Criminal Procedure Outline – Lerner – Fall 2010
I. Preliminary Topics in Criminal Procedure:
 There are 3 topics we must first discuss:
o 1) What makes a Case Criminal or Civil
o 2) Incorporation of the Bill of Rights to States
o 3) Retroactivity of Supreme Court decisions
 1. What Makes a Case Criminal
o It is not that the “burden of proof” is higher then that of a civil case, or that the penalty is jail time
o This may be similarly true of Civil Cases
 Reasons for Wanting a Civil or Criminal Case
 Usually the ∆ will argue that it is in fact a criminal case
 Criminal Cases give certain benefits of constitution
o Right of Counsel
o 5th Amendment Privilege against self incrimination
o Higher Standard of Proof
o Right to Jury Trial
 The 7th amendment has not been incorporated to states for civil trial
o Punishment differs
o Stigma is different
o Consequences of Felony Conviction
 Gun Rights end, Voting rights end
o Legislatures Designation:
 What makes a case criminal or civil then, is the designation of the legislature
 When they say its criminal, they mean to invoke the criminal system for that sanction
 View of Supreme Court:
 The Title of a case, however, is not dispositive, so the Court has come up with a test for evaluating
if a case actually is Criminal or Civil
 United States v. L.O. Ward:
o F- The penalty for discharging hazardous waste within water was called a “civil”
punishment, but challenged that it was criminal to gain benefits of constitution
o L.O. Ward Test:
 1) Determine Congress’s Intent to make Civil or Criminal
 How it is categorized
 2) Then Determine if the penalty is so punitive as to negate the categorization
 Only clearest proof will prove element #2
 Heavy presumption with legislatures designation
o Applied in:
o Civil Commitment of Sex Offenders
 1) Allen v. Illinois:
 Commitment proceedings, sending to Maximum Security Prison were not considered Criminal
 The 5th Amendment did not apply
 Strong Presumption worked, as Court relied on the label as “civil”
 2) Kansas v. Hendricks:
 F- Commitment statute was used to commit sexual predator immediately after the jail time was
up. This was challenged under the a) Double Jepoardy Clause and the b) Ex Post Facto Clause (as
it was passed after he was in jail)
 Ro Thomas: Applying the L.O Ward test, the intention was civil
 Based on placement in the books
 Title
 The clearest proof to negate was not used, as it was only used as evidence of a
mental defect
 Even if you weren’t convicted, you could be committed


o
Allowed for release on treatment working
So # 2, no punitive intention
Sex Offender Registration:
 These statutes, “Megan” statues, require convited sex-offenders to register with local authorities when they
move, buy a house, and continue to do so forever periodically
 Have been challenged under “Ex-Post-Facto” reasoning, that they were passed after peoples convictions
 Smith v. Doe:
 Kennedy: Statues are Civil, and not criminal
o Hendricks, was used showing that restricting a dangerous individual is legitimate
government purpose that isn’t punitive
o Didn’t have characteristics of Punishment:
 Not physically restraining
 Was not like “supervised” release or probation
 Just had to let them know, and you were free to act
 Souter (Concur):
o Said the non and punitive benefits were balanced
 Was located within the criminal code, called civil, had stigmatism of criminal
punishment, and based on crime
o But because of strong presumption of intent, # 2 of L.O Ward test was not met
 Ginsburg (Dissent): Is Criminal
o Argued that this was same as supervised release/parole
o Said it was punitive because it applied to all people, no matter if they would even be
dangerous in the future
o These people have no chance to end this either, no matter what they do
 Punished indefinitely for crime that occurred and was punished for
 Policy:
 The reason the Criminal/Civil question comes up a lot in Sexual Offender crimes is that they have
high rate of recidivism and are politically charged. Highly legislated then, leads to many appeals
o Civil and Criminal Contempt Proceedings:
 Civil Contempt: Fined or imprisoned, but can rid yourself of your own contempt by actions
 Criminal Contempt: Court will assign a sentence or fine of fixed amount and duration no matter what you
do
 International Union v. Bagwell:
 F- Union violated injunction, and court levied $64M in fines for civil contempt. Π appealed
arguing that this was a criminal punishment and because of which, their constitutional rights were
violated because of a lack of jury trial
 R- Court held fines were criminal.
o Court was not punishing something that happened in its presence
o Court was policing out of court activity and fine was very serious amount, requiring a
jury, acting as police during a many month violation of injunction
 2. Incorporation of Bill of Rights to States
o Question of “Does the Bill of Rights bind the state?”
o Because of Incorporation, Criminal Procedure has turned from a rules based class into essentially a Constitutional
Law Class
 We almost exclusively focus on the Bill of Rights, and its criminal procedure aspects
 Seen first in Powell v. Alabama, incorporating the 6th Amendment’s right to Counsel
o Historically:
 Barron v. Baltimore (1833):
 Court concluded that the Bill of Rights only applied to the Federal Government
o Did not apply to the states
o Article 1 § 10 of constitution clearly stated what states were prohibited from
 Because that specified states, BOR did not apply because it didn’t specify
 1860s  Post-Civil War Amendments Created
 Twining v. NJ:
 Privilege against self-incrimination did not incorporate to states


o
Powell v. Alabama (1932):
 One of earliest incorporation cases, incorporating 6 th amendment right to counsel through the 14th
amendment due process clause
Palko v. Connecticut (1937):
 F- Connecicut that had a rule allowing prosecution to appeal verdict. This was contrary to the
federal rule of “double jeopardy” but resembled European rule that allowed prosecution to appeal
 R- Identified the possibility of Bill of Rights incorporating through the 14th amendment
 Established rule that if BOR provision was “implicit in the concept of ordered liberty”  could
incorporate
 But found that “Double Jeopardy” clause of America was not implicit in concept of ordered
liberty, because other places, like Europe, were operating in ordered liberty fine without it
Modern Incorporation Doctrine:
 In 1960s, Warren Court shifted incorporation view
 Currently, Black’s view of total incorporation has almost fully occurred, and essentially the entire BOR
does incorporate to apply to states
 Grand Jury Has not incorporated
 Excessive Bail Clause Has not incorporated
 7th Amendment Right to Jury Trial Has not Incorporated to Civil Trials
 Duncan v. Louisiana (1968)
 WhiteMajority:
o Test while the court’s test has varied, a BOR provision incorporates if “It is
Fundamental to the American Scheme of Justice”
 Differs from Cardozo’s view in Palko, which looked at European models which
were “ordered”
 Idea here, was that our system, America’s system, was different in values, and
even if something worked elsewhere like England, there were certain things
fundamentals here
 “Trial by Jury” appears in BOR and Art. III §2 its important to us, and
fundamental to our American system
 Therefore 6th amendment incorporates through 14th amendment to states
 “Selective Incorporation Doctrine”
 Bring in BOR piece by piece
 “Jot for Jot”
 Believes that if a BOR provision incorporates, it applies exactly the
same to the Federal and State government
 Every Detail Equally Applies
 Black (Concur):
o Concurs, supporting this “selective incorporation” because at least it brings part of BOR
to states, but believes in
o Total Incorporation:
 Textualist idea that the 14th P&I stands for the BOR, and was reasonable way
to say it
 Originalist
 He was Senator, and believes in looking at congressional intent
o Historical in CI analysis shows that that is what is intended
o Fundamental Difference in View from Harlan
 Believes in limited judicial discretion
 By limiting what can be incorporated to BOR, disallows justices from finding
new things to incorporate
 Disagrees with Harlan’s approach, because it allows the Justices too much
discretion in deciding what to incorporate, or think of new things within the idea
of due process
o Federalism



As member of KKK, justice Black supports idea that Federal Gov shouldn’t
interefere with states
By advocating TI, limited to BOR, it may increase federalism, by limiting
possible judicial limits Harlan’s approach would put on states
Harlan (dissent)
o Justices should gradually Include: While agrees TI is consistent, thinks that Justices
should gradually include based on justice’s interpretation of what due process and liberty
mean within the 14th amendment.
 Judicial Discretion to determine what may be
o Allow what is Far: Letting states experiment is beneficial Like Connecticut’s
prosecutory appeal
 Advocates idea of evaluating the fundamental “fairness” of the state’s process,
and if it is fair its ok
o Text Does not mean BOR:
 Text does not incorporate
 Uses Law Review article to find intent of congress and argues that if it wanted
to incorporate BOR, the P&I clause is a funny way of doing so
 3. Retroactivity
o At what point does a new Supreme Court Rule Apply in a case?
 Who Gets the benefit?
o Based on Direct and Collateral Review
 Direct Review:
 Everything before filing of certiorari Direct Review
 Collateral Review
 Once Direct Review has been exhausted  Collateral Review / Habeus Corpus
o Process: begin in trial courtAppeals Highest (State or Fed)
 Collateral Review Is Limited Does not allow case to be redone
o Rule of Retroactivity:
 Everyone on direct review gets the benefit of the new rule of Supreme Court
 EG: convicted, appeals and files for cert and while cert petition is petition is pending new rule
comes down, you get the benefit
 No One on Collateral Review gets the benefit
 Unless (2 narrow exceptions Teague v. Lane (O’Connor)):
o 1) Rule places primary conduct regulated beyond the power of the government to
prescribe
 EG:1st amendment protects what you were convicted of
o 2) Without the procedure in new rule, there would be serious problems with determining
guilt or innocence
 What is a “ New Rule”  Something that reasonable minds would disagree on the outcome of
 Why did O’Connor Limit Exceptions to Retroactivity?
 1) Finality We want criminal convictions to be finalized
o costs are high if they are not
o if we are very retroactive, the less likely it is the Supreme Court will make new rules
 2) Comity We need to respect state courts
II. The 4th Amendment:
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and persons or things seized”
 Basics
o Begin by analyzing the text of the amendment
o 1) “The People”
 the amendment makes it seem as though it was meant to apply to all people, regulating their conduct
Supreme Court has narrowly construed, however

What People are they Talking about?
 U.S. v. Verdugo-Urquidez
o F- Mexican citizen, non-us resident was arrested by Mexican police in mexico, and
transported to US. Then, US officials searched his home in mexico
o R Court said 4th amendment does not protect abroad, non-citizen outside of US
 “People” was intended to be part of Nation, connected to this country
 Illegal Aliens within US
o While not explicitly decided, 5 justices indicated that the 4th amendment would apply in
this case
 The “connection” would be sufficient, because within country
o Post 9/11, however, presents many questions of the unknown
o 2) Made up of 2 Clauses
 a) The Reasonableness Requirement
 prohibits “unreasonable search and seizure”
 b) Warrant Clause
 Both, however, have been read together
 All searches and seizures without a warrant are presumed unreasonable
 There are exceptions
o When so must only be reasonable, or only have probable cause
o The Text and Exclusion Rule
 The 4th amendment has substance but has no remedy
 Court has imputed the remedy as  Exclusion of evidence acquired without compliance
 However, the fear that evidence will be excluded has effected the interpretation of the amendment,
making it somewhat far reaching
 Therefore, the scope of the rule is changed
 What is a Search and or Seizure?
o The 4th amendment only regulates unreasonable search & seizure
 Therefore, if activity constitutes neither 4th amendment does not apply
 Government then does not have any restrictions to act reasonably
 A Search or seizure is presumptively unreasonable, unless a warrant has issued
o
Search and Katz v. United States:
 F- Person in phone booth was convicted of 8 counts of transferring wagering information over the phone.
FBI used wire tapping device to listen to his conversation but did not have a warrant
 R Majority:
o 1) Cleared idea that the 4th amendment was not restricted to tangible things
 Does not only apply to physical intrusion
 Also applies to intangible, oral statements
 Their listening in on intangible conversation was a search
 Therefore This was a search and required compliance with 4 th
o 2) The Conduct FBI acted with was reasonable, and probably would have gotten them a
warrant based on the evidence
 However, Court does not allow self imposed restrictions on what police force
will do need a warrant to be reasonable!
 They, therefore, didn’t comply with 4th amendment
 *Harlan Concurrence* Katz Test
o Katz decision is seen to stand for Harlan’s concurrence
o Katz “Reasonable Expectation” Test: to determine if there is a search
 1) Did person exhibit an actual subjective expectation of privacy, and
 2) Is that expectation of privacy one that society recognizes or prepared to
recognize as reasonable?
o Here
 Going into phone booth, paying, and shutting door showed #1



So, Public in view and place, but intended to be private, and closing door shut
out auditory listening subjective
Society recognizes the phone booth as place of privacy#2
 4th amendment applies, and this was a search then
Black Dissent:
o Textualist View
o Text shows clear intention to stick to tangible physicalities
 Court should stick to physicalities then
 Too much judicial discretion here
o Wire-Tapping is eavesdropping, and not tangible
 Oral conversations were not considered, and not written in the amendment
o Argues that Court then, is abandoning the language which sticks to
 Policy and Courts Actions:
o Should Court stick to literal view (Black) or extend to new technology not considered in
1700’s (Majority extending it to phones conversation)?
o “translation”
 Katz shows an extension of 4th amendment text beyond just the physical/tangible
things listed
 But we will see that Katz does not get extended too far into new
technology…internet, etc…
o If the Court had not applied 4th to Conversation, and had stuck to literal meaning
 Congress could act
 Amend Constitution
 Legislate
 With technology that many people use, Congress has incentive to act, protecting
constituency
 EG: Wire Tap Statutes
 Issues with Harlan Test:
o Prong 2 could be limited to what government makes us expect is reasonable
 Could say we are tapping you all- we would expect that then
o Subjective privacy can change with technology too
o Use of Tort Law/ Regulations to alleviate this?

Should we connect a search with tort law?
 If it’s a trespass, is it a search?
 No, it would greatly vary based on the state
 Court would have to create federal tort law
 Would need warrant for everything then to violate tort law with impunity

 Katz Test, and Interests that Court has Recognized as protected
o 1) Interest to be free from physical disruption and inconvenience
o 2) That Certain information be kept private
o 3) That property be kept from unreasonable search and seizure as citizens have legitimate interest in using and
controlling their property
 “Seizure” is when property is meaningfully interfered with, an individual’s possessory interest is
meaningfully interfered with
 Synopsis of the Following Section Factors the Court has Looked at:
Factors Court has used to determine if/if not Search or Seizure
-Katz Test (What is Search)
-Public’s Access to Activity
1. Subjective Expectation
-Ordinarily Access it
2. That Expectation in privacy is one that societies’
-Legal to access it
recognizes as objectively reasonable
-Open Fields are not protected
-Conveying to 3P (person or corp.)
-Use of Tort is no longer used
-Assume risk they may release it
-Use of Regulation may be used
-Visibly Exposed to Public/window
-Intimate Activities it reveals
- Ariel Surveillance
-Search that will Only Uncover Illegal act
-The Home
-Looks at Intrusiveness of conduct
- look to intimate details revealed…
- Generally, not a search if can only uncover it
-Curtilage is protected
 Congress’s Role in 4th Amendment Supreme Court’s Rule:
o While the Court may rule something is not a search, Congress can regulate to create more protection
 Why
 Can adjust quicker then the court
 Means to with hearings, anticipate issues rather than waiting for case to come, lobbyists,
constituency will alert them to it
 Exceptions and How Court has interpreted the Katz Test
o Throughout These exceptions we see that do not fit into the Katz test of the Search, we see judicial reluctance to find
something a search because of the adverse consequences of the exclusion rule
 Fear that finding something a search, will exclude the evidence
o 1) Prong # 1: Subjective Manifestation
 Individuals must take affirmative step to protect their privacy interest
 If not, police inspection will not be a search: Prong # 1 not met
 Abandoned Property
 Typically, abandoning is inconsistent with retaining privacy interest or possessory interest in that
thing
 Abandonment does not have to be explicit
o Look at Intent From acts, words, other facts
o Unused apartment/mailbox
 Denial of ownership of X; a container for instance
 Typically not used, however Law varies from state to state (Like tort)
o 2) Prong # 2:
o A. Open Fields:
 Originally
 If open to the public Police could access
 If not, and fenced off, was trespass and a search
 Modern:
 Are not within a persons legitimate expectation of privacy society will recognize
 Cant demand privacy in activities conducted outside
 Even if you subjectively believed it
 Oliver v. US: Where ∆ complained that police officers had trespassed on his farm, past gate, to
find marijuana growing on his property
o This did not amount to a search
o Cant demand privacy in field, unless immediately around home
 Curtilage
 Curtilage
 Oliver allowed the protection of Curtilage, or area immediately outside of home but what exactly
is this?
o

o
If within Curtilage, 4th amendment does apply
 Use of Katz Test this would be in prong #2
U.S. V. Dunn- barn was 50 yards from house, on a property of 200 acres with several different
perimeter fences, barbed wire and netting over the barn windows to see drug laboratory used
this information to get warrant
o This was not a search
o 4 Factors to determine Curtilage
 1) Proximity of the area claimed Curtilage to the home
 2) Whether area is included within enclosure surrounding home
 3) Nature of use to which area is put
 4) Steps taken to restrict observation from passers-by
  Thus barn in Dunn was not Curtilage
 * Also looked at intimate activities associate with home
B. Access by Members of the Public
 Following Katz, the court determined that
 If aspect of a person’s life is public, subject to scrutiny from societal members, that person
has no legitimate expectation of interest in privacy to deny the policy if police obtain what
the public can, it’s not a search
 Court then looks at, “who is the public”
 Consensual Electronic Surveillance:
 US v. White:
o Informant had wire on him, transmitting what ∆ said to police. Court said that this was
allowed, that the illegal acting ∆ should realize that what he says can be heard by 3 rd
party and he assumes this risk
 Saying Words assume risk 3rd party will hear, and not search
 Assumption of risk—conveying to a third party
 “Public” is the 1 other person, and because anyone could hear it it is not
expectation of privacy
 Video Surveillance:
o US v. Gonzales:
 ∆ worked at hospital. Hospital cooperated with police, allowing camera to be put
in mail room where suspected drug receipt was occurring. Caught ∆ on camera
doing “touchdown” symbal.
 Room he did it in was open, anyone could see with windows therefore
 The video of him was the public
 Court said he did not have expectation of privacy in quasi-open room
 Note Public can be very small, even just 1 person (US v. White)
 Financial Records
 California Bankers Ass’n v. Shultz: looked at whether the recordkeeping and report requirements
of Bank Secrecy act violated the 4th amendment as searches without warrants, as it required many
informations to be kept.
o Court said no, it was not a search
o Banks were parties to transaction, so depositors granted access to the bank and had no
expectation that government would not also access
o Like all Public Access if a 3rd party (even 1 person/public) could access information,
the police can too. Here no different
o Conveying information to a 3P…they have ability to release it…so you assume this
risk…
 United States v. Miller
o Held that no search, and 4th amendment did not apply, when subpoena to bank to obtain
depositors records.
 Used same analogy above. Making available to bank (3 rd party/public), makes it
available to government
o Policy:




This led to Congressional Action
 Congress Passed Act due to Court refusing to find more protection
from constitution
 We saw this also above after Katz argument over whether the
amendment should be applied to new technology
o As we’ve seen in this jurisprudence, Court has not been
willing to extend 4th amendment very far
o Probably due to fear of exclusion of the evidence if it finds
that there was a search
Pen Registers
 Smith v. Maryland:
o F- Police installed device that recorded #’s called by the ∆’s phone company from his
home phone
o R- Court found this was not a search
 No expectation of privacy in information that is voluntarily turned over to a 3 rd
party
 The person you were calling could have relayed that information, so
society doesn’t recognize this interest
 Phone Transfers data to the phone company To 3rd party (public)
 Led to Congressional Action
 Note:
 Trap and Trace is for incoming messages
 Pen-Register is for outgoing messages
o Congress has legislated use on e-mail and phone
 Electronic Communications Act
 Tab Z in Supplement
o Need Warrant to get content of message
 Note:
o This is another example of Congress ratcheting up the
protection. While the Court did not find pen-register as search,
ECA by Congress created protections for it (see supra
reasons)
EG:
 Cordless Phone Is it a search to listen to conversation?
o Apply Katz
 While there may be subjective expectation
 Not objective expectation society recognizes
 Broadcasts over FM frequency, which anyone with a radio (that is
common to public) can listen to
 Courts have not recognized as reasonable because of this reason
Public can access
 States have legislated, however, to protect it
 Cell Phone Is listening to conversation a search?
o Apply Katz
 Subjective Yes
 Technology is different, and much more advanced
 Public cannot really access, in common practice
o Requires extreme technology
 Courts have held there is reasonable expectation that society recognizes
in Cell phone privacy
 Is Search Requires Warrant
Trash
 California v. Greenwood:
o Trash was exposed put on corner, where police accessed it to gain evidence leading to
search warrant
o


Not Search
 Public Access:
 “Sufficiently exposed their garbage to the public”
 Commonly known that once there, readily accessible to public or
anyone
 Once on the street corner, anyone in the public could have accessed it
 Conveying it to a 3rd party, who could do with it whatever
 Because of Public’s access Police could as well
 SCOTUS did not use Tort:
 Irrelevant that city ordinance prohibited throwing out trash other way
 Supreme Court rejecting use of tort/law/ordinance…because they vary
too much
 Used Possibility rather then Ordinary
 Just because it was possible public could access
o Relied on Smith
 US. v. Hendrick:
o Not a search even though trash was on the corner, near the porch of the house…question
of cartilage is something within curtalige? Or is it available to public
 Shredded Paper:
o US v. Scott
o Shredded paper within trash bag is not a search
 was “underestimation of police resourcefulness [to put shredded paper back
together] not invasion [of 4th].”
o Was available to public, and just because police put it back together was not as search
 Waste Water
o Riverdale Mills Corp v. Pimpare:
o EPA collecting and inspecting waste water did not constitute a search
Public Area:
 So, under Public Access factor, police can access anything that the public can
 What area’s are public, sufficiently such, that police can examine without warrant?
o Bathroom Stall
 US v. White: Police peering into a bathroom stall was not a search
 While there is an expectation of privacy within it, the stall could be
seen into by anyone by the design of it
o Homeless
 Connecticut v. Mooney:
 Homeless man’s bag, although on public land, had a reasonable
expectation of privacy that society recognized in a closed bag
 Greenwood did not apply because court saw it as a “conveyance to 3 rd
party”
Aerial Surveillance:
 Using the Smith and Greenwood reasoning, the Court has held that surveilling by flying over
someone’s property is not a search
 California v. Ciaralo:
o F- Flying at an altitude of 1,000 feet, observing marijuana growing operation was not a
search in the meaning of the 4th amendment
o R Any member of the public could have flown over it, and seen the same thing
 Not a reasonable expectation of privacy
 Dow Chemical v. US
o EPA flying over a plant that had taken precautions to restrict views, taking pictures of it
was not a search
 Dissent Argued that trade-secret laws prohibited this, and exhibited societal
recognition of a reasonable privacy interest
 Florida v. Reilly
o
o


o
Note:
o
F- Helicopter flew 400 feet above the ∆’s land, because flying over it had an obstructed
view from airplane.
R Not a search
 Ordinary v. Legally Possible
 White advocated that if the public could potentially access the
Riley’s back yard, then it was not a search
o Just need legal possibility
o Also used FAA regulation
 Because no law prohibited it, it was ok for public to
do
 O’Connor advocated that if the “public ordinarily would have access
to such information”
 Note: 5 justices agreed that mere “possibility” approach was incorrect
in making an expectation of privacy unreasonable
Following Riley, the Court began to apply the “Ordinary Behavior” rule instead of
the legal possibility approach
Manipulated Bags in Transit
 Bond v. US
o F- Agent boarded a bus, and began “squeezing” and groping bags from the outside, to
determine if there was anything suspicious within it. He felt a brick like object in ∆’s bag,
and after ∆ consented to a search found meth.
o I- Was this the type of manipulation that the public would normally do, making the
conduct under the Public Access doctrine?
o R Katz #1 There was subjective expectation of reasonable privacy by putting
things within a zipped bag, and placing them overhead
 Katz #2
 Ordinary v. Legally Possible Approach
 While the public may move a bag, or casually glance a bag here and
there, the public does not grope or squeeze bags ordinarily
 Even though the public Could access it, it would not ordinarily do so
in this way
 Breyer Dissent:
 Argued that travel consists of squeezes, and it is going to happen
 Because public does normally do so, police should be able to as well
o But, Breyer was comparing airline travel to bus travel
C. Investigations that can only lead to an Illegal Activity
 The Supreme Court has held that there is no legitimate expectation of privacy that society recognizes in
illegal activity Therefore, if method can only reveal that: No Search
 Canine Sniff:
 US v. Place:
o The Dog Sniff can only reveal illegal items presence
o Does not require luggage be opened
 Intrusiveness:
 Preserves issue of embarrassing or privacy and is only minimally
intrusive because it can only lead to illegal items
o Not a Search
o However
 Taking to long to perform it, to acquire a dog to do the search, or delaying so
that the dog can perform may lead to Seizure
 90 minutes waiting for dog was too much Seizure






 Seizure Exercise in dominion and control over one’s property
However Canine Sniff is not a search, BUT Police Cannot immediately Open Bag
 The sniff and alert to something illegal is legally obtained information
o Sniff, or Sniff + other evidence can lead to Probable cause to get Warrant
 Does not apply to exceptions…(We will see later)
Canine Sniff that Rips Article
 US v. Lyons- When police dog rips open package, spilling the cocaine everywhere that is not a
search
o Treated like a natural (instinctive) occurrence, and not attributable to government
Dog Sniff and People
 5th Circuit has stated that if
o Dog Contacts Person It is a seizure
o Dog Sniffs from 4 feet away Not a Seizure
Dog Sniff of Car During Routine Traffic Stop
 Illinois v. Caballes
o F- ∆ was legally stopped and seized during speeding ticket stop. While officer was
writing ticket, K-nine unit arrived and began sniffing the car. The dog alerted to smell,
and police found marijuana and arrested him.
o I- Do you need an articulable suspicion to use a dog?
o R Initial Seizure was Legal
 But can become unreasonable, and constitutional infringement if
takes too long
o See Place (90 mins. too long)
 Here, facts did not show that the police extended the stop or delayed to get a
dog… the stop did not change much
 Applied Place, which stated that there is no societal interest in contraband
 Using a dog, then, to reveal contraband, is not a search and using dog in
traffic stop does not invade any legitimate interest in privacy
 Minimally intrusive, under Place, to only reveal illegal things
o Ginsburg Dissent:
 Understands dogs looking for explosives, which are in need of public safety, but
thinks that this will lead to dogs being used whenever a car is stopped
 Potential problem, because the dogs change the nature of the stop making it
much broader than initial stop, and more adversarial
Chemical Testing
 Powder:
o US v. Jacobson
o Court applied Place, upholding that testing a chemical powder that FBI agent acquired is
not a search
 Test will only disclose illegality Minimally Intrusive
o Was Seizure
 But because only destroyed minimal amount, it was reasonable
 Urine Testing
o Skinner v. Railway Labor Executives Ass’n
 Testing of Urine sample is a search
 Unanimous decision
 Very Intrusive unconvers innocent, secret information
 Disease, pregnancy, medicens, etc…
 Collecting it is intrusive and embarrassing
 Society recognizes this as reasonable expectation of privacy
Technologically Enhance Inspection:
 Kyllo v. US:
o F- Agent suspected marijuana growth, which requires high intensity lamps which give off
a lot of heat. One night, agent arrived at the house with thermal imager, and detected heat
that was greater then what would be normal of the neighborhood. Based on this,
informants, and utility bills, issued a warrant and found 100 plants.
o I- Was thermal imaging a search, without warrant leading to illegally gathered
information?
o R- Majority
 Was a Search
 1) Technology was not in general public use, so public did not have
access to this kind of information
 2) Home
o Scalia draws bright line at the front door of house
o Intimate Activities: The intrusiveness of this method can
reveal intimate activities of the home which is too intrusive
o All details of the home are intimate activities
 Women in hot bath, etc…
 3) Uncovers both Legal and Illegal Activity
o Too intrusive under Place and other precedent because this
uncovers completely legal activity within the home
 4) Common Law has recognized that the 4th amendment specifically
states “home” Text means what it says that home is protected
 Where technology, not in public use, gets information from the
interior of the home that’s otherwise unobtainable without physical
intrusion Search, requiring warrant
o If public commonly used it, may be ok
o Attempt to protect home in light of advancing technology
 Justice Black would disagree with Judicial
involvement in determination
o Stevens Dissent:
 Argues that this is something public could access
 Even if they don’t have technology, they can see snow melting faster or feel the
heat off of the building
 Society does not recognize an objective expectation that heat waves remain
private, when they are plainly viewable to public
 Overall Court has created a few safety valves because they have boxed themselves in with decisions based on the
consequences of needing a warrant, and not getting one…exclusion
 The Warrant Clause
“…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and persons or things seized”
o History:
 In England, there was a General Warrant Requirement
 This allowed warrant to be issued if someone criticized government
 Warrant allowed search of any house, place that had unlicensed material that may be found
o There were no Limits
 Art. 45, a british magazine, criticized a new tax on cider
 Warrant was issued for Author, John Wilkes
 He eventually sued for trespass and was awarded a huge damages
 American Colonies were thrilled with him, and agreed with him so much that they named places
after him Willkesbarre, PA
 Crown Appealed
 Lord Camden wrote opinion
o He specified that the warrant was too general, and not particular enough of where and
what search would apply to
 America’s Reaction
 Protested the use of the General Warrant in America, disliking the broad reach of it that
immunized the government from wrong doing
 Wanted a good reason for it, and uplifted Lord Camden’s opinion
o
o
Function of Warrant Requirement:
 Probable Cause:
 Creates a threshold level of proof or justification that must exist to get the warrant to search or
arrest
 Justifies, or makes reasonable a search, seizure or arrest
 To meet this, must use facts to demonstrate illegality occurring
 A Fair Probability that crime is in commission, or there is criminal activity
o NOT
 Not Certainty, like that required in criminal trial
 Lesser standard to get the warrant
 Probable Cause to arrest
 Merely, probability that something illegal is/likely to occur
 The suspect is not present, and does not get chance to object
 Is not adversarial
 Oath or Affirmation:
 Affiant must swear in, to be held accountable for his representation to court
 Information committed to court, before search occurs, to prevent any ex-ante backing into reasons
for search
o The whole point is that you had reason (probable cause) prior to search…not that
evidence found after justifies the search in the first place
 Perceived Legality:
 Citizens knowing you have warrant allows for more cooperation
 Particularity:
 Can only search, seize those things that the warrant directs, to those persons, places or things, to
which probable cause specifically relates to
o Not just any search or seizure is allowed
 The Magistrate can limit the scope of search, or time allowed
 Time Limit Staleness
o Probable Cause to believe evidence is somewhere may be ok now, but may stale over
time and evidence may not be there any more
o Staleness not as big a deal with people, as probable cause that they committed crime
exists wherever they go
 Neutral Magistrate
 To avoid unjustified Search and Seizure…Magistrate makes fewer errors then officer
 Allows, neutral, detached, cool, perception of any inference in evidence that there is probable
cause
 Assits in avoiding excessive intrusion
Courts View and Explanation of Warrant Requirement:
 Johnson v. United States:
 F- Officers, after getting information from informant, went to a local hotel and smelled opium
being emitted from a room. They knocked on the door, and eventually were allowed to enter. They
found and arrested ∆.
 I- Is the smell of drugs enough to bypass the warrant requirement
 Ro The evidence the officers had was most likely enough to get a warrant, satisfying
probable cause
o But
 The point of the 4th amendment is that it requires inference be drawn from
a neutral, detached Magistrate
 Not an officer in heat of the moment
 Just because the officer thinks that the evidence would be enough to probable
cause to get warrant, does not waive requirement
 This would nullify the 4th amendments purpose
 Judge’s Role:
 Judge determines when right of privacy yields to right to search
o
Constitutional Pre-Requisites to obtaining a search warrant:
 Requirements:
 1) Probable Cause
o Sufficient Quality and Quantity
 2) Particularity in Warrant:
o Of Place to be search
o Things to be seized
o Person
 3) Reasonable Execution
 4) Evaluated by Neutral and Detached Magistrate
o
1. Requirement of Probable Cause:
 “Is there a fair probability that criminal activity is occurring?” Illinois v. Gates
 A Fact specific inquiry, that is fluid and not rigid
 Need Sufficient Quality and Quantity
 Quality of the Information in Demonstrating Probable Cause
 Spinelli v. United States:
 F- ∆ was convicted of travelling with the intention of gambling in Missouri. Facts were that 1) he
had gone to a hotel 2) he had 2 phones in his house 3) was known by law enforcement as a booky
and 4) Informant stated he was doing this…Not many facts other than this (p.91)
 I- Do the facts set out allow finding of probable cause to get warrant that was issued?
 Ro Aguilar previous case, that dealt with bare bones affadavit which court rejected saying
that more was needed to create inference of probable cause
 Informant, and other information must be of sufficient quality
 Aguilar/Spinelli 2-Prong Test:
 1) Reliability of Informant?
o Has he led to other arrests, accurate before?
 2) Basis of Informants Knowledge?
o How did he get it?
o Detailed?
 US v. Draper: If informant extreme detail in future
events will make up for lack of basis of knowledge

Informant described, with extreme detail the travel
plans and clothes that would be worn…magistrate
can reasonably infer that this is reliable and obtained
in credible way
o Did He See it?
o Was Informants Source reliable?
 Hearsay Chain?
 Corroboration
o If the informant does not meet these two elements, we look to
the circumstances and corroboration of evidence that law
enforcement investigation showed
 Corroboration must be substantial
 Must Corroborate Suspicious Facts, not innocent
facts
o What are other allegations in affidavit that corroborate the
hearsay report?
o Need to be sufficiently detailed, under Spinelli is a lot of
corroboration
o Here
 #1 not met: the only thing court knew in facts was that the officer stated “he is
reliable” not enough

o
o


#2 not met: we don’t know how he got the information, and it is not detailed at
all…mere generalities of activity
 When not detailed, not sufficient to give inference
 Was not corroborated strongly
 Nothing else that investigation showed was suspicious…these are
things that people would normally do
 No Probable Cause based on affadavit warrant should not have been issued
White Concur:
 If sufficiently detailed, may be able to verify itself that it is reliable
 Because Informant is right about some things, more probably right about others
Black Dissent:
 As textualist, does not think Constitution requires the degree of certainty and
specificity to gain a warrant
 Thought Aguilar Test was already too much specificity
Post- Spinelli:
 Officers are presumed to be honest and reliable when making affadavit
o If he states he has first hand knowledge, like he saw it, or saw things:
 Question becomes, are there sufficient facts to create probable cause in
magistrates eyes?
 The Source is what comes into question
 Effects of Decisions:
o After Spinelli, the decision was not received well by police
o Because Anonymous tipsters were unknown, they were essentially useless under the
Spinelli test to show they were reliable at all
o Lower Courts were applying Spinelli in varying degrees, some requiring both elements
be met with extreme rigidity and specificity of how informants got their information…
 Almost always rejected use of anonymous informant
o Rehnquist took it upon himself to clear up a “procedural mess” in the following case
Illinois v. Gates:
 F- Police got an anonymous tip that ∆ was drug-running, to florida, leaving a car there, and flying
back. Then ∆’s husband would drive car back. Investigatory evidence corroborated that, and even
saw man leave, and other agents saw him appear 22 hours later in home town (the amount of time
the drive takes). Strongly corroborated.
 I- Was there sufficient evidence, including the tip, to meet PC requirement?
 Ro State Court
 Strictly applied the Spinelli test, and found that there was insufficient evidence
to get Probable Cause
 Stated that it is impossible to ever known if anonymous tipster is
credible
 Wasn’t detailed enough
o Rehnquist
 Disagrees with Spinelli rigidity
 Too strict/rigid for probable cause
o It is probability of criminal activity. Not certainty required for
conviction
 Effect of Spinelli was to chill police application for warrant
 Impedes Law enforcement: makes anonymous tip worthless because its
impossible to verify credibility
 Modern Controlling Law: Totality of Circumstances Test
 Ask: Is there fair probability that contraband or evidence of crime will
be found in particular place?
 1. Make a Common Sense Review of all circumstances set forth in the
affidavit together
o Take all facts together, not piecemeal
o
o




Look at investigations Corroborating Facts
Analyzes if Probable Cause from the standpoint of an
experienced officer (Not Laymen)
 2. Looking for a probability of criminal activity
 The Prongs of Spinelli are still evaluated in Totality
o Spinelli still useful in looking at reliability, credibility, basis of
knowledge as factors in the totality (not rigid)
 3. A strong prong can make up for weak prong
o If very reliable, it can make up for lack of basis for knowledge
o If basis of knowledge is extremely detailed, lack of reliability
due to anonymity, or intention is ok
 Does it predict future events in detail?
 See Draper (supra)
 Unusual behavior description
 That is suspicious
 If So Makes up for Reliable/Credible
4. Corroboration of the details of informant can be used to fill in
gaps of credibility or reliability
o Would a common sense person, suspicious of the tip, feel
assured by corroborating facts in investigation?
 Minimal Corroboration needed
 If corroborates activity that is innocent (Unlike
Spinelli which had to be suspicious), assures that
tip is truthful
Role of Appellate Courts:
 Ensure that the magistrate had “substantial basis” to conclude
probable cause existed
 Very Deferential Review (No longer strictly scrutinizing mag.)
Here:
 The tip was sufficiently detailed and corroborated to create inference of
probable cause
Post Gates:
 Corroboration altered:
o May corroborate innocent activity …unlike Spinelli
 Lowers Threshold of Probable Cause:
o Gates lowers threshold of quality of information to infer Probable Cause
 States Still Use Spinelli:
o Many states, however, have kept the Spinelli test as a heightened requirement
 While Spinelli is not controlling law in Federal Courts
o Still discuss the factors set forth within, because Gates test considers them as factors that
need to be considered in evaluating informant
How Much Corroboration is needed under Gates Test?
 US v. Warner
o Source that was considered “credible and reliable” stated that ∆ fired a gun
o Anonymous call next day stated that gun was fired
 Mutually Corroborative
o Officer checked registrations, and ∆ had no gun
 Magistrate granted warrant finding probable cause under Gates
 Not that much corroboration is really needed
 Lack of Corroboration is clear in next case…
 US v. Peyko
o Anonymous tip came that ∆ was using Federal Express to send and receive drugs weekly
o Agents investigated, and found out that ∆ did use Federal Express regularly
 Magistrate found that the tip, with the corroboration was enough probable cause

Corroboration gave color to the tip Tip gave color to the corroboration, and
that is enough under Gates


Issues:
o There are always issues with informants
 Paid informants may be setting people up for the money
 Anonymous Informants While they could be good Samaritan policing the
streets, they also could have malicious intentions and spiteful desires in mind
(Many Ex-Girlfriend cases)
Quantity of Information
 Gates deals with the quality of information provided…Was the informant enough, and were the
corroborative facts sufficient to infer Probable Cause?
 But How much reliable and corroborate information is needed: What Quantity?

o
o
United States v. Prandy-Binett
o F- Unmarked detectives saw man get off train station, and hurrying through traffic, and
when he saw them he moved a bit quicker. They went up to him and asked him a few
questions, all of which they quickly found of were lies…where he was from, what he was
doing etc…After they asked to search his bag, he said no, but opened it and showed them
himself. As he pulled things out, a duct-taped, brick showed and officer arrested him.
o I- At what point was there probable cause?
o R Officers First hand account is reliable
 Was there sufficient evidence?
 Escalating Nature
 Not while walking, not while quickly walking, and probably not while
answering a few questions wrong which could be misconstrued
 But, when brick was spotted Probable Cause
 Magistrate Reviewing:
 Analyzes if Probable Cause from the standpoint of and experienced
officer (Not Laymen)
o To determine when (what quantity) is sufficient
 Dissent:
 Strongly critiqued “hunch” officers had to approach man, and likened it
to racial profiling
 Courts general dislike Hunches
Texas Law Review Article Digression:
 FISA Warrant:
o Requires probable cause that the person is “agent of a foreign power”
 Used for foreign intelligence gathering, rather then for law enforcement
 Sometimes seen to have a lessened standard then normal warrant
 Application is made to a Panel of Judges
 FBI’s Warrant:
o Go’s first to the Assistant US Attorney General for approval, who approves or not,
sending it to the court
 Argues 2 points:
o Probable Cause is a fixed standard, not deviating from case to case
o 1) Make Probable Cause a sliding scale, taking into account the gravity of the harm
 Could still get the ex-ante benefit by getting police to agree to a limited scope
before hand
o 2) Abandon Warrants all together
 Look solely at reasonableness
 But does not have ex-ante protection or scope limitations
2. Requirement of Particularity:
 General: Prior to 1967, search or seizure within a warrant was limited to the “Fruits (money) or
Instrumentalities (gun)”… “Mere Evidence” were not allowed to be searched



 But, the Warren Court Changed This
What can be Searched For or Seized
Warden v. Hayden
 F- Maryland Court convicted resident of armed robbery, taking his clothes during a search which
were used to convict him
 I- Can Search for Mere Evidence occur?
 Ruleo A Search an be for the fruits, instrumentalities, or other evidence of crime
o Text:
 Brennan argued nothing in 4th amendment stated anything about mere evidence
o Difficult to draw a line between mere evidence and instrumentality, as sometime one is
another in different cases
o Contrary to Framers Intention:
 Did not want mere evidence searched, because limited scope and protected
property interest…
 Effect of Warden v. Hayden:
o Pre-Warden, not many paper cases were brought, because it was difficult to search
through papers because there was not 1 instrumentality, but many pieces of evidence
leading to 1 crime.
o Post-Warden, many more paper cases were brought
o Scope Increase: Led to vastly increased scope, even reaching to 3 rd parties who may
have evidence
o Difficult to apply Particularity
Location of Evidence, 3rd Parties, and Probable Cause
 Following Warden v. Hayden, the search for evidence was vast in scope even reaching to 3 rd
parties
 Zurcher v. Stanford:
o F- Police got warrant to search photographer office of newspaper for evidence in
photography of someone hitting police. ∆ filed suit arguing 4 th amendment breached.
o R Does not Matter Where Search Occurs as long as PC a Valid warrant may
be issued to any property occupied, or not by a 3rd party, where there is probable
cause to believe a fruit, instrumentality or evidence of crime will be found
 Need Probable Cause to believe located there



First Amendment Concern:
 Court quickly dismissed first amendment worry, saying that Magistrate
can limit scope to keep first amendment concerns in mind
Alternative to Warrant:
 Could have issued:
 Subpoena Duces Tecum: subpoena to bring things in to court
o But worry that suspect may be able to reach, destroy,
evidence…
 Motion to Quash: allows you to be heard in front of court, protecting
your 1st amendment rights
Note: Post Zurcher:
 Congress enacted Privacy Protection Act of 1980
o Law Enforcement cant search or seize work product of media
unless:
 1) Probable Cause to believe member of media
committed crime or
 2) Unless necessary to prevent serious bodily injury
or death
o Cannot gain through Subpoena Duces Tecum
Law Enforcement can search “other materials”
 What someone has given media
 Can order Subpoena Duces Tecum
 An Example, again, of Congress ratcheting up protection of people,
where Supreme Court has set a floor
 Limits Warden v. Hayden’s application to Media
Particularity Requirement of the Warrant:
 Idea:
o 1. Is to restrict scope of Officer, avoiding General Warrant problems
o 2. Establishes record of where there is probable cause prior to search
 Arrest Warrant:
o Must describe person to be seized…arrested anywhere (See infra)
 Search Warrant:
o Location: Must be particular description of place, with address and apartment number,
color of house, description of outside, etc…
 Apartments are each, individually, its own dwelling: Separate Warrant for each
 If you can search a house, you can search the Curtilage
 Includes vehicles within the Curtilage (US v. Evans)
o Things to be searched or seized:
 Must be particularly described within the warrant.
 Catch All Phrase:
 Some Warrants will describe in detail the many things they are looking
for, and then, the last term will say “anything else unknown evidencing
the crime”
o Court has allowed as being modified by previous list
Ejesdum Generis
 Andreeson v. Maryland:
 Broad catch all phrase was in reference to the crime stated therein, not
any crime
 Therefore A Catch all phrase may be acceptable to search for “mere
evidence,” while meeting particularity requirement
o Severability:
 If some clauses are sufficiently particular, and others are not, the overbroad
clauses will be severed from those that are not.
 The Warrant and search will be evaluated from the basis of the clauses that are
acceptable
o Staleness:
 Magistrate may circumscribe location or time to execute search warrant to
combat issues of items sought becoming stale
 Probable cause, within a warrant granted by a magistrate may stale over time, or
slowly erode in reasonability…depending on the nature of the crime, the time
period that probable cause lasts may continue to exist, or dissipate rapidly…
 Marijuana growth—may lost longer
 Stolen items—may be shorter
 Example of Tab-C:
o Probable Cause Quality ok under Spinelli; a fortiori under Gates
o Particularity:
 Limited in Days Prevents Staleness
Rules of Constitutional law embodied in Federal Rule of Criminal Procedure 41 (e) 2 (a):
 A. Warrant must identify person or property searched, or seized, and designate which magistrate it
is to be returned to
 B. Officer must:
o 1. Execute Warrant within specified time, no longer then 14 days (Staleness)
o 2.Execute Warrant only during day time (6am-10pm), unless Judge for good cause
expressly authorizes exception
o



Note:

Searches for Narcotics are allowed whenever, without need to show
good cause
3. Return the Warrant to the Judge
o
o
o
3. Executing a Warrant:
 General:
 Police have a large discretion in how to execute a warrant  there is very little case law on the
subject
 Must be reasonable
 Destruction of Property:
 While within the property where a Warrant has been authorized, must be reasonable
o But the scope within a premises extends to the entire area which the object of search may
be found…cabinets, containers, locked doors is reasonable
o Subject to Magistrate restricting scope
 Buckley v. Beaulieu:
o Court held that it was unreasonable under the circumstances to search for alcohol within
the dry-wall by tearing it out.
 US v. Weinbender:
o Court found it reasonable to search for clothes that would have been tied to ∆’s crime
within the dry wall. They removed a small piece, that was quick to remove, and had
information that the ∆ used hiding spots…so it was reasonable
 Intimidation Device/ Flash Bang:
 US v. Meyers:
o The Use of a flash bang to enter an alleged drug dealers house, who had prior convictions
of drugs, bombs and weapons, was reasonable
o Court evaluates from position of officers on scene
 If Execution of search warrant is unreasonable, is that evidence excluded?
o NO
o US v. Jones:
 Use of the flash bang would only have affected the suspect’s ability to destroy
the evidence…so it only slowed him down
 During Execution of Search Individuals there may be detained:
 Michigan v. Summers:
o The officers may detain individuals, preventing them from leaving to prevent flight if
evidence is found, minimize risk of danger to officers,
4. The Screening Magistrate:
 Purpose:
 1) Analyzes the Quality and Quantity of Evidence for Probable Cause
 2) Analyzes the Particularity
 3) Circumscribes the Scope of Search
 4) To be Neutral and Detached, evaluating all evidence
 At some points, however, the neutrality of the Magistrate may be challenged
 Neutrality:
 1) Coolidge v. New Hampshire:
o The Head of law Enforcement for state could not be the neutral and detached
 2) Connelly v. Georgia:
o Paid per warrant issued, and not paid for not issuing was not neutral and detached
 3) US v. McKeever: Magistrate was reserve policeman, husband was an officer and visited the site
of the search Held, although peculiar, ok and not enough to show lack of neutrality
 4) Lo-Ji Sales v. New York: Magistrate assisting in the search was not neutral and detached
 Legal Training Not Required:
 Shadwick v. Tampa:
o The Court allows non-lawyers to issue warrants for arrest for minor legal offenses
 Court argued that they were neutral and detached


Also, lay people sit on grand juries, and trial by jury to assess guilt, which is
much more significant
o There is Check on Magistrate though
 Motion to Suppress will get Court to evaluate Probable Cause…if not, evidence
will be excluded, but if ok proceed
Rubber Stamp: While Warrants are granted in high percentage, it is difficult to argue that Magistrate is not
evaluating facts, or solely acting as rubber stamp
 Either Court is simply always approving, or Police are meeting the requirements
 Exceptions to the Warrant Clause:
o Generally:
 Court has held that a search or seizure is presumptively unreasonable without a warrant
  But there are many exceptions
o Some require only probably cause
o Others permit search or seizure without probable cause or warrant
 Reasonableness Applies
o 1. Arrest in Public:
 A. General:
 America is unlike many societies, in that it begins criminal process by arrest
 Why do we arrest?
o 1) Incapacitate danger to public
o 2) Make sure they have you, versus you fleeing
o 3) Interrogate
o 4) Prevent destruction of evidence
o 5) Punish
 * By far the biggest reason we arrest
 B. Officer has Discretion to Arrest
 A question of why it is ok to detain someone, instead of issuing a summons for them to appear in
court
o Prior to Atwater, Gustafson concurrence mentioned that it may be unreasonable, and
against the 4th amendment to arrest someone for minor crime
 Atwater v. City of Lago Vista:
o F- Soccer Mom was arrested for a seatbelt violation
o Ro “Custodial Arrest is always reasonable if the officer has probable cause of a
criminal violation, and statute allows it”
Does not matter the severity or minority of the crimethis would hinder police
in determining
Police have great discretion to determine if they will arrest then
 Note:
 Some Jurisdictions have mandatory arrest for certain crimes
 This may, arguably, take out the discretion of police to evaluate a
situation and determine a preliminary course of actionArrest, Ticket,
or leave it be

o

C. Arrest in Public only needs Probable Cause
 United States v. Watson:
o F- Informant was used in sting operation to set up ∆, who was arrested and when he
consented to search, it turned up stolen credit card.
o I- Does the 4th amendment require warrant to arrest?
o R Common Law: The rule at CL was that no warrant was needed
 Not based on Exigent Circumstances
 Do not have to exist in order to bypass warrant.
 Judicial Economy this would burden litigation over whether or not
was exigent
 Arrest in Public only requires Probable Cause and Does Not Require a
Warrant

D. Excessive Force and Arrest
 While Arrest does not need a warrant, it can be unreasonable
 Deadly Force:
o Tennessee v. Garner:
 F- Police were chasing suspect, and shot and killed him
 Deadly Force cannot be used to prevent escape, unless:
 1) Necessary to prevent escape and
 2) Officer has probable cause to believe suspect poses a threat of
serious injury or death to officer or others
 Note:
 Here, unlike Watson, rejects the CL view that deadly force could be
used…premised on the idea that Felons were extremely dangerous
then, but felonies now vary greatly
 Force in General:
o Grahm v. Connor:
 All claims of excessive force are under 4th amendment reasonableness
 Graham Factors to Evaluate Force:
o 1) Severity of the Crime
o 2) Suspect Poses immediate threat to officers/others
o 3) Actively Resisting arrest
 High Speed Chase:
o Scott v. Harris:
 F- ∆ was fleeing in his car at high speed for 10 miles, when they rammed his car
and he was injured…Is this unreasonable?
 R
 Officials can attempt to stop fleeing motorist from continuing to
endanger public by ramming his car, even if risks fleeing motorist
of injury or death
o Not Unreasonable culpability of suspect v. innocence of
public
E. Protection from Warrantless Arrest


o
Generally:
o While Watson allows arrest with only probable cause, determined by officer, this can
lead to problems
 Over zealous officer, “competitively ferreting out crime” may be mistaken in
finding Probable Cause
o So, while warrant not needed to arrest Post-Arrest Protection is
 Gerstein Hearing Gerstein v. Pugh:
o Following Arrest  “Prompt post-arrest assessment of probable cause by
magistrate”
 Note:
 Like hearing to get warrant, the post-arrest hearing is not adversarial
and cannot be heard simply determination of Probable Cause
 Just want same protection that would had occurred had warrant been
obtained
o County of Riverside v. McClaughlin:
 F- County allowed post-arrest hearing to occur up to 7 days after arrest. Was
this Constitutional?
 R
 Judicial determination of probable cause within 48 hours is
prompt, and presumed reasonable
o Can still be unreasonable, and unconstitutional if individual
can prove they delayed to gather evidence
o But Court, in evaluating, should be flexible in understanding
the day-to-day procedural issues an backups
o Can combine Gerstein hearing with other proceedings, if
within 48 hours
 If does not occur within 48 hours, presumed unreasonable unless
government can prove bona-fide emergency or extraordinary
circumstance
o Scalia:
 Arbitrary number…should be 24, as states have already been using that
o Overall
 Gersterin Hearing determines if there was Probable Cause at the time of the
hearing
 Not arrest
 Why?
o Because, if there was not PC at time of arrest, and evidence
has developed, they’d just issue an arrest warrant for you then,
and there.
2. Arrests in Home:
 A. Arrests within Suspects Home require an Arrest Warrant
 Peyton v. New York:
 F: After investigating for 2 days, detectives assembled enough evidence to infer probable cause of
murder. They then went to ∆ house to arrest, but did not find him, and instead found 1 gun-shell –
admitted as evidence.
 I: Does Warrant need to be issued to arrest in home?
 R:
o Yes To arrest within your home, need Arrest Warrant
 Home has always been viewed as special, private place
 4th amendment draws a bright line at the entrance of the home
o Arrest Warrant Needed
 Requires Magistrates’ determination that there is probable cause to arrest
particular person
 Does not Require a Search Warrant






A Search Warrant requires Magistrates’ determination that there is
probable cause to arrest particular person located in a particular place
This could stale, if person is not within the home
Arrest Warrant allows arrest on sight and to enter home if there is
reason to believe suspect is within home
What is Reasonable Belief that Suspect is Home?
o Arrest warrant needed, and can enter home if reasonable to believe he is within Up to
the Officer to determine
o United States v. Magluta:
 Determined that the facts and circumstances must be viewed in totality to
determine if there is “reasonable belief” suspect is within home
 Courts reviewing should be sensitive to on the spot determination by
police Common Sense Factors showing reasonable belief ∆ is present
 Here: Lights on, car in driveway…
Areas Courts have Considered “Home”:
o 1. Homeless Persons “Box”
 Split of Authority
 A. Courts are split on applying Payton, some saying that it extends
flexibly to a homeless persons living space
 B. Others say that Payton simply cannot reach because isn’t “home”
o 2. Hotels and Motels
 Payton Applies with equal force to a properly rented Hotel or Motel Room
 So Arrest Warrant is needed
 Note:
 If expelled, or excluded from building, public arrest without warrant is
ok
 A. Common Hallway Arrest:
o United States v. Holland:
o Police Buzzed Hotel/Condo, and man came out of his hotel
room, into the public common area of hotel and was arrested
o Held: He was not within his home, but was within the public
area, so Public arrest only needs probable cause
o 3. Overnight Guests
 Minnesota v. Olson
 See infra
o 4. When Arrest at One’s Home is Public or Private
 Split of Authority:
 If the Police announce presence at your home, and ∆ opens door:
 1. If arrested on the opening of door, considered by some courts to
occur within the home Arrest Warrant was needed
 2. If officer stays outside, and informs ∆ he is to be arrested, public
arrest
o But, Option 2 risks that officer may have entered home, and
therefore needed a warrant
o Option 1 avoids a need to distinguish, simply saying if within
threshold of door as arrested, its within home and arrest
warrant needed
Payton Violation:
o US v. Harris:
 A violation of Payton, meaning an arrest within suspects’ homes without an
arrest warrant is not and illegal arrest, as long as officer has probable cause to
arrest
 It Is an illegal search of the home


So officer can arrest with probable cause, but may face excluding all
evidence…
 Note
o Protection of the HOME is heightened, and not the person
B. Arrests in the home of a 3rd Party Require Search Warrant
 Steagald v. United States:
o A Search Warrant (Magistrate determines if there is probable cause to arrest the person in
the particular location (3P Home) within particular time) is required
o Why?
 Heightened Protection of Search Warrant is Necessary
 Otherwise, the less protective Arrest warrant would lead police into anyone’s’
home to search for suspect Like General Warrant
 This is to protect the home of the 3P, not suspect
o Standing Issues:
 While a 3P can argue that an arrest warrant is not enough for him in his house,
the suspect arrested within a 3P’s house, pursuant to an arrest warrant, cannot
argue his rights have been violated
 It would be an Anomaly to allow suspect less protection in his own
home, and more protection in a 3rd Parties’ Home.
 As Visitor, under Carter may not have standing

 Framework to Evaluate What type of Warrant is Needed:
o 1. If At Home, or Lives at a 3P Home
 Arrest Warrant required
 Standing to object to search of home
 Standing to object to arrest—although it is ok with PC (Payton
violation is not an arrest)
o 2. If Overnight Guest in 3P home
 Minnesota v. Olson:
 Had expectation of privacy, that society accepts as reasonable and therefore
Arrest Warrant required
 Standing to object to search and arrest
o 2. If temporary visiting in 3P Home
 Search Warrant is Required
 No Standing for visitorStanding for Homeowner
o 4. If Temporary Visitor (Invitee, simply permitted on premises for hours..)
 Warrantless arrest of visitor is ok…they don’t have standing
 To Determine of Temporary Visitor or not
 Minnesota v. Carter:
 To Determine if ∆ is Temporary Visitor:
o 1. Social or Business Purpose of Visit?
o 2. The Duration of the Visit
 Relatively short period of time?
 Here, few hours was short enough
o 3. Connection with the homeowner?
 Lack of previous connection shows temporary
visitor…
 3. Stop and Frisk:
o Quick Synapses:
 There are 3 Categories of Police-Citizen Contact:
 1. Arrest and incidental search
o Requires probable cause and search is unlimited
 2. Terry Stop and Frisk
o
o
o
o
Requires reasonable suspicion and search limited to weapons, not evidence—may
become arrest (Requiring PC, without which/only RS violates 4 th)
 2. Encounter
o Requires no standard of proof, no search allowed, but may become stop/frisk (requiring
RS, without which violates 4th)
1. Terry v. Ohio: One of the most important cases
 F: Officer was in plain clothes, observing suspects, as they talked and repeadetly walked to and from a
store, in a terrible part of town as they seemed to be “casing” the store. Officer testified that he couldn’t say
exactly what attracted him, but after 39 years, he knew they were up to something. He walked over, and
after a BS answer they gave him spun Terry around, patting him down and finding a weapon. Terry wanted
to suppress evidence.
 I: Does 4th amendment allow a stop and frisk?
 R:
 Officer may stop and frisk with reasonable suspicion
 The Warrant Clause does not apply here
o This scenario needs to swift and quick a determination and on-the-spot observation
would be practically impossible
 Reasonableness Clause applies
o Balance the governments interest in crime and officer safety with the publics interest in
freedom from intrusiveness
 Prevention of Crime is weighty and allows a stop
 Police Officers Safety is weighty and allows frisk
 Reasonableness balancing is more flexible, requiring a balancing of interests
o To Stop, a reasonable suspicion is required
o To Frisk, reasonable suspicion of being armed is required
 Requires specific and articulable facts/reason to stop and frisk
 Judged by an ordinary reasonable person
 The Frisk is only allowed for the safety of the officers, and is limited to what
may reveal danger
 But the frisk cannot be as intrusive as a search
 If something is found during the frisk This may lead to probable
cause to arrest…and then a search, incidental to arrest (We will discuss
later)
 Here:
o What they were doing was suspicious to an ordinary reasonable person, giving them
authority to stop (Court said if an officer didn’t stop, would have been against his duty,
that’s how suspicious). Reasonable suspicion to frisk as well as danger to officer, the
area, and what they may have been doing would be reasonably suspicious they may have
a gun.
 Harlan (Concur):
o Argues that once the stop is constitutionally ok, the frisk should be an automatic right
Officer safety is the key attribute
 White (Concur):
o Police do not need constitutional authority to question…they may, but people do not have
to stop and answer
o However, if reasonably suspicion, may question and briefly detain
Post Terry:
 Use of reasonableness balancing approach expanded beyond stop and frisk
 Greatly expanded the scope of police power and discretion
 Creates Escalation Effect:
 A stop, with reasonable suspicion can lead to a frisk finding weapon, giving probable cause to
arrest, leading to a legal search…
o Suspicion gradually increases…into probable cause to arrest
Terry Applied: Adams v. Williams:

o
F: Officer was in car when man, whom he knew walked up and gave him tip that someone down street had
gun and drugs in car. He walked over asked to open door, man rolled down window. Officer reached in
where gun was said to be, grabbed it and arrested man. Search incidental to arrest revealed drugs.
 I: Was this a constitutional stop and frisk under Terry?
 R:
 Informants Tip can lead to Reasonable Suspicion
o Was reliable, not anonymous, and enough specifics to justify a stop Was reasonable
suspicion
 Reasonable Suspicion to Stop and Frisk
o High crime area, at 2 am, with informant’s tip  reasonable suspicion
o When guy didn’t comply, furthered suspicion
o Complied with the limited intrusion to reach where he was told a gun would be
2. Terry Stop and Vehicles:
 Application to Driver Pennsylvania v. Mimms:
 F: Officer stopped the ∆ for a traffic violation, and asked ∆ to get out of the car—noticed a bulge
in the jacket and frisked him, finding a weapon.
 I: Does Terry permit an officer to ask suspect out of the car?
 R:
o Under Terry, an officer can automatically order driver out of vehicle
 Reasonableness Balancing:
 Safety concern of the officer: When ∆ outside, officer can observe the
movements, making him safer, or to leave traffic to talk to him in
person avoiding collision.
 Balanced against
 Extra intrusion of stepping out of car: Court considered this de
minimus, as the suspect was already legally seized and visible to
officer—only had to expose himself a bit more only mere
inconvenience balanced against safety to officer
 Court Policy:
 If they had not ruled that police could order suspect out of car, police
may either use discretion to arrest for minor offense, or end stopping
cars all together out of fear
 Application to Passenger Maryland v. Wilson:
 Court held that Mimms applies automatically to passengers, as well as drivers
o Officer can automatically order passenger out of vehicle
o Reasonableness Balancing:
 Safety concern of the officer and more then 1 person in the car exacerbates
concern of officer
 Balanced against
 Intrusion to the passenger, but while the passenger may have to deal with a bit
more of stronger inconvenience, he is already legally stoppedonly change is
that he steps outside
 Arizona v. Johnson:
o Court held that Mimms, applies to passenger, but to frisk passenger, Terry applies
and reasonable suspicion is needed of “armed” to frisk
 New York v. Glass:
o F: Officer lawfully stopped car, and asked ∆ to step out. This was ok under Mimms. To
read the vin number, however, officer reached hand into car to move some papers away
from that spot—found gun.
o I: Is this acceptable under Terry, or an unlawful search?
o R:
 Court held that officer reaching into car to clear away papers was acceptable
 Reasonableness Balancing:
The officer’s safety did not require that he allow ∆ to reach
into the car. Mimms allows a person to be reasonably detained
outside of car
Terry is expanded, in part, to administrative search then
o
o

3. The Line Between Stop and Encounter
 A. Generally:
 An officer can “encounter” a citizen for any reason, or no reason
o The 4th Amendment does not apply
 A Stop, however, is a seizure and requires reasonable suspicion
 The Question becomes When does an encounter become a stop?
 B. “Free to Leave Test”
 United States v. Mendenhall:
o Stewart’s concurrence Has been assumed by lower courts and Supreme Court
o You are only seized within the meaning of the 4 th amendment if:
 In view of all circumstances, a reasonable person would not have believed
he was free to leave
 If you were free to leave Encounter
 If not Stop, and reasonable suspicion was required
 Factors Considered:
o An Encounter (Free to leave):
 Questioning anyone is not a stop…
 Polite discussion
 Informing them they have right to leave (Although
not required… under Bostick/Dreyer)
 Police standing near exit has been held to be
encounter (INS)
 Badge, and gun simply being on belt, in holster is not
Stop…inherent coercion isn’t stop (Dreyton)
 The arrest of a person near you does not create a stop
for you (Dreyer)
o A Stop (Not Free to leave, must have Reas. Suspicion):
 Look to Coercion
 Many officers’ threatening presence
 Weapon Drawn
 Physical Touching
 Threatening Tones or orders
 Obstructing movement
 Keeping Identification, Ticket, luggage, etc…
 Exit Blocked may be stop (INS, Dreyer)
 Arguably:
o No citizen ever feels free to leave…police are intimidating, just with their belt alone
o Inherent coerciveness leads to this seeming to be a legal-fiction
o But, if Officer had to have reasonably suspicion to talk to everyone, it would hinder dayto-day activities
o Court, through totality of circumstances, lets evaluate…rather then saying “police can
stand x feet away from door, but not y”…would create litigiation nightmare
 Judicially Economical
o More a function of ‘exigent circumstances’
 C. “Free to Leave Test” Applied:
 INS v. Delgado:
o F: While at work, INS agents entered and stood near exists, while other agents walked
around simply asking questions to potential illegal immigrants. If answered, they’d leave,
but if they wanted to, they may ask more questions
o I: Was this an encounter, or a stop requiring reasonable suspicion?
o R:




This was an encounter, not a stop
 Merely questioning is not a seizure
 Were at work, so they would not leave anyway, and agents at exists
had no effect as coercive
United States v. Cardozo:
o F: Police saw ∆ late at night, with friend, drove wrong way down one-way street, rolled
down window, and began talking to ∆. ∆ answered and walked over, and accidentally
exposed a bullet in his hand. Officer got out, stopped, frisked and found gun.
o I: Was the initial contact a stop?
o R:
 This was an encounter, not a stop
 There were no lights, sirens, officer stayed in car, ∆ came over on his
own, his liberty wasn’t restrained at all…he was free to leave
D. Modification # 1 to Mendenhall:
 In certain limited spatial circumstances, the “Free to Leave” test does not apply because leaving
isn’t an option
 Florida v. Bostick / United States v. Drayton:
o F: Officers entered bus, 1 stayed at exit, and 2 went down aisles questioning people.
They asked ∆ questions, noticed his long baggy clothes in summer in florida, he
consented to bag search, and found drugs. ∆ argues that he was stopped without
reasonable suspicion, and drugs are not admissible then.
o I: Was this an encounter or a stop?
o R:
 Bostick held that in certain situations, “Free to Leave” doesn’t really apply
literally, because on bus, elevator, subway, the person cannot really leave
 New Test, in limited Circumstance
 Did the police conduct communicate to a reasonable person that he
was not free to decline officers requests, or terminate the
encounter?
 Here:
 Factors evaluated, politely questioned, aisle was open to walk…ORP
would have felt free to terminate
 The arrest of 1 person near you is not coercive
 The Police do not have to inform you of your right to decline request
E. Modification # 2 to Mendenhall:
 What happens when a person flees the police…does his fleeing constitute a stop at the point of
flee? Or No?
 California v. Hodari D.
o F: Officers walked up to black youths in group, and one of them immediately began
running. The officers pursued him and saw him throw something. He was subsequently
arrested. The item was crack-rock. He argued he was stopped at pursuit, they didn’t have
reasonable suspicion and therefore crack not admissible
o R:
 2 Types of Stops:
 1. Non-Physical Authority/Coercion not stop until submits
o A suspect is not stopped until
 1. The reasonable person would not feel free to
leave
 2. And, the person actually submits to the
authority (Additional prong to Terry Test)
 So suspect running away from police is not stopped
until they submit
 Note: See infra on running and reasonable suspicion
 If a suspect does not submit


o
2. Physical Touching
o Not a stop until “touched”
o Automatically becomes a stop when officer touches person
Reasonable Suspicion Required
o But, If person breaks away the stop ends and encounter again
Overall:
o These two modifications expand the authority of an officer to investigate in an encounter,
free from the 4th amendment requirements
o Notice If person does not submit, it is not a stop until they submit or touched
4. Reasonable Suspicion:
 To Terry Stop, officer needs reasonable suspicion
 If an encounter turns into a stop, and there was no reasonable suspicion—violates 4th amendment
 A. The Test (United States v. Cortez):
 Officer must have a particularized, articulable and objective suspicion of criminal activity
 Totality of the Circumstances
o Common sense analysis of all facts presented
o Evaluate all facts together, even though 1 fact alone may be innocent
o Defer to police expertise, who have more experience of certain facts as indicator
 Not the same level Probable Cause:
o Reasonable suspicion is less demanding
o Is there a possibility of criminal activity?
o Is not at PC level, and very far below preponderance…just possibility
 Do not have to rule out innocent conduct (Arizou)
 B. What Factors are within Totality of Circumstances?
 Overall:
o Officer Experience + Facts = Reasonable Suspicion
 1. The PersonSuspicious Activity of Person fitting description
o A. Size of Population
 If more people, may have to be more particular
 If less people, less particular
o B. Race
 “Racial Incongruity”
 St. Paul v. Uber: White man was down town, in an area known for
prostitutes
o Race, alone, is not “Reasonable Suspicion”
o May be taken into “totality of circumstances,” but not only
factor
 US v. Wilson:
 Only black male on flight from LA to KC, with knowledge that gangs
from LA have been trafficking drugs to KC was enough for ‘reasonable
suspicion’
 2. ConductSuspicious Conduct:
o A. Time of Day—something at one time, may be more suspicious at another
 Night versus Day
o B. High Crime Area—will be used within totality of circumstances
o C. Failure to Cooperate in encounter, alone, is not enough to create reasonable
suspicion: Florida v. Royer
o D. Nervousness can be used, but must be understood that little bit is typical
 3. Use of Profile:
o Profile: A list of characteristics compiled by the police, which is created through
experience—understood as common traits of those engaged in type of criminal activity
 Typically used in drug/drug trafficking
o US v. Berry:
 Profiles are a tool of police
 It is part of the the totality of circumstances
o
 Just because you match doesn’t give RS
 But if you do match, it can be used to justify RS
o Profile Example of Drug Courier:
 Arrival/Departure from source city, 1-way ticket, little/no luggage, empty
suitcase, unusual itinerary, rapid turnaround time after long trip
o US v. Sokolow:
 Reasonable suspicion where—plane ticket paid for in $2100 cash, name didn’t
match telephone #, Hawii to Miami (20 hour flight) sayed for 2 days, no
luggage, very very nervous…
 Use of profile factors is acceptable
 4. Flight from the Police:
o May be a factor taken into account within Totality of Circumstances analysis
o Illinois v. Wardlow:
 While standing alone, in high crime area will not be enough to support a
reasonable particular suspicion
 Unprovoked flight from police in high crime area may be enough…
 Location & Fleeing, in a high crime area suggests wrongdoing
 C. The Factors may be overbroad to form Reasonable Suspicion:
 US v. Beck:
o Using profile with factor that “California” is Source State is too broad, and not sole
justification in considering reasonable suspicion
 However, can be used as 1 factor of many…
o Differentiate between factors, and 1 justification…
 D. Innocent Parties may be stopped:
 Terry permits a stop of a person, if there was reasonable suspicion
o Just Like arrest with probable cause of innocent people
 Both Doctrines accept the chance of this occurring
 Terry is minimally intrusive, and therefore the lower threshold is justified
o If there isn’t probable cause Go about your business
 E. Example of when there was Reasonable Suspicion:
 F. United States v. Arizou:
 F: Near Mexican border, a back dirt road’s sensor go’s off, police went that direction, saw minivan, on a 4x4 road, driver didn’t look at officer, children in back were waving oddly, and their legs
were raised as though they were on something, registered to an area that was high crime. Stop
revealed $100,000 in marijuana
 R:
o There was reasonable suspicion to justify a stop
o Totality of Circumstances shows objective, particular basis
o Defer to his experience and training in that area
5. The Scope of a Terry Stop (Seizure) and Terry Frisk (circumscribed protective search):
 A. Terry Frisk can only be used for weapons and protection of officer:
 Minnesota v. Dickerson:
o F: Officer patted down for guns, found a rock and began probing it with his fingers until
he pulled it out—was a crack rock.
o R:
 Frisk is only justified for protection purpose of officer safety
 Once there is no danger of weapons, Terry’s circumscribed scope of frisk
ends
 May not be used to search for evidence
 B. Terry Frisk Requires Reasonable Suspicion:
 Under Terry, you need reasonable suspicion to stop and frisk
 US. v. Rideau:
o F: Officers saw man whom they had reasonable suspicion to stop for being drunk in
public. He acted nervous, and backed away at which point officer moved forward and
frisked, finding a gun
o
R:





Frisk Need a Reasonable Suspicion to believe there is a threat of harm
Apply Reasonable Suspicion Totality of Circumstance Test:
 Here, was extremely nervous, walking away from stop, in high crime
area, in the middle of the night 3am—there was reasonable suspicion to
believe threat of harm, weapon drawn
 Reasonable Suspicion to Frisk will be based on stop of suspected crime:
o 1. If there is reasonable suspicion of a violent crime, with weapon
 There will automatically be Reasonable Suspicion of threat to frisk
 Same Reasonable suspicion to stop carries over
o 2. If there is reasonable suspicion to stop for drug distribution
 Likely to be connected with violence and weapons [US v. Brown]
o 3. If there is a non-violent, financial crime, shoplifting, etc…
 Less likely to have reasonable suspicion to frisk
o Factors evaluated in Reasonable Suspicion to Frisk:
 Bulge that appears to be weapon
 Sudden movement toward where weapon could be
 Previous violent activity known to officer
 Aggressive and violent behavior
 Number of suspects compared to number of officers
 Area and Time of day
 See US v. Rideau, supra
C. Inspecting Objects during the course of a Terry Frisk:
 Minnesota v. Dickerson:
o Can inspect object if reasonably likely that it is a weapon
 US v. Swann:
o F: Officers responded to theft of wallet—officer saw black man resembling description in
basement…1 officer was circled by 3 men—he felt threatened, cuffed them and patted
them down…found a hard object in sock and pulled out. It was stolen wallet
o R:
 Can item be reasonably justified as a weapon?
 Location, shape, and size of item come into decision, hard to touch
 Here—the square object was in socks, similar in size to blade, so
reasonable suspicion to inspect as weapon
 Reasonable in light of officers safety, otherwise would leave a
potentially dangerous weapon to upset suspect
 Container on Person:
o US v. Miles:
 If container could not have contained a weapon then it is impermissible search
 Based on Michigan v. Long reasoning, officer may open a container that may
contain a weapon because if returns unopened, risk that he will be harmed when
it is returned
C. Terry Frisk of Persons other then the suspect
 Ybarra v. Illinois:
o The mere presence of a 3P in the vicinity of an arrest is not enough to frisk them
o To frisk Need reasonable suspicion there is threat of harm
D. Terry Frisk (Search) Extends Beyond the body of the suspect to near the person:
 Michigan v. Long:
o F: Car was swerving, ran into a ditch…Officers stopped long who was then outside of
car, acting very intoxicated, and he refused their requests…he began to walk towards the
trunk to open it. Protective search of trunk revealed a knife, and in the meantime large
amount of pot
o I: Does Terry justify this search with reasonable suspicion?
o R:


o

Note:

Terry permits limited exam of area, which a person whom the police have a
reasonable suspicion is dangers, might gain control of weapon
 Even if he cannot reach it then, because stopped, when the stop is over,
he could then gain access to it, potentially harming officers
 May search where suspect could gain access to a weapon when stop
over, if reasonable suspicion
 Note:
o Only applicable to weapons/danger  Not evidence
Adequate and Independent State Ground:
 This case also decided that if a state case was devided solely on state
constitution Supreme Court had no jurisdiction
 Court presumes, however, that the state’s basis for decision is the
federal constitution, unless state court “makes clear” it is deciding on
state constitution, which has an “adequate and independent state
ground”
Many states have ratcheted up protection from Michigan v. Long, not allowing
search of area near…make clear its under state constitution
 US v. Brown (Michigan v. Long Applied)
o F: stopped for reasonable suspicion of drug activity, and officers searched the glove
compartment that was locked.
o I: Does Long allow search for weapons, if reasonable suspicion to believe there suspect
could gain control of weapon when stop over?
o R:
 Yes Drugs are associated with guns and violence
 Because they coincide with drug activity, reasonable suspicion of a weapon
existed, and Long allows search where one could gain access when stop done
 Note:
o See above, but it may be more likely that reasonable suspicion
exists ‘near’ person if drug activityassociated with violence
and weapons
 Long extends beyond Vehicle
o US v. Johnson:
 F: Suspect under Terry stop had overalls a few feet away. Police had reasonable
suspicion they may contain a weapon, such that if stop ended they would be
harmed by his gaining access to it
 R: Under Long, Terry Frisk (search) of those overalls was acceptable
E. Protective Sweeps of an area
 General: A protective sweep is ‘a quick, limited search of the premises, incidental to arrest or
consent to search, conducted to protect the safety of the officer or others’
 Maryland v. Buie:
o F: Officers had arrest warrant for the ∆ and an accomplice, having probable cause that
they had committed armed robbery. They arrested him at his house, and did a “protective
sweep” of the area for the accomplice.
o R:
 A protective sweep can be justified with reasonable suspicion that an area
harbors an individual posing danger to officer or others
 Reason:
o Reasonable balance between the ‘remaining privacy interest of
the arestee’ and the ‘interest of the officers safety’
o Heavy interest in Officer Safety
 Can last no longer then necessary to dispel the reasonable suspicion of
danger
 Protective Sweep may occur other then during arrest too
o United States v. Gould (5th Cir):




Officers were given consent to search a specific room, and did protective sweep
of house reasoned by ‘their reasonable suspicion the area harbored an individual
who may ambush them’
Officers, if acting during legal conduct, and have reasonable suspicion to believe
area harbors dangerous individual posing threat to officers, they may protective
sweep the area
F. Brief and Limited Detention under Terry:
 General:
o At some point, a Terry stop may be beyond a ‘mere stop’ and become an arrest
o The arrest is more intrusive, and requires probable cause more then reasonable
suspicion
 The following are several factors courts have looked at to distinguish when a
stop becomes an arrest, requiring probable cause
 1. Stop does not allow Forced Movement of suspect to custodial arrest area:
o Florida v. Royer:
 F: police stopped Royer, and took him to a small, custodial room, with all of his
bags in the airport. They questioned him, in a small custodial interrogation
room. Officers kept him there, trying to get him to consent to a search.
 R: This was an arrest, but they had no probable cause
 Transfer to a custodial arrest area requires probable cause
o Terry does not allow it
o Police Car:
 Putting someone in a police car to question, or investigate further may become
an arrest, requiring probable cause
 2. Stop does not allow Transporting to Station house/ Custodial area to interrogate and
fingerprint
o Dunaway v. NY:
 Police may not detain a suspect, transport him to police station to question
without probable cause to arrest
 Brennan: Custodial interrogation, without probable cause is an extreme
intrusion on privacy interests
o Davis v. Mississippi:
 Police may not detain suspect to bring to police station to fingerprint him there
 Even though it is less intrusion then other search, interrogation and
fingerprinting is beyond what reasonable suspicion allows
 3. Forced Movement for identification Purpose May be Ok:
o legitimate interest in moving someone may be permissible if short distance to
identify them by an eye-witness if reasonable suspicion exists
 People v. Hicks:
 Travelling 1 minute, ¼ mile by car to and eye-witness is acceptable if
there is reasonable suspicion
 4. Forced Movement for Purposes of Safety and Security are ok:
o Royer stated this proposition
 Generally, this means movement into car for weather, or other safety of person
while on side of busy road, etc…
G. Interrogation Techniques are Permissible:
 Generally:
o The Terry stop is investigatory in nature, to investigate a situation to determine whether
there is criminal activity
o Preliminary investigation, then, is acceptable
 Technique:
o 1. Questions directed at suspicious activity, or circumstances giving rise to the stop
 In Traffic Stop may
 Request ID, check the VIN #, license check, outstanding warrant check
o



2. Identification:
 Hiibel v. 6th Judicial Circuit Court of Nevada:
 F: State law criminalized failure to show identification
 R: Court held that, under Terry, officer has automatic right to demand
identification as part of investigation
o Reasonableness:
 The states interest v. inciental interest against
intrusion
 Identification can prove if or if not the suspect, show
he is or isn’t wanted and is immediately related to
Terry
o State law may criminalize failure to give identification
o 3. Fingerprinting on Scene
 Florida v. Hayes:
 Court has held that brief detention in field to fingerprint, with only
reasonable suspicion is acceptable
 Policy Question:
 DNA ?
 Courts have allowed
 Seems to be the same argument as ID, and Fingerprint…merely id,
although more sufficient in identification
 Depends on technique…more intrusive, amy be more akin to bringing
someone to station
 If quick, or quicker then fingerprint…maybe ok
H. Time Limits On Terry Stop:
 US v. Sharpe:
o F: DEA agent saw 2 cars that were suspicious, followed and eventually they split up. He
stopped one, and a state trooper stopped the other. They were each held for 30-40
minutes while the 2 officers tried to locate one another—eventually, marijuana was
found.
o I: Was this beyond the time limit on a Terry stop?
o R: NO
 Whether the police were reasonably diligent in pursuing means of
investigation that were likely to confirm or deny their suspicion quickly,
during which time it was necessary to detain ∆?
 Here
 There was no delay, and officers acted reasonably diligent—what they
did was necessary and there was no quicker way the officers failed to
pursue
 Courts have generally been deferential to Police, in considering whether they acted “diligently”
o United States v. Davies:
 Court upheld a 45 minute detention, where new officers were waiting for advice
from more experienced officers
I. Show of Force During Terry Stop:
 Use of handcuffs and the use of guns, in stop with Reasonable Suspicion is ok
o Must be Reasonable
 Depends on the circumstances if Reasonable
 Nature of stopped-for crime
 If reasonable suspicion to search for weapon
J. Detention of Property under Terry
 Generally:
o Original understanding of Terry was a stop of a person, and frisk of that person for
weapons
o However Terry now extends to stop of property
 Police may stop property with reasonable suspicion of criminal activity
o


US v. Vanleeuwan:
 F: Officers detained 2 packages in the mail, with reasonable suspicion, they
believed they contain illegal contraband. They held that packages for over 1 day.
 R:
 Reasonable suspicion allows detention of property because only
infringed on the possessory interestnot privacy interest
o US v. Ramirez:
 Officers with reasonable suspicion removed package for 28 hours to canine sniff
and develop other leads
o United States v. LaFrance:
 F: Police had reasonable suspicion that Fed Ex packages contained drugs. They
stopped the package for greater then 90 minutes to get dog sniff.
 R:
 Because there was no infringement on Liberty Interest of person,
reasonable suspicion allowed stop as long as officers were reasonably
diligent
o United States v. Dass:
 Officers held package for 7-23 days with reasonable suspicion
 This was unreasonable because they were not acting “diligently” and
could have reduced it
If property stopped infringes on a Person’s liberty interest May be unreasonable
o Stop may then not be justified with reasonable suspicion, requiring probable case
 Infringes on Possessory interest  and Liberty Interest
o US v. Place:
 F: Police had reasonable suspicion that ∆’s luggage had drugs. They detained it
for 90 minutes, while they got a drug dog to sniff it.
 R:
 A 90 minute detention of the property was unreasonable and needed
probable cause to hold for this long
 There were quicker ways to do it…could have gotten a dog quicker
o Not diligently pursued
 “When a person is travelling with his property, a seizure of that
property amounts to seizure of him”
o Essentially, stop of bag stopped person for 90 minutes
o US v. $191,910 in Currency:
 A 2 hour (120 minute) detention of a travelers luggage violated the 4 th
amendment because of length of stop.
Overall:
o Look at If Officers were diligent in stopping Property
 If officers were acting “reasonably diligent” the court is likely to allow the
detention of property
o Look at if the property stopped affects persons liberty interest
 Even if officers act diligently, Place seems to set outer limit at 90 minutes
(although officers were not diligent)
Affects Liberty Interest
Place seems to set the outer limit at
90 minutes

K. Limited Search for Evidence under Terry?
 No
o Minnesota v. Dickerson:
Only Affects Possessory Interest
Vanleeuwan sets the outer limit at
over 1 day
 Terry Stop and Frisk is limited to danger/weapon
Arizona v. Hicks:
 Cannot do a minimially intrusive search for non-weapon, or evidence
 Terry is limited to safety concern only/safety justification
 Note:
 See supra, discussion on Hicks limitation on Plain View Seizure
 4. The Arrest Power Rule Search Incident to Arrest:
o Since the bill of rights, police have had the power to search an individual incidental to their arrest
 Justifications:
 1. To protect the officer, officers safety
 2. To protect against the destruction of evidence
o Spatial Limit Where can be searched?
 There area spatial limitations on where exactly the arrest power extends to
 Chimel v. California:
 F: 3 Police, with an arrest warrant entered ∆’s house to arrest him. When they did, they looked
through the entire 3 bedroom house, attic, garage and all containers therein. They seized many
items used against him in court.
 I: How far does the arrest power rule extend?
 R:
o Justifications:
 To search for officers safety from weapons
 The destruction or concealment of evidence
o Rule:
 Arrest Power Rule extends to the area of immediate control or possession
 A Case-by-case analysis of what this area is
 “Grab Area”
o This extends to the area he can reach to grab weapon/evidence
 Does not Extend to:
o Other rooms, other closed areas, whole house
o These require a search warrant
 White (Dissent):
o Agrees, but does not feel the circumscribed “grab area” should always be the case
 Thinks exigent, so unreasonable to get a warrant
 Gives confederates a chance to destroy evidence
 How is the “Grab Area Determined”?
 At Time of Arrest:
 US v. Lucas:
o F: Police entered the home with an arrest warrant, and stumbled upon ∆ sitting there with
3 people. He jumped up and reached for a drawer, but police wrestled with him, until he
was cuffed and in police car. They then went back in to open drawer, and found gun.
o R:
 Evaluate the “grab area” from where arrestee was at time of arrest
 Although the ∆ had been moved, and was no longer in area to reach a
weapon or destroy evidence, court evaluated from where he was when
arrested.
 This seems to be contrary to Chimel’s justifications though, so if there
are non-arrested 3P in the grab area at time of arrest, court may be
more willing to utilize this view because they could grab
 At time of Search:
o Some courts evaluate where the “grab area” is based on where the ∆ is at the time the
search occurs
 Will be a much more circumscribed scope of “Grab Area”
o Dissent in Davis v. Robbs:
 Because the arrestee was in squad car, he could not destroy evidence or gain a
dangerous weapon to harm officers
o
 Therefore, the Chimel justifications cant justify anything but “at time of search”
Look at the Facts of Each Case!
o Determine which point of view is taken
Timing Limit When can search occur?
 Does not matter which comes first:
 The search incident to arrest usually occurs immediately following arrest
 But: Search can come before arrest, if there is probable cause to arrest prior to time of search
 Limits on When can occur:
 Incidental to arrest implies there is not too long a period between the arrest and search, or vica
versa
o Chambers v. Maroney:
 F: Police arrested occupants of a car, then brought car to the police station, and
later searched the car.
 R:
 While this may apply under automobile exception (it does, see infra), it
cannot be justified as search incidental to arrest
Arrest Power Rule and Exigent Circumstances:
 Generally:
 The Arrest Power rule is limited to the ‘grab area’ at the time of arrest or time of search,
depending on which view is accepted
 However, per Justice White’s dissent in Chimel, there may be times when confederates, or
accomplices will destroy evidence due to an arrest exigent circumstances
o These exigent circumstances, then, may call for expanded ‘grab area’
 United States v. Socey:
 F: Officers arrested a ∆ outside of the home of a large scale drug operation. It was believed that
people in the house saw the event take place, so they went into the home.
 R:
o Search incident to arrest may extend beyond ‘grab area’ if police show:
 1. Reasonable belief that 3rd Person inside dwelling
 2. Reasonable belief that 3rd person was aware of arrest of confederate
outside of premises, so that they feel the need to destroy evidence
 Terry Protective Sweep:
 If incident to arrest, police have Protective Sweep justification, they may exceed the grab area as
well This may lead to plain view seizure of evidence as well
Arrest Power Rule and Search of Person:
 US v. Robinson:
 F: Police followed a ∆, pulled him over for reasonable suspicion of driving without license,
because 4 days prior he was found with same issue. During stop, they were placed under arrest,
with probable cause to arrest, and the officer searched their bodies, and a container on someone’s
body revealing heroin.
 I: Are there limits to where on person search occurs?
 R:
o Arrest Power extends automatically to search of person and all containers on him
 Reasonable under 4th amendment:
 Safety to officer
 Evidence destroyed or concealed
 Outweighs
o Remaining privacy interest of ∆ who is being arrested
pursuant to probable cause
 Avoids Administrative headache:
 It will be removed at jail house anyway for inventory
 Going to inventory and give back eventually, anyway
 Is not circumscribed like Terry:
 Terry, with lesser threshold of proof limits to weapons

o
o
o

o
o
o
Here, you are arrested pursuant to probable cause so there is no more
justification needed or limit on what can be searched
 Automatic, and unrestricted search of all arrestees
Custodial Arrest for Minor offenses:
 The power of search incident to arrest is vast, depending on what one may be arrested for
 Atwater v. City of Lago, Vista:
 F: Texas law allowed officer to arrest person in violation of seatbelt law. Officer pulled over ∆,
probable cause to arrest because she didn’t have seat belt on and didn’t have any registration
papers. She was arrested, and on bail filed suit
 I: Is it unreasonable, violating 4th amendment to allow arrest for minor offense?
 R:
o Full scale custodial arrest for minor traffic offense is reasonable under 4th
amendment
 1. Court wanted maximum Clarity
 “Readily administrable Law”
o Cannot require officer to base arrest on only jailable
offenses There are too many to memorize, and they change
 Want the rule to last
 2. Common Law has allowed
 3. Does not seem all that bad, because police aren’t typically utilizing on minor
offenses anyway
 4. Many states limit what can be arrested for anyway
o While the actual arrest may be unreasonable in way conducted, it is not
unreasonable to arrest for minor offense under 4th amendment
 O’Connor (Dissent):
o It is unreasonable to arrest for minor offenses, even with probable cause
 She proposes Probable cause to arrest + point to specific reason why a further
intrusion is needed
 Detained for up to 48 hours untill hearing, with many violent and nonviolent people
 This unbounded discretion given to officers can be abused, or used to lead to full
scale search of body
 Unreasonable intrusion based on states interests
 Hedgepath v. Washington:
 F: mandatory arrest law for eating on the Metro in Washington, D.C.. Offcer arrested 12 years old
girl, frisked, took to jail
 R:
o Roberts says that arrest for minor offenses upheld in Atwater
o The Discretion to the police has essentially deferred to the legislature to affix the
appropriate penalty it desires to arrest or not
o Essentially, if permitted by legislature, it is constitutional under Atwater
Arrest Power Rule and Container within the grab area:
 Most lower courts consider a container within the grab-area searchable
The Arrest Power Rule Applied to Automobiles:
 Belton and Thornton:
 The Belton rule allowed search incident to arrest of the grab area in the car (no trunk)
 Officers were permitted to search all containers therein
 Thornton extended Belton to search incident to car when arrestee was recent occupant
o Otherwise, occupants would come out of car and officers would be precluded from
searching vehicle
o Scalia Concurred:
 Belton and Thornton were based on the Chimel justifications of safety to officer
and destruction or concealment of evidence.
 He disagreed that these made any sense—if they’ve been arrested, wont pose
any safety risk and can’t destroy evidence


Must be some other reason then…
 He says it is the evidence contained in the car relevant to arrest crime
Arizona v. Gant
 F: ∆ was driving with a suspended license, was pulled over, arrested, cuffed, and put in police car.
Then, during search of car—police found cocaine and gun. ∆ argued that Belton didn’t authorize a
search of car because he posed no threat and couldn’t have gotten any evidence once locked up
 I: What is modern applicable law on search of car incident to arrest?
 R:
o 1. Police may search vehicle incident to recent occupants’ arrest only when arrestee
is unsecured, and within reaching distance or
 Very rarely used, as safety to officer is threatened when unrestrained
o 2. Search justified because “reasonable belief” that evidence relevant to crime of
arrest might be found in vehicle
 Adopted from Scalia’s Thornton concurrence
 Based on Crime of Arrest, may not get into vehicle at all
 EG: Expired license, speeding no reason to go into car
 EG: Marijuana smell may be more of reason to search in car
 Seems off
 1. Why the standard of Reasonable Suspicion?
 2. Why limits what can be searched for in car?
 3. Why does it limit to passenger compartment, not trunk?
o Reasoning:
 Court does not like that Belton allows search of car incident to any arrest, even
when they cannot reach danger to officer or evidence
 Says this significantly implicates privacy interest, for minor arrest it lets police
go through all containers within car
 Disagrees with Alito’s argument, in dissent, that police have relied on this for so
long
 They adapt quickly
 Furthermore Counsel failed to make automobile exception argument
o Scalia:
 Concurs to avoid lack of clarity in the field, to have a controlling law
 But, disagrees with first prong
 Likes the second prong, his creation, because it comports with traditional idea of
reasonableness
 Its unreasonable, he thinks, to search through a car for any arrest for
anything
 Should be based on what arrest was for…that is reasonable
o Alito (Dissent):
 Belton has been clear, for 28 years
 Police have relied on Belton
 Thinks Chimel must have meant ‘at time of arrest,’ and Belton did too, by
saying it ‘changed nothing in Chimel so therefore, disagrees with first prong of
new test
 Disagrees with the formulation that is random of the second prong
 5. Pre-textual Stops and Arrests:
o Generally:
 It gives police great discretion to stop for a very minor traffic offense under Terry or, attain probable cause
to arrest, and arrest under Atwater, and then search the car according to Gant
 This leads to pretext:
o Stopping someone for traffic infraction, when in all other circumstances they wouldn’t,
because they have hunch or may be led to search for more serious crime
o History:
 Prior to Whren, courts were split:
 Courts evaluated whether officers normally “Would have” stopped or “Could have Stopped”
o The supreme court in Whren, adopts “could have”
Whren v. United States:
 F: Plain clothes officers, on patrol in high drug area, stopped car that was oddly driving, passenger was
looking in drivers lap, and speeding. Cop stopped, walked up and saw crack bag on guys lap. Arrested
them.
 I: Does subjective intent of officer matter in stop, if they have reasonable suspicion or probable cause?
 R:
 1. No 4th amendment evaluates objective reasonableness only
o subjective intentions of the officer is irrelevant to 4th amendment analysis
 2. If there is Probable cause of infraction of Minor Traffic Offense
o that is all that is required
o If they had legal right to act, it is acceptable
 Here:
 Officers had reasonable suspicion to stop, probable cause to stop from
speeding and traffic offense, and probable cause to arrest due to
viewing crack
 3. Court Defers to legislature:
o The traffic code is enormous, yes…giving cops reason to stop for large amount of things

but the court is not the proper forum to argue that the code is unreasonably
large, justifying a stop for many things  Legislature
o Effect Terry and Atwater allow use of minor traffic stop, regardless of if officer is using as pretext to
evaluate more serious crime
 Leads to potential abuse:
 The pretext of reasonable suspicion or probable cause due to minor crime may be abused for racial
profiling
o May be racially profiling individuals, under pretext of Terry or probable cause of traffic
infraction
o While this can be the case, that ‘hit rate’ of blacks is higher then whites in minor traffic
offenses 4th amendment is not place for redressability
 Equal Protection Clause:
 §1983 Suit:
o 1. Must show statistical analysis that there is disproportionate treatment
 if shown, may get you to discovery
o 2. In discovery, must show Specific Intent to discriminate that person
o 3. If shown, still issue of Remedy
 it is not exclusion
 Overall Very difficult to prove
o Extraordinary Pretext is Reasonable under 4th Amendment:
 US v. Ibarra:
 F: Officers planned to stop a car, they suspected of being drug courier, whenever it broke a traffic
law. They had a drug dog waiting. They stopped the car, sniffed car, found drugs, and pulled them
out with ‘automobile exception’
 R:
o Even though this pretext was extraordinary, under Whren, it is acceptable because they
satisfied the objective legal requirements
 They had probable cause to pull over
 Discretion to arrest
 Search either incident to arrest under Gant or automobile exception
 6. Plain View & Plain Touch Seizure:
o General:
 Whenever Police are engaged in a legal activity, these two doctrine supplement the activity
 During Terry stop, warrant execution, arrest, etc…
 Justification:
 When the object is already visible, the extra intrusion of seizure isn’t that much greater, and
they’ve already complied with the 4th amendment, by being there legally
o
o
 An extension of the justification the officer already has for being there
Plain View Doctrine:
 Police must have Probable Cause object is evidence of criminal activity and it must be Readily
apparent (not requiring further search, because that would mean probable cause doesn’t exist, and the
search is used to determine it…cant do (Hicks))

Does not have to be inadvertent
 Horton v. California:
o 1. If officer knows about something, and doesn’t put it in the warrant, they are already
limited by scope of warrant
o 2. They will put it in warrant if they know, and wouldn’t leave it off because it expands
scope
 If they leave it out, and find what warrant specifies…their search is over
o Nothing in 4th amendment is furthered by it being inadvertent
 Readily Apparent:
 Arizona v. Hicks:
o Officers, legally within a house saw in plain view a turn table…The officer thinking it
might be stolen, lifted it up to see serial number, to determine if it was stolen.
o Probable cause must be readily apparent
 If further search, even minimal, is required, then object in plain view does not
have probable cause of evidence of illegality…and plain view doctrone doesn’t
apply
o Plain Touch Doctrine:
 Evidence may be seized during course of lawful search, if there is probable cause that it is evidence of
illegal activity
 **Remember:
o Reasonable Suspicion and Terry are limited to weapons, only
 Example:
o US v. Williams: Officer witnessed what he thought was drug transaction, stopped
individual and Terry frisked for weapons—during frisk, he came across a hard, square
package and seized it
 He had probable cause to seize, escalating a Terry frisk into a Plain Touch
seizure
 7. The Automobile Exception:
o Generally:
 This is distinguished from the right to search an automobile, incident to arrest and Gant
 It is its own, separate rule
o Carroll Doctrine:
 Police may search any vehicle if they have probable cause to believe it has evidence of criminal
activity
 Applies to any vehicle
 Justification # 1:
o Mobility:
 The mobility and chance of a vehicle leaving a jurisdiction by the time a warrant
is granted, making it irrelevant makes this a reasonable state interest
o Extended Warrantless search of car that has been impounded to Police Station
 Chambers v. Maroney:
 F: A store was robbed, tip alerted to seeing blue station wagon with driver in green sweater, like
that of one that robbed store. Officers stopped, eventually arrested and brought car to station
 R:
o Carrol Doctrine applies, even though car was at police station
 Court held that:

There is no difference between seizing and applying for warrant or
searching without a warrant
 They had probable cause, so irrelevant
 Still had the possibility of being mobile…still possible
o Justification # 2: “Car has diminished expectation of Privacy:”
 California v. Carney:
 While it is possible that Mobility is justification
o Vehicle has lower expectation of Privacy:
 It is regularly inspected by the government and regulated
o Motor Homes:
 California v. Carney:
 F: Officers got a tip that ∆ was in motor home, in parking lot, exchanging marijuana for sex. They
questioned someone who got out of motor home who confirmed their suspicion. They entered and
Arrested Carney
 R:
o The automobile exception applies to Mobile home, just like car
o However:
 Court noted there may be exceptions to this rule, if motor home is situated in
way that indicates it is a residence
 Look at:
 Location
 Licensed
 Connected to Utilities
 Convenient access to public road
 The more home is…may not be allowed to enter and search
o Mobility of Container
 Outside of Car:
 Court has held the mobility of a bag, outside of a car, does not justify warrantless search of it
o There is higher expectation in a bag, it houses personal items, unlike car which is
regulated, and open to public view through windows
 Inside Car:
 Warrantless search of containers inside car is acceptable, as long as probable cause it contains
evidence of criminal activity
 8. Exigent Circumstances:
o General:
 In certain circumstances, fact specific situations allow state to show that immediate action was necessary
to:
 1. Prevent Flight
 2. Safeguard Public
 3. Protect from loss of evidence
 Exigent circumstances exception excuses the need for a warrant
 But  must have probable cause…
 Exigent Circumstances + Probable cause bypasses many rules them
o 1. Hot Pursuit:
 Allows officers in ‘hot pursuit’ to excuse arrest or search warrant requirement, where one would normally
be required
 Excuses Warrant Arrest And Search Warrant
 Reasonableness:
o Its unreasonable to expect officers to stop, and get warrant
 Would escape, and negate any warrant by time gotten, creates public danger and
creates destruction of evidence problem
 Warden v. Hayden:
 F: Officers pursued a robbery suspect into what was his home. They entered, searched for the
suspect, and looked for weapons too. In wash machine, they looked at found clothes he was
wearing.

R:
o
Warrantless search is justified by hot-pursuit exception
 Searching for evidence was acceptable
o Reasonable:
 Suspect, knowing he is being pursued will seek to escape, destroy evidence, and
potentially create a threat to public safety
 Suspect must be aware of pursuit for the exigent circumstances exception to apply
 Dependent on suspect, not on the police being expeditious
 Welsh v. Wisconsin:
o F: Officers found car in ditch. They found out who driver was, went into his home to
arrest him for being intoxicated.
o R:
 “Hot Pursuit” Exception did not apply here, because he was not aware of pursuit
and there was no chase
 For pursuit look to awareness of suspect
o EG:
 Bank robbers fleeing a scene even though no pursuit…Even though they don’t
see police after them, they are aware that pursuit will ensue or could ensue at
anytime….so they are aware of pursuit
 Note:
 The Plain View doctrine coincides with Exigent Circumstances “Hot Pursuit”
o Once you are somewhere via hot pursuit, what is in plain view is fair game
o 2. Public Safety:
 If there is circumstance where police have probable cause that they or public would be imminently harmed,
Public Safety exception will be used
 Excused from obtaining warrant
 Evaluated from officers point of view at the time it occurred
o “Objective Reasonableness”
 Must show an imminent risk to public or police
 Example:
 US v. Black:
o Officers had tip that there was extremely serious domestic disturbance, and entered home
that seemed to be quiet…turned out no one in side
o Was ok under public safety exception
 US v. Williams:
o Could not justify entering home for ‘water leak’ under public safety exception
 Brigham City v. Stuart:
 F: Police responded to call of loud party. They arrived and heard screaming from in the back of
the house. Observed a fight through a window. After a few blows were delivered, police entered
house, stopped fight and arrested people.
 I: May police enter home under Public Safety Exception?
 R:
o 1. Subjective Intent, Pretext of Officers is irrelevant
 4th amendment evaluates the objective reasonableness of the officer, not his
subjective intentions
 If circumstances, objectively viewed are justified, it is reasonable
o Officer may enter a home if has objectively reasonable basis for believing someone
is injured or to protect an occupant from immediate injury
 Police may prevent violence and restore order
o Here:
 3AM, phone call, hears screaming, saw fight in home,
 This is objectively reasonable basis that someone was being injured
 9. Administrative Searches, Seizures and Special Needs:
o Rule:

o
When a search or seizure is done for purpose other then traditional criminal law enforcement the
reasonableness clause applies…and suspicionless search may be acceptable
 Initial Question:
 If For purpose other then criminal law
o If search or seizure is for needs beyond criminal law, the Court engages n a balancing
of interests
o New York v. Burger:
 Administrative and Penal laws may overlap, but if they had different subsidiary
purposes…and different methods, its ok
 Look at punishment versus rules, regulation
 Administrative purpose: records, operating conditions, enforce
regulatory standards
 If for criminal law/evidentiary purpose
o Traditional rule of warrant presumption is required, subject to exceptions, infra
 General Reasonableness Balancing Framework for Special Needs:
 Individual’s Interest
o Nature of Privacy Interest
o Nature or Character of Intrusion
 Government’s Interest
o Nature of Interest in Search
o Immediacy of need
o *Efficacy
 Utilized in school search in negligible way
 Strictly refused in other cases
 See discussion, infra
1. Administrative Searches and Seizures:
 A. Safety Inspection of Home:
 Camara v. Municipal Court:
o F: Health inspector tried to enter home, but was denied by the homeowner who refused a
warrantless entry
o R:
 1. Was administrative, above and beyond criminal law for health/safety
inspection of houses
 Reasonableness Balancing Applies:
o Individual Interest:
 Privacy in home, but intrusion is relatively small, and
circumscribed to safety
o Government Interest:
 Has substantial interest in safety/health
 Warrant on probable cause would infringe on this
substantial interest
 2. Warrant is Required, but not on probable cause:
 Camara Warrant issued:
o “on finding that search is in compliance with reasonable
administrative statute, ordinance or scheme to inspect home”
 Look at inspection rules, and if inspection fits issue
warrant
 Look at passage of time, nature of building, part of
area-wide inspection pursuant to statute
 B. Administrative Inspection of Parolees’ Home:
 Griffin v. Wisconsin:
o F: Parole inspector entered home of parolee
o R:
 1. This was administrative as statute was to regulate a probationer
 Reasonableness Balacing Applies:
o

Individual Interest:
 Parolee has a diminished expectation of privacy
o Government Interest:
 Government has administrative interest in regulating
probationer
 Given Balance, in favor of government
 A Probation Officer may conduct a warrantless search of a
probationer’s house on reasonable suspicion of probation violation
C. Administrative Search of Business:
 See v. City of Seattle:
o Applies Camara Rule
 1. Was administrative, above criminal law, because businesses are more
complexly regulated
 Government Interest:
o State has administrative interest in safe structure and in
business operation safely, properly conducted
 Administrative Search of ‘Closely Regulated Business’
 New York v. Burger:
o F: ∆ owned an automobile junkyard—officers came to inspect pursuant to a statute of
administrative/regulatory nature. He did not have the required license, or permit. They
searched and found stolen parts, vehicles.
o I: Was warrantless search, pursuant to regulatory statute reasonable?
o R:
 1. In Closely Regulated business, warrant is not required because expectation of
privacy is diminished—participant has knowledge of regulation, and possible
inspection
 2. If not closely regulated  Need a See / Camara Warrant
 Test:
 1. Is the Business ‘Closely Regulated?’
o Look at extensive laws, license requirements, registration,
registration #, documentation, fines, loss of license, duration
of the scheme and its history
 If Yes Conduct a Reasonableness Balancing:
o 1. Substantial Government interest of regulatory Scheme
 Significant interest?
 Here: Theft, but this seems criminal in nature…
o 2. Warrantless Inspection necessary to further scheme?
 Surprise, unannounced inspection
 Surprise crucial to enforcing regulation
 Examine process, frequent inspection?
 Here: theft is increasing, substantial interest that
warrantless inspection furthers…
o 3. Statute must provide adequate constitutional substitute
for warrant
o *Must Advise that search is Lawful
 Give regulated notice of search
o *Must define time, place, and scope of inspection
 Here: Did circumscribe time to hours of operation,
and statute gave notice that place of business could
be inspected …
o Effect of Burger:
 Frequency of Administrative Search can be unlimited
 Officers may conduct ‘administrative search’
 Don’t need to create a new agency, or agents to do so
 Plain View Doctrine is ok within administrative search
 Not much is needed to become ‘closely regulated’ or administrative
Brennan Dissent:
 Regulations here did not amount to closely regulated, and in fact were not even
administrative…was purely criminal
 Almost all businesses vulnerable then, and if this was administrative…will have
too far a reach
 Should apply Warrant Clause
 D. Examples of Reach of ‘Administrative Search’
 US v. Hernandez:
o F: Officer followed truck for 600 miles before stopping, for suspecting it of drugs. It was
a commercial truck, requiring ICC Bill of Lading. Did not have that or a license plate
o R:
 1. Was administrative pursuant to Texas civil law, authorizing inspection of
vehicles when commodities transported
 Because was administrative, reasonableness balancing applied and search was
deemed reasonable
2. Special Needs Searches:
 In Certain circumstances, above and beyond ordinary criminal enforcement, the court will apply ‘Special
Needs Balancing’ from Reasonableness Clause…no suspicion needed to be reasonable
 Reason:
o Because of a ‘special need’ the argument is that having to get a warrant would infringe on
that special need…detrimental
o Special need is a “Government interest that is sufficiently compelling to justify intrusion
on privacy, without suspicion”
 Note:
o While the Court will engage in a balancing test if a special need is claimed, no factor
seems particularly overweighty
 Seems to depend on Strength of Gov. Interest v. Minimal privacy interest
o Efficacy:
 May or may not be used
 Has been specifically denounced by Rehnquist in Sitz as separation of powers
issue, and something for Congress not court to create program
 If used, as in school context Only needs to be reasonable way to solve, not
perfect fit
 See discussion, infra
 1. Government Employees:
 Skinner v. Railway Labor Ass’n:
o Special need of drug testing employees after an accident above criminal law
 Individual Interest:
 Minimal intrusion on privacy
 Nature of intrusion was minimal—no visual of urination, only audible
 Industry was highly regulated
 Government Interest:
 Compelling, significant interest in deterring drug use during train
operation
o Implicated many peoples’ safety
 History of Drug problem made the immediacy high
o Government Interest outweighed private interest and suspicionless testing ok
 Van Rabb:
o Special Need of drug testing special officers, working with weapons/drugs
 Individual Interest
 Minimally intrusive because only tested a specific subset portion of
whole employee base
o Because subset, less intrusive
 Government Interest:
o
o


Compelling, significant interest in avoiding bribery to officer in
powerful situation, or being high around weapons
 Safety
 No history of problem- so not immediate need
o Court said  It’s ok, the critical government interest is so
high, immediacy is made up for
o Suspicionless testing of customs officers is ok
2. Students in Public School:
 Vernonia v. Acton:
o Special Need: Administrative Drug Testing of Student Athletes
 Individual Interest:
 Diminished expectation of privacy at school
 Athletes are especially diminished, because they are subset…
 Athletes shower with each other, change with each other
 Voluntary Choice to be in subset
 Government Interest:
 Safety of Students is of paramount important
 Documented Drug problem within schools
 Suspicionless Search Preferred
o Subjecting targeted students to search, based on suspicion
might lead to lawsuit over discrimination…So, its better to
have suspicionless search
o Suspicionless Drug Testing of Athletes ok
 Bd. Of Education v. Earls:
o F: School policy requires that all students who participate in extracurricular activities
submit to drug testing before and during activity.
o R:
 Special Need in administrative Testing students in extracurricular activity
 Individual Interest:
 Nature of Interest:
o Voluntarily subject themselves to extra regulation because
they join a specific subset group
 Because they submit to something that is intrusive, it
is minimally intrusive
o Privacy Interests at school are lessened already

“submit to routine required physical exam, vaccine
against disease…sometimes more control is needed
in school”
o Diminished Expectation of Privacy
 Nature of Intrusion:
o Urine Collection but look at manner which monitored
o Urination is not viewed…only audible through door
o Faculty Waits outside
o Same as upheld in Vernonia
o Police are not involved, tests confidential
o Intrusion, thus, is ‘minimally intrusive’
 Government Interest:
 Nature:
o Custodial responsibility of students
o Strong Interest in Drug Prevention
o Safety is of paramount importance, especially for child
 Furthered by drug testing
o No Documented History
 But, court has never ‘required’


Court does not need to quantify what ‘enough of drug
problem’ is…
 Von Rabb allows purely preventative basis
o Suspicionless Testing Preferred:
 Targeting students may lead to lawsuits
 This may chill enforcement of drug program
o Significant
 Immediacy:
o Although no problem, drug prevention is big concern, so
immediacy is magnified, and prevention is enough
 Efficacy:
o Note: efficacy specifically denounced in road-blocks…
 But used here…
 Should it be?
 Argue For the legislature who chose the program
to determine if effective enough
 Difficult to measure effect of deterrence, which
cannot be numerically measured….
o While Vernonia was closer fit because of problem, ‘testing
serves interests that Government has’ so it is close enough
fit…
o Drug Testing of students in extracurricular is ‘special need’ that is ok
 Ginsburg Dissent:
o This isn’t voluntary…its almost required…because of which, the nature of privacy
interest is not diminished…
 More substantial intrusion, because they have not, in effect, ‘consented’
o No documented problem
 Efficacy, then, is not as strong as in Vernonia
 Not tailored at all to any problem
o Sub-population is not as sub-set as Vernonia
 This is a broader class of people, making intrusion more substantial
o Unreasonable
3. Suspicionless Safety Search in Airport, Subway:
 Special Need: conducted as part of general regulatory scheme, where administrative purpose is to
prevent weapons or explosives…
o Factors the Court has Balanced:
 Government Interest: Extremely High in Terrorism
 Safety and protecting safety of passengers in air-travel is high
 Interest wouldn’t be met by limiting to suspicion
o Some travelers don’t fit suspicion
o Are not suspicious
 Efficacy:
o Sitz court refused to deal with it, because it was question for
the legislature to decide
o So consider the program as it was designed
o But if considered, it:
 Deters would be criminals?, which is reasonably
effective, but difficult to quantify
 Reasonably directed at Interest?
 Individual:
 Search is minimally intrusive
o All are searched
 If all are searched, not as frightening or intrusive and
not humiliating
o Random Selection
o
o
o
US v. Auki:
 F: ∆ had no ID, so pursuant to statute was submitted to search in airport line.
During second search, he said he didn’t want to board anymore…but search
continued and found drugs
 R:
 Consent: 9th circuit said that consent was not really the issue
 Not really important that he chose to fly, and now withdrew his choice,
because this would give terrorists ability to test weak links in security
 All that is needed is a reasonable search conducted pursuant to statute
with sufficient ‘special need’
4. Roadblocks, Check Points
 A. Officers may not stop a car without suspicion
o Delaware v. Prouse:
 Unreasonable, and license regulation is not ‘special need’ that is significant
enough government interest to justify the intrusion on individuals
 For intrusion to be reasonable, requires reasonable suspicion
 B. Permanent Checkpoints:
o US v. Martinez-Fuerte:
 1. Special need, pursuant to regulation was ‘illegal alien flow’
 Government Interest:
o Significant interest in regulating illegal aliens
 Individual Interest:
o Only a temporary seizure, and minimal intrusion
o Notice was to all who drove that road
o Was not dealing with a ‘dwelling’
o Minimally intrusive
 C. Temporary DUI/Sobriety Checkpoint:
o Michigan v. Sitz:
 F: Program allowed checkpoint to be placed where safe, and minimally
inconvenience to driver, safety to driver
 R: Special need pursuant to regulatory statute
 1. Could have argued road safety, or safety from drunk-drivers
 2. Court said that do not need ‘special need’ pursuant to DUI
checkpoint, and under Terry reasonableness
o this is very odd…not really explainable
 Individual Interest:
o Had Notice
o Not frightened, because all involved, and knew
o Not distinguishable from Martinez-Furete
 Government Interest:
o Significant Interest in Drunk Driving
o It was pursuant to guidelines that were voted on
o Immediacy in Drunk driving…occurs regularly…
o Efficacy:
 Renhquist specifically denounces use of efficacy…
 For ‘politically accountable branches’ not courts
o

 Not as intrusive in that it does not single out people
 Sub-population, which Court has allowed
 Deters, Frustrates purpose…
Notice: Travelers have notice that they will be searched
 Even with this notice, they choose to fly, so minimal
intrusiveness…less humiliating
Travelers have choice to travel different method
 Maybe not in some circumstances
Search is quick


Choice of alternatives and their effectieness is for
government officials
Stevens Dissent:
 Randomness is more surprising, startling
o More intrusive
 Police discretion at location is more targeted and more intrusive
 10. Electronic Surveillance:
o 1. Burger v. New York:
 F: an eavesdropping order was obtained pursuant to a New York statute that said it could be issued with
‘reasonable grounds.’ The statute allowed for listening devices to be placed in for 60 days.
 R:
 Court said this was a blanket grant of a warrant without warrant requirements much like a ‘general
warrant’
 Lacked particularity, description, time was long, didn’t terminate once evidence listed found
o 2. Federal Response –Title 3
 Congress, through Title 3 regulated wiretapping and electronic eavesdropping
 does not apply when one party consents
 Amended by:
 Title 1 of Electronic Communications Privacy Act
 USA Patriot Act
 Homeland Security Act
 Basic Provisions:
 1. Applies to:
o any wire, or oral electron communication
o Interception, which is ‘aural acquisition or other acquisition of contents of any wire,
electronic or oral communication through use of device
 2. To Obtain an Order for Title 3 Warrant:
o Under Oath or affirmation
o Must include full and compete statement of facts and circumstances to justify belief
o Unless ‘roving’ wiretap, particular description of the nature and location of facilities
where communication will be intercepted
o Particular description of the type of communication sought to be intercepted
o Identity of person, if known, committing offense whose communications sought
o Full and complete statement as to whether other investigative procedures have been tried
and failed
o Statement of the period of time which interception is to be maintained
 3. Court Issues order if:
o 1. Probable cause to believe that individual is committing, has committed or is about to
commit an enumerated offense
o 2. Probable cause to believe that particular communications concerning that offense will
be obtained through interception;
o 3. Necessity Requirement: Normal investigative procedures have not worked and
 point is that wiretap isn’t the initial step, and just employed all the time, so it
doesn’t require exhaustion of other methods…but attempt
o 4. Probable cause to believe place where communication coming from is being used in
connection with specified offense
 4. Particularity Requirement:
o Court order must provde:
o Identity of person, if known
o Nature and location of communication facility
o Particular description of type of communication sought to be intercepted
o Identity of agency authorized to intercept it
o Period of time the interception is authorized, or will terminate if isn’t obtained
 5. Time Limit:
o No period longer then necessary, and not longer then 30 days
o Extension may be granted, but must be applied for and not longer then 30 days
6. Minimization:
o Minimize interception of communication not otherwise subject to it
o Means that officers must stop monitoring a conversation as soon as it becomes apparent
that it is not about criminal activity
 7. Exigent Circumstances:
o Officers may intercept without court order for no longer then 48 hours, if emergency
situation exists that involves ‘immediate danger of death or serious injury, threat to
national security…’
 8. Inventory:
o within 90 days, party who was intercepted must receive an inventory of notice and date of
order and that communication was intercepted
o Court may allow transcript to be shown if in ‘interest of justice’
o May postpone inventory
 9. Roving Wiretap:
o Title 3 allows for roving wiretap that is not connected to particular location
o Must show that stationary wiretap wont be sufficient
Foreign Intelligence Surveillance Act:
 Title 3 does not apply to foreign intelligence
 To get FISA Warrant:
 Must show probable cause that target is foreign power or agent of foreign power
 Request made to one of 11 federal district court judges selected by chief justice of supreme court
 Notice and Inventory Less Strict
o Target may never be notified if in interest of national security
 Exigent Circumstances
o Allow listening up to 72 hours
o Or, 1 year for foreign government entity

o
Remedies for 4th Amendment Violation:
 History:
o The Exclusion rule was not the rule
 Instead, remedy at common law for a violation of the 4th amendment was a civil suit for trespass or for
replevin of goods taken unlawfully
 However, both were impractical
o Birth of the Rule:
 The Exclusionary rule was late in creation, Weeks v. US in 1914
 Why:
 Federal Courts did not hear criminal cases often, because of their limited jurisdiction
 Did not get general right of appeal until 1891
 Also, 4th amendment did not ‘incorporate’ at that time, so state cases were not appealed
 Right around 1891, all the states had been formed, so they heard mostly malum in se cases
o Part of the reason the exclusionary rule was not a big deal
o When it was created, Federal Courts were hearing malum prohibitum cases, so it was not
as big a deal to exclude that type of evidence rather then rape, murder, etc…
 Had the cases been Malum In Se…there is chance it would never have been
created
 Weeks v. US (1914):
 1. Federal Courts must exclude evidence obtained unlawfully under 4 th amendment
 2. 4th Amendment does not incorporate to states
o Remember, at this time Federal Courts were hearing malum prohibitum cases, so effect
of exclusion wasn’t that bad
 3. Court held that if it did not exclude, the 4 th amendment was meaningless
 4. Silver Platter Doctrine:
Weeks, in essence, applied to federal officers….so federal officers would obtain evidence
illegally and give to states…or have state officers obtain evidence illegally and give to
federal officers…this was allowed
 Wolf v. Colorado (1949):
 The 4th amendment incorporates to States
o ‘Ordered Liberty’ concept of incorporation
o Other English speaking countries have similar rule
 The exclusionary rule does not incorporate:
o 1. It is a judicial creation, not from text or Congress
o 2. Other English Speaking Countries do not use it
o 3. States have largely declined to use it, using other methods
o 4. Only benefit is for the guilty, where incriminating evidence is found
 Murphy Dissent:
o The only possible remedy for the 4th amendment violation is exclusion
 Post- Wolf:
 The exclusionary rule did not apply to states
 However, States would sometimes exclude
o If method of gaining evidence ‘Shocked the Conscience’ (The England Rule)
o Rochin v. California:
 Officers pumped a suspect’s stomach to gather evidence
 This did
 Shock the conscience, and was physical intrusion of body…so evidence
excluded
 Mapp v. Ohio (1961)
 Justice Clark:
 The Exclusionary Rule Incorporates to States:
o 1. Jot-for-Jot Incorporation
 Not other amendment incorporates unequally to states, and neither should 4 th
amendment
 Weeks created a constitutional rule of exclusion…a constitutional right, so it
incorporates
o 2. Judicial Integrity:
 If the government does not observe the law, it is a failure and empty promise
 Judiciary should not be tainted by illegally obtained evidence
o 3. Reason & Truth:
 Weeks was a constitutional rule, and exclusion is part of the 4th amendment,
which is no more or less then what constitution gives
 Is a constitutional right
 Court is only allowing what is constitutionally guaranteed by the 4 th amendment
 So, Court here interprets the exclusionary rule as a constitutional right although
judicially created in Weeks
 Harlan & Frankfurter Dissent:
o Harlan disagrees with Jot-For-Jot…and wants more selective incorporation
 Still utilizes ‘ordered liberty concept’ and evaluation of other English speaking
countries
o Thinks that 4th amendment violation occurs at the illegal search or seizure…not when
evidence is brought to court
 Therefore, should be remedy but not exclusion because evidence isn’t violation
 5th amendment is violated when evidence entered at court
Policy Arguments for and Against Exclusion Rule:
o
o
Proponent Policy Arguments
1. Judicial Integrity Preserved: insulates courts from
tainted evidence (Mapp v. Ohio)
Opponent Policy Arguments
1. Amor: Judicial Integrity also promoted by using
evidence that helps justice system reach true verdict
-Tainted evidence can still be used in civil court, grand
2. Prevents Government from profiting from its own
wrong
3. Not Costly Only excludes what should never have
been found
4. Deterrence of Police Misconduct: Fear of police that if
they mess up, the criminal will be let go
-But, we don’t want their concern to be not making a
mistake Rather, we want them to have primary concern
of catching the bad guy
jury, and perjury cases…so how much integrity?
2. Amor: Society profits when wrong-doers are convicted
for wrong doing Costs<Benefits
-It costs society when bad person let out, for minimal
benefits
3. Amor: Not crystal clearpolice simply misjudging use
of warrant exception may be excluded, even if they could
have been granted a warrant…Costs<Benefits
-Actually could profit…if sold contraband for good cause
4. Amor: Does not Deter: because used after
conviction…What it actually does is overcompensate a
criminal…Person gaining suppression is only doing it for
himself…not to deter future police misconduct
Overcompensation
Horrible criminal may be let go over minor
infractionMinor criminal over major infraction
 Limitations on the Exclusion Rule:
o General:
 While the Basic rule is to exclude illegally obtained evidence, the court has fashioned exceptions to the rule
 The Court has concentrated on:
 1. Judicial Integrity
 2. Personal Right to exclusion
 3. Deterrence
o the prominent consideration of the Court
 Depending on which rationale is relied on…court’s decision could change
o The Good Faith Exception:
 Rule: In certain contexts, Court will allow ‘good faith’ reliance on a warrant, and search conducted
pursuant to that warrant that is later found faulty evidence won’t be excluded
 Requires:
o Warrant Issued
o Objectively Reasonable Reliance on it, in Good Faith
 Why:
o Deterrent purpose of exclusion cannot be effectuated when police objectively rely on
warrant in good faith, and the costs of exclusion > benefits
o But:
 When police do not act in ‘good faith,’ the deterrent benefits of exclusion do
outweigh the societal costs, because deterrence can occur
 United States v. Leon (Magistrate Error):
 F: Officer obtained a warrant—Magistrate had determined there was probable cause, and large
amounts of drugs were found. Court of appeals eventually found the warrant lacking probable
cause, and motion to suppress ensued.
 R:
o 1. The purpose of the exclusion rule is deterrence of Police:
 It cannot deter an intermediary Here Magistrate:
 1. Benefit of Exclusion is to alter Police Behavior
 2. Nothing suggests it would effect judges determination
 3. Purpose of deterrence won’t be met on Judge
o Have no stake in outcomeNeutral
o Won’t reduce, encourage, or lead to warrant grant
o 2. Exclusion should only be used when it furthers purpose Deterrence
 A. Cost / Benefit Analysis:
 The Costs of exclusion is extremely high



The benefits of exclusion outweigh costs only when the purpose of
exclusion is met
 Deterrence as purpose is not met when objectively reasonable reliance
o Note:
 If court uses other purpose, the benefits may not have
to be as high…and exclusion may be more justified
in certain circumstances
 B. When Police Objectively reasonably reliance on warrant:
 ‘When Reasonable Minds would differ’ defer to police in good
faith Here, even Circuit court couldn’t agree if PC or not
 Nothing to deter
 They have acted in good faith, and obtained a warrant
 Good Faith Rule applies
 C. When no objective reasonable reliance benefits > Costs as purpose of
deterring police is met:
 1. When officers were dishonest or reckless in preparing affidavit
 2. Could not have had an objectively reasonable belief there was PC
o a. When Magistrate abdicated his duty
o b. When warrant is on face, deficient bare bones
o c. Probable Cause is obviously lacking
 In these circumstances, the deterrent purpose of the exclusion rule can
be met…so the benefits of exclusion outweigh the costs
 Brennan (Dissent):
o 1. Court says what the law is (Marburry v. Madison) and Court, in Weeks did so
o 2. The 4th amendment imposes the exclusion rule then…it imposes to societal costs…So
Good faith rule is not needed
 The Good Faith Rule is not needed because of Gates
 Gates already lowers threshold of probable cause
 Lower threshold + Deference is enough
o 2. Purpose of Exclusion is Judicial Integrity and it is a personal right and deterrence
 Therefore The Courts mistake is not separate from police usage of it
 It is a personal right of people…Costs of it are justified
 Stevens (dissent):
o The Good faith rule ends any remedy to 4th amendment violation
o It is not needed In fact, it allows a ‘constitutional violation’ because the Court in
Weeks said the law is exclusion, and now undercuts it
Arizona v. Evans (Clerical Error and Police Reliance on Court Personnel):
 F: Officer stopped person who had traffic violation. Computer showed an arrest warrant
outstanding. Officer arrested, and search incident to arrest turned up pot. However, the arrest
warrant had been quashed long before, but court personnel made mistake
 R:
o 1. Purpose of Exclusion is to deter police
 Intermediary Court personnel wouldn’t be deterred:
 No basis to believe they would be deterred from mistake
o 2. Exclusion should only be used when furthers deterrence:
 Nothing can be deterred because officer, in good faith, reasonably relied on the
warrant and computer
 Ginsburg/Stevens:
o Exclusion is an individual /personal right…should not deprive people of it because
clerical error
o Computers can exacerbate the problem—so, must be treated carefully
Herring v. US (Negligence of Police Employee):
 F: Police at station radioed to another police station to check if someone in parking lot, Herring,
had any warrants. They radioed back and said there was 1 felony arrest warrant outstanding.

Police arrested, and found Meth and a Gun. However, there was no arrest warrant and when other
county realized and tried to call back it was too late.
 R:
o 1. Exclusion is the Courts last resort Not its impulse
 Court slowly chops away at efficacy of exclusion
o 2. The purpose of exclusion/justified when deters police
 Does not apply to intermediaries
 Exclusion is not an individual right, but only for deterrence
 Focus is on efficacy of deterrence of 4th amendment violation in future
 Purpose cannot be met if objectively reasonable reliance on warrant
o 3. Benefits of Deterrence must outweigh costs of exclusion:
 Cost Guilty go free “offends basic concept of criminal justice”
 Benefits will only outweigh costs when purpose is met
o 3. Exclusion meets purpose and is justified when police are unreasonable in
relying/not in good faith/are culpable:
 During Affidavit / groundwork stage, in reliance on warrant
 Intentional/ flagrant police behavior
 Reckless behavior
 Grossly negligent behavior
 Recurring Systematic negligence (Computer)
 If police reckless in maintaining warrant system…intentionally made
false inputs…
 Note:
o Argue by using police conduct…but may need to determine
subjective intent….
 Objectively Reasonable Reliance includes:
 Exclusion’s purpose of deterrence is not met when non-recurring, attenuated
negligence occurs
 Deterrent Purpose of Exclusion is not met when police mistakes are
negligent/careless…costs are > non-deterrent benefit
 Ginsburg (dissent):
o Exclusion is for deterrence, but also for judicial integrity and personal right
 Prohibiting people from right prohibits people from part of the 4 th amendment
 exclusion is only effective remedy
 Civil Liability is untested
o Allowing Carelessness of police error is beyond precedent
 Opens public up to enormous computer system errors
 Risk of error is exacerbated…and now there is no incentive not to be careless
 This, then, may lead to ending peoples ‘right to exclusion
o Now ∆ must prove culpability
 Litigation will be burdened
 Discovery needed to determine…burdens the courts
Post Herring:
 3 cases prior, Leon, Krull, and Evans all involved an intermediary and police relying on their
mistake
o Herring applied to a police-department, however…but not officer (intermediary)
o Should Good Faith rule apply to police officer/Warrantless Search?
Yes
No
1. Herring blurred line by saying ‘police carelessness’ and
not clearly stating police personnel
2. Officer made a mistake, but Judges ‘reasonable minds
differ’ so its not that easy to determine…and exclusion
wouldn’t deter
3. Standing already does the job of good faith
-prohibits people from arguing exclusion applies
1. Herring said attenuated negligence…police making a
mistake would not be as attenuated as a police employee
2. Exclusion is mean to deter officer…if he can in good
faith rely on his own observations, all exceptions to
warrant blur, and really are not needed
-If officer needed a certain level of suspicion to have a
reasonable search/seizure, but could in good faith not have
anyway in certain warrant exception contexts
4. Since deterrent effect is for police, could argue that
Good faith reliance, as long as not intentional abdication of
warrant exceptions is ok….Herring allows it, as long as not
intentional/flagrant…almost as though a reasonable effort
to try and comply was exerted, is sufficient
o
that level…4th amendment is unwound
3. This ends deterrent…allows him to be careless
4. If Good faith is allowed in warrantless search, then the
will push envelope to questionable scenarios
5. Pushes the determination of ‘objective reasonableness’
of 4th amendment to subjective view of the officer…
6. Look to dissents
Standing:
 Modernly:
 Standing, or as it was changed in Rakas, is a substantive 4th amendment question, either textually
charged or Judicially created, that establishes who may claim a violation of 4 th amendment rights
 Looks at Personal Right view of Exclusion, and decides who has this right
o As court has minimized standing, it has limited the reach of exclusion
o This is due to the costs exclusion exacts on society

Textual Argument:
o 4th amendment says “Their”…so standing is limited as to who can enforce the 4 th
amendment, by the text of the amendment
Where standing has/has not been determined under Modern Katz Approach
Location
Standing
Vehicle:
Owner of Vehicle
Passenger in Vehicle
Standing under Katz  Rakas v. Illinois
No Standing under Katz Rakas v. Illinois
Property Owner:
When property in possession of another
No Standing under Katz  Rawlings v. Kentucky
In Home:
Home Owner
Overnight Guest
Temporary Visitor/Invitee



-Standing under Katz: This would meet test
-Standing under Katz “Degree of acceptance into
home, that makes it temporarily his home:
Minnesota v. Olson / US v. Jones
- Probably no standing  Minn. v. Carter
History:
 US v. Jones: established:
o 1. Automatic standing for legitimately on premises (invitee) and
o 2. Automatic standing if formally charged with possession of any item
In the Vehicle:
Rakas v. Illinois:
 F: Officers stopped a vehicle—found shells and shotgun inside. Π’s were passengers and not
owners, while owner was driving the car
 I: May passengers suppress for a 4th amendment violation?
 R:
o 1. Jones automatic standing is overruled:
 Hasn’t been applied consistently



Leads to vast application of ‘vicarious 4th amendment rights’this exacerbates
the social cost that exclusion already entails
 Merely being invited over someone’s house, under Jones allows them
to gain exclusion…this is too much
 Target Theory:
 Attempting to find out who was the target of the police is almost
impossible…not workable
o 2. Not a question of ‘standing’  Substantive 4th Amendment
 Court now considers it ‘substantive 4th amendment’ issue
 Not any change…but court feels it is more logical to use this ideal
o 3. Test: To determine if someone has standing to challenge a 4 th amendment
violation
 Katz creates the scope of protected interests of 4th amendment
 “Did person claiming 4th amendment protection have a legitimate
expectation of privacy in that location that society recognizes as
reasonable?”
 Jones:
 ∆’s were sleeping over someone’s apartment
 They had ‘reasonable expectation of privacy’ in sleeping at another’s
property that society recognizes
 Here:
 Look to property interest, possessory interest in property as part of
Katz
 ∆’s had no reasonable expectation of privacy in another’s vehicle
Property owned, but in another’s possession:
 US v. Salvucci:
o Officially overrules Jones
o Look to the facts to determine if ‘person had legitimate expectation of privacy that
society recognizes as reasonable’
 This allows prosecution to argue that person had possessory interest of
contraband, but no standing to argue a 4th amendment violation
 Property Interest/Ownership Does not necessarily confer standing:
o Rawlings v. Kentucky:
 F: ∆ owned drugs and placed them in another person’s purse. Illegal search
exposed the drugs
 R:
 1. While ∆ had possessory interest, under Katz he had ‘no
legitimate expectation of privacy’ of his property in another
person’s bag
 US v. Payner:
o F: The IRS stole a bankers briefcase and broke into it. They obtained information about
Payner, within the briefcase
o R:
 No expectation of interest within the bag of another
 Court held Does not have supervisory power to suppress when no standing
Standing regarding Visitors in the home of another:
 Overnight Guests
o Minnesota v. Olson:
 R:
 1. “Overnight guests” do have ‘legitimate expectation of privacy
that society recognizes as reasonable’ when they are overnight
guests in the home of another
 ‘Because there is degree of acceptance into the home, for a temporary
time, it becomes nearly ‘their’ home’ for purposes of the 4 th
amendment
 Have standing
Temporary Visitors:
Minnesota v. Carter:
o F: Officer observed, through a window, that men were bagging cocaine. He radioed
information to begin getting warrant. 2 men then left, and were stopped and in plain sight
gun was seen—they were arrested. In car grams of cocaine were found, gun, weighing
scales, etc…
o I: ∆’s argue that initial search was illegal, and that they have standing as invitees to
exclude all evidence found thereafter. Do visitors in home of another have standing?
o R:
 1. Under Rakas, must show ‘Legitimate expectation of privacy’
 Look at Real property interest, possession, personal property and what
society recognizes as reasonable
 Overnight Guests (protected, Olson)---Invitee (Not protected)
 Visitor is somewhere in the middle
 Court, under Katz will determine who has ‘legitimate expectation of
privacy in the home of another’
 Evaluate Factors to determine what side of spectrum on:
o 1. Commercial Nature of visit
 Is the visit for business, or as in overnight guest,
‘acceptance into the home of another’
o 2. Short Period of Time
 Period of minutes, hours, or longer?
o 3. Lack of Previous connection
 the lack of any prior connection
 Here:
o Nature was business to buy cocaine, and was for only hours,
and they had never met
o This was closer to an invitee then any temporary visitor
o No Standing
o Scalia (Concur):
 Disagrees with Katz
 Textual Argument:
 The 4th amendment says Their home, property…etc…
 Olson was the limit of who could possible think a home was
‘theirs’Overnight guests
 Visitors, invitees simply cannot reasonly conclude a home is theirs
 But, apartments, home, residents, and temporary overnight guests
do fit in
 As long as actually live there for some time…
o Ginsburg (Dissent):
 People in the home of another should share their ‘shelter from illegality’
 The Rule Exclusion of “The Fruit of the Poisonous Tree”
o Causation:
 Excludes the original illegal evidence, and all subsequent evidence that the tainted evidence leads to
 The subsequent evidence is the ‘tainted fruit of the poisonous tree’
 Illegality is the but for cause, which is necessary but not sufficient: Must also not be attenuated
from the illegality
 Standing:
 Original Illegality:
o Only those with standing to object to the original initial illegality can exclude all legally
found ‘fruit of the poisonous tree’ unless attenuated
 If no standing to object to initial illegality:
o The only way to exclude evidence, then, would be for a subsequent illegality in which
you do have standing to object to occur



Fruit and Attenuation:
 Wong Sun v. United States:
o F: Toy was illegally arrested, and immediately implicated Yee. Yee was then arrested
legally and found with drugs, and he implicated Toy and Won Sun. Won Sun was then
arrested illegally, arraigned and let go. He came back several days later and confessed.
o R:
 Rule: Where evidence is discovered by the initial illegality, it must be
suppressed, unless it is sufficiently attenuated to ‘purge the illigality’
 1. Toy has standing for initial illegality: can exclude unless attenuated
 Toy had standing for his initial illegal arrest

Can exclude his statement
 It was fruit of the poisonous search
 It happened right after—not attenuated
 Toy can exclude all subsequent drugs found
 It was fruit of the poisonous search, and not sufficiently attenuated to
‘purge the taint of illegality’
 Toy cannot exclude Wong Sun’s Confession—Attenuated
o Wong Sun came back day’s later, as “independent and
voluntary, sufficient to attenuate the tainted chain”
 2. Yee—has no standing to object to illegal Toy search
 Therefore, cannot exclude Toy’s statement
 Cannot exclude his arrest because not illegal
 Cannot exclude Wong Sun’s confession
 3. Wong Sun has no standing in Toy’s apartment:
 has no standing to object to initial illegality
 Cannot object to any evidence unless another illegality which he has
standing for

Attenuation:
 All subsequent evidence that is tainted from the initial illegality must be excluded, unless it is
sufficiently attenuated to ‘purge the taint of illegality’
o So although it illegality may be the ‘but for’ cause of something further down the
chain, if that later act is sufficiently attenuated, or removed…it is not tainted
anymore…can come in
 Brown v. Illinois:
o F: Brown was arrested on his apartment stair for murder. He was mirandized, and at
police station, he confessed twice to the murder…one within 90 minutes of the arrest, and
the other 7 hours later. Turned out, arrest had no probable cause so he motioned to
suppress the confession.
o R:
 1. Fruit of the Poisonous Tree ends when ‘evidence comes from an
independent act of free will’
 This is sufficient to ‘purge the taint of illegality’- Wong Sun
 2. Miranda Warnings alone do not end taint of illegality
 Then officers would simply say it many times and clean any illegality
that had occurred
 3. Burden on prosecution to prove—to Determine if ‘evidence comes from
independent act of free will’ to sufficiently attenuate:
 1. Temporal proximity to arrest
o Did evidence come immediately after arrest or hours, days,
after
o The longer the time the more likely attenuation
 2. Presence of Intervening circumstances
o Look at if Miranda given (not dispositive)
o The more links in the chain, more likely attenuation
o

o


Here:

EG: Wong sun was arrested arrainged, went home for few
days and then came back…
o Voluntarily come back
3. Purpose and Flagrancy of police violation
o The more deliberate and intentional constitutional violation
the more reason to suppress all evidence traced back to it
 Fits exclusions purpose more
o But, when minor violation…more likely to be attenuated from
the minor violation
o
Confession occurred only 90 minutes after illegality (versus days in Wong Sun),
and second statement was result of the first
 Purpose of officers was flagrant violation
Example of Statements that are attenuated:
o Taylor v. Alabama:
 Police arrested π without probable cause. They took him to station where he was
given Miranda rights, fingerprinted, in lineup—after 6 hours he confessed
 R:
 The causal chain was not broken, and was not attenuated
 6 hours was not enough, even with Miranda
o Kaupp v. Texas:
 F: ∆ arrested without probable cause, took him to station where he admitted to
playing part in the murder.
 R:
 Suppression must occur, unless ‘confession is act of free will’ which
will attenuate the unlawful taint
 Confession here occurred 10-15 minutes after
 Officers purposefully violated 4th amendment
 Exclude
Attenuation may Occur in 2 Ways:
o Methods:
 1. When Causal Connection is remote from illegality
 Above
 2. When purpose of the rule that was violated would not be served by exclusion
 Also no causal connection between illegal search and evidence
o Framework:
 Determine Purpose of the rule
 See if it was violated
 If Yes:
o See if Exclusion would serve the violated rule’s purpose
o Balance the Benefits and Costs of excluding in this scenario
o Hudson
 If No:
o Nothing to exclude…sufficiently attenuated
o New York v. Harris
o New York v. Harris:
 F: Warrantless entry into a home to arrest, in violation of Patyton occurred and
confession was made 1 hour later.
 R:
 Purpose of the Rule
 A Payton violation is an illegal search of home, not illegal arrest
o When Payton violated, and house searched, then exclusion
would serve purpose of rule
o If search turned up evidence Exclude


Payton is not to protect against an arrest with probable cause
o May arrest in home without warrant if there is probable
cause…so evidence from that arrest is ok, because no
violation
o What was violated did not lead to evidence  No exclusion
o Hudson v. Michigan:
 F: Police had a warrant, and waited only 5 seconds after knocking to enter the
home. They found large quantity of drugs and gun. Π argues that violation of the
‘knock and announce rule’ should lead to suppression of all the evidence
 R:
 1. Exclusion is the Court’s last resort
o It has high societal costs
o Only applicable where deterrent benefit > Costs
 2. Attenuation can occur 2 ways:
o 1. When but for cause is remote, and broken, or
o 2. When the interest/purpose that was violated would not be
served from the exclusion rule
 Categorize purpose of the rule violated
 Purpose must be to shield from government view of
evidence
 Would exclusion serve this purpose
 If yesnot attenuated and excluded
 Purpose of Rule Violated:
o Knock and announce is to protect officer and occupant safety
o They may violate already if they have reasonable suspicion
they may be harmed
o Property, Privacy
o But does not have the purpose of shielding evidence
o Exclusion is not applicable then, and this is attenuated
cause
 Costs and deterrent benefits of Exclusion:
o Costs:
 Significant social costs of ‘get out of jail free card’
 In this scenario…officers may wait too long to not
violate…danger to them/chills enforcement
 Litigation would increase
 Imbalance with what was violated
o Deterrent Benefits:
 Will not deter here…
 Other Ways:
 Mapp was made in time when civil suit was not
available
 Now Civil suit of municipality has lead to greater
police training, internal investigations
 Easier to sue under §1983, and probably settlements
have occurred too
 And, cases that aren’t decided probably settle
 Overall The purpose of the rule violated would not be served from
exclusion, as Costs are >Deterrent Benefits
Consent May not break Chain of Causation, attenuating:
o The analysis for determining if consent sufficiently attenuated, to ‘purge the evidence of
illegality’ is the same as in Brown
 1. Temporal Proximity [Time between illegal conduct & consent]
 2. Presence of Intervening events
 3. Purpose/Flagrance of the initial misconduct
o

US v. Hernadez:
 After an illegal search, ∆ consented to full search of the bag. Prosecution argues
that consent sufficiently attenuated, to purge initial illegality
 R:
 No—occurred immediately after, without intervening events, and while
not flagrant, was misconduct…so initial illegality tainted allno
attenuation
 Fruit of Poisonous Tree and Witness Testimony:
o In general, Courts do not like applying the fruit of the poisonous tree exlusion of evidence
to live, voluntary witnesses
o Ceccolini v. US:
 F: the FBI, by using illegally obtained evidence, asked an observor of crime to
testify against the ∆.
 R:
 1. Exclusion used reluctantly when claim causal relationship is
between illegality and live witness
o **Very Likely that live, voluntary witness will break chain
o Costs of Excluding Witness:
 Disables relevant, and material facts, and evidence
unrelated to illegality, information
o Should only exclude live witness, when very close proximity
between illegality and witness
 Here:
o Was 4 months after illegality, and witness had no idea about it
The Independent Source Exception:
 Generally:
o Along with Good faith, and Attenuation, the Independent Source exception is a way to
avoid exclusion, by purging the illegality of any taint
 Murray v. US:
o F: Police watched ∆’s leave a warehouse they suspected of having drugs. The ∆’s left,
and were arrested. Then, the police entered the warehouse seeing many bales of
marijuana. They have believed there were exigent circumstances, but were mistaken.
They subsequently, without any mention of the illegality, obtained a warrant. Then, went
back and ‘rediscovered’ the evidence.
o R:
 1. Exclusion is to deter—“to put police back in position they would have
been, had illegality not occurred”
 When evidence is from an independent source, independent of
illegality, but is excluded anyway puts them worse off
o Arguably—if put them worse off…may over deter, and chill
o Putting them where they would have been adequately deters
any need to further their cause by illegality
o While one deters more then other, latter is sufficient
 2. Evidence discovered during illegal search, but subsequently acquired
through independent, lawful, untainted source
 **The Independent Source (Warrant) must be untainted, to fully
cleanse or purge chain of ‘taint’
o No illegal evidence used to get warrant
o Must show they would have gotten warrant anyway, and
tainted evidence didn’t effect decision
 “Where the facts render those assurances by police
implausible, IDS doctrine wont apply”
 Must be plausible they would have gotten warrant


Marshall (Dissent)
o Will lead police who have probable cause to avoid getting warrant
 Will Search First, and if nothing…go about their way
 If Something Will claim rule
 They control what goes into warrant affidavit
 They will testify, easily they would have gotten anyway
o Will be “plausible”
o This looks to subjective intentions…something 4th hasn’t done
The Inevitable Discovery Exception:
 In certain, exceptional circumstances, the Government may be able to show that the evidence
found illegally, would have been found anyway, and shouldn’t be excluded
 Nix v. Williams:
o F: In course of illegally obtained statements, the ∆ led the police to the murder victims
body. As they drove him around, he didn’t have attorney, and actually violated the 6th
amendment.
 The Court wanted to hold a 6th amendment violation occurred, but didn’t want
to exclude body of little girl by finding 4th amendment violation
o R:
 1. If Government can prove it got no advantage from illegality, but instead,
would have found the evidence anyway

2. Must be proven by preponderance of evidence
 If this rule didn’t apply, they would be put in a position worse off then
they would have been, rather then the same position had the evidence
not been found
o This is contrary to the deterrence principle of exclusion
 Protects the Deterrence of Exclusion:
 The uncertainty, inherent, in proving the case is deterrent enough
o Overall Effect of Rule:
 Courts may use it as a safety valve
 When they see costs of exclusion ultra high (murder)
 The court may or may not turn to this rule
 Application to Hypothetical Inventory Search:
o Arguably then, any item on someone will inevitably be found in an inventory search at
station
o This, arguably, ends any incentive to seek a warrant in the first place, due to this rule
o However This rule is not automatic
o “Would have gotten warrant”
o Most Court’s do not buy these arguments
 Because, that would mean having probable cause automatically means discovery
is inevitable, making the warrant meaningless
 Not the case—probable cause means getting a warrant…that is what makes it
inevitable…because then, you had justification to search
 Preponderance of Evidence needed to Establish “Inevitable Discovery Rule”
o Courts look at What the officer/Police “Would have Done”
 Not what they could have done
 You could discover anything given unlimited people and time…but that
is not realistic
 Look to lawful, actual means employed to show inevitability
Alternatives to the Exclusion Rule:
 See Exclusion Document
The 5th Amendment
“no one shall be compelled in any criminal case to be a witness against himself…”
 History, Policy, and Rationales:
o 1. Judge Friendly’s Warning:
 Beware of “eloquent phrasing that bypasses analytical thought”
 It Generally hurts
 Only applies to those who have broken the law, typically
o Occasionally allows an innocent to be quiet avoiding bad performance
 It is natural that when a question is posed, people feel a moral obligation to respond
 This rule is contrary And prevents convictions, restitution to victim
o 2. Cruel Trilemma:



o
Argument: The Rule was created to avoid one being placed in a position, if under oath:
 1. Incriminate themselves
 2. If lied, would perjure themselves
 3. If stayed silent, would be in contempt
 Note:
o Rationale is the strongest one
 Explains why brought to all proceedings, not just criminal…explains distinction
with testimonial and non testimonial evidence, with the former being
‘testimony’ and the person being a witness against himself subject to the cruelty
of trillema while latter not
 But, premised largely on the Religious, supernatural effect of the
oath…not really applicable anymore…
o Alschuler: “The Peculiar Privilege”
 At common law, religious damnation, and supernatural sanctions for falsely
invoking God’s name, were risked as well as imprisonment if under oath and
lied
 Damned your soul
 Oath was coercive “Rack by Conscience” and considered torture
 Just the same as physical torture, if not more!
o At Common Law then, there was no right to silence, but instead right to method
information gathered
 In fact—they didn’t have counsel then, so they had to speak
 Avoid the “Rack by Conscience” by not putting them under oath, which is
typically what happened
Solution:
 This exists whenever a witness doesn’t want to testify, although perhaps not incriminating
themselves, it incriminates someone
 Don’t put them under oath, as CL did
o Avoid Perjury
 Europe:
o Are not under oath
o May lie
 Although if caught, or jury figures out…will go against you
o Employees and Family members are not put under oath to avoid cruel trilemma
Note:
 If this is the case, shouldn’t the privilege only apply when under oath?
3. Protection from a poor performance on the Witness Stand:
 Need due to our system:
 In our adversarial system, cross examination is designed to trick or make you look like you are
lying
o Exacerbates any issue in your testimony, making an honest person look like liar
o Tries to gather evidence
 Protect the less intelligent, sharp people from being convicted merely because they are inarticulate
 Based on our design of system then, the privilege is needed to avoid poor performance
 Defense Attorney:
o Will specifically tell you not to testify
o They cannot control what questions are asked, or if you’ll get angry, wrong answer…
 Europe:
 Uses a different system, where the Judge questions
 System is not adversarial it is inquisitorial
 Incentives to Speak, and Judge in Charge makes the ∆ a primary source of information
 Solution:
 When you take the witness stand Your prior criminal record automatically comes in, and can be
used to attack your credibility, believability, making you look bad

o
o
o
o
o
Montana Rule:
o Prior convictions are not allowed in to attack credibility
 Europe:
o Past Record comes in automatically
o Uses a different system
 Because their trials, unlike the United States, are not bifurcated in sentencing
and penalty phase
 Instead, they are done all at once
 Scholar Arguments:
 Seidman:
o The Jury will presume those who stay silent are guilty
o However, those who speak are innocent
o Without the 5th amendment then, it would be difficult to distinguish for the jury
 Bibas Response:
o This is unrealistic, and inaccurate
o In our system, most confess, take plea deal and cooperate
 Note:
 If this is the case, shouldn’t it only apply in trial?
4. Privacy:
 The 5th amendment is part of the Framer’s obvious intention to cherish, and protect privacy
 That each individual is entitled “to a private enclave where he may lead private life” free from intrusion of
government
 Argument:
o This seems to follow along with 4th amendment strong privacy interest
o Freedom from European Model that sought the ∆ to speak
 However:
o In Framers time, ‘privacy’ was in property…so does not really apply here
o Also They didn’t have lawyer to speak at Common Law, so they were not really
private, but instead spoke quite a bit
o But, may, in some contexts apply…some ‘internal privacy’ or enclave
5. State—Individual Balance:
 Our system is designed such that the Government bears the burden of ‘shouldering the entire load’ during
contests with individual…the accusatorial system
 The threshold proof must be met to infringe on ∆’s privacy interest
 Therefore, the privilege goes hand in hand with this
 However:
o Isn’t that what Probable Cause does  prevent government overreaching
o Shouldn’t all participation of ∆ then be avoided
o Contradicts idea that 4th amendment actually allows the ∆ to be used against
himself…finding evidence, etc…
 Distinction between testimonial and not as well…physical evidence is ∆’s but
used against him…
6. Physical Torture:
 Statements that incriminate you, may be pulled out using tortuous or inhumane methods
 However:
o 5th and 14th amendments already deal with this…so we really do not need another place in
the Constitution to deal with it…
o Torture is unacceptable anyway, without a special constitutional provision
7. Deter Perjury:
 People may, without a privilege not to be compelled to speak, would often times perjure themselves
 However:
o Perjury exists whether one is under oath, or not, or a privilege does not exist
o When the ∆ stays silent, and does not speak, that too burdens the judicial process
similarly to perjury
8. Reliability:


Testimony that is compelled is not reliable
So, we prohibit it with the privilege, and acts of free-will are acceptable
 This rationale applies quite a bit, but not to all 5 th amendment issues
o 8. Personal Autonomy:
 You should not be used as an instrument of your own conviction
 Note:
 If this is the case, shouldn’t it apply to handwriting, and voice-lineup samples?
 ∆ had to speak pre 19th century, when he had no attorney…
 They use physical fruits, non-testimonial evidence from you…doesn’t line up
 Application:
o To Apply:
 1. Must be Compulsion
 2. Must be Testimonial evidence
 3. Must be able to use testimonial evidence in subsequent criminal case (Not immunized)
 When does the 5th Amendment Privilege Apply:
o Couselman v. Hitchcock:
 Is not limited to those prosecutions solely against that person
 “You may invoke the 5th amendment privilege in any federal proceeding (Civil or Criminal) that could
subsequently be used in a criminal proceeding in the United States
 1. Must be subsequent Criminal
o L.O. Ward Test to determine if Criminal or non-criminal proceeding
 Large deference given to Legislature’s Label
o Note:
 Probation hearing is not criminal
 2. Proceeding:
o You may invoke the 5th amendment in any proceeding…
 Invoke in Civil
 Criminal
 Grand Jury
 Disbarment
 Bankruptcy Court
 Legislative Hearing
 If Immunized from future criminal proceeding  5th amendment Privilege does not apply, and you may
be compelled to speak!
 Who May Invoke/Assert the Privilege:
o A personal right, only the person who is himself incriminated may invoke it
 Person:
 Human
 Partnership and Corporation are not people  “Collective Entities Rule”
o Oddity:
 Corporations have 1st and 4th amendment rights
 Perhaps because they may not actually speak, but their agents may?
 Whereas in 4th amendment, business may be searched, and 1st amendment,
corporation may have speech
o When the Privilege is invoked Government may still continue to investigate you
 Must be Compulsion
o Generally:
 This is a determination of what type of pressure is sufficient to be deemed compulsion
 Generally, those that penalize you are compulsion
o 1. Contempt
 Holding you in contempt for invoking your privilege is compulsion
o 2. “Substantial Economic Sanctions”
 Lefkowitz v. Turley:

o
o
o
F: Statute required that those receiving contracts were required to testify and waive their 5 th
amendment privilege, and if they did not, their contracts would be cancelled.
 R:
o Garrity v. New Jersey and Gardener Compulsion was being fired
o The threat of substantial economic sanction is compulsion
o What Rationale?
 Torture?
 Perhaps definition has changed…but same subsidiary idea is that you
are being forced, against your will
3. Threat of Disbarment:
 Spevak v. Klien:
 Disbarment of a Lawyer for invoking his 5 th amendment privilege is compulsion
4. Benefit or Penalty Evaluation:
 Penalizing the suspect/∆ for invoking his privilege is generally seen as compulsion
 When a benefit is offered and denied, however, if ∆ fails to waive his privilege
 The Court has not considered this compulsion
 United States v. Cruz:
 F: The ∆ was going to be subject to the mandatory minimum sentence, but was offered relief from
the mandatory minimum if he provided evidence…
 R:
o 1. The Penalty cases involve a loss, or reduction of the status quo
o 2. Withholding a benefit, however, is not a loss of the status quo…it remains the same,
had the benefit not been offered—a carrot is ok
o Although it still seems to penalize, or compel is waiver of privilege, had the Court
invalidated All Plea Bargaining would be unconstitutional
5. Compulsion From Comment by Prosecutor/Judge Adverse Inference at Trial:
 1. Griffon v. California:
 No Adverse Inference may be given from invoking the rule, and not testifying by Judge or
Prosecution
 2. Carter v. Kentucky:
 The Judge must give an instruction, upon request, that Jury is not allowed to draw adverse
inference
 3. Lakeside v. Oregon:
 If Judge instructs jury not to draw adverse inference, defense may not object
 Rationale Does Adverse Inference Penalize?
 Jude Posner:
o Argues No Juries will draw the inference anyway
o Scalia agrees with this in Mitchell
o It is the natural consequence of someone not speaking up
 Maybe:
o Jury may not realize that ∆ hasn’t spoken yet, and may suspect something when Adverse
Inference Given
 European Courts:
o Judge and Jury may draw inference, but must explicitly state that there may be other
reasons that the defendant is not testifying
o Note, this is another incentive to speak…but this is largely due to their inquisitorial
system
 4. Mitchell v. United States and Adverse Inference at Sentancing:
 F: During sentencing, the judge specifically stated that he was persuaded by her remaining silent
 R:
o 1. Sentencing is the explicit concern of the self incrimination privilege…that procedure
be followed, whether guilt or innocence
o 2. The Privilege applies with equal force at sentencing as trial
o Rationale:
 Poor Performance Rational Does not Apply
 Cruel Trilemma Doesn’t Apply—already incriminated

 Scalia Dissent:
o Thinks that the Cruel Trilemma and Torture are the controlling rationales
 Therefore, in sentencing, because we have a bifurcated trial system, these are
not evident
 This is not compulsion
o Text says “case” and sentencing is not a case…so 5th privilege shouldn’t extend this far
 Thomas Dissent:
o Thinks that at sentencing, not getting a benefit by staying silent of reduced sentencing
…This is the same as Plea Bargain rationale above, and therefore it is not compulsion
o By Text, the constitutional guarantee has been fulfilled, at the trial
 Adverse Inference in Civil Case:
 Baxter v. Palmigiano:
o The 5th amendment allows an adverse inference to be drawn in a civil case if they refuse
to testify
 Note:
 While you may not be compelled to testify, without being immunized, there are certain
circumstances where invoking the 5th amendment may be harmful
o 1. Failure to Take stand in Self Defense Trial
o 2. If in your trial you are innocent, a 3P who you want to testify because they may be
guilty invokes their 5th Amendment Privilege
 it is not done in front of Jury to stir their suspicion
 Lose your ability to question them
 Only Testimonial Evidence is Protect under Privilege:
o Generally:
 The privilege only protects the person, when that person is being compelled to be a witness against himself
 Not all compulsion then, is protected, but only compulsion of protected information
 Testimonial Evidence is Protected Non-Testimonial evidence is not
o Testimonial versus Non-Testimonial Evidence:
 Schmerber v. California:
 F: Petitioner was arrested, and while in hospital receiving treatment, blood was taken from him.
He argues that this violated his 5th amendment privilege
 R:
o Testimonial Evidence:
 Is protected
 Communicative
 Words, spoken, written, nod, gesture…
o Non-Testimonial Evidence
 When someone is merely the source of physical or real evidence
 Fingerprints, photographs, lineup, blood, writing sample
 The Majority says that while many things ‘communicate’ some information, the
5th amendment only pertains to communicative nature of the person who
privilege applies…even if non-testimonial evidence used to get others to give
testimonial evidence…That is not enough as the 5th privilege only applies to that
person
 Here:
 Petitioner did not communicate anything, but was merely the source of
physical evidence
o Rationale:
 Reliability:
 We want testimony that is reliable
 Here, He is not saying anything so we avoid unreliable compelled
testimony, but the physical evidence is very reliable
 Handwriting Samples:

Glibert v. California:
o Handwriting samples, while compelled, are not ‘testimonial evidence’ that is protected
under the 5th amendment privilege
o Only physical characteristics/evidence were used  Non-Testimonial
 Line-Up:
 U.S. v. Wade
o A line-up only provides physical evidence, that is not testimonial
 PA v. Muniz:
 In Muniz, the Court provided the rationale for the testimonial / non-testimonial distinction it is
determined by a modern version of the Cruel-Trilemma
 F: ∆ was pulled over and failed DUI test. At station, they asked him “what the date of his 6 th
birthday” was. He incorrectly answered. The manner and content of his answer was used at trial,
and he moved to suppress because it was given without Miranda warning
 R:
o Manner: The manner in which he answered, slurring his words, was non-testimonial,
physical evidence
 Merely physical properties, are non-testimonial
 Sobriety Test was not-testimonial
o Content:
 Although Officers were not interested in the answer, but in the manner in which
his brain was working (coherent or not), the Court held this to be communicative
 They gathered that physical information through his testimonial, words
 “When a response is requested, that communicates an express or implied
assertion of fact or belief” --Testimonial
 Cruel Trilemma:
o When the suspect does so, he is faced with cruel trilemma
because he can respond truthfully, falsely, or stay silent
o Physical Evidence, however, is not true or false
 It just is there, and not subject to cruel trilemma
 Psychological Evaluation:
 Estelle v. Smith:
o When a ∆ is interviewed by a government psychiatrist who will testify about the answers,
the answers are testimonial
o The Doctor using the answers as his basis for opinion is using testimonial evidence
o Documents:
 Basic Rule:
 Voluntarily prepared documents are not testimonial
o Because previously prepared, they are not compelled when requested to produce
o Does not become retroactively compelled
o Treated as Physical evidence
 But, Act of producing may be testimonial if:
o 1. Mere Existence is incriminating
 Generally not the case…
o 2. Control or Possession is incriminating
o 3. Authenticity may be incriminating
o Generally, it is quite rare and the introduction of documents as evidence is ok and does
not implicate the Privilege as the documents are non-testimonial
 Immunity:
o A person may not be compelled to be a witness against themselves if it may be used against him in a subsequent
criminal proceeding
 Immunization ends the possibility of subsequent criminal proceeding
 When Gurantee is given, one may be compelled to give testimonial evidence
 You have no right to refuse to testify
 May be penalized for it
 Rationale:
o The Cruel Trilemma is over—Your not incriminated by telling truth…
The Type of Immunity Required:
 Pre-1972:
 Transactional Immunity:
o You can never be prosecuted for acts in testimony
 Even if there is other evidence that exists, once it is testified to, it is finished…
 Intelligent criminal…will spit out every possible infraction they’ve done
o No longer Constitutionally required, but may be offered
 Post-1972:
 Kastigar Immunity (Derivative, Use-Fruits)
o Testimony cannot be used against you
o Anything your testimony leads to, may not be used against you
o However:
 Government may prosecute you for crimes if
 they meet burden of proof that the evidence it is using against ∆ is
from a legitimate and independent of any testimony you gave
 2 methods to prosecute If Kastigar Immunity:
o 1. “Chinese Wall of Silence”
 End involvement of Prosecutors that took testimony, with no contact and none
of them involved in case any more
 Whole new crew of attorneys must handle—without familiarity
o 2. “Canning”
 Investigate as much as possible prior to grant of immunity
 Once evidence is gained, it is independent of testimony taken
 Then, you may offer immunity, and still prosecute
o Impeachment and Perjury:
 Once immunity has been granted to a suspect, none of the suspects testimony may be used against the
witness during trial
 Even if witness is certainly perjuring himself compared to his testimony
 However:
 US v. Anfelbaum:
o Subsequent perjury prosecution may occur for false statements that occurred at
underlying trial
 If not, immunity would be used, and taken advantage of to taint the whole trial
 When immunity is given—you have an option to speak without threat of
prosecution or stay silent and get consequences—lying is not an option
o Previously Immunized Statements made Subsequent to Immunity:
 When a witness has been immunized, and subsequent to immunity makes identical statements
 Pillsbury v. Conboy:
o Prior grant of immunity does not continue one…it is insufficient to protect, and new
immunity must be granted
 Confessions & Due Process:
o Historically:
 There have been 3 distinct methods of dealing with Confessions
 1. 1936- Present: 5th and 14th Amendment Due Process Clause
o Brown v. Mississippi
 2. 1964- Present: 6th Amendment Right to Counsel
 3. 1966- Present: The 5th Amendment Privilege against self incrimination
o Miranda
 At Common Law:
 “Coerced Confessions” Rule: Confessions that were based on threats and promises
o Unreliable
o Torture
 This rule was essentially established in the Due Process Line of Confession Cases
 A Oddity Bram v. United States
o
o
o
o
In 1897, The Bram Court utilized self incrimination clause of the 5th amendment to find
statements under torture inadmissible
Prior to this, Only Common Law Rule and Due Process were used, and the 5 th
amendment Privilege would not be used untill 1966 in Miranda
The Due Process Approach
 Note:
 Even where one rule applies, the Due Process Approach always fills in
 Totality of the Circumstances:
 Evaluates a case-by-case approach comparing the
o 1. Voluntariness of the ∆ to the
o 2. Police Misconduct
 Evaluate:
o 1. Personal Characteristics of Accused:
 Youth
 Education and Mental Capacity
 Foreign Alien
 Hardened Criminal, Articulate and Educated
o 2. Physical Deprivation or Mistreatment:
 Lack of Food, Sleep
 Physical Abuse
 Amenities Given
 Length of Interrogation
 Scientific evidence shows that over 2 hours, there is a psychological
change that occurs, breaking people (note average false confession was
16.2 hours!)
o 3. Psychological Pressure:
 Threats
 Humiliation
 Isolation and Incommunicado Interrogation
 Length of Detention
 Dark, Uncomfortable
 Deception, Lies
 Rewards to Confess that are untrue
o 4. Warnings:
 Sometimes, pre-miranda, court would evaluate whether the ∆ understood his
rights and new his right to counsel
 Policy:
o Measuring what is still voluntary  Police Coercion is too much
 How deceptive and coercive should police be allowed to be?
 Criticisms of “Voluntariness Standard”
 1. “Voluntary” and “TOC” do not give officers any clear guidance or lower courts
 2. Even the Justices disagree as to what the appropriate weight is given to factors
 3. The Point of Interrogation is to coerce the Person to Admit
o When Person is about to confess, interrogator is supposed to continue
o But can misjudge with TOC test
 Alternatives to Voluntariness or Miranda?
o Legislature
 Pass maximum hours allowed, require lawyer for minors
 Limit the deceptive techniques allowed
 Prohibit Physical touching
 Modern Cases and Application:
 Generally:
o Still used, even post-Miranda and fills in gaps
 What’s Allowed:
o





US v. Astello:
 18 year old boy, interrogated, incommunicado, said his family didn’t respect
him anymore, insulted him and gave him ultimatums
 R:
 1. “Obviously, the interrogation of a suspect will involve some
pressure; its purpose is to elicit a confession
 2. This was ok…occurred for less then 3 hours, and tactics that were
permissible, were used to elicit a response
o Sumpter v. Nix:
 Low IQ, Psychological Problems, and false promises, and 7 hour interrogation
were ok)
Modern Focus is on Police Misconduct:
o Colorado v. Connelly (1986):
 F: ∆ ran up to police and confessed that he had murdered someone and wanted
to tell them. They mirandized him, arrested him. Turned out he was crazy and
voices told him what to do.
 R:
 “Coercive Police Activity is necessary…to find a confession is
involuntary”
Physical Torture:
o Brown v. United States:
 ∆’s were tortured repeatedly, beaten, abused, until they confessed
 Due Process requires that governmental action be ‘consistent with
fundamental principles of liberty and justice’
 There is no more revolting method then physical torture
Threat of Physical Violence:
o Arizona v. Fulminante:
 Confession was made by a prisoner to informant who said if he didn’t confess,
the other angry prisoners for what he had done would get him
 R:
 A Credible threat of violence, even though no actual violence
occurs, and misplaced hope if confession occurs may be enough in
the TOC to make involuntary
Deception and False Promises:
o Courts are Split, in Sully allowing false promises and in Baldwin not
o Green v. Sully:
 F: Threatened with Death Penalty, with state that doesn’t have it, lying about
evidence, false promise to get treatment for suspect, lying about fingerprints at
scene.
 R:
 He Confessed because he didn’t want to do it again he stated
 Not because the tactics overbeared his will, making it involuntary
False Documentary Evidence:
o Florida v. Cayward:
 F: Police fabricated a DNA testing report, which stated his DNA was found. ∆
Confessed
 R:
 While Oral assertions are one thing, documented are another
o Are more impressive
o Practically—may find their way into court somehow, and
may last indefinitely
o
Honest Promise:
 US v. Baldwin:
 Buying information is acceptable with honest promise





Cooperation is favorable, as it speeds up judicial process
False Promises, however, are not acceptable as it impedes the ability to
make an informed decision
Posner’s Criticism on “Free Will” Test:
o Almost all interrogations would be excluded then
 Few are actually part of free will
o Few are excluded, even though few are product of true freewill
o Connelly sort of killed it
o Ask “Could ∆ have made a rational choice as to whether to
confess”
 This seems unworkable however, as mentally
deficient people may never be able to make a rational
choice…?
Spano v. New York:
o F: Spano turned himself in. Questioning was persistent, continuous, and eventually his
friend who was an officer was brought in—His friend told him, after 5 hours of
questioning, that the ∆ was making it hard on him and his children because he might get
in trouble if the ∆ didn’t cooperate. Also, throughout the process, Spano’s requests for his
attorney were denied
o R:
 Society Dislikes Involuntary Confession for 2 Rationales:
 1. Unreliable
 2. Police must also follow the law while enforcing it (Connelly)
 Court Looked at:
 Leading questions, uneducated, foreign, throughout night questioning,
ignored requests of attorney
 Majority Held:
 Involuntary
 Douglas Concurrence:
 Because he had been formally arrested, and indicted, the Concurrence
felt this was a violation of his 6th amendment right to an attorney
 Thought that denying a man formally charged and being held his
attorney, was more damaging than not having an attorney in the trial
Policy:
 1. Throughout the due process case law, the Court backs away from the reliability concern with
Connelly and Spano
 2. Uncertainty as to how to apply the test and which factors are weightier
o Lower Courts and Police are uncertain
 Following Connelly and Spano, the court disliked the Due-Process Totality of Circumstances Test
o In 1964- Malloy v. Hogan:
 5th amendment privilege against self incrimination incorporated to states
 5th Amendment Limits on Confessions and Miranda
o Miranda v. Arizona:
 F: Miranda was horrible criminal, indigent Mexican murdering rapist.
 R:
 1. Custodial Interrogation Is Coercive and Compulsion
o Modern psychological tactics (because physical isn’t as much a concern anymore) are
coercive when done in private interrogation
 The Tactics used exact a heavy toll on liberty, weakening suspect
o Interrogation is incommunicado, intimidating and is Compulsion
o Compulsion is inherent in custodial atmosphere—so the 5th amendment privilege against
self incrimination is obviously connected
 2. The 5th Amendment Privilege against self incrimination applies to Custodial interrogation
Because of the nature, techniques, and surroundings  Compulsion
 Maybe even greater then that of a Future Court proceeding
o Without protection, not ensured to be product of Free Will
o The 5th amendment privilege is available outside of criminal court proceedings, in all
areas where freedom of action is curtailed in a significant way from being compelled
3. Encourage States and Congress to search for means of protecting individual too
o “However, unless the procedure is at least as effective in apprising the accused persons of
their right of silence and assuring continuous opportunity to exercise it, Miranda warning
will suffice”
4. Miranda Warning must be given, as absolute prerequisite if “Custodial Interrogation”
o 1. “The Right to Remain Silent”
 Purpose:
 a. Those unaware get notice of their rights
 b. Overcomes the inherent pressure of interrogation atmosphere
 c. Legitimizes the right, as Police will recognize it
 This 5th Amendment privilege is so fundamental, it does not matter who the ∆ is
 Warning must be given, regardless of who (Lawyer, Detective)
o 2. “Anything said can and will be used against you in court”
 Purpose:
 a. Alerts of privileges weight and consequences of forgoing it
 b. Promotes Understanding
 c. Awareness that those around you are adverse to your interest…acting
against him
o 3. “You Have the Right to an Attorney”
 Purpose:
 a. The circumstances of interrogation and custody are quick, and can
overbear free will
 b. Assures that right to stay silent remains unfettered
 c. Lawyer may mitigate chance of police misconduct/coercion
 d. Guarantee that accused is accurate, and recording is accurate
 Failure to Ask for a lawyer is not a waiver
 Must be a specific waiver after warnings given
 Does not require a lawyer be present, but allows the right to have a lawyer
throughout the interrogation
o 4. “If you cannot afford an attorney, one will be appointed for you”
 Purpose:
 a. Constitutional right applies to all, “Indigent as well as affluent”
 b. If was based on $, warnings would be useless and “hollow”
 c. Would allow taking advantage of poor
5. Effect of Warning:
o 1. If suspect indicates in any way, he wishes to remain silent  Interrogation must cease
 Purpose:
 Without this right, interrogation allows individual to be overcome, and
free-will overrun
o 2. If suspect indicates he wants his attorney Interrogation must cease, until an attorney
is present
 Purpose:
 Opportunity to confer with attorney, and have him present
 Effect:
 This does not mean that police station must have a ‘station house
lawyer’
 It person requests lawyer in the field, and authorities determine they
cannot provide one in the field, they may refrain from giving him his
lawyer without violating 5th amendment rights as long as no
interrogation occurs during that time
o






o
o
6. Waiver:
o “A Heavy Burden” exists on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self incrimination and right to
counsel or appointed counsel
Harlan (Dissent):
 1. In the past, due process limited coercive police tactics
o This takes it a step further, and considers all confessions as coerced without warning
o Neutralizes Interrogation
o “Voluntariness with a Vengeance”
o The 5th amendment has never been read to end all pressure
 No Precedent supports this
 In fact, the majority rule prohibits pressure under 5 th amendment, while
due process clause precedent permits much worse
 2. Extending the 5th amendment privilege to the station isn’t an impermissible reading, but this
reaches too far
o “Case” in text limits the reach
 3. Combination of 5th and 6th amendment hybrid approach is wholly judicial creation
o No reason why 6th amendment in criminal trial extends here…?
 4. Notice of ones rights is not prerequisite under 5th amendment
o Counter Argument:
 Warning is merely reiterating what is in the text, or inferred from text…?
White (Dissent)
 1. The warnings that are created by the court, and idea that interrogation in custody is forbidden by
the 5th amendment privilege is without any support in history, text or precedent
o Common law never applied privilege this far
 2. There are other methods to accomplish the same thing
o Transcripts, observors, time limits, other devices…all would accomplish same thing to
avoid coerciveness
 3. The 5th amendment has dealt with coerced confessions
o Not all are forbidden, just those that are compelled
 4. This treats all confessions as coerced now
 5. Warned with great prescience, that you want to protect people from the Police, yet have them be
the ones who give the warning!?!?
Note:
 In Europe, a lawyer must be present at all times (Miranda doesn’t require at all times, but allows right)
 Unlike America, Inference may be drawn if stays silent
Post-Miranda:
 The Effect of Miranda:
 1. Although arguable, apparently the history of the privilege against self incrimination is
ambiguous to allow it to reach to the police station
 2. Professor Schulhofner:
o Miranda has substantial benefits compared to minimal costs
o Now, The pressure needed to be “compelled” does not have to rise to the Due Process
standard…it is much lower…and this falls in line with Privilege precedentany pressure
violates it
 The due process standard and Miranda self incrimination standard are not the
same
o Prior to Miranda:
 5th amendment didn’t apply to interrogation because there was no penalty for
failing to speak No Compulsion
o Miranda:
 Changed this 5th amendment Privilege applies, and all interrogation is
compelling by the nature of incommunicado, police process
 Judicial Review and Education to Public:
 Miranda court had 2 distinct goals
o
o

1. Clarify Judicial Review
 Using the Due process TOC is very difficult to determine what is coercive
versus free will
 The Witnesses are Police man
 Miranda allows a prophylactic rule
 If warnings not given, interrogation is tainted
 If warnings given, even though could violate due process, more
confident in confession
 Counter Arguments:
 1. White Dissent: Other methods are better –tape record, heavy burden
on police to show voluntariness
 2. Courts still rely on the Police testimony to determine how and when
the warnings were given
o You still run into the same issue as due process—Police word
versus ‘victim’
2. Education of Public
 Our education process does not teach Constitutional Rights
 So, Miranda is necessary as it makes government the teacher of rights and
educates suspects about real choice and rights in interrogation process
 Counter Arguments:
 White’s Dissent—relying on the police to give the warnings…the very
people you wanted to protect from
o We have a magistrate as a check on police in 4 th amendment
issues…requiring a warrant as a check
o But here, we rely on the police to be the sole check on
themselves and on making sure the suspect, person they are
empowerd to seek, has his rights respected
o However, we cannot have to take a suspect to a judge every
time to get his rights read to him
 Why the Rights listed—why not more or less?
o 4 warnings are arbitrary?
 Why those, why not more—telling suspect what
happens if he simply stays silent
 Does he know he can stop questions at any time?
 Will he even understand the rights given, let alone
more?
Impact of Miranda:
 1. Although the numbers show that confessions have fallen, the conviction rates have not
 2. Some argue that the costs imposed are limited…
o Counter Argument:
 Takes Longer—The less confessions, the more long and protracted investigation
and litigation are…tax dollars at work, so there is a cost of Miranda
 Professor Inbau & Manak:
 Miranda issues take up a lot of time in Court…so costs are there
o Although they do not compare it to time to decide same issues
if Miranda was overruled
 3. Professor Cassell:
o Miranda substantially harms the innocent, including victims of criminals not caught due
to Miranda safeguards, and innocent people who are accused of crime but because of
Miranda, the truly guilty stays silent rather then confessing
 4. Some argue that it has not had any significant effect at all
o Then what is the point?
 If it doesn’t effect confessions or convictions, then why have it?

o
o
Maybe that wasn’t the purpose of the ruling—rather, it was to eliminate
compelling pressure in the process of gaining them…the method
 Modernly, confessions may not have decreased, but they are not
extracted through fear and undue pressure…just pursuasion
 5. Benefit to Police:
o Following Dickerson, upholding Miranda as a constitutional rule—perhaps it was created
for the police benefit. If they simply give 4 easy warnings, they are almost guaranteed to
be ok. Workable and Pro-Cop
 A. They have learned how to bend and get around using it
 B. It’s a Bright Line Rule, that’s easy to use rather then Totality of
Circumstances
 C. Give them the Miranda warning, and then get a waiver!
 Get it in writing, and signed
 The Miranda Waiver has substituted any due process analysis
o Once the Waiver is signed—its presumed they knew their
rights, and voluntarily complied
Miranda becomes a Constitutional Rule:
 Dickerson v. US:
 F: Congress created §3501, in an effort to overrule Miranda and go back solely to the Totality of
Circumstances Approach, under due process. ∆ was charged with bank-robbery, and moved to
suppress his confession on grounds that he didn’t get Miranda warning.
 I: Was Miranda overruled?
 R:
o 1. 3501 was intended to overrule Miranda by treating the warning as a factor
o 2. Miranda is Constitutional Rule:
 1. Congress may overrule a Court decision, unless that rule is constitutional
 2. There is some language in Miranda opinion pointing to it not being
constitutional
 However, that decision applied to state courts—The Supreme Court
cannot make a rule effecting the states, unless it is constitutional
 3. Even though there are exceptions to Miranda, there are exceptions to all
constitutional rules—no justice can foresee every possibility
 4. Miranda stated that it could be replaced if there was adequate replacement
 §3501 puts the warning as a factor That’s not replacement
 5. Stare Decisis:
 The Court will not deviate unless there is a special justification
o Miranda is relied on by cops, and part of our national culture
o Doctrinal underpinnings of decision are intact, and have not
been eroded by subsequent cases
o It is better and easier for officers to administer than the
Totality of Circumstances
o Miranda is Constitutional Rule
 Scalia Dissent:
o The Constitution disagrees with coerced confession, not just confession
 Miranda treats every word said, without warning, as coerced
o Precedent and Miranda stand for idea that it is not constitutional
o Disregarding congressional action is a violation of Separation of Powers
Threshold Issues of When Miranda Applies:
 Generally:
 Miranda warnings must be given whenever a suspect is in ‘custody’ and being ‘interrogated’
 Although the Miranda court intended to do away with the TOC analysis, fore ease of use to
officers, that type of analysis is used in determining custody and interrogation
 Custody:
 Overall, Courts have identified a number of factors to determine…and while not controlling, some
things to look for
o




Whether the suspect was informed during questioning that it was voluntary, free to leave,
or that he was not considered under arrest
o Did suspect have unrestrained freedom of movement during questioning
o Did suspect initiate contact, or voluntarily acquiesce to official request to
o Strong arm tactics, deceptive strategies
o Was atmosphere police dominated (A primary concern of Miranda)
o Whether suspect was placed under arrest
o While is a Balancing Test, there are 2 Rules:
 1. Look at whether a reasonable person would feel free to leave
 2. Test is Objective
 Stansbury v. California:
o The officers subjective intentions or state of mind are not
relevant
o Whether the officer thought the ∆ was in custody or was a
suspect isn’t relevant unless:
 1. The subjective thoughts are manifested to the
person being interrogated, and 2. it affects how an
ORP would feel free to leave
 Personal Characteristics are not relevant:
o Yarborough v. Alvarado:
 Youth and inexperience is not a factor in the
‘reasonable person’ analysis
Outside of Stationhouse:
o Arrest is Custody:
 Orozco v. Texas:
 Officers rushed into bedroom, at 4am, with guns drawn, yelled under
arrest This was custody
 Bechwith v. United States:
 IRS agents were at home, discussing tax returns, and criminal tax
evasion in ∆’s home—not custody
o Didn’t have any coercive natures of stationhouse
At Stationhouse:
o There is no automatic rule that one is in custody just because they are being questioned at
a station house
o Oregon v. Mathiason:
 ∆ was requested to come to the station for questioning…he did so completely on
his own and voluntarily, and was told he was not under arrest
 Voluntariness was Court’s concern
o Because he came there on his own, was not custody
o California v. Beheer:
 Suspect agreed to accompany officers down to the station for questioning
 He was, throughout the time told he was not under arrest, and was released after
he confessed to the crime anyway.
 In the TOC to an ORP, this was not custody
Voluntariness is a key factor the courts look for in determining whether custody occurs or not
Terry Stops:
o Berkemer v. McCarty:
 Terry stops are not custodial for the purposes of Miranda
 While by definition above of what ‘custody is’ a terry stop would have to be
custody, the Court has stated that Miranda was concerned with the coerciveness
of the ‘stationhouse’
 Terry stop does not occur in station house, and lacks the generally
inherent coercive nature therein

o The stoppee expects the event to be quick, and breif…
Legal Fiction Again, the court contradicts its rule above, and the idea
that a stop or encounter is not coercive…



o
Squad Car:
o This may be closer to the station house, voluntariness rationale
 It is police dominated, and based on facts, you may not have been put in there
due to your acquiescence…depends on facts, but perhaps may be in custody
Interrogation:
 Rhode Island v. Innis:
o F: ∆ was mirandized several times. He invoked his right to counsel. On the drive away
from crime scene, officers began talking to one another, stating ‘it’d be a shame if a kid
found that gun and hurt themselves.’ ∆ then asked the police to turn around and showed
them where the weapon was
o I: Is this an interrogation?
o R:
 Interrogation:
 An express question directed at the ∆, or its functional equivalent
including any words or practices, that Police should know is
reasonably likely to illicit a response from a average suspect
o So, Police are not responsible for all words said by the ∆
o Only those they should know are reasonably likely to elicit a
response from average suspect
 Focus is on suspect
o Police Intent is relevant when:
 Police have designed their words to elicit a response
from an individual with an idiosyncratic or peculiar
susceptibility
 Arizona v. Mauro:
o ∆ showed police person he killed. They mirandized him, and then had his wife go talk to
him while they recorded the whole talk—he confessed.
o No Interrogation:
 Just because officers hope someone incriminates themselves does not make it an
interrogation
 What the Court seems to really be looking for is the question being directed at the suspect
o If it is likely to be interrogaton
o If not probably not
o Someone what of a third element to the test
 The Booking Exception:
o Normal questions during the booking procedure do not require Miranda:
 1. If proper administrative purpose and
 2. Person asked by a routine booking officer, rather then a detective
Miranda Does Not apply to Undercover Police Activity:
 Does not apply:
o Because the suspect is not aware he is speaking to an officer, that is undercover, there is
no ‘inherent stationhouse’ compulsion
Invoking your Miranda Rights:
 How To:
 Davis Rule: “Must do so in an unambiguous way”
o Applies equally to both rights
o Is Not Offense Specific:
 Once you have invoked your Miranda rights, police cannot interrogate you for
any crime at all (assuming right to counsel invoked)
 It is a blanket rule
 Note:

This is unlike the 6th amendment, where it is crime specific
o So police stop regarding that crime, but may continue to deal
with you regarding other crimes

o
The Effect:
 The Right to Silence:
o Mosely Rule: Once you invoke your right to silence, police may try again after allowing a
cooling off period
 For instance, 2 hours, fresh Miranda Warning and different interrogator suffices
 The Right to Counsel under 5th
o Edwards Rule: Once invoked, all questioning must stop
 The only way it may restart, is if suspect re-initiates the conversation
Waiving your Miranda Rights:
 For a suspect to waive his rights, it must be “voluntary, knowing and intelligent”
 Voluntary “A free and deliberate choice, rather then intimidated, coerced or deceived”
 Knowing and Intelligent “Must be with full awareness of right and the consequences of waiver”
 The Government bears the burden to prove that you waived your right
 Modernly:
o Police officers utilize a form
 They will read you your rights, ask if you understand them, and have you sign it
 On that form it may say you’ve waived your rights
 But it is voluntary, knowing and intelligent
 Burbine v. Moran:
 Events outside of the suspect’s knowledge do not affect waiver!

o
How do police get around it?
 Offer you the ability to help
 Monologue—speak for a while so you simply cannot interrupt them to invoke the right
 Written Form—instead of saying it, its read and treated like a beurocratic issue and simple ‘house
keeping’
o Reduces the impact of a statement
 Keep Control
o Where your seated, where they’re seated
 Chit-Chat
o Speak to you to get you to loosen up, just chatting about life in general, etc…and then
give you the warning
 The Whole Goal:
o That police have in mind is to confuse you, treat Miranda like a small issue, and to
convey it in form but not in its real substance
o Depending on your crime and personality, they may crowd your space, they may
compliment you, etc…all in order to confuse and make you think about anything else but
your right
Exceptions to Miranda:
 Generally:
 In certain scenarios, custodial interrogation that was not given Miranda warning is admissible
 1. Impeachment:
 When statements made without Miranda warning do not match those given on the witness stand,
the Court has allowed the Miranda-less statements to impeach witness
 Harris v. New York
 Impeachment and Silence:
o 1. If you are not Mirandized, and remain silent
  standard rule of evidence applies, and silence may be used to impeach you
o 2. If you are Mirandized, and remain silent your silence may not be used against you
 Doyle v. Ohio: Due Process prohibits the right to silence to be used against you
 2. Emergency Exception:

o
o
In emergency situations, no Miranda warning is required and if interrogating person which leads
to physical evidence
o THE STATEMENTS + PHYSICAL EVIDENCE COME IN
 Reason:
 Court does not want police thinking about whether to Miranda
someone, or a danger…neutralize the danger first
Exclusion and Miranda:
 If a Miranda violation occurs, what is the effect of that on the evidence and the exclusion rule:
 Statements  are excluded
 Fruits  Are not excluded
o Reason:
 The modified exclusion rule or less then complete “Fruit of Poisonous Tree
Doctrine” does not come into play here
 Although the compulsion felt due to a Miranda violation leads to the
‘unreliability’ factor with statements, the physical evidence is still reliable!
 Mirandless Confession leading to a Mirandized Confession:
o Missouri v. Seibert:
 Police gaining a confession without Miranda warning, then giving Miranda
warning leading to same confession is admissible if:
 Not a deliberate/intentional 2-step process
 Physical Evidence
o Always come in
Alternatives to Miranda:
 Purpose:
 To avoid inherent stationhouse compulsion of interrogation…but hasn’t really worked..?
 1. Get Rid of Miranda, go solely to a Totality of Circumstances
 2. Beef it Up:
 add ‘silence wont be used against you’
o this may alert people that they really don’t need to say anything
o Invocation then comes into play…when is the right invoked?
 As Scalia and Public defender said, your natural instinct is to respond to a question and its difficult
to suppress this added warning would quell it perhaps more?
 Add other rights?
 3. Video Taping / Recording:
 Supplement
o Deters police from Due Process Violations and overreaching
o Promotes Reliability
o Deters Frivilous Defense claims of coercion
o Accuracy almost guaranteed
 Need to deal with video tape tampering
o Increases Fact finding of judge and jury
o Have inference of ‘caution’ to un-videotaped confessions to jury (Massachusets)
o To be done correctly, should show both parties evenly so no inference drawn from what’s
unseen
 4. Criminal Deposition:
 Require an attorney there
 Deters Police Misconduct
 Exclude the statement, while admitting the physical fruit
o Compulsion occurs, but statement excluded to fulfill 5 th’s text, while allowing all
physical fruit which doesn’t ‘testify’
o Ends “cruel trilemma”
o Promotes reliability and emphasizes truth finding
 Fruit is more reliable anyway
 Coerced testimony has risk of false confession anyway, so exclude it automatically
 Ends Poor Performance Rationale


Protects 1st amendment and privacy
Ends Torture Rationale
o Counter argument:
 You know this person has confessed, and cannot use the confession, but the
physical evidence is not strong enough to convict…may lead to large issues?
 4. Require an Attorney be present
 the station house attorney
 Promotes reliability, ends torture, avoids compulsion
 This in addition to Miranda would be excellent
o But, Miranda already allows this option—to request one’s attorney
 In Europe:
o Counsel is required to be there
o Inference drawn if you remain silent
 But again, this is part of the inquisitorial system, where there is no cross
examination…no incentive to stay silent really
 We rely on cross-exam to ‘find the truth’
 5. Police Requirements
 Speak and explain rights
 Not too speedy
 6. Scientific Based Changes
 Should construct a system to further confessions from guilty while minimizing them from
innocent
o Time in interrogation should be limited
 2-4 hours, scientifically seems adequate
 Most false confessions last 16.3 hours
o False Evidence Use should be ended
 Studies show that it influences suspect’s expectation and increases false
confessions
o Minimization of Punishment Strategy should be ended:
 Gives false hope to innocent and guilty
 That they will be treated leniently
 7. Have specific rules for Children
 Not too fast, allow attorney there
 6th Amendment Limitations on Confessions:
o Generally:
 The 3rd method the Court has used to regulate confessions, in addition to 5 th and 14th amendment due
process, 5th amendment privilege against self incrimination with Miranda
 2 Key Differences between 6th amendment and 5th amendment:
 Is Crime Specific:
o So the 6th amendment in confessions context only applies to the crime indicted for
 Effect on Undercover Work:
o Because officers may not ‘deliberately elicit’ from you, focusing on the officers
intentions, post indictment undercover work for that crime will be unconstitutional based
on Messiah
 The Edwards Rule does not apply:
 While in 5th amendment, once right to counsel invoked police must stop, post-formal charge they
may continue to come back in an effort to get waiver
 Miranda warning is sufficient to waive your 6th amendment right to counsel No new warning is required
o Messiah v. US:
 If you are formally charged, arraigned, or indicted the 6 th amendment applies

“Police cannot deliberately elicit comments from you, post indictment unless counsel is present
 Reason:
o Some have argued that this is a constitutionalized rule of ethics, that adverse party may
only be contacted during adversarial process through their lawyer
o

o
o
o
Judge Higginbottom:
 Once a formal charge is brought, the adversarial relationship has cemented
Deliberately Elicit:
o Purpose to seek information
Note:

While Burbine applies to pre-formal charge, that you don’t have to know that your attorney is trying to
contact you
 Post-Formal charge, you do have to be toldyour attorney must be present
Exclusion rule and 6th amendment violations:
 The Court has largely followed Miranda
 Statements cannot be used in the Case-In-Chief
o Impeachment Exception Can be used to impeach
Waiver:
 Brewer v. Williams:
 F: Little girl went missing, ∆ an escaped mental patient, was arraigned on an outstanding arrest
warrant for her murder. While in car with police, they made some odd religious statements to him,
and posed questions about where the body was and he eventually showed them where the body
was
 R:
o 1. Judicial Proceedings and Formal Charge had been commenced:
 Massiah applied, and officer deliberately elicited statements from the ∆
 his 6th amendment right to counsel was violated
o 2. Waive of the 6th amendment right to Counsel:
 “Intentional Relinquishment or abandonment of known right”
 presumption is against waiver
 Here:
 ∆ did not relinquish or abandon…in fact he had 2 lawyers who told
officers not to speak to him
 The 6th Amendment Right to Counsel:
“In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense….”
o
o
o
o
Note:

6th amendment and Messiah deal with confession and eliciting confessions…that application of the rule
applies at post-indictment or other formal charges
 This application applies to the trial setting and post-formal charges similarly
At Common Law:
 England:
 Only had a right to counsel for misdemeanor cases (Because Government had attorney) but not
felonies
o Court wanted ∆ to speak
 Part of Inquisitorial System
 Idea that innocence would become clear
 Judge Questions
 America:
 When constitution adopted, 12/13 states rejected England and had full right to counsel
 Powell v. Alabama: incorporated this right
Evolution
Powell v. Alabama (1932):
 F- ∆’s were 8 black men, in deep south Alabama, charged with rape of 2 white girls on a train. During
arrest, and beyond, trial judge appointed the bar as the counsel, hoping that 1 attorney would step forward
o
and represent them. On day of trial, counsel became clear, and jury eventually fixed punishment of death
for all.
 I- Was Due Process denied, under the 14th amendment, by denying the right to counsel?
 Maj: Court only considered faulty Counsel
 Faulty Counsel:
o Because the judge did not want to make bar mad, as he was elected, he appointed them
all
 This amounted to a denial of effective aid required by the 6 th amendment
 Idea of Counsel: to give someone responsibility, that they appreciate with
individual sense of duty
o Critical Time Period
 Counsel was set on day of trial. So, from arraignment until trial there was no
lawyer investigation, preparing, or questioning witnesses
 Vitally Important time period
 Even though appointed at trial date misses real sense of counsel
o Point of Counsel:
 To Investigate Case
 Between arraignment and trial
 Acquire exculpatory evidence while police gather incriminating
evidence
 Cross Examine effectively preserves idea of truth, even though the
oath is intended to
 Steer Client through the process
 Motion and preserve appeals rights
 Voire Diore
 All of this was not given
 Other Possible Issues:
o Justice Anderson of State Supreme Court said this was faulty, and jury was tainted
This is what he said should have been considered
 They knew that everyone was angry about black/white crime
 Military was present, so emotions were high
o Faulty Trial Process:
 Too Fast…2 weeks between crime and death sentence
 Not even enough time for ∆’s to choose their counsel, let alone sentence
 Incorporation:
o Powell also incorporated the 6th amendment to states
o One of the first cases to even consider incorporation
o Idea of incorporating federal constitutional criminal procedure took wind after this case
o In this case, counsel was ineffectively appointed…when ∆ unable to employ counsel,
incapable of making his own defense, duty of court to assign counsel—required by
due process of 14th amendment
 Must be assigned in manner that makes effective
 Betts v. Brady:
 Court specifically held, post-Powell, which incorporated 6th amendment to states in fact-specific
scenario, that due process of 14th did not incorporate right to counsel automatically.
 Endorsed case-by-case approach
Gideon v. Wainright:
 F: ∆ charged in Florida for felony, and asked for counsel—court denied request
 R:
 Betts overruled
o The 6th amendment is a fundamental right that should be incorporated
 Powell recognized this…even though was limited to its facts
 Based on the American Scheme of Justice…even if other countries don’t have it
 Emphasized from 12/13 states rejecting European approach
 Cannot have fair and impartial trial if no lawyer appointed
 Any person in court, too poor to hire lawyer—State must appoint counsel for indigents
What is indigent:
 Barry v. Brower:
 Indigency is based on nature of accused assets…if not liquid, the present inability to afford
counsel is ‘indigency’ for 6th amendment purposes
 Most States:
 Many states have detailed statutes determining eligibility for appointing counsel
 Federal Standard is “any person financially unable to obtain adequate representation”
 When Does the Right apply?
o Generally, the right to counsel applies at trial and at other ‘critical stages’
 A Critical Stage is ‘a determination of whether the presence of counsel is necessary to preserve the
defendants basic right to a fair trial…cross exam, witnesses, and effective assistance”
o Generally:
 Formal Charge (Messiah) along with defendants presence will trigger the 6th amendment right to counsel by
creating Critical Stage
 “Formal Charge” is when adversary proceedings cement
 Indictment, charge, arraignment...
o Pre-Trial Critical Stages:
 Does not apply to:
 Grand Jury No formal charge has been brought
 Show Up or Photo Identification pre-formal charge (Kirby, and Ash)
o


o
Trial:


1. Counsel Needed for Post-formal charge line-up
 US v. Wade
o Because of suggestiveness of lineup, accused cannot reconstruct that unfairness that
occurred … counsel there may offer only opportunity to attack witness credibility in
courtroom identification
2. Preliminary Hearing:
 Coleman v. Alabama:
o Is a Critical Stage that Counsel is required for indigent defendant
o Reason:
 Provides ability to attack by cross-exam weakness in state case
 Skilled interrogation of witness can create vital impeachment tool
 Preserve favorable testimony of witness who doesn’t appear at trial
 More effectively discover case against client and make possible preparation of
defense
 In preliminary hearing, makes effective arguments for accused
Gideon:
 State must appoint counsel for indigent defendants
The Right to Counsel In Misdemeanor Cases:
 Argersinger v. Hamlin:
o F: Petitioner was indigent, charged with misdemeanor. He had no counsel and was
convicted
o I: Does the 6th amendment apply to misdemeanors?
o R:
 Absent Waiver, no person may be imprisoned for any offense, misdemeanor
or felony unless 6th amendment right to counsel at trial
 The constitutional issue is no less significant
o Counsel Needed:
 So that accused may know what he is doing, and
aware of prospect of jail and treated fairly by
prosecution
o The prospect of imprisonment is not trivial to the ∆

The Actual Imprisonment Rule:
 Scott v. Illinois:
o Whether 6th amendment requires counsel for misdemeanor punishable by fine or prison
that is actually punished with fine?
o Argersinger is limited to when actually punished with prison term
 Misdemeanor 6th and 14th only require that no indigent criminal defendant
be sentenced to prison unless he has counsel and 6th amendment fulfilled
 If Just fine No Need for Counsel
 If punished with prison, must redo with counsel
o

Note:
o
o
Brennan Dissent:
 Should be whenever prison is authorized
 Now, judge determines sentence prior…forgoes discretion to impose prison
sentence
 Either appoint counsel and retain discretion or, be limited to fine
 This infringes on seperation of powers
 Legislature gave this discretion to the Courts…now limited by courts,
which is in effect limiting legislature’s intention
Miranda gives a suspect an option to counsel…but if it’s a misdemeanor case and is
being punished with fine…6th amendment right to counsel ends
Oddity

o
Suspended Sentence and Actual Imprisonment Rule:
o Alabama v. Shelton:
 A suspended sentence is a prison term that is imposed for conviction
 Once prison term is triggered, ∆ 6th amendment right triggered
 Use of Uncounseled Conviction to Enhance later sentence:
o Question is, if indigent defendant convicted of misdemeanor, with fine and therefore
without counsel, can the first uncounseled conviction be used to enhance his sentence
for second crime?
 Nichols v. United States:
 The use of past conviction does not change penalty imposed on earlier
conviction
 Only latest offense is penalized
Post-Trial Critical Stages:
 Mempha v. Rhay:
 Counsel required at sentencing/probation revocation procedure
 Appeals:
 1st Appeal: Douglas v. California:
o Indigent defendant has the right to appointed counsel for his first appeal

Does not apply to discretionary appeals, unless it is 1st appeal:
o Ross v. Moffitt:
 Not needed…he has brief, lower court transcripts, opinion of Court….these
supplemented by his pro-se appearance are adequate
 No Counsel for Collateral Review
o Habeas Corpus
 Right to Counsel and Experts:
o Ake v. Oklahoma:
 Held that Indigent defendant was denied due process when he wasn’t given an expert
o Not Automatic:
 Only triggered if necessary for a fair trial, and if it would deprive ∆ of fair opportunity to present his
defense
 Generally:

Ake read very narrowly
Witness and Identification:
 When dealing with eye-witness, there are always 2 issues:
o 1. Is the out-of-court identification admissible?
o 2. Is the In-court identification admissible?
 Independent Source:
 Even if the out-of-court identification is deemed inadmissible, the Court may accept the in-court
identification as an independent source
 It is not a product of the over-suggestiveness and therefore stems from an independent source
 Manson v. Braithewaite:
o F: Officers used only 1 photograph to show another officer who witnessed a drug sale. The Officer identified the
man
o I: Was this oversuggestive?
o R:
 A Totality of the Circumstances approach should be used in evaluating Eye-Witness:
 1. Reliability is the ‘driving force’
o concern of jury hearing unreliable testimony and poor recollection
 2. Avoids the draconian ‘exclusion’ of all evidence by applying the test to the factors
 Factors Considered:
 Opportunity to view the crime; degree of attention paid; accuracy of prior descriptions of criminal;
time between crime and identification; balanced against the effect of suggestive ID
 Needs to be a fair and substantial liklihood of misidentification
o Policy Readings:
 1. Adrenaline in eye-witness accounts actually may worsen one’s memory
 2. Juries are relied on to use the eye-witness, and with the terrible memory it taints evidence
 Science:
 1. Use Double Blind Identification
 2. Use Sequential Identification
o Issues with implementation:
 1. Small departments not willing to comply
 2. Reluctance to use because less likely to id!
Screening and Charging:
 Power of Prosecutor:
o Has immense discretion
 With large criminal code, he has choice of what to charge ∆ for and how many separate acts to charge
 Also, check sentencing guidelines (no longer mandatory) to determine what crime you may go after
o Accountability:
 Jury as check on prosecutor
 Attorney General
 Grand Jury
 Arguably a rubber stamp—either because it’s a rubber stamp, or only strong cases brought
 Political Check
 Professional Association, such as bar
o How Discretion is Excercised:
 There are Federal DOJ Guidelines:
 Degree of Federal Interest
o 1. Priority of that crime
o 2. Nature and seriousness of offense
o 3. Deterrent effect of that prosecution on public
o 4. Culpability of suspect
o 5. Criminal history
o 6. Willingness to Cooperate
o
o
o 7. Suspects Person characteristics
o 8. Sentence and other consequences
 Alternatives:
o Civil, job loss, professional discipline
o State Prosecution
 These are guidelines…not reviewable, but a framework of what to consider
Decision of Whether to Charge:
 Unlike private sector, prosecutor must have a ‘personal belief’ that ∆ is guilty
 Will Evidence, Probable Cause satisfy?
 Look at factors, above
 Evaluate Allocation of resources
 Every prosecutor creates priority list of crimes…is this a crime he wants to allocate resources,
time and money to?
 Wait v. United States:
 Prosecutor is granted presumption
o Courts will not infringe on decision of prosecutor then, unless some invidious, or
unjustifiable standard such as race, religion or other arbitrary classification
o Only dispelled by ‘clear and convincing evidence’
 Separation of Powers
o Prosecutor is under executive branch…court will not interfere
 Judicial Supervision would have Costs on System:
o Delays criminal proceeding, and justice
o Chills law enforcement
o Reveals enforcement polices…undercutting whole objective
 If people actually knew what would be enforced rather then what was
illegal…anarchy
 Selective Enforcement:
 US v. Armstrong:
o 1. To Prove, Must show Discriminatory Purpose + Effect
 that similarly situated individuals of different race were not prosecuted
o 2. To Get Discovery of ‘Selective Enforcement’ Claim:
 Must show ‘some evidence tending to show existence of above 2 elements’
Decision of What to Charge for:
 Batchelder:
 Prosecutor has discretion in charging decision
 Prosecution, if crime violates 2 statues, does not have to choose lesser punished one