, then there is no initiation requirement, and the analysis reverts to
whether the D knowingly and voluntarily waived his Miranda rights.
o In Davis, the SC held that a suspect must clearly and unequivocally invoke
the right to counsel in order to trigger the protections of Edwards. If the
invocation is ambiguous or equivocal, police questioning can continue; and
such questioning need not be limited to that necessary to clarify the suspect’s
desire with respect to counsel.
Waiver after the suspect has consulted with counsel: Minnick v. Mississippi
o SC held that the protection of Edwards continues even after the suspect has
consulted with an attorney.
o SC declared that under Edwards, police-initiated interrogation after an
invocation of counsel may occur only if counsel is actually present during
the interrogation.
Which constitutional right to counsel is invoked? McNeil v. Wisconsin.
o SC held that an accused who is arraigned and asks for counsel is invoking the
6th, rather than the Miranda, right to counsel, and there is a difference in the
protections provided. As we will see, the Edwards initiation requirement is
a protection available only if Miranda rights are invoked. It’s not
available for invocations of the 6th right to counsel.
o The Miranda right to counsel comes from the M decision itself, it is not a
constitutional right.
 There is no constitutional right to a lawyer for people who have been
arrested.
o It becomes a constitutional right after arraignment…6th Amendment
right to counsel attaches then
The requirement of continuous custody for Edwards protection: MD v. Shatzer
o It held that a 14 day break-in-custody provided plenty of time for a suspect to
get reacclimated to his normal life, to consult with friends and counsel, and to
shake off any residual coercive effects of his prior custody. The inherently
compelling pressures of custodial interrogation ended when the inmate
returned to his normal prison life, so his release back into the general prison
population after the 2003 interview constituted a break in custody. The twoand-a-half year break was long enough to render Edwards inapplicable.
Did Congress Overrule Miranda?
 Dickerson
o Section 3501…was the confession voluntary, looking at the totality of the
circumstances
 Purpose of 3501…overrule M
o Issues
 Whether the M decision was legislative or constitutional? Does
Congress have the power to overrule M?
 C…Congress cannot overrule a constitutional ruling
 Should the SC overrule M?
o 3501 was passed two years after M was decided
 it was a law that was ignored
o Government’s argument
 In several post-M cases, the SC said the M rights were not
constitutional, but rather prophylactic
 This would mean that the M ruling itself is not constitutional
o D’s argument
 M rights are constitutional
 States are required to follow M and must be constitutional
o SC holds that M is constitutional and cannot be overruled by Congress
 SC does not overrule M because of stare decisis
 There has not been any kind of shift in policy, etc. to
warrant not following M
 M has largely is embedded in police culture and should be
given special deference
o Although M warnings are not required by the CON, the M Court
announced a constitutional rule and because of stare decisis and the
manner in which M has been embedded in our culture, the majority
upheld M
 IMPORTANT DECISION/RATIONALE
 Also note: Congress cannot overrule it
 Dissent (Scalia)
 Scalia said the decision is “unprincipled law”
E. SIXTH AMENDMENT...RIGHT TO COUNSEL
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Purpose of the lawyer in context of M
o in order to protect the right against self-incrimination
The Massiah Rule
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In addition to the 5th and the Due Process Clause, the SC has also extended the
protections of the 6th to some police-induced confessions.
In the following case, the SC explicitly relied on the 6th to exclude a confession
Massiah
o Authorities cannot use incriminating statements gained from an accused
through stealth after indictment and in the absence of counsel.
o Two years before M
o Constitutional rights, rather than one of those “wimpy procedural
safeguards”
o Remember: historical progression of the analysis of confessions
 Due process…6th…5th
 Due process is still good law, just not the best for analyzing
confessions
o SC holds that 6th prohibits the police from deliberate elicitation of
incriminating statements by police after you have been formally charged
with a crime (i.e. indictment [grand jury] or arraignment [i.e. judge])
 6th right does not attach at an arrest
Obtaining information from formally charged defendants
 Brewer
o Once the right to counsel is invoked and the suspect refuses to answer
questions, any evidence gained through subsequent interrogation is
inadmissible.
o Test case designed to get the SC to overturn M
o Constitutional issue before the SC
 No reason to look at M because the 6th applies
 Even though the SC had been using M for 10 years
o SC holds that there was a 6th violation because the police deliberately and
designedly set out to elicit information from D
 Just like an interrogation
 6th is a constitutional right, rather than procedural safeguard
 On the meaning of “deliberate” elicitation
o The 6th prohibits a government agent from “deliberately eliciting”
incriminating information from an “accused” in the absence of counsel or a
waiver.
 Application of the deliberate elicitation standard: Fellers v. US
o SC founded that the lower court had improperly applied Miranda rules to a
Massiah case.
o SC noted that the “deliberately elicited” standard was distinct from
“interrogation” and found that “there is no question that the officers in the
case ‘deliberately elicited’ information” from Fellers. Accordingly, SC
concluded that the lower court erred in finding that Fellers’s 6th right to
counsel was not violated in his house. But, SC also concluded that the Court
has not decided whether Elstad (holding that testimonial fruits of a Mdefective confession are not subject to M’s exclusionary rule) applied to a 6th
violation and therefore remanded for further proceedings.
o Most of the COAs have applied fruit of the poisonous tree doctrine to
violations of the 6th
Use of undercover officers and state agents
 In one respect, the 6th is less protective in regulating confessions than is the 5th: it
applies only to those who have been formally charged, whereas M applies to all
suspects facing custodial interrogation. In another respect, however, the 6th is
more protective than the 5th: it limits the use of undercover tactics, whereas M
only applies when the suspect knows that he is speaking to a police officer.
Waiver of sixth amendment protections
 In the M section, we noted two distinct waiver situations: (1) where D receives
warnings and waives his rights; and (2) where D receives his warnings, invokes his
rights, and then subsequently is argued to have waived his rights. Similar situations
arise in the 6th context.
 If you have received the M warnings, you do not need to be told your 6th
rights…because you already know them
o M requires a waiver to be knowing, voluntary, and intelligent
 So knowing and intelligent that the police have to tell you about your
rights
 Two situations in which 6th waiver standards might be different
o In Patterson…SC stated that two situations in which 6th waiver standards
would be different from the standards applicable to M
 (1) we have permitted a waiver to stand where a suspect was not told
that his lawyer was trying to reach him during questioning (Burbine);
in the 6th context, this waiver would not be valid.
 (2) a surreptitious conversation between an undercover police officer
and an indicted suspect would not give rise to any M violation
(Perkins); however, once the accused is indicted, such questioning
would be prohibited [and a waiver could not be found].
th
o 6 concerns the attorney-client privilege; 5th concerns protection from
police protection
 remember: 6th attaches after you have been formally charged
 thus, in those situations, coercive government conduct
would violate the attorney-client privilege
 Waiving 6th right to counsel after invoking it: Montejo v. LA
o In the following case, the SC reconsiders – and rejects – the extension of
Edwards to the 6th waiver context. This means that there is a major
difference between 5th and 6th waiver. If a charged D invokes his 6th right
– typically, at an arraignment or other hearing – police officers remain
free to approach him and seek a knowing and voluntary waiver. In
contrast, if the suspect invokes his Miranda right to counsel – which could
only be done when getting M warnings from police officers in the context
of custodial interrogation – then there can be no waiver unless the D
initiates a new conversation with the officers.
 Montejo
o The court-ordered appointment of legal counsel does not preclude additional
police-initiated interrogation outside the presence of counsel.
The 6th Amendment exclusionary rule
 SC found that the remedy for the violation should be the same as for the
violation of the 4th or M: exclusion from the case-in-chief, but permitting
impeachment of the D’s inconsistent testimony.
F. IDENTIFICATION
 Constitutional protections afforded to innocent people
o We have been studying constitutional protections afforded to guilty people all
semester
 This Chapter examines the very real dangers associated with identification
evidence and the safeguards that the criminal justice system has fashioned to try
to assure that mistaken identifications error will not irreparably taint criminal
identification.
Identifications and the right to counsel
 The Wade-Gilbert Rule
o A post-indictment lineup is a critical stage in a criminal prosecution, and the
accused is entitled to the assistance of counsel at this time.
o In this case it is unclear whether the in-court identification was
inextricably intertwined with the faulty pretrial lineup. If the in-court
identification was independent, it may be admitted.
o If in-court ID is “tainted” by out-of-court ID then it must be excluded as
well
o How do you know if the in-court ID was impermissible tainted?
 Totality of the circumstances test
 Prior chances to ID, similarity of conditions in prior chance to ID, etc
 Kirby
o There is no right to counsel at police lineups held before the accused is
arrested or charged with a crime.
o 6th right to counsel only attaches once arraignment occurs
o Due Process takes care of these rights
o SC says it would be bad public policy to allow lawyers at prearraignment line-ups because it would be unduly burdensome for police
Due Process limitations on identification evidence
 The Foundations of a Due Process Test
o Stovall v. Denno
 SC held that a due process-fundamental fairness approach would be
used in assessing identification procedures that are not governed by
Wade and Gilbert.
o Simmons: The SC stated that the due process test protects against
identifications that are “so impermissible suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.”
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o SC almost never holds for a violation of due process in cases pertaining to
lineups
Reliability as the linchpin
o Manson
 If an identification is independently reliable, it will not be excluded
solely because police identification techniques were suggestive.
 The ID procedure was suggestive
 Was it necessary for some reason, like exigent
circumstances?...no
 No need for it to be suggestive
 Choice between a per se rule and a totality of the circumstances test
 SC goes with totality of the circumstances test
 Factors
o Problems with eyewitness ID; deterrence effect; effect
on the administration of justice
o Reliability is the linchpin
 (1) the length of time in which the accused was
viewed; (2) the nature of the witnesses; (3) the
circumstances; (4) the length of time between
the incident and the identification; and (5) the
ability to give an initial description of the
accused (level of certainty).
 Marshall dissent
 He does not agree that this ID was reliable because the total
amount of time the officer was face-to-face with the suspect
was actually quite slight
 The police officer also found the ID to be generalized
 Officer failed to mention the D’s accent.
 Remember: the Due Process Clause is not a “best practices”
doctrine, violations only occur once the minimum constitutional
requirement has been violated
 Aside: it is much more difficult for people to ID people who are
not of their own race
 This information may not have been available for the Marshall
dissent
Methods police typically use for identification
o Lineups
o Photo identifications
Are these reliable process? … not according to Gawande
Scientific problems
o Repeated exposure to D makes you more confident in your identification
o Other people’s identifications tend to influence one’s identifications
o People think their memories are better than they are
o The more stressed out you are, the less reliable your memory is
Instance of science rebutting conventional wisdom
G. RIGHT TO COUNSEL (HISTORY); PROSECUTORIAL DISCRETION
The Right to Counsel
 Saltzburg’s organization is a little backwards
 6th right attaches at indictment/arraignment
o post-indictment line-ups
 The early development of the right
o The right to appointed counsel in felony cases
 Powell
 In a capital case, where the D is unable to employ counsel and
is incapable of adequately defending himself, the Due Process
Clause requires that effective counsel be appointed for him.
 6th was not incorporated until Gideon
 Due Process rights were violated
 A New And Sweeping Right and Its Limits
o Appointed counsel for indigents in felony prosecutions
 Gideon
 An indigent criminal D is entitled to court-appointed counsel.
 The right to counsel is a fundamental right.
 Betts is overruled
o Even at the time, it was inconsistent with precedent, i.e.
Powell
 The right to appointed counsel in misdemeanor cases
o Hamlin
 A person has a right to appointed counsel in any case in which he may
be sentenced to jail.
Prosecutorial discretion