Criminal Procedure Outline
Professor Orin Kerr – Spring 2012
Introductory Material: The Steps in the Process
1. Generally
a. Procedural distinctions between minor and major offenses  critical distinction is
between misdemeanors and felonies.
i. Federal & Half of the States
1. Felonies – Crimes punishable by more than one year of incarceration.
2. Misdemeanors – Crimes not punishable by incarceration or at most one
year or less of incarceration.
ii. Remaining States
1. Felonies – Punishable by incarceration in a penitentiary.
2. Misdemeanors – Punishable by incarceration in jail only.
b. Pre-Arrest Investigation
i. Reactive Investigations – Responding to past crimes.
1. Objectives & Activities – See pp. 5–6.
ii. Proactive Investigations – Ongoing or future crimes.
1. Engaged in by special function police agencies, e.g., DEA.
2. Tactics – Deception, intrusive confrontations by police.
3. More resource-intensive, more intrusive, more likely to foster
community opposition, and more likely to generate legal problems.
iii. Investigations Through Grand Jury Subpoena Power
1. GJ typically follows lead of prosecutor.
2. Used when (1) witness will not cooperate with police, (2) critical
evidence of crime is in the “paper trail,” and (3) area of investigation is
sensitive, requiring secrecy from public.
iv. Techniques for Gathering Evidence
1. Undercover officer.
2. Cooperating witness.
3. Follow the car transporting the drugs. Take photographs. Document
stops.
4. Search the car because that is where the drugs are.
5. Search the apartment because that is where the drugs are too.
6. Wiretaps – Document private conversations and deals.
7. Stake Out – Watch people coming and going from the apartment.
8. Interview witnesses.
9. Torture
10. Repeated questioning in the police station, which is an intimidating
environment. Use psychological tactics like keeping the room cold and
dark.
11. Lie to the suspect, claiming that the evidence against him is strong and
that if he confesses you can get him a good deal.
12. Appeal to sympathy. Ask him write a letter to the victim’s family.
13. Threaten suspect’s family with police surveillance and harassment. Say
that the opposing gang will kill him if he leaves the police station.
Promise him protection in prison if he confesses.
c. Arrest
i. Occurs after police have PC.
ii. Full Custody Arrest – Detention of suspect (by force if necessary) for the purpose
of transporting him to a police facility and then requesting that charges be filed
against him.
iii. Release-on-Citation Alternative – Briefly detain suspect and then release upon
issuance of an official document requiring appearance in court.
iv. No immediate threat  police obtain an arrest warrant.
d. Booking
i. See p. 9.
ii. Arrestee is allowed one phone call.
iii. Arrestee is kept in lockup pending presentation at a first appearance.
e. Post-Arrest Investigation
i. Aimed at gathering further evidence that defendant committed the crime.
ii. Arrestee may be a critical source of information.
f. Decision to Charge
i. Initial Determination (Usually) – When officer makes warrantless arrest.
1. May be reversed by booking officer upon internal review, but this is rare.
ii. Ultimate authority rests with prosecutor, not police.
1. Three Stages Where Prosecutor May Decline to Proceed:
a. Prior to filing of complaint.
b. After filing of complaint and before filing of indictment or
information.
c. After filing of indictment or information.
2. Prosecutorial review of police charging decision must occur shortly.
3. Reasons prosecutor does not proceed: see pp. 10–11.
4. Prosecutors must decide how to charge defendants.
iii. Arrestee must be brought before magistrate within 24–48 hours, and complaint
then must be filed.
2. History
a. No professional police officers until the mid-19th century. There were night watchmen,
constables, king’s officials, etc. They were regulated by common law rules without much
substance (because these officials lacked real power).
b. Police officers, investigators, detectives appeared in the mid-19th century. They were
state and local officials.
c. Federal police did not appear until the 1920s. Today, there are approximately 100,000
federal police.
3. Limitations on Police Conduct
a. 14th Amendment – Applies to states and therefore state investigators.
b. Bill of Rights – Historically, applied only to federal action. Did not apply to the states
until approximately the 1950s.
i. 4th Amendment – Protection against unreasonable searches and seizures.
ii. 5th Amendment – Prohibited abuses in the English system, notably guaranteeing
the right against self-incrimination and the right to counsel.
Sources of Law
1. Entick v. Carrington
a. Facts
i. King was trying to prosecute enemies. Wanted to find incriminating papers in
people’s houses.
ii. Entick brought a civil trespass claim against the government official in charge of
the search.
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2.
3.
4.
5.
iii. Government official defended on the grounds that he had a warrant.
b. Found a trespass in government officials entering the plaintiff's home and breaking open
his boxes and examining his papers
c. Spoke of the individual’s papers as his “dearest property,” and it was the invasion of the
individual’s indefeasible right in that property, rather than the “breaking of his doors and
the rummaging of his drawers” that was the “essence” of the violation of individual
liberty in that case.
d. Court held that search warrant was not valid without some proof to back it up, i.e.,
probable cause.
i. Influenced “those who framed the Fourth Amendment.”
ii. 5th and 6th Amendments also were direct responses to the King.
Bill of Rights – Originally was only applicable to federal government. Barron v. Baltimore.
a. Crucial because almost all investigations were done by state and local officers.
Limitations on State and Local Police
a. Almost nonexistent until the 14th Amendment.
b. Common law regulation was minimal.
14th Amendment
a. Due Process Clause is the principal limitation on criminal investigations.
i. Powell v. Alabama – The Supreme Court held that the state’s failure to provide
adequate legal representation for the defendants resulted in a denial of due
process. In reaching that conclusion, the Court did not rely upon the Sixth
Amendment provision granting defendants the right to the assistance of counsel,
but upon the due process requirement of a fair hearing.
Two Tracks
a. Rochin v. California
i. Facts – Police, having “some information” that defendant was selling narcotics,
entered his home without a warrant and forced open the door to his bedroom.
When the surprised defendant immediately shoved into his mouth two capsules
believed to be narcotics, the police grabbed him and attempted to extract the
capsules, which defendant then swallowed. The police then took the protesting
defendant to a doctor, who forced an emetic solution into defendant’s stomach,
causing him to vomit up the capsules.
ii. Court described total course of police action as “conduct that shocks the
conscience.”
iii. Due process no more permitted the use of the capsules in evidence than it would
a coerced confession.
iv. “Due process . . . precludes defining, and thereby confining, these standards of
conduct more precisely than to say that convictions cannot be brought about by
methods that offend ‘a sense of justice.’”
v. Significance
1. Problem – No one can agree on what conduct “shocks the conscious.”
2. Only carves out extreme cases.
[To be continued.]
Introduction to Remedies & the Exclusionary Rule
1. Mapp v. Ohio (1961) (Clark)
a. History
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i. Weeks v. United States (1914) – First case in which Court announced the
exclusionary rule. Rule derived from 4th Amendment and applied only to federal
government.
ii. Wolf v. Colorado (1949) – Incorporated the right of the 4th Amendment, but not
the remedy of the exclusionary rule. The exclusionary rule was not considered to
be implicit to the concept of ordered liberty.
1. Mapp overruled Wolf.
2. Reasons
a. Not enforcing the exclusionary rule against the states reduces the
4th Amendment to a mere form of words.
i. We need a deterrent against constitutional violations.
Clearly, the police in this case had little respect for the
Fourth Amendment.
b. Judicial integrity demands the exclusionary rule. Not enforcing
it corrupts the system.
i. Judicial integrity can mean lots of different things.
ii. Without the exclusionary rule, judges get to decide,
based on their whims, which evidence should be
admitted and, thus, how criminal justice should proceed.
c. Common Sense Based on Reason and Truth – Government
should not be able to benefit from evidence obtained
unconstitutionally.
d. Two-thirds, up from one-half, of states now use the exclusionary
rule. California used it, and Chief Justice Warren had been the
AG and Governor of California.
e. Court saw that states simply were not following the 4th
Amendment, and it wanted to do something about this.
b. Incorporates 4th Amendment Exclusionary Rule – “All evidence obtained by searches
and seizures in violation of U.S. Const. amend. IV is, by that same authority,
inadmissible in a state court.”
i. “Because the Fourth Amendment’s right of privacy has been declared
enforceable against the States through the Due Process Clause of the Fourteenth,
it is enforceable against them by the same sanction of exclusion as is used against
the Federal Government.”
ii. Same rules should be applicable to federal and state prosecutors. “Presently, a
federal prosecutor may make no use of evidence illegally seized, but a State’s
attorney across the street may, although he supposedly is operating under the
enforceable prohibitions of the same Amendment. Thus the State, by admitting
evidence unlawfully seized, serves to encourage disobedience to the Federal
Constitution which it is bound to uphold.”
iii. Many states have adopted exclusionary rules. Discernable trend.
2. Theory of Exclusionary Rule – Police want to catch bad guys and close cases, and to do so, they
need to follow the law. If police gather evidence in unlawful ways, then the evidence should be
excluded, and the police will not be able to close cases. The exclusionary rule forces the 4th
Amendment into police’s considerations.
3. Alternative Remedies to Enforce the 4th Amendment
a. Civil Remedies
i. Types
1. Section 1983 – State and local police.
2. Bivens – Federal police.
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ii. Problem – Most plaintiffs that are aggrieved by 4th Amendment violations are
actually guilty. They make unsympathetic plaintiffs. E.g., “As I was in my
home, cleaning the knife, the police burst in without a warrant. You cannot
allow this 4th Amendment violation.”
b. Firing police officers that violate the 4th Amendment.
i. Police supervisors are unlikely to be willing to fire violating officers because of
sympathy, friendship, etc.
ii. Elected officials do not want to fire officers that are closing cases, even if they
are doing so through constitutional violations.
c. Criminalize constitutional violations. Prosecute offending police officers. See 18 U.S.C.
§ 242.
i. Creates problems regarding internal incentives and the relationship between
police and prosecutors. Police, who are tasked with investigations, will not be
willing to turn over evidence of constitutional violations by police to prosecutors.
d. Harlan, Dissenting
i. Not impose exclusionary rule on states.
1. Split among states.
2. Diversity of circumstances.
4. United States v. Leon (1984) (White)
a. Exclusionary Rule  Judicially Created Remedy; Deterrent Effect
i. “The Fourth Amendment contains no provision expressly precluding the use of
evidence obtained in violation of its commands, and the use of fruits of a past
unlawful search or seizure works no new Fourth Amendment wrong. The wrong
condemned by the Fourth Amendment is ‘fully accomplished’ by the unlawful
search or seizure itself, and the exclusionary rule is neither intended nor able to
cure the invasion of the defendant’s rights which he has already suffered. The
rule thus operates as a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.”
ii. Applicability determined by weighing the costs and benefits of preventing the
use in evidence of illegally seized evidence.
b. Impeachment Exception – “Evidence obtained in violation of U.S. Const. amend.
IV and inadmissible in the prosecution’s case in chief may be used to impeach a
defendant’s direct testimony.”
c. Good-Cause Exception – “The Fourth Amendment exclusionary rule should be
modified so as not to bar the use in the prosecution’s case in chief of evidence obtained
by officers acting in reasonable reliance on a search warrant issued by a detached and
neutral magistrate but ultimately found to be unsupported by probable cause.”
i. Objective, Good-Faith
1. Good-faith seems to call for a subjective inquiry.
2. Objective – It is reasonable for officers to rely on the legal conclusions
of the magistrate, unless there clearly is no basis for issuing the warrant.
a. Three situations (below) in which reliance is not reasonable.
d. No Deterrent Effect for Magistrates – Exclusion to deter magistrates is inappropriate,
as “the exclusionary rule is designed to deter police misconduct rather than to punish the
errors of judges,” “there exists no evidence suggesting that judges and magistrates are
inclined to ignore or subvert the Fourth Amendment,” and there is no basis “for believing
that exclusion of evidence seized pursuant to a warrant will have a significant deterrent
effect on the issuing judge or magistrate.”
i. But some magistrates may be incentivized to make it home by 5:00 PM and thus
rubber stamp warrants.
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e. No Deterrent Effect in With-Warrant Cases – Exclusion to deter the policeman is
ordinarily inappropriate, for usually “there is no police illegality” because the officer
justifiably relied upon the prior judgment of the magistrate.
f. Suppression Is Appropriate – “Suppression remains an appropriate remedy if the
magistrate or judge in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless disregard
of the truth.”
i. Police Should Recognize Invalidity of Warrant – Three Cases
1. “Issuing magistrate wholly abandoned his judicial role.”
2. Warrant is “based on an affidavit ‘so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable.’”
3. “A warrant may be so facially deficient—in failing to particularize the
place to be searched or the things to be seized—that the executing
officers cannot reasonably presume it to be valid.”
ii. “In the absence of an allegation that the magistrate abandoned his detached and
neutral role, suppression is appropriate only if the officers were dishonest or
reckless in preparing their affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.”
5. Illinois v. Krull (1987) (Blackmun)
a. Extension of Leon stating that “a similar exception to the exclusionary rule should be
recognized when officers act in objectively reasonable reliance upon a STATUTE
authorizing [the search in question], but where the statute is ultimately found to violate
the Fourth Amendment.”
i. “The application of the exclusionary rule to suppress evidence obtained by an
officer acting in objectively reasonable reliance on a statute would have as little
deterrent effect on the officer’s actions as would the exclusion of evidence when
an officer acts in objectively reasonable reliance on a warrant. Unless a statute is
clearly unconstitutional, an officer cannot be expected to question the judgment
of the legislature that passed the law.”
b. Rationale
i. Applying exclusionary rule would have LITTLE DETERRENT EFFECT ON
POLICE.
ii. No Deterrent Effect on Legislators – “Legislators, like judicial officers, are not
the focus of the rule. Moreover, to the extent we consider the rule’s effect on
legislators, our initial inquiry, as set out in Leon, is whether there is evidence to
suggest that legislators ‘are inclined to ignore or subvert the Fourth
Amendment.’”
c. O’Connor, Dissenting
i. Stressed that statutes “authorizing unreasonable searches were the core concern
of the Framers of the Fourth Amendment,” and rightly so, as a “judicial officer’s
unreasonable authorization of a search affects one person at a time; a legislature’s
unreasonable authorization of searches may affect thousands or millions.”
ii. Noted, “[l]egislators by virtue of their political role are more often subjected to
the political pressures that may threaten Fourth Amendment values than are
judicial officers.”
6. Hudson v. Michigan (2006) (Scalia)
a. Rule – Violation of the “KNOCK-AND-ANNOUNCE” RULE does not require
suppression of evidence found in execution of the search warrant.
i. Dangers in Police Waiting Too Long
1. Physical harm.
2. Destruction of evidence.
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ii. Deterrence Effects
1. Necessary for application of exclusionary rule.
2. Minimal in this context.
b. Attenuated Causal Connection – “The constitutional violation of an illegal manner of
entry was not a but-for cause of obtaining the evidence,” for “[w]hether the preliminary
misstep had occurred or not, the police would have executed the warrant they had
obtained, and would have discovered the gun and drugs inside the house.”
c. Civil liability is an effective deterrent.
i. “The slow but steady expansion” of the § 1983 remedy since Mapp.
ii. Congressional authorization of “attorney’s fees for civil-rights plaintiffs.”
Facilitated civil-rights litigation.
d. Deterrent Effect of Internal Police Discipline – Noted “the increasing professionalism
of police forces, including a new emphasis on internal police discipline.”
e. Kennedy, Concurring
i. Constitutional violations at issue are not trivial or beyond the law’s concern.
ii. Exclusionary rule is not in doubt.
f. Breyer, Dissenting
i. The remedies “which the Court found inadequate in Mapp” were still insufficient
in the present context.
ii. Civil liability is not a sufficient deterrent.
iii. Neither of two recognized exceptions to the exclusionary rule apply here.
iv. Application would deter unconstitutional police conduct.
7. Anderson v. Creighton (1987) (Scalia)
a. Civil remedies are available for constitutional violations are available, but they are
limited by qualified immunity.
b. Qualified Immunity – “Whether an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official action generally turns on the
objective legal reasonableness of the action, assessed in light of the legal rules that were
clearly established at the time it was taken.”
i. Clearly Established – “For purposes of qualified immunity, the right that an
official is alleged to have violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing law the unlawfulness
must be apparent.”
1. Somewhat rigorous, but exact circumstances need not have been
addressed.
ii.  Similar to the objective, good-faith exception in Leon.
c. Test for Whether a Search Was Objectively Reasonable – Factors:
i. Clearly established law.
ii. Information possessed by searching officials.
iii.  Subjective beliefs of officials are irrelevant.
d. Stevens, Dissenting
i. Majority wrongly applies a double standard of reasonableness, since it holds that
a search that is “unreasonable” under the Fourth Amendment will not give rise to
monetary liability if a reasonable officer could have believed it was reasonable.
8. Heck v. Humphrey (1994) (Scalia)
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a. A criminal defendant cannot pursue civil damages for constitutional violations if the
implication of her civil claim is that her criminal conviction was obtained
unconstitutionally.
i. Reasoning – Criminal defendants filed civil suits challenging their convictions
are hoping to circumvent the limitations on successive habeas petitions.
ii. Court wants to avoid veiled, repeated habeas corpus suits.
Searches
1. 4th Amendment Generally
a. Clauses
i. Two clauses do not have an obvious relationship.
ii. First clause matters all the time. Asserts 4th Amendment right.
iii. Second clause does not apply all the time but applies only when a warrant is
issued.
b. First Clause – “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .”
i. Key Language – “Unreasonable searches or seizures.”
ii. If there is not a search or seizure, the 4th Amendment does not apply. There
cannot be an unreasonable search or seizure without an actual search or seizure.
1. Threshold Question – What is a search or seizure?
2. Second Question – What constitutes a constitutionally reasonable search
or seizure?
iii. Terry v. Ohio – Notion that a search or seizure may be reasonable even if it is
outside the traditional bounds of reasonableness, i.e., in conjunction with a
warrant. That is, a search or seizure may be reasonable even in the absence of a
warrant.
1. If government conducts a search or seizure without a warrant, an
exception must apply in order for the conduct to be constitutionally
reasonable.
c. Rationales for 4th Amendment Jurisprudence
i. Dunn – History and four-factor curtilage test.
ii. Greenwood – Things outside the home are exposed to the public.
iii. Caballes – Focuses on the nature of the information revealed.
d. Remedies – Driven by exclusionary rule.
e. Principal regulation on gathering of:
i. Physical Evidence
ii. Testimony
iii.  Any motion to suppress evidence because of a 4th Amendment violation will
seek to exclude both the physical evidence and any accompanying police
testimony.
2. Non-Police Government Employees
a. Arizona v. Evans (1995) (Rehnquist)
i. Rule – “Application of the Leon framework supports a categorical exception to
the exclusionary rule for clerical errors of court employees.”
ii. Justifications
1. Exclusionary rule deters police misconduct.
2. Court clerks are not inclined to subvert the 4th Amendment.
3. Applying exclusionary rule will not affect clerks’ conduct.
iii. Ginsburg, Dissenting
1. Artificial to distinguish between police, clerks, etc.
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2. “It has been suggested that an exclusionary rule cannot deter
carelessness, but can affect only intentional or reckless misconduct. This
suggestion runs counter to a premise underlying all of negligence law—
that imposing liability for negligence, i.e., lack of due care, creates an
incentive to act with greater care.”
b. New Jersey v. T.L.O. (1985)
i. Concerned search of student by high-school administrator.
1. Court did not reach whether exclusionary rule applies to school
administrators.
ii. “The Fourth Amendment [is] applicable to the activities of civil as well as
criminal authorities.”
3. Foreign Officials & Domestic Criminal Proceedings
a. United States v. Verdugo-Urquidez (1990) (Rehnquist)
i. Rule – The phrase “the People” in the 4th Amendment “refers to a class of
persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that community.”
1.  4th Amendment does not apply to foreign nationals.
b. United States v. Esparza-Mendoza (D. Utah 2003)
i. Rule – 4th Amendment is not applicable to deported aliens returning to the U.S.
4. Katz v. United States (1967) (Stewart)
a. History
i. Olmstead v. United States – First case addressing what constitutes a 4th
Amendment search. Federal agents tapped Olmstead’s phone, which was a new
invention at the time. Court held that there was no search because speaking into
a telephone is like speaking publicly; no trespass of physical property either.
1. Overruled.
ii. Goldman v. United States – Government listened through a wall with a
microphone. Not a search.
1. Overruled.
iii. Silverman v. United States – Government listened through a duct, and because
the agents were touching the duct, Court found that there was a search.
iv. “Constitutionally Protected Area” – Old standard. 4th Amendment search if
the government entered a constitutionally protected area. Circular logic.
1. Katz rejects “constitutionally protected area” test.
b. 4th Amendment does not create a general constitutional “right to privacy.”
c. “The Fourth Amendment protects people, not places. What a person knowingly exposes
to the public, even in his own home or office, is not a subject of Fourth Amendment
protection. But what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.”
d. NO PHYSICAL INVASION is needed for a 4th Amendment violation.
i. Does not matter that Government did not enter phone booth.
e. Role of Phone Booths – Person who enters a phone booth is surely entitled to assume
that his conversations will remain private. To interpret 4th Amendment more narrowly
would discount the important role of public telephones in private communication.
i. Evinces that Court very much wants to recognize a search here.
ii. Court justifies its conclusion largely based on policy. Very little legal reasoning.
f. Harlan, Concurring
i. Rule – “My understanding of the rule that has emerged from prior decisions is
that there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that
society is prepared to recognize as ‘reasonable.’”
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ii. Objective/Subjective Distinction
1. Subjective – Personal expectation of privacy. DOES NOT MATTER.
a. Common Sense – It should not matter whether one subjectively
expects privacy. If the government announced every half hour
on TV that every citizen was subject to ad hoc search and
seizure, this would eliminate any subjective expectation of
privacy.
b. Burden of Proof – Extremely difficult for government to prove
the presence or absence of a subjective expectation of privacy.
c. Harlan really is talking about manifesting a subjective
expectation of privacy, not simply having a subjective
expectation of privacy. Concerned with external appearances.
d.  This prong has never been determinative.
2. Objective – Society must be willing to recognize a person’s subjective
expectation of privacy as reasonable.
a. Society’s Recognition – How does the Court know what society
expects? Justices largely are disconnected from actual society.
b. Common Sense
i. Looking with one’s eyes across a room is not a search,
but rummaging through one’s bag is a search.
ii. Rationale – Exposure of what was hidden (with the
social expectation that the space searched was private).
c. Problem – We all have different expectations of privacy. This
reflects the problem of identifying the reasonable perspective.
Reasonable to whom?
d. Examples
i. Home – Private
ii. Outside – Public
iii.  The difficult lies in areas in between these extremes.
5. Florida v. Riley (1989) (White) (CURTILAGE V. OPEN FIELDS)
a. Holding – Surveillance from a helicopter at 400 feet is not a search.
i. It was not illegal to fly a helicopter in that airspace at that altitude. Anyone could
have done so.
ii. No evidence that such helicopter flights are rare.
iii. 4th Amendment does not require police to avert their eyes. Police are using
ordinary means of perception, i.e., sight, but they are using it from an unusual
vantage.
b. O’Connor, Concurring
i. Relies on the idea that flight is common. Therefore, if marijuana is exposed to
people that might be flying above one’s backyard, one has no reasonable
expectation of privacy from that vantage.
ii.  “However, public use of altitudes lower than 400 feet—particularly public
observations from helicopters circling over the curtilage of a home—may be
sufficiently rare that police surveillance from such altitudes would violate
reasonable expectations of privacy, despite compliance with FAA regulations.”
c. Brenna, Dissenting
i. Reasonable expectation of privacy in one’s backyard.
ii. Police went to great lengths to peer in.
d. Blackmun, Dissenting
i. Prosecution bears burden of proving that Riley did not have a reasonable
expectation of privacy.
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6. See v. City of Seattle (1967) (BUSINESS & COMMERCIAL PREMISES)
a. Rule – Business and commercial premises are covered by 4th Amendment.
7. Hudson v. Palmer (1984) (PRISON CELLS)
a. Rule – 4th Amendment does NOT cover prison cells.
i. Balancing of interests.
ii. Curtailment of rights of the convicted.
b. Bell v. Wolfish (1979)
i. Prisoners have a reasonable expectation of privacy “of a diminished scope.”
ii. Strip/body-cavity searches of pretrial detainees after contact visits with outsiders
are not unreasonable.
8. Vehicles
a. Cardwell v. Lewis (1974)
i. Rule – No 4th Amendment search in examining tire treads or taking paint sample
from exterior of car.
b. New York v. Class (1986)
i. No 4th Amendment protection for a vehicle’s VIN number, i.e., police may
search for it.
ii. 4th Amendment covers interior of car.
9. Bond v. United States (2000) (Rehnquist) (EFFECTS)
a. Facts – Involved the squeezing of the soft luggage passengers had placed in the overhead
storage spaces of a bus lawfully stopped at a checkpoint by federal agents.
b. Luggage is an effect covered by 4th Amendment.
c. Government’s reliance on Riley is misplaced because “[p]hysical invasive inspection is
simply more intrusive than purely visual inspection.”
d. Travelers have a reasonable expectation of privacy in their luggage.
e. Holding – Officer’s exploratory touching of bag was a 4th Amendment search.
f. Breyer & Scalia, Dissenting
i. Squeezing was similar to other treatment that bag would receive.
ii. Whether touching is more or less intrusive is fact-specific.
iii. Decision will complicate 4th Amendment jurisprudence.
10. Enhanced Senses
a. Not a search for police to detect something by one of her natural senses. Mankani (2d
Cir. 1984).
b. Not a search for police to use a common means of enhancing the senses, e.g., flashlight or
binoculars.
11. Kyllo v. United States (2001) (Scalia)
a. Facts – Concerned an infrared thermal detection device (thermal imager), which
without sending rays or beams into premises determines the amount of heat emanating
therefrom by measuring differences in surface temperatures of targeted objects.
b. Rule – “When the police obtain by sense-enhancing technology any information
regarding the interior of the home that could not otherwise have been obtained without
physical intrusion into a constitutionally protected area, that constitutes a search, at least
where the technology in question is not in general public use.”
i. Information obtained by thermal imager constituted a search.
ii. General-Public-Use Test – Distinguishes thermal imagers from flashlights and
binoculars.
1. Thermals imagers are in general use today. May police use them now?
Question has not been addressed.
iii. Using a Geiger counter to measure radiation emanating from a building would be
permissible under Kyllo because a Geiger counter measures ambient radiation,
not the details of the home. (The General-Public-Use Test is not key.)
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iv. Court did not rely on reasonable expectation of privacy test of Katz.
v. Originalist Argument
1. “[Court’s rule] assures preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted.”
2. “The Fourth Amendment’s protection of the home has never been tied to
measurement of the quality or quantity of information obtained. In the
home, judicial precedent shows, all details are intimate details, because
the entire area is held safe from prying government eyes.”
vi. Took the long view and expressed concern for increasingly sophisticated and
intrusive methods of discerning activities inside the home. Recognized a need to
take a stand now against the increasing intrusiveness of modern technology.
c. Stevens, Dissenting
i. Through-the-Wall/Off-the-Wall Distinction – Thermal imager allows one to
see only what is exposed to the public, i.e., heating emanating from exterior walls
of the home. There is no breaking into the private space of the home.
12. United States v. Dunn (1987) (White) (CURTILAGE)
a. Question – Where does open field end and curtilage begin?
b. Curtilage
i. Common Law Origin – “The curtilage concept originated at common law to
extend to the area immediately surrounding a dwelling house the same protection
under the law of burglary as was afforded the house itself.”
ii. Plays a part in 4th Amendment interpretation.
iii. Rule – “The Fourth Amendment protects the curtilage of a house and that the
extent of the curtilage is determined by factors that bear upon whether an
individual reasonably may expect that the area in question should be treated as
the home itself. The central component of this inquiry is whether the area
harbors the intimate activity associated with the sanctity of a man's home and the
privacies of life.”
iv. Four-Factor Curtilage Test
1. The proximity of the area claimed to be curtilage to the home;
2. Whether the area is included within an enclosure surrounding the home;
3. The nature of the uses to which the area is put; and
4. The steps taken by the resident to protect the area from observation by
people passing by.
v. Conclusion – Barn and immediately adjoining lands were outside the curtilage.
They were:
1. 60 yards from the house (substantial distance);
2. Outside a fence surrounding the house;
3. “Not being used for intimate activities of the home;” and
4. Not protected from observation from nearby open fields.
c. Open Field – Not covered by 4th Amendment. Oliver; Hester.
i. “An open field is neither a house nor an effect, and, therefore, the government’s
intrusion upon the open fields is not one of those unreasonable searches
proscribed by the text of the Fourth Amendment. It is expressly not the case that
the erection of fences on an open field creates a constitutionally protected privacy
interest. The term open fields may include any unoccupied or undeveloped area
outside of the curtilage. An open field need be neither open nor a field as those
terms are used in common speech.”
ii. Police may conduct investigations in open fields as they would in public places.
d. Brennan & Marshall, Dissenting
12
i. “The Government agents’ intrusions upon Ronald Dunn’s privacy and property
violated the Fourth Amendment for two reasons. First, the barnyard invaded by
the agents lay within the protected curtilage of Dunn’s farmhouse. Second, the
agents infringed upon Dunn’s reasonable expectation of privacy in the barn and
its contents.”
13. California v. Greenwood (1988) (White)
a. Facts – Police obtained evidence of the defendants’ narcotics use by having the trash
collector pick up the plastic garbage bags the defendants had left on the curb in front of
their house, and then give the bags to the police without first mixing the contents with
refuse from other houses.
b. Rule – Inspection of one’s garbage left for collection outside the curtilage of a home is
not a search.
i.  One loses any reasonable expectation of privacy when she places garbage at
curb, i.e., OUTSIDE CURTILAGE OF HOME.
ii. “The warrantless search and seizure of garbage bags left at the curb outside a
house violates the Fourth Amendment only if the respondents manifest a
subjective expectation of privacy in their garbage that society accepts as
objectively reasonable.”
iii. “An expectation of privacy does not give rise to Fourth Amendment protection,
however, unless society is prepared to accept that expectation as objectively
reasonable.”
iv. “Respondents exposed their garbage to the public sufficiently to defeat their
claim to Fourth Amendment protection.”
v. “It is common knowledge that plastic garbage bags left on or at the side of a
public street are readily accessible to animals, children, scavengers, snoops, and
other members of the public. Those who have deposited garbage in an area
particularly suited for public inspection and, in a manner of speaking, public
consumption, for the express purpose of having strangers take it, could have no
reasonable expectation of privacy in any inculpatory items that they discarded.”
vi. “The police cannot reasonably be expected to avert their eyes from evidence of
criminal activity that could have been observed by any member of the public.”
vii. “What a person knowingly exposes to the public, even in his own home or office,
is not a subject of 4th Amendment protection.”
viii. Turning over to Third Party – “A person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties.”
ix. Shredding documents does not add anything to a reasonable expectation of
privacy.
c. Brennan & Marshall, Dissenting
i. Trash reveals an individual’s diet, activities, etc. For this reason, an individual
has a reasonable expectation that the contents of her trash will not be searched.
ii. The appeal of Brennan’s position resides in part in people’s entirely reasonable
expectation that no one will rummage through their garbage once it has been
placed at the curb. Rummaging certainly is an uncommon occurrence.
14. Illinois v. Caballes (2005) (Stevens)
a. No Legitimate Privacy Interest in Possessing Contraband – “Official conduct that
does not compromise any legitimate interest in privacy is not a search subject to
the Fourth Amendment. The United States Supreme Court holds that any interest in
possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct
that only reveals the possession of contraband compromises no legitimate privacy
interest. This is because the expectation that certain facts will not come to the attention
13
of the authorities is not the same as an interest in privacy that society is prepared to
consider reasonable.”
i. Contraband – Items that it is illegal to possess, e.g., illicit drugs, alcohol (during
Prohibition), child pornography, etc.
ii. Binary Search Doctrine – When the only information revealed by the
government’s tool (i.e., the dog) is the presence or absence of contraband, then
the 4th Amendment does not apply because the government’s actions do not
constitute a search.
1. No legitimate privacy interest  No 4th Amendment search.
2. Court is focusing on the nature of the information obtained, and this
dictates whether the government’s conduct was a violation of a
reasonable expectation of privacy.
3. Applied only to drug-sniffing dogs and field narcotics tests.
b. Dog Sniff Is Sui Generis – “The United States Supreme Court treats a canine sniff by a
well-trained narcotics-detection dog as ‘sui generis’ because it discloses only the
presence or absence of narcotics, a contraband item.”
i. “The use of a well-trained narcotics-detection dog—one that does not expose
noncontraband items that otherwise would remain hidden from public view—
during a lawful traffic stop, generally does not implicate legitimate privacy
interests.”
ii. “A dog sniff conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no individual has any right
to possess does not violate the Fourth Amendment.”
iii. Likelihood that a well-trained dog will produce a false positive is very low.
c. Distinguishing Kyllo – “The legitimate expectation that information about perfectly
lawful activity will remain private is categorically distinguishable from respondent’s
hopes or expectations concerning the nondetection of contraband in the trunk of his car.”
i. The use of a thermal imager does not indicate only the presence or absence of
contraband. It could reveal whether or not someone inside was taking a bath.
d. Souter, Dissenting
i. Noted the fallibility of drug dogs.
ii. “In practice the government’s use of a trained narcotics dog functions as a
limited search to reveal undisclosed facts about private enclosures, to be used to
justify a further and complete search of the enclosed area. And given the
fallibility of the dog, the sniff is the first step in a process that may disclose
‘intimate details’ without revealing contraband, just as a thermal-imaging device
might do, as described in Kyllo.”
iii. “It makes sense, then, to treat a sniff as the search that it amounts to in practice,
and to rely on the body of our Fourth Amendment cases, including Kyllo, in
deciding whether such a search is reasonable.”
15. Smith v. Maryland (1979) (Blackmun)
a. Facts – A harassment case involving the government-requested installation of a “pen
register” at the central offices of the telephone company in Baltimore. A pen register is a
device that records the numbers dialed from a telephone, and its installation on Smith’s
phone line confirmed that harassing calls were originating from his home telephone line.
b. Holding – Use of pen register to obtain the numbers dialed from Smith’s phone did not
violate his reasonable expectation of privacy and was therefore not a 4th Amendment
search.
i. Applied Katz two-part test.
1. Subjective
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a. People do not have a subjective expectation of privacy in the
numbers that they dial.
b. “Telephone users, in sum, typically know that they must convey
numerical information to the phone company; that the phone
company has facilities for recording this information; and that
the phone company does in fact record this information for a
variety of legitimate business purposes. Although subjective
expectations cannot be scientifically gauged, it is too much to
believe that telephone subscribers, under these circumstances,
harbor any general expectation that the numbers they dial will
remain secret.”
c. Calling from home does not change anything.
2. Objective
a. Even if petitioner had a subjective expectation of privacy,
society would not recognize it as reasonable.
b. Using a pen register is no different than interviewing a
switchboard operator, which was the equivalent of a pen register
in years past.
c. Rule – “A person has no legitimate expectation of privacy in
information he voluntarily turns over to THIRD PARTIES.”
d. Rule – “The Fourth Amendment does not prohibit the obtaining
of information revealed to a THIRD PARTY and conveyed by
him to government authorities, even if the information is
revealed on the assumption that it will be used only for a limited
purpose and the confidence placed in the third party will not be
betrayed.”
ii. Holding rests on Smith’s communication to a third party.  The reasoning
of Smith is based heavily on the notion that the phone company was a party to
Smith’s communication of the numbers: “The switching equipment that
processed those numbers is merely the modern counterpart of the operator who,
in an earlier day, personally completed calls for the subscriber.” In an earlier
day, Smith would have had a conversation with the operator; the numbers dialed
would have been the contents of the call between him and the operator. Thus the
key to Smith is that the phone company was the intended recipient of the call, not
that the numbers dialed have some special status as numbers dialed.
iii. Analogous to 4th Amendment standard for POSTAL MAIL.  The contents of a
letter are protected, but what is written on an envelope is not protected.
c. Cell-Site Records – Under Smith v. Maryland, cell-site records should not be protected
by the Fourth Amendment. Like numbers dialed, cell-site information is information
necessarily generated to place a call in the ordinary course of business. Although some
users may not realize that the information is generated, Smith assumed that telephone
users are generally aware of how the phone network operates. Under that assumption,
cell phone users do not have a reasonable expectation of privacy in cell-site information
for the same reason that they do not have a reasonable expectation of privacy in the
numbers dialed to place a call.
d. Marshall & Brennan, Dissenting
i. Smith had no choice in assuming risk when using phone.
ii. Nothing stopping police form destroying all reasonable expectation of privacy.
iii. “Whether privacy expectations are legitimate within the meaning
of Katz depends not on the risks an individual can be presumed to accept when
15
imparting information to third parties, but on the risks he should be forced to
assume in a free and open society.”
iv. Constant phone monitoring will offend political actors and journalists.
v. Warrant should be required.
16. United States v. Jones (2012) (Scalia) (GPS TRACKER)
a. Holding – Government’s installation of a GPS device on a target’s vehicle, and its use of
that device to monitor the vehicle’s movements, constitutes a “search.”
b. Two Tests for a Search
i. Common Law Trespass
1. Focuses on definition of “search” when 4th Amendment was enacted.
a. “Physical occupation of private property for the purpose of
obtaining information” suffices.
b. Installing a GPS tracker is “obviously” a trespass.
2. 4th Amendment & Property – “The text of the 4th Amendment reflects
its close connection to property, since otherwise it would have referred
simply to ‘the right of the people to be secure against unreasonable
searches and seizures’; the phrase ‘in their persons, houses, papers, and
effects’ would have been superfluous.”
3. “[The Court] must assure preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted. For
most of the Court’s history the Fourth Amendment was understood to
embody a particular concern for government trespass upon the areas
(persons, houses, papers, and effects) it enumerates.”
ii. Katz Reasonable Expectation of Privacy
1. Electronic Signals Only – “Situations involving merely the transmission
of electronic signals without trespass would remain subject to Katz
analysis.”
iii.  Seemingly expands application of exclusionary rule.
c. “Search” Requires Purpose of Obtaining Information – “A trespass on ‘houses’ or
‘effects,’ or a Katz invasion of privacy, is not alone a search unless it is done to obtain
information; and the obtaining of information is not alone a search unless it is achieved
by such a trespass or invasion of privacy.”
d. Open Fields – “Quite simply, an open field, unlike the curtilage of a home, is not one of
those protected areas enumerated in the Fourth Amendment. The Government’s physical
intrusion on such an area—unlike its intrusion on an ‘effect’—Is of no Fourth
Amendment significance.”
i. Dunn remains good law.
e. Sotomayor, Concurring
i. The Fourth Amendment is not only concerned with trespasses onto property.
ii. A Fourth Amendment search occurs whenever the government violates a
subjective expectation of privacy that society recognizes as reasonable, which is
particularly important in an era where physical intrusion is unnecessary to many
forms of surveillance.
f. Alito, Concurring
i. No reasonable expectation of privacy.
ii. Alito is asking what a reasonable person would objectively consider to be a
reasonable expectation of privacy. This is Kerr’s probabilistic model.
iii. Short-term GPS tracking would not violate a reasonable expectation of privacy.
Sometime after four weeks, it would cross the line though.
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iv. It depends on what a reasonable person would expect the police to do in
investigating a case. What it would be reasonable for the police to do depends on
the facts of the case, the available technology, etc.
1. Applying the Katz test in a very novel way. Alito is focusing on what is
reasonable to the police, not what is reasonable to the public.
17. Kerr’s Four Models of 4th Amendment Protection
a. Probabilistic Model
i. “According to this approach, a reasonable expectation of privacy depends on the
chance that a sensible person would predict that he would maintain his privacy.
The inquiry is descriptive rather than normative: it tries to assess the likelihood
that a person will be observed or a place investigated based on prevailing social
practices. Under the probabilistic approach, a person has a reasonable
expectation of privacy when the odds are very high that others will not
successfully pry into his affairs. As those odds drop, the individual’s expectation
of privacy becomes less and less reasonable. As a result, the Fourth Amendment
protects citizens against unexpected invasions of privacy. When government
conduct collects evidence in a way that interferes with customs and social
expectations, revealing what a reasonable person might expect would remain
hidden, it violates a reasonable expectation of privacy.”
ii. “A reasonable expectation of privacy is a descriptive expectation based on norms
and prevailing social practices that others will not observe what the individual
seeks to protect as private. Whether an expectation of privacy is reasonable
depends on the expectations of a reasonable person.”
iii. E.g., Bond; Minnesota v. Olson; California v. Ciraolo.
1. But see Illinois v. Caballes (rejecting probabilistic model).
iv. Rejected in cases on misplaced confidences.
b. Private Facts Model
i. “The private facts model focuses on the information the government collects, and
considers whether that information is private and worthy of constitutional
protection. If the government obtains information that is particularly private,
then the acquisition of that information is a search; if the information collected is
not private or does not otherwise merit protection, then no search has occurred.
The key question becomes what information the government collected rather than
how it was obtained or whether the government's conduct was unexpected.”
ii. “A Fourth Amendment search occurs and a reasonable expectation of privacy is
therefore violated when the government obtains particularly private and personal
information deserving of privacy protection.”
iii. E.g., United States v. Jacobson; Dow Chemical Co. v. United States; United
States v. Karo.
1. But see Arizona v. Hicks (finding search when police discovered serial
number, which seemingly is a public fact); Caballes (using dog sniff to
find drugs is not a search although opening a package and finding the
same drugs would be a search).
iv. Rejected in cases on misplaced confidences.
c. Positive Law Model
i. “When courts apply the positive law model, they look at whether there is some
law that prohibits or restricts the government’s action (other than the Fourth
Amendment itself). If the government broke the law in order to obtain the
information it did, the government conduct violated a reasonable expectation of
privacy. This approach often focuses on whether the information collected was
legally available to the public. If a member of the public could have accessed the
17
information legally, then it does not violate a reasonable expectation of privacy
for the government to do the same. The positive law approach is descriptive, not
normative: it asks whether the government’s access to the suspect's information
was achieved legally based on preexisting legal doctrine.”
ii. “A reasonable expectation of privacy derives from values expressed and affirmed
by positive law, such that government action that violates the standards of
existing law triggers Fourth Amendment protection.”
iii. E.g., Rakas v. Illinois; Florida v. Riley; Dow Chemical Co. (dissent).
1. But see Oliver v. United States (finding no search despite trespass
violation); California v. Greenwood (finding no search despite violations
of state constitution).
d. Policy Model
i. “Under the policy model, the reasonable expectation of privacy inquiry poses a
policy question: should a particular set of police practices be regulated by the
warrant requirement or should those practices remain unregulated by the Fourth
Amendment? If the consequences of leaving conduct unregulated are
particularly troublesome to civil liberties, then that conduct violates a reasonable
expectation of privacy. On the other hand, if the practical consequences of
regulating such conduct unnecessarily restrict government investigations given
the gain to civil liberties protection, then any expectation of privacy is
constitutionally unreasonable. Whether an expectation of privacy is reasonable
hinges on a normative value judgment. Judges must consider the consequences
of regulating a particular type of government activity, weigh privacy and security
interests, and opt for the better rule.”
ii. “The ‘reasonable expectation of privacy’ test reflects a normative policy choice
between regulating government conduct and leaving such conduct unregulated.
Different opinions approach the policy question in different ways, but the basic
idea is that whether an expectation of privacy is reasonable depends on the
desirability of a legal rule holding it to be so.”
iii. Dominant Model – Usually plays a role explicitly or implicitly.
iv. E.g., Kyllo; Smith v. Maryland (dissent); Hudson v. Palmer (finding no
reasonable expectation of privacy inside a prison cell).
v. “Unlike the other three models, the policy model is never rejected in Supreme
Court opinions.”
e.
Micro-Scale
Macro-Scale
Descriptive
Positive Law
Probabilistic
Normative
Private Facts
Policy
i. Private Facts (Normative; Micro-Scale) – “It looks at the information obtained
in the precise case before the Court, and requires a normative assessment of the
‘privateness’ of the information.”
ii. Policy (Normative; Macro-Scale) – “It calls for a normative assessment of the
privacy stakes and competing law enforcement needs in a broader category of
cases, such as prison searches, use of sense-enhancing devices, or use of bugging
devices. What matters is the dynamics of a typical case in a generally defined
category, not those of the specific one before the court.”
iii. Positive Law (Descriptive; Micro-Scale) – “It asks whether the facts of that
particular case involve a government violation of a preexisting legal prohibition.”
iv. Probabilistic (Descriptive; Macro-Scale) – “It considers whether a person with
an accurate sense of social practices generally would expect privacy in the
exposed information. Put another way, the probabilistic model considers the
18
overall ex ante likelihood of government access to information resulting from a
wide range of possible practices, rather than the specific case before the court.”
f. Why can’t the Court settle on a single test? A: No one standard is able to distinguish
more invasive from less invasive police practices.
i. Policy model seems to be a one-size-fits-all rule and possibly the best solution,
but it offers no guidance to lower courts.
ii. The other three models draw the line in some cases but not in others. No model
is applicable to all cases.
g. Reasonable Expectation of Privacy Analysis
i. Determine that a reasonable expectation of privacy issue is under consideration.
ii. Identify the Supreme Court precedent with the most analogous facts and employ
the arguments from that case.
iii.  In a way, the law is not the reasonable expectation of privacy framework, but
the individual applications of that framework. Reasoning at a very general or
abstract level about a reasonable expectation of privacy will not be countenanced
by a court.
Seizures
1. Seizure of Property – “Some meaningful interference with an individual’s possessory interest in
[the individual’s] property.” United States v. Jacobsen (1984).
a. Seizure occurs when police take property, block a person from being able to control her
property in a meaningful way, or interfere with the path of property in transit.
i. Packages – Standard depends on the degree to which the path of delivery is
impeded. Holding up a package for a few hours probably is not a seizure;
holding it up for days probably is (because the package would have been
delivered by then).
b. Warrant usually required.
2. Brendlin v. California (2007) (Souter)
a. Rule: Car Passenger May Be Seized – “When a police officer makes a traffic stop, the
driver of the car is seized within the meaning of the Fourth Amendment. The same is
true of a passenger. A passenger is seized as well and so may challenge the
constitutionality of the stop.”
b. Seizure Standard – “A person is seized by the police and thus entitled to challenge the
government’s action under the Fourth Amendment when the officer, by means of
physical force or show of authority, terminates or restrains his freedom of movement
through means intentionally applied.”
i. Unintended Person May Be Seized – “An unintended person may be the object
of the detention, so long as the detention is willful and not merely the
consequence of an unknowing act.”
ii. Actual Submission Required – “A police officer may make a seizure by a show
of authority and without the use of physical force, but there is no seizure without
actual submission; otherwise, there is at most an attempted seizure, so far as
the Fourth Amendment is concerned.”
1. Submission Test – “What may amount to submission depends on what a
person was doing before the show of authority: a fleeing man is not
seized until he is physically overpowered, but one sitting in a chair may
submit to authority by not getting up to run away.”
iii. Seizure Test in Ambiguous Situations – “When the actions of the police do not
show an unambiguous intent to restrain or when an individual’s submission to a
show of governmental authority takes the form of passive acquiescence, there
19
needs to be some test for telling when a seizure occurs in response to authority,
and when it does not. The test is that a seizure occurs if in view of all of the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave. When a person has no desire to leave for reasons
unrelated to the police presence, the coercive effect of the encounter can be
measured better by asking whether a reasonable person would feel free to decline
the officers' requests or otherwise terminate the encounter.”
3. Arizona v. Hicks (1987) (Scalia)
a. Holding – Police copying serial numbers of stolen radio equipment is not a seizure.
b. “To be sure, that was the first step in a process by which respondent was eventually
deprived of the stereo equipment. In and of itself, however, it did not ‘meaningfully
interfere’ with respondent’s possessory interest in either the serial numbers or the
equipment, and therefore did not amount to a seizure.”
Probable Cause
1. Probable Cause Generally
a. Written into 4th Amendment in context of warrants.
b. Carrington – One of the judge’s objection to the warrant was that it was not based on
probable cause. Illustrates long historical pedigree.
c. PC Search & Arrest Standards
i. Search – Substantial probability that certain items are the fruits,
instrumentalities, or evidence of crime and that these items are presently to be
found at a certain place.
1. May be lacking if the time of the facts relied upon is unknown or highly
uncertain. Facts may have become “stale.”
2. Requires a sufficient connection between items and place to be searched.
3. Arrest warrant does not necessarily create PC to search arrestee’s
residence for evidence of the crime.
ii. Arrest – Substantial probability that a crime has been committed and that the
person to be arrested committed it.
d. 99% of the time, government may conduct a search or seizure if it possesses probable
cause. Probable cause makes the search or seizure reasonable in terms of the 4th
Amendment.
e. Probable indicates a certain degree of likelihood, but the degree of likelihood never has
been quantified. It is the cause that is probable, not the likelihood.
f. “Judgment sense” informs probable cause with regard to search warrants. Judgment
sense tells you where the line is.
2. Spinelli v. United States (1969) (Harlan) (INFORMATION FROM INFORMANT)
a. OVERTURNED BY Gates (1983).
b. Facts
i. Tracked by the FBI crossing the bridge from IL into MO everyday. Goes to the
apartment, which has two known phone numbers. Spinelli is known as a bookie.
ii. Key Fact – Informant said that Spinelli is taking bets with a phone number that
matches the phone number of the apartment.
iii. This information is put together into an affidavit for a search warrant.
c. Aguilar Two-Part Test
i. Underlying Circumstances – “First, the application for a search warrant must
set forth the ‘underlying circumstances’ necessary to enable the magistrate
independently to judge of the validity of the informant's information.”
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ii. Credible & Reliable – “Second, the affiant-officers must attempt to support their
claim that their informant is ‘credible’ or his information ‘reliable.’”
iii.  Court concludes that the Aguilar Test has not been satisfied. We know
nothing about the informant, including whether he is reliable. There are no facts
supporting the informant’s statements either.
d. Informant’s Unsupported Assertion
i. “A bald assertion of suspicion is entitled to no weight in appraising the
magistrate’s decision regarding the issuance of a search warrant.”
ii. Reliability – “In applying for a search warrant, if the informant comes by the
information indirectly, he must explain why his sources are reliable. In the
absence of a statement detailing the manner in which the information is gathered,
it is especially important that the tip describe the accused’s criminal activity in
sufficient detail that the magistrate may know that he is relying on something
more substantial than a casual rumor circulating in the underworld or an
accusation based merely on an individual's general reputation.”
e. Court found no PC to support the warrant.
f. White, Concurring
i. Look at all of the circumstances contributing to PC.
ii. Leading to Gates.
3. Illinois v. Gates (1983) (Rehnquist) (PROBABLE CAUSE)
a. Overturned Spinelli and Aguilar.
b. Totality of Circumstances/Fair Probability Test – “The task of the issuing magistrate
is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a ‘substantial basis for
concluding’ that probable cause existed.”
i. Foreshadowed by White, Concurring, in Spinelli.
ii. “Sufficient information” is required. Bare conclusions of others do not suffice.
iii. Actual Criminal Activity Not Required – “Probable cause requires only a
probability or substantial chance of criminal activity, not an actual showing of
such activity. By hypothesis, therefore, innocent behavior frequently will
provide the basis for a showing of probable cause.”
iv. Corroboration of Informants’ Statements
1. “Even in making a warrantless arrest an officer may rely upon
information received through an informant, rather than upon his direct
observations, so long as the informant’s statement is reasonably
corroborated by other matters within the officer's knowledge.”
2. “It is enough, for purposes of assessing probable cause, that
corroboration through other sources of information reduced the chances
of a reckless or prevaricating tale, thus providing a substantial basis for
crediting the hearsay.”
v. We think of PC in terms of competing narratives. At a certain point, the
likelihood that an alternative, innocent narrative can explain the observable facts
becomes so small that only the guilty narrative remains.
1. Gates says that we determine where this line resides on the basis of
common-sense, totality of the circumstances rationalizations.
vi. Statistics – Statistical percentages (e.g., “60% of dorm rooms contain
incriminating evidence”) never pass muster because they do not convey
individualized suspicion.
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c. Criticism of Spinelli/Aguilar – “The ‘two-pronged test’ directs analysis into two largely
independent channels—the informant’s ‘veracity’ or ‘reliability’ and his ‘basis of
knowledge.’ There are persuasive arguments against according these two elements such
independent status. Instead, they are better understood as relevant considerations in the
totality-of-the-circumstances analysis that traditionally has guided probable-cause
determinations: a deficiency in one may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some other indicia of
reliability.”
i. Too rigid.
ii. Two prongs should not have independent and necessary status.
1.  Allowing them to compensate for each other produces absurd result
that the unsupported assertion or belief of an honest person satisfies the
PC requirement. Police may know nothing about the informant, but they
do know that her information is generally accurate. Tip becomes selfverifying over time.
d. White, Concurring
i. Agreed that the warrant should have been upheld, but reached his conclusion in
accordance with the Aguilar-Spinelli framework. Though the tip alone did not
provide probable cause, defendants’ activities were not totally innocent, as the
Illinois Supreme Court characterized them. Nonetheless, whether defendants’
actions were suspicious or innocent was not the point. Rather, the proper focus
was whether the corroboration of defendants’ actions gave rise to an inference
that the informant was credible and that he obtained his information in a reliable
manner.
ii. Reluctant to approve any standard that did not expressly require, as a prerequisite
to issuance of a warrant, some showing of facts from which an inference might
be drawn that the informant was credible and that his information was obtained
in a reliable way.
e. Brennan, Dissenting
i. Joined Justice Stevens’ dissent, agreeing that the warrant was invalid even under
the “totality of the circumstances” test. Wrote separately to dissent from the
majority’s rejection of the Aguilar-Spinelli test.
f. Stevens, Dissenting
i. Argued that the warrant was invalid. Noted the discrepancies in the informant’s
predictions and the detective’s observations and explained why they were
significant.
4. Draper v. United States (1959) (CORROBORATION OF INFORMANT’S STATEMENT)
a. Cited favorably in Illinois v. Gates (1983).
b. Rule – Independent police verification of facts supplied by an informant can salvage an
otherwise inadequate showing of cause.
i. “With every other bit of [informant’s] information being thus personally verified,
[the police] had ‘reasonable grounds’ to believe that the remaining unverified bit
of [informant’s] information—that Draper would have the heroin with him—was
likewise true.”
c. Corroboration of Innocent or Non-Conspicuous Details – Courts are less likely to
credit an informant’s conclusions.
5. Massachusetts v. Upton (1984)
a. Applying Gates – “Examined in light of Gates, Lieutenant Beland’s affidavit provides a
substantial basis for the issuance of the warrant. No single piece of evidence in it is
conclusive. But the pieces fit neatly together and, so viewed, support the Magistrate’s
22
6.
7.
8.
9.
determination that there was ‘a fair probability that contraband or evidence of a crime’
would be found in Upton’s motor home.”
Wong Sun v. United States (1963) (WARRANTLESS ARRESTS & SEARCHES)
a. Rule – Police must have PC for warrantless arrests and searches.
United States v. Grubbs (2006) (Scalia) (ANTICIPATORY WARRANTS)
a. Anticipatory Warrants
i. “Anticipatory warrants are no different in principle from ordinary warrants.
They require the magistrate to determine (1) that it is now probable that (2)
contraband, evidence of a crime, or a fugitive will be on the described premises
(3) when the warrant is executed.”
ii. Two Requirements – “For a conditioned anticipatory warrant to comply with
the Fourth Amendment’s requirement of probable cause, two prerequisites of
probability must be satisfied. [1] It must be true not only that if the triggering
condition occurs there is a fair probability that contraband or evidence of a crime
will be found in a particular place, but also that there is probable cause to believe
the triggering condition will occur. [2] The supporting affidavit must provide the
magistrate with sufficient information to evaluate both aspects of the probablecause determination.”
Franks v. Delaware (1978) (Blackmun)
a. False Statement in Affidavit/Vitiating PC – “Where a defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by an affiant in a search warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the 4th
Amendment requires that a hearing be held at the defendant’s request. In the event that at
the hearing the allegation of perjury or reckless disregard is established by the defendant
by a preponderance of the evidence, and, with the affidavit’s false material set to one
side, the affidavit’s remaining content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the search excluded to the same extent as
if probable cause was lacking on the face of the affidavit.”
Maryland v. Pringle (2003) (Rehnquist)
a. Facts – Officer stopped a car at about 3:00 AM for speeding, searched the vehicle with
the driver’s consent, and found $763 of rolled-up money in the glove compartment and
five glassine baggies of cocaine behind the upright back-seat armrest. The officer then
told the three occupants (driver/owner Partlow, front-seat passenger Pringle, and backseat passenger Smith) that if no one admitted ownership of the drugs he would arrest
them all, which he did when the “men offered no information regarding the ownership of
the drugs or money.” Pringle was convicted on the basis of his later admission that the
cocaine was his.
i. All of the facts of this case (3:00 AM; passengers in a car, as opposed to a bus)
go to minimize the likelihood of alternative, innocent narratives.
b. Holding – Confession was not the fruit of an unlawful arrest because Pringle had been
arrested on PC.
c. Probable Cause Standard
i. “Incapable of precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the circumstances.”
ii. Particularized Belief of Guilt – “The substance of all the definitions of probable
cause is a reasonable ground for belief of guilt, and the belief of guilt must be
particularized with respect to the person to be searched or seized.”
iii. Proximity Alone Is Insufficient – “A person’s mere propinquity to others
independently suspected of criminal activity does not, without more, give rise to
probable cause to search that person. Where the standard is probable cause, a
23
search or seizure of a person must be supported by probable cause particularized
with respect to that person. This requirement cannot be undercut or avoided by
simply pointing to the fact that coincidentally there exists probable cause to
search or seize another or to search the premises where the person may happen to
be.”
d. Lesson – Look at all of the facts and ask which narrative(s) could explain these facts. PC
is a fact-specific inquiry.
Search Warrants & Plain View
Issuance of Warrants
1. Warrant Requirements
a. Neutral and detached magistrate;
b. PC supported by oath or affirmation; and
c. Describe with particularity the place to be searched or the items to be seized.
2. 4th Amendment – “ . . . no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.”
a. Two 4th Amendment Requirements
i. Probable Cause
ii. Warrant must specifically state place to be searched and persons or things to be
seized.
1. Place to Be Searched – Warrant must state specifically, including an
address and a description of the location. Photos sometimes are attached.
2. Things to Be Seized – Ideally, government will know what it is looking
for. However, most search warrants list many items and “related” items,
thereby expanding the scope of the search.
a. Items to be seized often are described in an attachment. Onepage warrant form is usually too short to include all descriptions.
b. Two Kinds of Warrants
i. Search
ii. Arrest
3. Procedure for Obtaining a Warrant
a. Government fills out the warrant form, except for the judge’s signature.
b. If a judge believes that a warrant should be issued, she will swear an oath to it and sign it.
c. The warrant then must be executed within a specified time frame.
4. Neutral & Detached Magistrate
a. Shadwick v. City of Tampa (1972)
i. Two Tests for Magistrates – “[1] He must be neutral and detached, and [2] he
must be capable of determining whether probable cause exists for the requested
arrest or search.”
1. Need not necessarily be a lawyer or judge.
ii. Clerks – Municipal court clerks can constitutionally issue arrest warrants for
breach of municipal ordinances.
1. Clerk meets two tests w/r/t breach of municipal ordinances.
b. United States v. Davis (S.D. Ill. 1972)
i. Rule – If one magistrate denies a warrant, you cannot obtain the same warrant
from another magistrate.
5. Particular Description of Place to Be Searched
a. Steele v. United States (1925)
24
i. Rule – “A description of a place to be searched is sufficient if it is such that the
officer with a search warrant can with reasonable effort ascertain and identify the
place intended.”
b. State v. Blackburn (Or. 1973)
i. Rule – Warrant must describe particular unit to be searched in a multi-occupancy
structure.
1. Exception – Warrant is not defective for failure to specify a particular
unit if (1) the building looks like a single-occupancy structure and
(2) neither the affiant nor the investigating officer knew or had reason to
know otherwise until execution of the warrant was underway.
c. Maryland v. Garrison (1987) (Stevens)
i. Facts – Police obtained and executed a search warrant for “the premises known
as 2036 Park Avenue third floor apartment,” only to discover thereafter that the
third floor was divided into two apartments and that the contraband they had
discovered was in the apartment of a person not theretofore suspected.
ii. Valid – Warrant itself was valid, though “we now know that the description of
that place was broader than appropriate.”
1. Execution Was Valid – Execution of the warrant was lawful, as “the
officers’ failure to realize the overbreadth of the warrant was objectively
understandable and reasonable.”
iii. Circumstances for Invalidity – Warrant is invalid only if when obtained “the
officers had known, or even if they should have known, that there were two
separate dwelling units on the third floor.”
6. Particular Description of Things to Be Seized
a. 4th Amendment – No warrants shall issue except those “particularly describing the
. . . things to be seized.”
b. See pp. 309–10 for general principles.
7. Particular Description/Reliance on Affidavit
a. Groh v. Ramirez (2004) (Stevens) (AFFIDAVIT SAVES DEFECTIVE WARRANT)
i. Rule – A defective description in the warrant sometimes may be saved by an
adequate description in the affidavit. Permissible only “if the warrant uses
appropriate words of incorporation, and if the supporting document accompanies
the warrant.”
1. Justification – Even if the affiant is the executing officer and acted on the
basis of the description in the affidavit, there would otherwise be lacking
sufficient notice when a copy of the warrant was left with the occupant at
the conclusion of the search warrant execution.
Execution of Warrants
1. Execution of Warrants Generally
a. Violent; time-consuming. If a search warrant specifies documents, this could entail quite
extensive search of a place.
2. Timing of Execution
a. General Rule – 10 days, AS LONG AS PC REMAINS VALID.
i. PC may go stale.
b. Daytime – May be served only in daytime unless warrants expressly states to the contrary
(many jurisdictions).
i. “Daytime” is defined very broadly from 6:00 AM to 10:00 PM.
ii. Allows people to have a better idea that it is the police knocking at their door and
not, e.g., a burglar. (Knock-and-announce rule does this too.)
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iii. Special Requirements for Nighttime Warrant – Concurrence of two
magistrates; showing that property is definitely in place to be searched; showing
need for prompt action.
1. Gooding v. Unites States (1974) (Marshall) – Nighttime searches are
more intrusive and must comply with stricter PC standards.
c. United States v. Villegas (2d Cir. 1990) – Two limitations on “SNEAK-AND-PEAK”
search warrants; which allow police to enter, search, and leave without giving any notice
of search:
i. “The court should not allow the officers to dispense with advance or
contemporaneous notice of the search unless they have made a showing of
reasonable necessity for the delay.”
ii. “If a delay in notice is to be allowed, the court should nonetheless require the
officers to give the appropriate person notice of the search within a reasonable
time after the covert entry.”
3. Gaining Entry
a. Richards v. Wisconsin (1997) (Stevens) (NO-KNOCK ENTRY)
i. No-Knock Entry Test – “In order to justify a ‘no-knock’ entry, the police must
have a reasonable suspicion that knocking and announcing their presence, under
the particular circumstances, would be dangerous or futile, or that it would inhibit
the effective investigation of the crime by, for example, allowing the destruction
of evidence. This showing is not high, but the police should be required to make
it whenever the reasonableness of a ‘no-knock’ entry is challenged.”
b. United States v. Banks (2003) (Souter) (WAITING AFTER ANNOUNCEMENT)
i. How long must police wait?
1. Rule – Issue is whether occupant’s “failure to admit [police] fairly
suggested a refusal to let them in,” which means that the question would
be whether it reasonably appeared to the police that “an occupant has had
time to get to the door.”
a. Determined by facts known to police at the time.
b. Would not matter whether occupant was in the shower if police
did not know this.
2. In a case where there is “no reason to suspect an immediate risk of
frustration or futility in waiting at all,” it is important “to give a person
inside the chance to save his door,” meaning “the reasonable wait time
may well be longer when police make a forced entry, since they ought to
be more certain the occupant has had time to answer the door.”
ii. Do exigent circumstances justify a shorter waiting period?
1. Rule – If (1) police claim exigent circumstances and (2) this claim is
deemed legitimate under the same standards in Richards, then the
“crucial fact” is “not time to reach the door but the particular exigency
claimed.”
a. 15-20 seconds is long enough when police suspect that occupant
may be disposing of drugs.
c. No exclusion remedy for knock-and-announce violations. Hudson.
4. Search of Persons on Premises
a. Ybarra v. Illinois (1979) (Stewart)
i. Rule – Police may lawfully search the person on the premises only upon PC that
he has the named objects on his person.
ii. Proximity Alone Is Insufficient for PC – “A person’s mere propinquity to
others independently suspected of criminal activity does not, without more, give
rise to probable cause to search that person.”
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iii. Rehnquist, Dissenting
1. Police officer, acting under the authority of a valid search warrant, did
not exceed the reasonable scope of that warrant in locating and retrieving
the heroin secreted in the customer’s pocket.
2. Magistrate’s determination that a search is necessary sufficiently guards
against arbitrary action. Individualized suspicion is not required.
3. Executing a search warrant is inherently more perilous than Terry stops.
b. Los Angeles County v. Rettele (2007)
i. Facts – Police executing a search warrant in connection with a fraud and identitytheft crime ring involving four black suspects (one of whom was known to own a
handgun) discovered a white couple in bed and, despite their objections that they
were unclothed, required them to get out of bed and stand naked for a minute or
two before dressing.
ii. Holding – Search was reasonable.
1. Blankets and bedding may conceal a weapon.
a.  Look for reasonable suspicion that the person is armed and
dangerous. This will justify the search of the person.
2. Sufficient that the couple might possibly be connected with the crime:
“Just as people of different races live and work together, so too might
they engage in joint criminal activity.”
5. Detention of Persons on Premises
a. Michigan v. Summers (1981) (Stevens)
i. Detention for Less Than PC – “Some seizures constitute such limited intrusions
on the personal security of those detained and are justified by such substantial
law enforcement interests that they may be made on less than probable cause, so
long as police have an articulable basis for suspecting criminal activity.”
1. PC to search the home provides an adequate basis for suspecting criminal
activity on the part of its residents, and that justifies the detention.
2. Rule for Contraband Searches – Detention of persons at the scene of a
search warrant execution is permissible incident to that execution if (1)
those persons are “occupants” (apparently meaning “residents”), and (2)
the warrant authorizes a “search for contraband” rather than a “search for
evidence.”
ii. Government Interests – Detaining persons incident to the execution of a search
warrant is “substantially less intrusive” than a full-fledged arrest and serves three
important government interests: (i) “the legitimate law enforcement interest in
preventing flight in the event that incriminating evidence is found”; (ii)
“minimizing the risk of harm to the officers”; and (iii) “the orderly completion of
the search,” which “may be facilitated if the occupants of the premises are
present.”
iii. Stewart, Brennan & Marshall, Dissenting
1. Government interest independent of criminal investigation is required.
2. Detention can be quite extensive.
b. Muehler v. Mena (2005) (Rehnquist)
i. Use of Handcuffs – Use of handcuffs may be reasonable, despite elevated
intrusiveness, because the government interests outweigh the marginal intrusion,
for in inherently dangerous situations the use of handcuffs minimizes the risk to
both officers and occupants. All the more reasonable when there is a need to
detain multiple detainees.
ii. Kennedy, Concurring – Remove the handcuffs if they are painful or unnecessary.
6. Intensity & Duration of Search
27
a. May look only where items described in search warrant may be concealed.
b. Once the described items have been found, search must cease.
7. Seizure of Items Not Named in Warrant
a. Horton v. California (1990) (Stevens) (PLAIN VIEW)
i. Plain View Doctrine – “The plain view doctrine is often considered an exception
to the general rule that warrantless searches are presumptively unreasonable, but
this characterization overlooks the important difference between searches and
seizures. If an article is already in plain view, neither its observation nor its
seizure would involve any invasion of privacy. A seizure of the article, however,
would obviously invade the owner’s possessory interest. If plain view justifies
an exception from an otherwise applicable warrant requirement, therefore, it must
be an exception that is addressed to the concerns that are implicated by seizures
rather than by searches.”
1. Designed to allow police to proceed with a search when a judge of
course would allow it.
ii. Requirements for Warrantless Seizure of Incriminating Evidence
1. Officer did not violate the 4th Amendment in arriving at the place from
which the evidence could be plainly viewed.
2. Not only must the item be in plain view, but its incriminating character
must also be immediately apparent.
a. Why immediately apparent? A: It is a general warrant concern.
Police may not know what is incriminating, and if its
incriminating nature need not be immediately apparent, police
would be able to seize anything.
3. Not only must the officer be lawfully located in a place from which the
object can be plainly seen, but he or she must also have a lawful right of
access to the object itself.
a. Item is observed while the officer is confining her activities to
the permissible scope of the lawful search.
iii. Rejection of Inadvertence Requirement – Two Flaws
1. Subjective intent of officer is irrelevant. – “The fact that an officer is
interested in an item of evidence and fully expects to find it in the course
of a search should not invalidate its seizure if the search is confined in
area and duration by the terms of a warrant or a valid exception to the
warrant requirement.”
2. No Additional 4th Amendment Protection – “The suggestion that the
inadvertence requirement is necessary to prevent the police from
conducting general searches, or from converting specific warrants into
general warrants, is not persuasive because that interest is already served
by the requirements that no warrant issue unless it ‘particularly describes
the place to be searched and the persons or things to be seized.’”
a. Particularity requirement is supposed to preclude pretext
searches, but the Plain View Doctrine allows them to happen.
8. Presence of Third Parties
a. Wilson v. Layne (1999)
i. Search Warrant – “Where the police enter a home under the authority of a
warrant to search for stolen property, the presence of third parties for the purpose
of identifying the stolen property has long been approved by this Court and our
common-law tradition.”
1. Presence of third parties is constitutionally permitted.
28
ii. Arrest Warrant – 4th Amendment was thus violated when police entering a
private dwelling to execute an arrest warrant allowed members of the
news media to accompany them.
1. Presence of third parties is not constitutionally permitted.
9. Delivery of Warrant
a. General Rule – Officer executing search must deliver a copy of warrant at place
searched.
b. Groh v. Ramirez – 4th Amendment is violated when police delivered at the conclusion of
the search a copy of a warrant that did not specify the things to be seized.
10. Remedies for Defective Warrants – Governed by good-faith exception of United States v. Leon.
Arrests & Searches of Persons
1. Searches of Persons Generally
a. Invasive Searches of Persons Causing Medical Risks – Government cannot search or
seize even with a warrant.
b. Most Common Categories: People, houses, and cars.
i.  Think: which doctrinal category am I in right now? The law tends to be
tailored specifically to these categories.
c. Two Questions
i. When can the police arrest individuals? (Search question follows from this
question.)
ii. When can the police search individuals?
2. United States v. Watson (1976) (White)
a. Federal Law Authorizing Warrantless Arrests – “Section 3061 expressly empowers
the Board of Governors of the Postal Service to authorize Postal Service officers and
employees performing duties related to the inspection of postal matters to make arrests
without warrant for felonies cognizable under the laws of the United States if they have
reasonable grounds to believe that the person to be arrested has committed or is
committing such a felony.”
i. Deference to Congress – “Because there is a strong presumption of
constitutionality due to an Act of Congress, especially when it turns on what is
‘reasonable,’ obviously the Court should be reluctant to decide that a search thus
authorized by Congress was unreasonable and that the Act was therefore
unconstitutional.”
b. Warrantless Arrests
i. “A police officer may arrest without warrant one believed by the officer upon
reasonable cause to have been guilty of a felony.”
ii. “A peace officer [is] permitted to arrest without a warrant [1] for a misdemeanor
or felony committed in his presence as well as [2] for a felony not committed in
his presence if there was reasonable ground for making the arrest.”
c. Powell, Concurring
i. Notwithstanding the different rules applying to warrantless searches, historical
and law-enforcement policy reasons justified sustaining a warrantless felony
arrest in a public place when made on probable cause, even though the officer
had adequate opportunity to obtain a warrant.
d. Marshall & Brennan, Dissenting
i. The baseline should be that a warrant is required for felony arrests absent exigent
circumstances.
e. Constitutional Arguments – Where the rule originates.
29
i. Majority – Relies primarily on history and well-established common law rules.
Almost is an originalist opinion.
ii. Dissent – Accepts historical practice as a starting point but believes that the
Court must move past it.
1. Marshall’s approach is much more policy-based.
iii. Other Approaches
1. Originalism
2. Values Originalism – Taking the original intent of the Framers and
determining what the application of that intent would be today.
(Sometimes, this is not much different than living constitutionalism.)
3. Policy – What would a sensible rule to apply look like?
3. Devenpeck v. Alford (2004) (Scalia)
a. Rule – Arrest for one reason will not be invalidated because police actually had PC for a
different offense.
4. Atwater v. City of Lago Vista (2001) (Souter)
a. Facts – Concerned a § 1983 action brought by a woman who had been subjected to a
custodial arrest, for misdemeanor seat belt violations punishable only by a $50
fine, pursuant to a statute allowing the officer total discretion to opt for either custodial
arrest or issuance of a citation.
b. Court rejected argument that warrantless misdemeanor arrests are only permissible for
BREACHES OF THE PEACE. Rejected plaintiff’s argument that the 4th Amendment
reasonableness requirement mandated “a modern arrest rule . . . forbidding custodial
arrest, even upon probable cause, when conviction could not ultimately carry any jail
time and when the government shows no compelling need for immediate detention.”
i. Historical argument fails.
1. Divergent conclusions w/r/t breach-of-the-peace requirement.
2. History “is of two centuries of uninterrupted (and largely unchallenged)
state and federal practice permitting warrantless arrests for
misdemeanors not amounting to or involving breach of the peace.”
c. Rule – 4th Amendment held not to forbid warrantless arrest for minor criminal offense,
e.g., misdemeanor seatbelt violation punishable only by fine, where arrest is supported by
PC.
i. Government can make an arrest for any crime, no matter how minor.
ii. Government can make an arrest even if arrest is not permitted by state law.
[Later precedent.]
d. Wanted bright-line, “readily administrable” rule.
i. “A responsible 4th Amendment balance is not well served by standards requiring
sensitive, case-by-case determinations of government need, lest every
discretionary judgment in the field be converted into an occasion for
constitutional review.”
1. Court wants to avoid flood of litigation.
ii. Distinction between jail-able and fine-only offenses is not administrable in the
field.
iii. Police would be confounded by need to determine the existence of special
circumstances justifying a taking of custody.
e. Existing Protections
i. Post-arrest PC determination within 48 hours. Gerstein.
ii. States have developed “more restrictive safeguards through statutes limiting
warrantless arrests for minor offenses.”
iii. Political Check – Public backlash against arrests for minor offenses, e.g., DC
French Fry Case.
30
O’Connor, Dissenting
i. Where there is probable cause to believe that a fine-only offense has been
committed, a police officer should issue a citation unless the officer is able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the additional intrusion of a full
custodial arrest.
1. Custodial arrest is a severe intrusion.
2. Liberty and privacy interests trump clarity interests.
3. Court gives police unfettered discretion without making them account for
their arrest determinations. (Concerned with racial profiling.)
ii. The record in the case at hand made it clear that the driver’s arrest was
constitutionally unreasonable.
5. In-Presence Requirement
a. People v. Burdo (Mich. App. 1974)
i. Police could not conduct warrantless misdemeanor arrest of obviously drunken
individual at scene of auto accident because “in presence” requirement had not
been satisfied.
b. Some states use felony-arrest rule for all offenses. Atwater (“We need not, and thus do
not, speculate whether the Fourth Amendment entails an ‘in the presence’ requirement
for purposes of misdemeanor arrests.”)
6. Tennessee v. Garner (1985) (White) (REASONABLENESS OF SEIZURE)
a. No Deadly Force for Fleeing Felony Suspects – “The use of deadly force to prevent the
escape of all felony suspects, whatever the circumstances, is constitutionally
unreasonable. It is not better that all felony suspects die than that they escape. Where the
suspect poses no immediate threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the use of deadly force to do so.”
b. Deadly Force May Be Used – “Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force. Thus, if the
suspect threatens the officer with a weapon or there is probable cause to believe that he
has committed a crime involving the infliction or threatened infliction of serious physical
harm, deadly force may be used if necessary to prevent escape, and if, where feasible,
some warning has been given.”
c. O’Connor, Dissenting
i. The use of deadly force as a last resort to prevent the escape of a suspect from the
scene of a nighttime burglary does not violate the Fourth Amendment.
d. Graham v. Connor (1989) Excessive Force Test – The Fourth Amendment
reasonableness standard, the Court later elaborated, (1) applies to “all claims that law
enforcement officers have used excessive force—deadly or not—in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen”; (2) “requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight”; (3) “must embody allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation”; and (4)
asks “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.”
7. Scott v. Harris (2007) (Scalia) (REASONABLENESS OF SEIZURE)
a. Facts – A deputy signaled Harris to stop for traveling 73 m.p.h. in a 55 m.p.h. zone, but
Harris sped away at speeds exceeding 85 m.p.h.; other officers joined the chase, and six
f.
31
minutes and 10 miles later deputy Scott applied his push bumper to the rear of the
vehicle, causing it to crash and rendering Harris a quadriplegic.
b. Rule – “A police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth Amendment, even
when it places the fleeing motorist at risk of serious injury or death.”
c. Holding – Use of force was REASONABLE. Court emphasized:
i. That Harris “posed an actual and imminent threat to the lives of any pedestrians
who might have been present, to other civilian motorists, and to the officers
involved in the chase”;
ii. That “Scott’s actions posed a high likelihood of serious injury or death to
respondent”; and
iii. That in “weighing the perhaps lesser probability of injuring or killing numerous
bystanders against the perhaps larger probability of injuring or killing a single
person,” it is “appropriate . . . to take into account not only the number of lives at
risk but also their relative culpability,” particularly the fact that it was Harris
“who intentionally placed himself and the public in danger by unlawfully
engaging in the reckless, high-speed flight that ultimately produced the choice
between two evils that Scott confronted.”
d. Rejected argument that public could have been protected by police ceasing chase.
i. No way to signal to Harris that chase had ceased.
ii. “We are loath to lay down a rule requiring the police to allow fleeing suspects to
get away whenever they drive so recklessly that they put other people's lives in
danger.”
e. Stevens, Dissenting
i. Majority exaggerated the risks presented by Harris and minimized the benefits
from abandoning the chase.
8. Gerstein v. Pugh (1975) (Powell) (POST-ARREST PC REQUIRED)
a. Officer’s PC Justifies Only Brief Detention – “Officer’s probable cause assessment
justifies only the arrest and ‘a brief period of detention to take the administrative steps
incident to arrest.’”
i. At that point, “the reasons that justify dispensing with the magistrate’s neutral
judgment evaporate,” as there is “no longer any danger that the suspect will
escape or commit further crimes while the police submit their evidence to a
magistrate.”
b. Post-Arrest PC Required – “Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint on liberty following arrest.”
i. Determination may be made “without an adversary hearing” because the standard
“is the same as that for arrest,” which “traditionally has been decided by a
magistrate in a nonadversary proceeding on hearsay and written testimony.”
1.  Very similar standard as for arrest warrant.
ii. “There is no single preferred pretrial procedure, and the nature of the probable
cause determination usually will be shaped to accord with a state’s pretrial
procedure viewed as a whole. Whatever procedure a state may adopt, it must
provide a fair and reliable determination of probable cause as a condition for any
significant pretrial restraint of liberty, and this determination must be made by a
judicial officer either before or promptly after arrest.”
1. States can adopt own procedures.
2. Post-arrest PC determination must be made promptly.
c. Note that this case was decided one year before Watson. Watson was not worried about
there being a warrant before an arrest was made because there was required to be a PC
determination in front of a judge “promptly” after the arrest was made.
32
9. County of Riverside v. McLaughlin (1991) (O’Connor) (POST-ARREST PC WITHIN 48 HRS)
a. PC Within 48 Hours  Presumptively Reasonable – PC determination within 48
hours of arrest is presumptively reasonable, though a particular defendant may show such
a delay was unreasonable because “for the purpose of gathering additional evidence to
justify the arrest, a delay motivated by ill will against the arrested individual, or delay for
delay's sake.”
b. PC Outside 48 Hours  Presumptively Unreasonable – A later PC determination is
presumptively unreasonable, meaning “the burden shifts to the government to
demonstrate the existence of a bona fide emergency or other extraordinary
circumstance” (i.e., something more than an intervening weekend or a desire to
consolidate the probable cause determination with other pretrial proceedings).
10. United States v. Robinson (1973) (Rehnquist) (SEARCH INCIDENT TO ARREST)
a. Facts – Where heroin had been found in a cigarette package in defendant’s pocket
following his arrest for driving after revocation of his license, the court of appeals held
the search to be unreasonable because there was no evidence to search for, given the
nature of the offense, and because the officer’s interest in self-protection could have been
met by only a frisk of the arrestee.
b. Holding – Search was reasonable.
c. Search Incident to Lawful Custodial Arrest (PC) Requires No Additional Basis – “A
custodial arrest of a suspect based on probable cause is a reasonable intrusion under the
4th Amendment; that intrusion being lawful, a search incident to the arrest requires no
additional justification. It is the fact of the lawful arrest, which establishes the authority
to search, and we hold that in the case of a lawful custodial arrest a full search of the
person is not only an exception to the warrant requirement of the 4th Amendment, but is
also a reasonable search under that amendment.”
i. (1) Exception to 4th Amendment and (2) reasonable search.
ii. History – “Original understanding” of the Fourth Amendment established that the
“general authority” to search a person incident to arrest is “unqualified.”
iii. A few exceptions for, e.g., body-cavity searches.
iv. Lower-court disagreement about whether this includes searches of cell phones.
(See Supplement 68.)
d. No Judicial Review of Officer’s Decision to Search Incident to Arrest – “A police
officer’s determination as to how and where to search the person of a suspect whom he
has arrested is necessarily a quick ad hoc judgment which the 4th Amendment does not
require to be broken down in each instance into an analysis of each step in the search.
The authority to search the person incident to a lawful custodial arrest, while based upon
the need to disarm and to discover evidence, does not depend on what a court may later
decide was the probability in a particular arrest situation that weapons or evidence would
in fact be found upon the person of the suspect.”
i. Court wants to establish a bright-line, administrable rule.
ii. Wants to preclude constant litigation about whether there was reason to search
incident to arrest.
iii. Factors Supporting Bright-Line Rule:
1. Search incident to arrest is the most common variety of police search
practice and occurs under an infinite variety of circumstances;
2. Though the police would have already determined there was probable
cause to arrest, it does not necessarily follow that there is also probable
cause the arrestee presently has evidence of that crime with him
or presently is armed, and the latter are much more complex and difficult
determinations;
33
3. The decision to search an arrestee’s person cannot be made with the
degree of forethought and reflection possible for most other search
decisions, as the circumstances arise from the arrest itself, which is often
unanticipated, and the fact of arrest produces an immediate need to
search if the self-protective and evidence-saving functions are to be
realized; and
4. Search of a person is more than a “petty indignity,” but is nonetheless a
relatively minor intrusion upon a person who, by hypothesis, has already
been subjected to the more serious step of arrest, the “initial stage of a
criminal prosecution [which] is inevitably accompanied by future
interference with the individual's freedom of movement.”
e. Power of Police to Search Incident to Arrest
i. For what should the police have the authority to search an individual?
1. Weapons/things related to the officer’s or others’ safety (e.g., knives,
pins, needles, razor blades, etc.).
2. Evidence of the crime that is the subject of the arrest.
3. Evidence of other crimes. This ends up meaning (99% of the time) that
police arrest an individual for a non-drug crime and then find evidence of
drugs.
ii. Should the police power to search an arrestee be limited?
1. Pretext – Police are not required to tell an individual the crime for which
they are arresting an individual. Police could think that they have PC to
arrest an individual for one crime, but actually have PC to arrest an
individual for another crime.
2. Privacy Issues – Arrestees may have private items on them (e.g., medical
records) and not want the police to search these items.
iii. Police cannot search incident to arrest if officer has no intention of arresting the
individual. Knowles v. Iowa (1998).
iv. Power to search incident to arrest can extend long after the arrest. United States
v. Edwards (1974).
v. Search incident to arrest power may occur before the arrest occurs as long as the
arrest is imminent. Rawlings v. Kentucky (1980).
f. Marshall, Douglas & Brennan, Dissenting
i. Whether a search incident to arrest is permissible should be adjudicated on a
case-by-case basis.
ii. Factors in determining whether a search incident to arrest is permissible: whether
weapons may be present.
g. Gustafson v. Florida (1973) – Companion case.
11. Virginia v. Moore (2008) (Scalia)
a. Rule – Police officers held not to violate the Fourth Amendment by (1) making arrest
based on probable cause, but prohibited by state law; or (2) performing search incident to
that arrest.
i. Rejected the notion “that the Fourth Amendment was intended to incorporate
statutes” limiting police authority to arrest.
ii. Uncertainty – 4th Amendment protection could vary from state to state.
12. Material Witnesses
a. Bacon v. United States (9th Cir. 1971) (ARREST WARRANT FOR MATERIAL
WITNESS)
i. Rule – Arrest warrant for material witness must be based upon PC, which is
tested by two criteria:
1. The testimony of a person is material; and
34
a. May be satisfied by “a mere statement by a responsible official,
such as the United States attorney.” See United States v. Oliver
(7th Cir. 1982) (“Requiring a materiality representation by a
responsible official of the United States attorney’s office strikes
a proper and adequate balance between protecting the secrecy of
the grand jury’s investigation and subjecting an individual to an
unjustified arrest.”).
b. FBI agent not present in grand jury investigation, but who works
closely with a prosecutor in a grand jury investigation, may
satisfy “personal knowledge” requirement. United States v.
Awadallah (2d Cir. 2003).
2. It may become impracticable to secure his presence by subpoena.
b. Ashcroft v. al-Kidd (2011) (Scalia)
i. Facts – Concerned a Bivens action brought by al-Kidd alleging his Fourth
Amendment rights were violated by a pretextual detention policy whereby, after
9/11, then Attorney General Ashcroft authorized federal officials to use the
federal material witness law to detain terrorist suspects.
ii. Qualified Immunity for A.G. – Ashcroft was entitled to qualified immunity
because the purported right to nonpretextual application of the statute was not
“clearly established” at the time of the challenged conduct.
iii. 4th Amendment Claim – Characterizing the case as one involving “a validly
obtained warrant” which was “based on individualized suspicion” (purportedly
conceded by al-Kidd), it was thus deemed to be outside the “two limited
exception[s]” to Whren, i.e., “special-needs and administrative-search cases.”
That is, “subjective intent” can come into play only in the case of warrantless
action not based upon individualized suspicion.
13. Whren v. United States (1996) (Scalia) (PRETEXTUAL TRAFFIC STOPS)
a. Facts – Vice squad (plain clothes; unmarked car) officers patrolling a “high drug area”
became suspicious of the occupants of a truck and then stopped the truck for minor traffic
violations, resulting in the observation of cocaine in the vehicle.
b. Petitioners’ Argument – PC for traffic code violation should not suffice for traffic stop
because total compliance with every minute regulation is nearly impossible. Police will
“use traffic stops as a means of investigating other law violations, as to which no
probable cause or even articulable suspicion exists.”
i. Court rejects.
c. Rule – “As a general matter, the decision to stop an automobile is reasonable where the
police have probable cause to believe that a traffic violation has occurred.”
i. Existence of PC settles the issue of reasonableness.
ii. Rejected Balancing of Interests – True, some of the Court’s prior cases
ascertained reasonableness by resort to a balancing analysis, but this was done as
to Fourth Amendment activity “unusually harmful to an individual’s privacy or
even physical interests.” Violation of the police regulation in the instant case was
not “such an extreme practice, and so is governed by the usual rule that probable
cause to believe the law has been broken ‘outbalances’ private interest in
avoiding police contact.”
d. Officer’s Subjective Intent Is Irrelevant
i.  But see Ashcroft v. al-Kidd (above).
ii. Reasons:
1. Subjective intent of an officer is easily reconstruct-able after the fact.
This is why the Court held that it should not be considered in the 4th
35
14.
15.
16.
17.
Amendment inquiry. The justices do not trust officers to tell the truth,
even under oath.
2. Judges are reluctant to say in their opinions that officers lied. Therefore,
officers’ subjective intent becomes largely irrelevant to the legal
analysis.
iii. “The fact that the officer does not have the state of mind which is hypothecated
by the reasons which provide the legal justification for the officer’s action does
not invalidate the action taken as long as the circumstances, viewed objectively,
justify that action.”
iv. “The constitutional reasonableness of traffic stops does not depend on the actual
motivations of the individual officers involved. . . . Subjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis.”
v. Equal Protection Clause for Intentionally Discriminatory Actions – “The
Constitution prohibits selective enforcement of the law based on considerations
such as race. But the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause, not the 4th
Amendment.”
e. Contrast United States v. Botero-Ospina (10th Cir. 1995) (Seymour, C.J., dissenting).
i. “The Supreme Court recognized in Terry that the harassment of minority groups
by certain elements of the police population does occur, and that ‘the degree of
community resentment aroused by particular practices is clearly relevant to an
assessment of the quality of the intrusion upon reasonable expectations of
personal security caused by those practices.’”
ii. “The Supreme Court held in Terry that to justify a particular intrusion, a ‘police
officer must be able to point to specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant that
intrusion.’”
iii. “Anything less [than the reasonable officer standard] would invite intrusions
upon constitutionally guaranteed rights based on nothing more substantial than
inarticulate hunches, a result this Court has consistently refused to sanction.”
Vehicle Stops
a. Rules
i. Stop – Whren.
ii. Arrest – Atwater; Watson.
iii. Search Incident to Arrest – Robinson.
b. These cases give police a tremendous amount of power. 4th Amendment effectively does
not serve as a check on whether police’s actions were conducted in good faith.
i. Only Checks:
1. Publicity repercussions that follow from arrests for very minor offenses,
e.g., DC French Fry Case.
2. Resources check.
c. These cases facilitate targeted arrests for minor traffic violations in “high drug areas.”
Arkansas v. Sullivan (2001)
a. Rule - Although Whren involved a traffic stop rather than a custodial arrest, its reasoning
appeared equally applicable to the latter form of seizure as well.
Two Bases for Full Searches of Arrestees at Detention Centers:
a. Delayed Robinson searches incident to arrest; and
i. No further PC is needed.
b. Inventory incident to booking to safeguard the property of the accused and to ensure that
weapons and contraband are not introduced into the jail.
United States v. Edwards (1974) (White) (WARRANTLESS POST-ARREST SEARCH)
36
18.
19.
20.
21.
a. Warrantless Post-Arrest Searches – “Once the accused is lawfully arrested and is in
custody, the effects in his possession at the place of detention that were subject to search
at the time and place of his arrest may lawfully be searched and seized without a warrant
even though a substantial period of time has elapsed between the arrest and subsequent
administrative processing and the taking of the property for use as evidence. This is true
where the clothing or effects are immediately seized upon arrival at the jail, held under
the defendant’s name in the property room of the jail, and at a later time searched and
taken for use at the subsequent criminal trial. The result is the same where the property is
not physically taken from the defendant until sometime after his incarceration.”
b. Edwards means at least that no warrant is needed when:
i. An object lawfully came into police view at the time of a search upon the
arrestee’s arrival at the place of detention;
ii. Later investigation established that this item is of evidentiary value; and
iii. The item remains in police custody as a part of the arrestee’s inventoried
property.
c. Stewart, Dissenting
i. Search was not reasonable, and the majority unjustifiably departed from wellsettled constitutional principles.
Schmerber v. California (1966) (Brennan) (BLOOD SAMPLE)
a. Holding – Upheld the taking of a blood sample by a physician at police direction from
the defendant over his objection after his arrest for drunken driving.
b. Rule – “Search warrants are ordinarily required for searches of dwellings, and absent an
emergency, no less could be required where intrusions into the human body are
concerned.”
i. Police might have reasonably believed there to be an emergency. Blood alcohol
diminished quickly, and so no warrant was required.
Winston v. Lee (1985) (Brennan)
a. Facts – Proposed court-ordered surgery to recover a bullet.
b. Applied Schmerber balancing test and concluded that lower court had properly declined
to authorize surgery. Two key points:
i. “The proposed surgery, which for purely medical reasons required the use of a
general anesthetic, would be an ‘extensive’ intrusion on respondent’s personal
privacy and bodily integrity”; and
ii. The state’s need for the bullet to establish that defendant was the robber shot by
the victim was not high, as the state had “substantial additional evidence” that
defendant was the robber.
United States ex rel. Guy v. McCauley (E.D. Wis. 1974)
a. Search of vagina violated due process because it was not conducted by skilled medical
professionals.
Knowles v. Iowa (1998) (Rehnquist)
a. Facts – An officer stopped Knowles for speeding and then, pursuant to a statute
authorizing but not requiring him to issue a citation in lieu of arrest for most bailable
offenses, issued a citation. The officer then made a full search of Knowles’ car and found
a bag of marijuana.
b. Rule – Police cannot search incident to arrest if officer has no intention of arresting the
individual.
c. Two search-incident-to-arrest rationales in Robinson did not apply:
i. The “threat to officers safety from issuing a traffic citation . . . is a good deal less
than in the case of a custodial arrest,” where (as it was put in Robinson) there is
“the extended exposure with follows the taking of a suspect into custody and
transporting him to the police station.”
37
ii. There was no “need to discover and preserve evidence,” as “no further evidence
of excessive speed was going to be found on the person of the offender or in the
passenger compartment of the car.”
22. Cupp v. Murphy (1973) (Stewart)
a. Facts – Defendant voluntarily appeared at the station in connection with the strangulation
murder of his wife, police asked him to submit scrapings from under his fingernails when
they saw what appeared to be dried blood on his finger, and when he refused the police
proceeded to take the scrapings without a warrant.
b. Holding – In light of the circumstances (including that Murphy began rubbing his fingers
together when he ascertained the police believed there was evidence on them), the police
were justified “in subjecting him to the very limited search necessary to preserve the
highly evanescent evidence they found under his fingernails.”
c. Cupp establishes that:
i. If there is probable cause for arrest but no arrest; and
ii. If the suspect is reasonably believed to be in the actual process of destroying
“highly evanescent evidence;” then
iii. That evidence may be preserved if this can be accomplished by a search which is
“very limited” as compared to a full search of the person.
Warrantless Entries & Search of Premises
1. Exigent Circumstances
a. Emergencies arise during which it is impractical for government to obtain a warrant.
Quick action is needed.
b. Exigent Circumstances Test – General objective reasonableness standard.
i. Soft, fuzzy test. Nothing more specific.
ii. No single big Supreme Court case on point.
2. United States v. Rabinowitz (1950)
a. Rule – “A warrantless search ‘incident to a lawful arrest’ may generally extend to the
area that is considered to be in the ‘possession’ or under the ‘control’ of the person
arrested.” Chimel.
b. Overruled by Chimel.
3. Chimel v. California (1969) (Stewart)
a. Facts – After arresting the defendant in his home for burglary of a coin shop, police
officers conducted a search of his entire three-bedroom house, including the attic, the
garage, a small workshop, and various drawers. Over the defendant’s objection, various
items—primarily coins—which were found through the search were admitted into
evidence against him at his trial for burglary in a California Superior Court; he was
convicted; and his conviction was affirmed by the California Court of Appeal and
the California Supreme Court, both courts holding that although the officers had no
search warrant, the search of the defendant’s home had been justified on the ground that
it had been incident to a valid arrest.
b. Holding – Search was UNCONSTITUTIONAL.
c. Rationales Underlying Search Incident to Arrest
i. Weapons – “When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the latter might
seek to use in order to resist arrest or effect his escape.”
ii. Evidence – “It is entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to prevent its concealment or
destruction.”
38
iii.  The right to make such searches of the person flows automatically from the
fact a lawful arrest was made, not from the facts suggesting either of the above
two circumstances. Robinson (1973).
d. Search of Person and “Grabbable Area” – “And the area into which an arrestee might
reach in order to grab a weapon or evidentiary items must be governed by a like rule. A
gun on a table or in a drawer in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person arrested. There is ample
justification, therefore, for a search of the arrestee’s person and the area ‘within his
immediate control’—meaning the area from within which he might gain possession of a
weapon or destructible evidence.”
i. Means the space in which a person might be able to reach to grab a weapon,
destroy evidence, or leave evidence behind. The relevant space is the space
around a person. Usually 5–10 feet.
ii. Subjective reach of individual/long or short arms or legs/handcuffed does not
matter. Court does not want incentivize police to leave suspects un-handcuffed
(because it would extend the grab-able area).
iii. Justification – Person can use nearby spaces the same way that she would use
pockets to hide weapons or evidence.
iv. Rule Does Not Extend to Other Rooms/Drawers/Closed Areas – “There is no
comparable justification, however, for routinely searching any room other than
that in which an arrest occurs—or, for that matter, for searching through all the
desk drawers or other closed or concealed areas in that room itself. Such
searches, in the absence of well-recognized exceptions, may be made only under
the authority of a search warrant.”
4. Arizona v. Gant (2009) (Stevens) (GRABBABLE AREA IN VEHICLE)
a. Rule – “Chimel rationale authorizes police to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search.”
5. Giacalone v. Lucas (6th Cir. 1971)
a. Rule – It is proper for the police in the interest of self-protection to accompany the
defendant to the other part of the residence where the clothes are to be obtained and
inspect the interior of a drawer where the defendant says he wants to obtain clothing.
6. Maryland v. Buie (1990) (White) (PROTECTIVE SWEEP DOCTRINE)
a. Two-Part Protective Sweep Rule
i. “As an incident to the arrest the officers could, as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched”; and
1. Only cursory inspections.
2. Police may open a closet door, but once they realize that no one is
located there, they may not rifle through the contents of the closet.
3. Between Mattresses – Many courts allow police to search between the
mattress and the box spring to look for people. Unsurprisingly, they
often find drugs.
ii. For a more extensive sweep “there must be articulable facts which, taken
together with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual posing
a danger to those on the arrest scene.”
1. Still a cursory search, but it may extend beyond the space immediately
adjoining the place of arrest.
39
7.
8.
9.
10.
b. Scope – “A protective sweep, aimed at protecting the arresting officers, if justified by the
circumstances, is nevertheless not a full search of the premises, but may extend only to a
cursory inspection of those spaces where a person may be found.”
c. Duration – “The sweep lasts no longer than is necessary to dispel the reasonable
suspicion of danger and in any event no longer than it takes to complete the arrest and
depart the premises.”
If facts indicate that there may be an undetermined number of additional offenders at the scene,
this may justify a search of the premises. People v. Block.
Washington v. Chrisman (1982) (Burger) (POLICE FOLLOWING PERSON AFTER ARREST)
a. Question – Whether the police may accompany the defendant into the home following his
arrest outside so that the defendant may obtain identification, get his effects, or change
clothes?
b. Rule
i. Permissible without regard to the likelihood that the arrestee would attempt to
escape.
ii. “It is not ‘unreasonable’ under the Fourth Amendment for a police officer, as a
matter of routine, to monitor the movements of an arrested person, as his
judgment dictates, following the arrest.”
Arizona v. Hicks (1987) (Scalia)
a. Holding – Police copying serial numbers of stolen radio equipment is not a seizure.
b. Rule – “A truly cursory inspection—one that involves merely looking at what is already
exposed to view, without disturbing it—is not a ‘search’ for Fourth
Amendment purposes, and therefore does not even require reasonable suspicion.”
c. 4th Amendment May Insulate Criminality – “There is nothing new in the realization
that the Constitution sometimes insulates the criminality of a few in order to protect the
privacy of us all.”
Vale v. Louisiana (1970) (Stewart) (EXIGENT CIRCUMSTANCES)
a. Facts – Police set up a surveillance of a house in which Vale was thought to be residing,
as they had a warrant to arrest him because of a bond increase on his previous narcotics
charge. They saw him come out of the house and apparently make a drug sale to a person
who drove up and sounded his horn, so the police moved in and arrested Vale just as he
was about to reenter the house. The police then took him inside and made a cursory
inspection of the house, during which time Vale’s brother and mother entered the
premises, and the officers then proceeded to search the house and discovered Vale’s stash
of narcotics.
b. Lessons
i. A warrantless search of a dwelling for evidence may be undertaken in “an
exceptional situation.”
ii. The risk-of-evidence-loss “emergency” is to be very narrowly circumscribed.
1. In concluding no such emergency existed in the instant case, the Court
emphasized that the “goods ultimately seized were not in the process of
destruction” nor “about to be removed from the jurisdiction.”
2. “Only in a few specifically established and well-delineated situations
may a warrantless search of a dwelling withstand constitutional scrutiny,
even though the authorities have probable cause to conduct it.”
c. Burden of Proof – “The burden rests on the State to show the existence of such an
exceptional situation [justifying warrantless search of a dwelling].”
d. Black & Burger, Dissenting
i. Even if the search was not strictly incidental to an arrest, the officers had every
reason to believe that someone in the house was likely to destroy the narcotics if
the search were postponed, and that the circumstances were of such a nature that
40
it was reasonable for the officers to conduct an immediate search of the house
without obtaining a search warrant.
11. Segura v. United States (1984) (Burger) (POLICE WAITING INSIDE HOME FOR WARRANT)
a. Facts – Police made a warrantless entry of an apartment, arrested all the occupants (who
were promptly removed from the scene), and then remained within 19 hours until a
search warrant was obtained and executed.
b. Rule – “Where officers, having probable cause, enter premises, and with probable cause,
arrest the occupants who have legitimate possessory interests in its contents and take
them into custody and, for no more than the period here involved [i.e., 19 hours], secure
the premises from within to preserve the status quo while others, in good faith, are in the
process of obtaining a warrant, they do not violate the Fourth Amendment's proscription
against unreasonable seizures.”
12. Illinois v. McArthur (2001) (Breyer) (POLICE WAITING OUTSIDE HOME FOR WARRANT)
a. Facts – Two police officers stood by outside to keep the peace while defendant’s wife
removed her effects from the family residence, a trailer. Upon exiting, she told the
officers her husband had hidden marijuana under the couch, so the officers sought his
permission to search the premises. When he refused, one officer left to obtain a search
warrant, while another officer remained on the porch with defendant, who was told he
could not reenter unless he was accompanied by the officer. A warrant was obtained and
executed two hours later, but in the interim defendant entered the trailer two or three
times, and on each occasion the officer stood just inside the door and observed his
actions.
b. Holding – Restriction was REASONABLE in consideration of four circumstances:
i. “The police had probable cause to believe that McArthur’s trailer home
contained evidence of a crime and contraband, namely, unlawful drugs”;
ii. “The police had good reason to fear that, unless restrained, McArthur would
destroy the drugs before they could return with a warrant,” as they reasonably
concluded that even before the requested consent to search he realized his angry
wife had informed the police about the drugs;
iii. “The police made reasonable efforts to reconcile their law enforcement needs
with the demands of personal privacy” by imposing “a significantly less restrict
restraint” than a warrantless search of the premises; and
iv. “The police imposed the restraint for a limited period of time, namely, two
hours.”
13. United States v. Rubin (3d Cir. 1973)
a. Possible Destruction of Evidence Justifies Warrantless Search – “When Government
agents, however, have probable cause to believe contraband is present and, in addition,
based on the surrounding circumstances of the information at hand, they reasonably
conclude that the evidence will be destroyed or removed before they can secure a search
warrant, a warrantless search is justified.”
i. Fact-specific, case-by-case determination.
ii. Relevant Factors:
1. The degree of urgency involved and the amount of time necessary to
obtain a warrant;
2. Reasonable belief that the contraband is about to be removed;
3. The possibility of danger to police officers guarding the site of the
contraband while a search warrant is sought;
4. Information indicating the possessors of the contraband are aware that
the police are on their trail; and
41
5. The ready destructibility of the contraband and the knowledge “that
efforts to dispose of narcotics and to escape are characteristic behavior of
persons engaged in the narcotics traffic.”
14. Homicide Scene Exception to Warrant Requirement
a. Mincey v. Arizona (1978)
i. After noting that no “emergency threatening life or limb” had been established,
the Court “decline[d] to hold that the seriousness of the offense under
investigation itself creates exigent circumstances of the kind that under the
Fourth Amendment justify a warrantless search,” and thus concluded “that the
‘murder scene exception’ created by the Arizona Supreme Court is inconsistent
with the Fourth and Fourteenth Amendments.”
b. Thompson v. Louisiana (1984)
i. Lacking the various extreme circumstances present in Mincey, the Court again
declined to recognize a murder scene exception to the warrant requirement.
ii. Rule – Absent a warrant, evidence would be admissible only if discovered in
plain view while police were assisting the injured party or were checking the
premises for other victims or the killer.
c. Flippo v. West Virginia (1999)
i. Facts – After defendant’s 911 call that he and his wife had been attacked at a
cabin in a state park, police arrived at the scene and found defendant outside
wounded and his wife inside dead.
ii. The contents of a briefcase near the body, found upon a warrantless police
reentry and search several hours later, were held admissible by the trial judge
because found “within the crime scene area,” a position the Court unanimously
concluded “squarely conflicts with Mincey.”
15. Brigham City v. Stuart (2006) (EMERGENCY AID DOCTRINE)
a. Emergency Aid Doctrine – “One exigency obviating the requirement of a warrant is the
need to assist persons who are seriously injured or threatened with such injury. The need
to protect or preserve life or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency. Accordingly, law enforcement
officers may enter a home without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”
16. Payton v. New York (1980) (Stevens)
a. No Warrantless Entry into Home to Make Felony Arrest – “The Fourth Amendment
. . . prohibits the police from making a warrantless and nonconsensual entry into a
suspect’s home in order to make a routine felony arrest.”
i. Entry may be permissible if there are EXIGENT CIRCUMSTANCES.
b. Arrest Warrant Allows Entry into Suspected Home to Make Felony Arrest –
“For Fourth Amendment purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within.”
i. Police need not have PC to believe that suspect will be home at a certain time.
Insurmountable hurdle.
1. Less protection than search warrant (which requires specificity), but
enough protection.
ii. No Search – If the government is entering the home to arrest someone, then it
does not have the power to conduct a search. A search is not its purpose.
c. Inside-Outside Distinction
i. Warrantless searches and seizures inside home  presumptively invalid.
ii. Warrantless searches and seizures in public  presumptively valid.
42
iii.  “This distinction has equal force when the seizure of a person is involved”
because “an entry to arrest and an entry to search for and to seize property
implicate the same interest in preserving the privacy and the sanctity of the home,
and justify the same level of constitutional protection.”
d. 4th Amendment Accords Paramount Protection Within Home – “Absent exigent
circumstances, a warrantless entry to search for weapons or contraband is
unconstitutional even when a felony has been committed and there is probable cause to
believe that incriminating evidence will be found within.”
e. Remedy – Suppression of evidence found during the search incident to an arrest.
Government will not release an arrestee for a Payton violation.
f. Two Main Arguments in Favor of Warrants
i. Preventing hindsight bias; post hoc probable cause justifications.
ii. Many procedural protections exclusive to warrants, e.g., knock-and-announce
rule, specific listing of things to be searched, being served with a copy of the
warrant, inventory of things seized, etc.
g. White, Burger & Rehnquist, Dissenting
i. The Fourth Amendment does not support an inflexible rule requiring warrants for
felony arrests in a suspect’s home whenever exigent circumstances are not
present.
ii. The preferable rule is that the police, after knocking and announcing their
presence, may enter a home to make a daytime arrest without a warrant when
there is probable cause to believe that the person to be arrested has committed a
felony and is present in the home.
17. Exceptions to Payton
a. Warden v. Hayden (1967)
i. Rule – Any possible warrant requirement is obviated when the police were in
“hot pursuit” of the offender.
1. “The Fourth Amendment does not require police officers to delay in the
course of an investigation if to do so would gravely endanger their lives
or the lives of others.”
b. United States v. Santana (1976)
i. Rule – No need for a warrant if the suspect is standing directly in the doorway.
1. Arrest Commenced in Public & Suspect Retreats into Residence –
Police may follow suspect into residence to effectuate the arrest without
a warrant, even if the police are not in “hot pursuit.”
18. Dorman v. United States (D.C. Cir. 1970)
a. Exigent Circumstances – Factors:
i. Whether “a grave offense is involved”;
ii. Whether “the suspect is reasonably believed to be armed”;
iii. Whether there is “a clear showing of probable cause” of the person’s guilt;
iv. Whether there is “strong reason to believe that the suspect is in the premises”;
v. Whether there is a “likelihood that the suspect will escape if not swiftly
apprehended”;
vi. Whether the entry is “made peaceably”; and
vii. Whether the entry is “made at night,” which on the one hand is more intrusive
and on the other may show the impracticality of getting a warrant.
19. Welsh v. Wisconsin (1984) (Brennan)
a. Facts – Police had entered defendant’s home without a warrant to arrest him for the
offense of driving while intoxicated, in which he had been engaged in the immediate
vicinity just minutes before.
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b. Rule – Gravity of underlying offense is an important factor to be considered in
determining whether an exigency exists.
c. Holding – Since DUI was a non-criminal offense in Wisconsin, warrantless entry of
defendant’s home was not justified.
d. White & Rehnquist, Dissenting
i. A state’s choice to punish the first offense for driving while under the influence
with a fine rather than a prison term does not demand a conclusion that the state’s
interest in punishing first offenders is not substantial enough to justify
warrantless in-home arrests under exigent circumstances.
ii. The need to prevent the imminent and ongoing destruction of evidence of a
serious violation of the state’s traffic laws provided an exigent circumstance
justifying the warrantless in-home arrest.
20. Steagald v. United States (1981) (Marshall) (ENTRY INTO THIRD PARTY’S PREMISES)
a. Search Warrant Required – A search warrant, based upon a magistrate’s determination
that it is probable the person to be arrested is now in the those premises, is required for
police to enter a third party’s premises to make an arrest.
i. Justification – Based on protection of third party’s privacy.
b. Arrest Warrant May Suffice – Under the commonly held view that the Steagald search
warrant requirement is for the protection of third parties only, upon objection of the
arrestee it will suffice that the police had only an arrest warrant, although in such a case
the police once again must show they had a “basis for believing that the suspect is
actually present in the home.”
21. UNANNOUNCED ENTRY TO MAKE AN ARREST is subject to the same 4th Amendment
limitations as unannounced entry to execute a search warrant. United States v. Fields (2d Cir.
1997).
22. Kentucky v. King (2011) (Alito) (POLICE-CREATED EXIGENCY)
a. Facts – Officers, after smelling the odor of marijuana emanating from an apartment in a
building into which a drug seller had just disappeared, merely “‘banged on the door as
loud as [they] could’ and announced either ‘“Police, police, police”’ or ‘“This is the
police.”’”
b. Police-Created Exigency Doctrine – Police may not rely on the need to prevent
destruction of evidence when that exigency was “created” or “manufactured” by the
conduct of the police.
c. Rule – Where the police did not create the exigency by engaging or threatening to engage
in conduct that violates the 4th Amendment, warrantless entry to prevent the destruction
of evidence is reasonable and thus allowed.
i. Anything that the police hear in response to their actions (that do not violate or
threaten to violate the 4th Amendment) are not police-created exigencies. E.g.,
sounds of movement behind the door.
ii. Knocking and announcing does not violate 4th Amendment.
iii. Difficult to say whether police saying, “Open up!” violates the 4th Amendment.
Officer does not have the authority to make an individual open the door. May be
an implied threat.
d. Court rejected various versions of this exception as “unsound”:
i. Asking whether there was a “bad faith intent to avoid the warrant requirement,”
deemed inconsistent with the prevailing objective approach in Fourth
Amendment jurisprudence;
ii. Asking if “it was reasonably foreseeable that the investigative tactics employed
by the police would create the exigent circumstances,” deemed objectionable as
“introduc[ing] an unacceptable degree of unpredictability”;
44
iii. Asking whether the police, after acquiring probable cause, knocked on the door
instead of going for a search warrant, deemed objectionable because there can be
many valid reasons why police might opt for the knocking alternative (e.g., to
seek the simpler route of a consent search, to bolster marginal probable cause, to
acquire evidence supporting a broader search);
iv. Asking if the police conduct was “contrary to standard or good law enforcement
practices,” deemed objectionable as “fail[ing] to provide clear guidance for law
enforcement officers”; and
v. Asking whether the police conduct “would cause a reasonable person to believe
that entry is imminent or inevitable,” deemed a “nebulous and impractical test.”
e. Ginsburg, Dissenting
i. “The Court today arms the police with a way routinely to dishonor the Fourth
Amendment's warrant requirement in drug cases.”
Warrantless Searches & Seizures of Vehicles & Containers
1. Police Process
a. Stop a car under Whren upon noticing any traffic violation.
b. Ask questions of the driver in order to establish PC to search the entire car under Carney
and Acevedo.
c. Search Incident to Arrest
i. Persons – Robinson.
ii. Residences – Chimel.
iii. Vehicles – Gant.
d.  The constitutionality of traffic stops therefore hinges primarily on the questions that
police ask drivers and passengers and the duration of a stops.
2. Warden v. Hayden (1967)
a. Eliminated distinction between mere evidence and contraband, and so PC goes to
evidence as well as contraband.
3. California v. Carney (1985) (Burger) (AUTOMOBILE EXCEPTION & MOBILE HOME)
a. Facts – A DEA agent, who had received information that the exchange of marijuana for
sex had been taking place at the defendant’s motor home, watched the defendant
approach a youth who went with him into the motor home, which was parked in a lot in
downtown San Diego, and with the help of other agents then kept the motor home under
surveillance. The agents stopped the youth after he left the motor home and the youth
told then that he had received marijuana in exchange for sexual contacts with the
defendant. At the agents’ request, the youth returned to the motor home and knocked on
the door upon which the defendant stepped out. Without a warrant or consent, one agent
entered the motor home where he observed marijuana. More marijuana was found during
a subsequent search of the motor home at the police station, whereupon the defendant
was charged with possession of marijuana for sale.
b. Holding – Search was reasonable.
c. PC Allows Warrantless Search of Vehicle – PC to search a car means that a car may be
searched without a warrant as long as the car is readily mobile.
d. Automobile Exception to Warrant Requirement – “The privacy interests in an
automobile are constitutionally protected; however, the ready mobility of the automobile
justifies a lesser degree of protection of those interests.” United States v. Carroll.
i. Two Justifications
1. Ready Mobility – Related to exigent circumstances. Primary
justification.
45
4.
5.
6.
7.
8.
2. Lower expectation of privacy than w/r/t home or office. Derives from
(1) passenger compartment being open to plain view and (2) pervasive
regulation of vehicles capable of traveling on the public highways.
ii. Probable Origin During Prohibition – Exception goes back to the role of the
automobile in propagating crime during the 1920s (i.e., the Prohibition era)—
when the automobile was a relatively new invention. Automobiles let gangsters
transport alcohol/contraband with much greater ease. In response, the Court
reduced the constitutional protection afforded to automobiles to restore the prior
level of government power to enforce the law. The automobile jurisprudence
that we have today largely is a remnant of this rebalancing.
e. Automobile Exception Applies to Motor Home – As long as it “is being used on the
highways, or if it is readily capable of such use and is found stationary in a place not
regularly used for residential purposes.”
i. Two Traditional Justifications Apply – “First, the vehicle is obviously readily
mobile by the turn of an ignition key, if not actually moving. Second, there is a
reduced expectation of privacy stemming from its use as a licensed motor vehicle
subject to a range of police regulation inapplicable to a fixed dwelling.”
ii. Court will not draw distinctions between different kinds of vehicles. Wants a
bright-line rule.
iii.  However, if a vehicle really has been made a home, then it might be subject to
a warrant requirement.
f. Stevens, Brennan & Marshall, Dissenting
i. Warrantless searches of motor homes are only reasonable when the motor home
is traveling on the public streets or highways, or when exigent circumstances
otherwise require an immediate search without the expenditures of time
necessary to obtain a warrant.
Maryland v. Dyson (1999)
a. No Exigency Requirement for Automobile Exception – The automobile exception to
the Fourth Amendment’s warrant requirement “does not have a separate exigency
requirement.”
Florida v. White (1999)
a. Holding – Upheld the warrantless seizure of a vehicle from a public place on PC that it
constituted forfeitable contraband under a state forfeiture statute.
G.M. Leasing Corp. v. United States (1977)
a. Holding – Upheld warrantless seizure of automobiles from public streets and lots as part
of a levy on a corporation’s assets for tax deficiencies.
Chambers v. Maroney (1970) (DELAYED SEARCH OF VEHICLE)
a. Rule – Even if no warrant is required, PC is required “to search a particular auto for
particular articles.”
b. Delayed Search of Vehicle – If police have PC to conduct a warrantless search of a
vehicle on the road, police may delay the warrantless search until after the vehicle has
been seized (and transported to the police station) and its occupants are in custody.
California v. Acevedo (1991) (Blackmun) (CONTAINER SEARCHES)
a. Facts – Police surveilling an apartment, to which a package known to contain marijuana
had been delivered two hours earlier, saw Acevedo enter the apartment, emerge about 10
minutes later with a brown paper bag about the size of the marijuana package, place the
bag in the trunk of his car and drive off. The police then stopped the car, searched the
bag and found marijuana.
b. Precedent
i. United States v. Ross (1982) – A warrantless search of an automobile, under the
rule adopted in Carroll, i.e., that a warrantless search of an automobile based
46
ii.
iii.
iv.
v.
vi.
upon PC to believe that the vehicle contained evidence of crime in the light of an
exigency arising out of the likely disappearance of the vehicle did not contravene
the 4th Amendment, could include a search of a container found inside the
automobile when the search of the automobile was supported by PC.
Arkansas v. Sanders (1979) – 4th Amendment required the police to obtain a
search warrant to search a closed container found in an automobile even though
there was PC to believe that the container held contraband.
United States v. Chadwick (1977) – A warrantless search by police of a locked
footlocker violated the 4th Amendment, notwithstanding that police had PC to
believe that the footlocker contained marijuana.
1. Government did not argue that automobile exception applied. It argued
that it was able to search any package in the car.
 Cases were conflicting, and Court had to clear up the confusion. It did so by
overturning Sanders and Chadwick on their facts, but not their rationales.
 “To the extent that the Chadwick-Sanders rule protects privacy, its protection
is minimal.”
 “And the police often will be able to search containers without a warrant,
despite the Chadwick-Sanders rule, as a search incident to a lawful arrest [under
Belton].”
c. Rules
i. “The Fourth Amendment does not compel separate treatment for an automobile
search that extends only to a container within the vehicle.”
ii. “The interpretation of the Carroll doctrine set forth in Ross now applies to all
searches of containers found in an automobile. In other words, the police may
search without a warrant if their search is supported by probable cause.”
d. Only Limitation on Container Searches – Derives from the size and shape of the items
sought. Police may search only containers in which such items may be hidden.
i. E.g., police may not search for a big-screen TV in a passenger’s backpack.
e. Strange Application – Under Chadwick, police need a warrant to search a duffel bag
when it is outside a vehicle. However, once the duffel bag is placed inside the car, the
police no longer need a warrant to search the duffel bag when they are conducting a
warrantless search of the entire car.
i. Notion of exigency explains discrepancy. Container outside a vehicle is not
going anywhere; container inside a vehicle might soon depart.
f. Scalia, Concurring
i. Search of a closed container, outside a privately owned building, with probable
cause to believe that the container contains contraband, and when it in fact does
contain contraband, is not a search whose Fourth Amendment reasonableness
depends upon a warrant.
g. Stevens, Dissenting
i. The Court’s prior cases concerning container and automobile searches had not
engendered confusion in the state or lower federal courts.
ii. The rejection of the Sanders line of cases would result in a significant loss of
individual privacy.
iii. The suggestion that Chadwick and Sanders imposed a significant burden on
effective law enforcement was unsupported, inaccurate, and in any event
insufficient justification for creating a new exception to the warrant requirement.
9. Wyoming v. Houghton (1999) (SEARCHES OF PASSENGERS’ CONTAINERS)
a. Rule – PC to search a vehicle permits search of packages belonging to passengers.
47
i. Search is permitted even without any information suggesting either involvement
by that passenger in the criminality under investigation or placement of
contraband into the passenger’s effects by the driver.
ii. Justification – Balancing of Interests:
1. “Passengers, no less than drivers, possess a reduced expectation of
privacy with regard to the property that they transport in cars.”
2. The “practical realities” are that “a car passenger . . . will often be
engaged in a common enterprise with the driver” or else the criminal
“might be able to hide contraband in a passenger’s belongings as readily
as other containers in the car . . . without the passenger’s knowledge or
permission,” thus justifying a bright-line rule here because of the
difficulty that would be involved in sorting out, on a case-by-case basis,
such questions as whether the passenger’s claim of ownership is valid,
whether the passenger was a confederate, or whether the driver might
have introduced the contraband into the package even without the
passenger’s knowledge.
iii. Applications
1. Applies to taxis, Greyhound buses, etc., which carry many different
persons’ luggage. (However, there would be Ybarra issues here.)
2. It is an open question whether this rule applies to, e.g., Fed-Ex and UPS
trucks.
3. If a female passenger exited the car and took her purse with her, we
would no longer be in Acevedo territory and now would be in Chadwick
territory. (Search incident to arrest still may occur.)
b. United States v. Di Re (1948) – PC to search a car did not justify a body search of a
passenger.
c. Ybarra v. Illinois (1979) – Search warrant for a tavern and its bartender did not permit
body searches of all the bar’s patrons.
d. Stevens, Dissenting
i. Majority’s rule cannot be squared with the teaching of Ross that the scope of a
search “is defined by the object of the search and the places in which there is
probable cause to believe that it may be found.”
10. Texas v. Brown (1983) (SINGLE-PURPOSE CONTAINERS)
a. Facts – Involved warrantless seizure and search of a tied-up balloon seen in a car under
circumstances strongly suggesting it contained drugs.
b. Warrantless Search of Single-Purpose Containers – “Rare single-purpose containers
which ‘by their very nature cannot support any reasonable expectation of privacy because
their contents can be inferred from their outward appearance.’”
11. Illinois v. Andreas (1983) (Burger) (PREVIOUSLY OPENED CONTAINERS)
a. Rule – “No protected privacy interest remains in contraband in a container once
government officers lawfully have opened that container and identified its contents as
illegal. The simple act of resealing the container to enable the police to make a
controlled delivery does not operate to revive or restore the lawfully invaded privacy
rights.”
12. Arizona v. Gant (2009) (Stevens) (VEHICLE SEARCH INCIDENT TO ARREST)
a. Facts – The case involved Rodney J. Gant, who was arrested by police and charged with
driving on a suspended driver’s license. Police arrested Gant in a friend’s yard after he
had parked his vehicle and was walking away. Gant and all other suspects on the scene
were then secured in police patrol cars. The officers then searched Gant’s vehicle. After
finding a weapon and a bag of cocaine, they also charged him with possession of a
narcotic for sale and possession of drug paraphernalia.
48
b. Relied on Chimel and Belton.
i. Chimel – “A search incident to arrest may only include the arrestee’s person and
the area ‘within his immediate control’—that phrase is construed to mean the
area from within which he might gain possession of a weapon or destructible
evidence.”
ii. Belton – “When an officer lawfully arrests the occupant of an automobile, he
may, as a contemporaneous incident of that arrest, search the passenger
compartment of the automobile and any containers therein.”
1. Bright-Line Rule.
c. Vehicle Search Incident to Arrest – Belton was construed as permitting a vehicle
search incident to arrest only (i) “when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search” and (ii) “when it is
reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.”
i. “When these justifications are absent, a search of an arrestee’s vehicle will be
unreasonable unless police obtain a warrant or show that another exception to the
warrant requirement applies.”
ii. Narrow reading of Belton. Court wants to curtail fishing expeditions.
iii. First Prong – Grabbable Area
1. Rationale – Essentially the same as Chimel. Rests on an assumption that
the defendant is not secured at the time of arrest.
2. Alito points out that this prong almost never will apply to any set of
facts. Police always order defendant to step out of the car and then
handcuff her.
iv. Second Prong – Evidence
1. In practice, only this prong matters.
2. Does NOT allow search of the trunk.
3. Drug Arrest  the cops can search the inside of the car for drugs.
Speeding Arrest  police cannot search the inside of the car because
there is no reason to believe that evidence of the speeding violation will
be found inside the car.
v. Court rejects state’s bright-line rule.
1. “The State seriously undervalues the privacy interests at stake.”
2. “The State exaggerates the clarity that its reading of Belton provides.”
3. “A broad reading of Belton is also unnecessary to protect law
enforcement safety and evidentiary interests.”
d. Rejection of Stare Decisis Argument – “The doctrine of stare decisis is of course
essential to the respect accorded to the judgments of the court and to the stability of the
law, but it does not compel the court to follow a past decision when its rationale no
longer withstands ‘careful analysis.’”
e. Holding – “Because police could not reasonably have believed either that Gant could
have accessed his car at the time of the search or that evidence of the offense for which
he was arrested might have been found therein, the search in this case was unreasonable.”
f. Scalia, Concurring
i. Advocates the second prong of the Gant rule.
1. “I would hold that a vehicle search incident to arrest is ipso
facto ‘reasonable’ only when the object of the search is evidence of the
crime for which the arrest was made, or of another crime that the officer
has probable cause to believe occurred.”
ii. Feels that the Belton bright-line rule is inconsistent with the 4th Amendment.
Believes that the rule should be one of reasonableness.
49
g. Alito, Dissenting
i. Court should not overrule Belton and Thornton.
ii. The first prong of the Gant rule almost never will apply to any set of facts.
Police always order defendant to step out of the car and then handcuff her.
13. Inventory Search Doctrine
a. Typical Applications – Schools searching students’ lockers; government employers
searching their employees’ files; searches of luggage before passengers board airplanes.
b. Evidence found in an otherwise lawful inventory must be suppressed if the prior
impoundment of the vehicle was not justified.
c. Florida v. Wells (1990) (STANDARD POLICY W/R/T INVENTORY SEARCHES)
i. Holding – The inventory there was unlawful because the police agency “had no
policy whatever with respect to the opening of closed containers encountered
during an inventory search.”
ii. Police Latitude Within Standard Policy – “A police officer may be allowed
sufficient latitude to determine whether a particular container should or should
not be opened in light of the nature of the search and characteristics of the
container itself.”
d. Most courts allow that the purported policy regarding inventory searches need not be in
writing but merely testified to by the inventorying officer.
e. If inventory search is postponed for a substantial amount of time after impoundment, e.g.,
four days, the inventory may be invalid because the justifications fall away.
f. Special-Needs Doctrine
i. Court engages in balancing. Balancing government interests and individual
privacy interests.
ii. Subject to a reasonableness test.
iii. Applies in DUI checkpoints and terrorism cases.
14. Colorado v. Bertine (1987) (Rehnquist) (INVENTORY SEARCHES)
a. Facts – After arresting the driver of a van for drunk driving, police officers impounded
the van and inventoried its contents pursuant to departmental directives; in the course of
the inventory search, the officers opened a closed backpack and some sealed containers
therein and found that the latter contained narcotics.
b. Inventory Searches
i. Exception to 4th Amendment warrant requirement.
1. Inventory search does not implicate policies underlying warrant
requirement.
2. Inventory search is not related to PC.
ii. Justification – Police must protect themselves “against false claims of theft or
dangerous instrumentalities.”
iii. Inventory search of vehicle is consistent with 4th Amendment. Opperman.
iv. Inventory search of personal effects of arrestee at police station is consistent
with 4th Amendment. Lafayette.
c. Inventory Search of Containers in Vehicle – Upheld an inventory that extended to a
backpack within the vehicle and held that extending a vehicle inventory to containers
therein did not depend upon the likelihood “that the containers might serve as a
repository for dangerous or valuable items.”
i. Rejected container-by-container analysis. “Even if less intrusive means exists of
protecting some particular types of property, it is unreasonable to expect police
officers in the everyday course of business to make fine and subtle distinctions in
deciding which containers or items may be searched and which must be sealed as
a unit.”
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d. Good Faith, Reasonable Regulations – “Reasonable police regulations relating to
inventory procedures administered in good faith satisfy the Fourth Amendment, even
though courts might as a matter of hindsight be able to devise equally reasonable rules
requiring a different procedure.”
e. Need for Policy Governing Inventory Searches – Ensures that there is a genuine
government interest in the case justifying the special-needs doctrine. Ensures that the
police did not conduct a search arbitrarily. A policy gives police reasons for conducting
inventory searches; it provides a standard for differentiating inventory searches from
normal searches for evidence.
i. Time and energy involved in conducting an inventory search are modest
protections on the practice.
f. Blackmun, Concurring
i. Emphasizes the importance of having inventory searches of impounded vehicles
conducted only pursuant to standardized police procedures.
g. Marshall & Brennan, Dissenting
i. Search violated the 4th Amendment because:
1. There had in fact been no standardized criteria limiting a local police
officer’s discretion as to whether to impound the vehicle in such a case,
park and lock it, or allow a third party to take custody;
2. The governmental interests justifying an inventory, such as protecting the
owner’s property and police safety, were especially weak in this case,
given the security of the impound lot, the slipshod performance of the
officer taking the inventory, and the hazard to police in opening sealed
containers; and
3. The driver had a greater expectation of privacy in the closed backpack
than in the general contents of an automobile.
Stop & Frisk
1. Terry v. Ohio (1968) (Warren) (STOP & FRISK)
a. Facts – A Cleveland police officer, after seeing three men repeatedly look into a store as
if they were “casing” it for a stickup, approached the men and asked them to identify
themselves and, when they only mumbled something, patted them down and found
weapons on two of them.
b. Officer’s conduct was both a search and a seizure.
i. Stop Counts as “Seizure” – “Whenever a police officer accosts an individual
and restrains his freedom to walk away, he has ‘seized’ that person.”
1. “Only when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen may we conclude that
a ‘seizure’ has occurred.”
2. Officer took control of the motion of Terry. He detained him for the
purpose of frisking him. (Not a full arrest though.)
ii. Search – Frisking of Terry. Officer was looking for something on Terry’s
person, and that is what made this action a search.
c. Stop & Frisk – “Where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and presently dangerous, where
in the course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
51
outer clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the 4th Amendment, and any
weapons seized may properly be introduced in evidence against the person from whom
they were taken.”
i. Case-by-case adjudication.
ii. Search must be limited to finding weapons.
iii. Governed by 4th Amendment’s reasonableness standard, not warrant
requirement.
1. Specific & Articulable Facts Show Reasonableness – “In order to
assess the reasonableness of a warrantless search and seizure as a general
proposition, it is necessary first to focus upon the governmental interest
which allegedly justifies official intrusion upon the constitutionally
protected interests of the private citizen, for there is no ready test for
determining reasonableness other than by balancing the need to search or
seize against the invasion which the search or seizure entails. And in
justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.”
2. Search – Must have reasonable suspicion that the suspect is armed and
dangerous.
3. Seizure – Must have reasonable suspicion that some sort of crime is
afoot.
4.  Middle-ground approach.
d. Harlan, Concurring
i. Once the officer was justified to interrupt defendant’s freedom of movement, his
right to take suitable measures for his own safety followed automatically.
e. White, Concurring
i. Reserved judgment on some of the Court’s general remarks about the scope and
purpose of the exclusionary rule which the court has fashioned in the process of
enforcing the Fourth Amendment.
f. Douglas, Dissenting
i. Search and seizure by way of stopping and frisking defendant was constitutional
only if there was probable cause to believe that a crime had been, or was in the
process of being, or was about to be, committed.
2. Florida v. Bostick (1991) (O’Connor) (FREE-TO-LEAVE RULE)
a. Free-to-Leave Rule – “A seizure does not occur simply because a police officer
approaches an individual and asks a few questions. So long as a reasonable person
would feel free to disregard the police and go about his business, the encounter is
consensual and no reasonable suspicion is required. The encounter will not
trigger Fourth Amendment scrutiny unless it loses its consensual nature.”
i. If a reasonable person believes that she is not free to leave, a Terry stop has
occurred.
ii. What counts as a Terry stop is an officer taking control of a person, e.g., saying,
“Hey, you, stop there!”
iii. Court wants officers to be able to question people without requiring reasonable
suspicion.
b. Marshall, Dissenting
i. A passenger approached by police officers in a suspicionless bus sweep would
not feel free to decline the officers’ requests or otherwise terminate the
encounter.
3. United States v. Drayton (2002) (Kennedy)
52
a. Facts – During a scheduled stop, the bus driver left the bus in the hands of three police
officers; one stood guard at the front of the bus and another at the rear while the third
questioned the passengers individually without informing them of their right not to
cooperate.
b. Holding – No seizure had occurred.
i. No Intimidation – Questioning officer did not brandish a weapon or make any
intimidating movements, left the aisle free, spoke in a polite and quiet voice, and
said nothing to indicate the person was barred from leaving the bus or otherwise
terminating the encounter.
ii. Bus Is Not Dispositive Fact – The “fact that an encounter takes place on a bus
does not on its own transform standard police questioning of citizens into an
illegal seizure” and that, indeed, “because many fellow passengers are present to
witness officers’ conduct, a reasonable person may feel even more secure in his
or her decision not to cooperate with police on a bus than in other
circumstances.”
c. Souter, Dissenting
i. Stressing the close quarters, the presence of the other two officers, the fact that
the driver had “yielded his control of the bus” to them, and that “no [other]
passenger had refused the cooperation requested,” cogently concluded that “there
was no reason for any passenger to believe that the driver would return and the
trip resume until the police were satisfied.”
4. California v. Hodari D. (1991) (Scalia) (FORCE OR SUBMISSION)
a. Facts – After a group of youths fled upon approach of a police car, one officer pursued
Hodari on foot, prompting Hodari to throw to the ground what upon inspection proved to
be cocaine. The state court concluded that Hodari had been “seized” when he saw the
officer pursuing him, and that consequently the cocaine was the fruit of that illegal
(because without reasonable suspicion) seizure.
b. Seizure Requires Force or Submission – The word “seizure” in the 4th Amendment
means “a laying on of hands or application of physical force to restrain movement, even
when it is ultimately unsuccessful,” and also a “submission to the assertion of authority,”
but it did not encompass a “show of authority” as to which “the subject does not yield.”
i. POLICE CHASE alone—without application of force or submission—is not a
seizure.
c. Stevens, Dissenting
i. A “seizure” occurs whenever an objective evaluation of a police officer’s show
of force conveys the message that a citizen is not entirely free to leave—in other
words, that his or her liberty is being restrained in a significant way; and
ii. The character of a citizen’s response, such as the taking of evasive action, should
not govern the constitutionality of the officer’s conduct.
5. Brendlin v. California (2007)
a. Seizure of Driver & Passengers During Traffic Stop – Resolved “by asking whether a
reasonable person would feel free to decline the officers’ requests or otherwise terminate
the encounter.”
Grounds for Temporary Seizure for Investigation
1. United States v. Cortez (1981)
a. Grounds for Stop – “Based upon the whole picture, the totality of the circumstances,
detaining officers must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.”
i. Two Elements
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2.
3.
4.
5.
1. “The assessment must be based upon all of the circumstances.”
2. “An assessment of the whole picture must yield a particularized
suspicion is the concept that the process just described must raise a
suspicion that the particular individual being stopped is engaged in
wrongdoing.”
Sibron v. New York (1968) (Warren)
a. Holding – The search of a suspected drug user could not be justified under Terry because
it had been made for drugs rather than self-protection and had involved more than a frisk.
Florida v. J.L. (2000) (Ginsburg)
a. Facts – Police acting solely on an anonymous telephone tip that a described person at a
certain bus stop had a gun frisked that person and found a gun.
b. Holding – Not sufficient specific and articulable facts to support reasonable suspicion.
i. Courts usually are deferential to police, but there is a bottom line.
c. Reasonable Suspicion Based on Informant’s Tip
i. “Knowledge about a person’s future movements indicates some familiarity with
that person’s affairs, but having such knowledge does not necessarily imply that
the informant knows, in particular, whether that person is carrying hidden
contraband.”
ii. “The reasonableness of official suspicion must be measured by what the officers
knew before they conducted their search.”
iii. “Reasonable suspicion under the Terry decision requires that a tip be reliable in
its assertion of illegality, not just in its tendency to identify a determinate
person.”
iv. “An anonymous tip lacking indicia of reliability of the kind contemplated in the
Adams and White decisions does not justify a stop and frisk whenever and
however it alleges the illegal possession of a firearm.”
d. Kennedy & Rehnquist, Concurring
i. In some instances, a tip might be anonymous in some sense yet have certain other
features, either supporting reliability or narrowing the likely class of informants,
so that the tip did provide the lawful basis for some police action.
Virginia v. Harris (2009) (Roberts & Scalia)
a. Conflicting Case Law on Stops of Drunk Drivers – “The majority of courts examining
the question have upheld investigative stops of allegedly drunk or erratic drivers, even
when the police did not personally witness any traffic violations before conducting the
stops. These courts have typically distinguished J.L.’s general rule based on some
combination of (1) the especially grave and imminent dangers posed by drunk driving;
(2) the enhanced reliability of tips alleging illegal activity in public, to which the tipster
was presumably an eyewitness; (3) the fact that traffic stops are typically less invasive
than searches or seizures of individuals on foot; and (4) the diminished expectation of
privacy enjoyed by individuals driving their cars on public roads. A minority of
jurisdictions, meanwhile, take the same position as the Virginia Supreme Court, requiring
that officers first confirm an anonymous tip of drunk or erratic driving through their own
independent observation.”
United States v. Sokolow (1989) (Rehnquist) (REASONABLE SUSPICION & PROFILES)
a. Reasonable Suspicion Based on Profile – “A court sitting to determine the existence of
reasonable suspicion must require the agent to articulate the factors leading to that
conclusion, but the fact that these factors may be set forth in a ‘profile’ does not
somehow detract from their evidentiary significance as seen by a trained agent.”
b. Marshall & Brennan, Dissenting
i. It was highly significant that the DEA agents stopped the traveler because he
matched one of the DEA’s “profiles” of a paradigmatic drug courier.
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ii. The factors comprising the DEA profile relied upon in the case at hand were
especially dubious indices of ongoing criminal activity.
iii. Under the circumstances, the facts about the traveler known to the DEA agents at
the time they stopped him fell short of reasonably indicating that the traveler was
engaged at the time in criminal activity.
6. United States v. Hensley (1985) (O’Connor)
a. Flier – “If a flyer or bulletin has been issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has committed an offense, then reliance on
that flyer or bulletin justifies a stop to check identification, to pose questions to the
person, or to detain the person briefly while attempting to obtain further information.”
b. Past Crimes – “If police have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made to investigate that suspicion.”
i. A Terry stop on less than full probable cause would sometimes be permissible
for the purpose of investigating criminal activity that had occurred on some prior
occasion.
7. Illinois v. Wardlow (2000) (Rehnquist)
a. Flight & High-Crime Area Support Reasonable Suspicion – There were grounds for
a Terry stop where the defendant engaged in “[h]eadlong flight,” “unprovoked flight
upon noticing the police,” where there was the additional factor of defendant’s “presence
in an area of heavy narcotics trafficking.”
i. Not a per se rule. Flight or presence in high-crime area may support reasonable
suspicion. Fact-specific inquiry.
b. Stevens, Concurring in Part, Dissenting in Part
i. Agreed with the Court’s rejection of both the rule requested by Illinois, which
rule would authorize the detention of anyone who flees at the mere sight of a
police car, and the rule requested by the accused—that such flight would never,
by itself, justify a stop authorized by Terry—but
ii. Expressed the view that even in a high crime neighborhood, unprovoked flight
does not invariably lead to reasonable suspicion justifying a stop and frisk.
8. Reasonable Suspicion of Criminality – Conflicting case law as to whether reasonable suspicion
of a particular offense or criminality generally is required.
Permissible Extent & Scope of Temporary Seizure
1. Police may use weapons, handcuffs, confinement in a squad car, etc. during a Terry stop as long
as the facts show that the decision to utilize them was reasonable.
2. New Location May Exceed Terry – Moving a suspect to a new location (including the crime
scene itself) may exceed Terry.
3. Florida v. Royer (1983)
a. Limited Duration & Least Intrusive Means – A Terry stop must “last no longer than is
necessary to effectuate the purpose of the stop,” and “the investigative methods employed
should be the least intrusive means reasonably available to verify or dispel the officer’s
suspicion in a short period of time.”
4. United States v. Sharpe (1985) (Burger) (DURATION OF TERRY STOP)
a. Holding – 20-minute investigative detention of suspected drug trafficker held not to
violate the 4th Amendment.
b. Duration of Terry Stop – “In assessing whether detention is too long in duration to be
justified as investigative stop, court considers it appropriate to examine whether police
diligently pursued means of investigation that was likely to confirm or dispel suspicions
quickly, during which time it was necessary to detain defendant. A court making this
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5.
6.
7.
8.
9.
assessment should take care to consider whether police are acting in swiftly developing
situation, and in such cases the court should not indulge in unrealistic second-guessing.
A creative judge engaged in post hoc evaluation of police conduct can almost always
imagine some alternative means by which objectives of police might have been
accomplished. But fact that protection of public might, in abstract, have been
accomplished by ‘less intrusive’ means does not, by itself, render search unreasonable.
The question is not simply whether some other alternative was available, but whether
police acted unreasonably in failing to recognize or to pursue it.”
c. Marshall, Concurring
i. The Court understated the importance of the brevity requirement to the
constitutionality of investigative stops.
Hiibel v. Sixth Judicial District Court (2004) (IDENTIFICATION DURING TERRY STOP)
a. Rule – Refusal to state one’s name during a Terry stop could be criminalized only if “the
request for identification was ‘reasonably related in scope to the circumstances which
justified’ the stop.”
Illinois v. Caballes (2005) (Stevens)
a. Facts – After defendant had been stopped for a minor traffic violation, another trooper
without request appeared with a drug dog and led the dog around the stopped car while
the driver was being ticketed in the patrol car; the dog alerted, resulting in a full search of
the vehicle and discovery of marijuana in the trunk.
b. Holding
i. Reaffirmed Terry’s “duration”/“length” limitation, declaring that a seizure “can
become unlawful if it is prolonged beyond the time reasonably required” to serve
its lawful purpose.
ii. Severely weakened the “scope”/“intrusiveness” limitation by holding that an
investigative technique, even when directed toward criminality not reasonably
suspected, does not violate that limitation unless the particular tactic employed
“itself infringed [the detainee’s] constitutionally protected interest in privacy,”
i.e., was itself a search.
iii. Because use of the drug dog was not a search and “the duration of the stop in this
case was entirely justified by the traffic offense and the ordinary inquiries
incident to such a stop,” the defendant’s 4th Amendment rights had therefore not
been violated.
c. See pp. 424–26 for criticism of Caballes.
United States v. Everett (6th Cir. 2010)
a. Duration of Terry Stop
i. “Fact-bound, context-dependent inquiry in each case.”
ii. “The proper inquiry is whether the ‘totality of the circumstances surrounding the
stop’ indicates that the duration of the stop as a whole—including any
prolongation due to suspicionless unrelated questioning—was reasonable.”
iii. “The overarching consideration is the officer’s diligence—i.e., his persevering or
devoted application to accomplish the undertaking of ascertaining whether the
suspected traffic violation occurred, and, if necessary, issuing a ticket.”
United States v. Childs (7th Cir. 2001)
a. Holding
i. Asking of questions unrelated to the initial stop is not itself an independent
seizure.
ii. Questioning does not make pre-existing seizure unreasonable.
Ohio v. Robinette (1996) (Rehnquist)
a. Consent to Search/Suspect’s Freedom to Go – If a person has been lawfully seized, for
example, because of commission of a traffic violation, and following the point at which
56
the detainee would be free to go he consents to a search, that consent is not made
involuntary by virtue of the officer’s failure to specifically advise the detainee that he was
free to go.
b. Stevens, Dissenting
i. Agreed with the holding in the case at hand that the Constitution did not require a
lawfully seized person be advised that the person was “free to go” before the
person’s consent to search would be recognized as voluntary; but
ii. Expressed the view that (a) the judgment of the Ohio Supreme Court in the case
at hand should have been affirmed because the Ohio Supreme Court had
correctly held that the accused’s consent to the search of his vehicle was the
product of an unlawful detention, and (b) nothing in the Constitution or in the
Court’s opinion prevented a state from requiring its law enforcement officers to
give detained motorists the advice mandated by the Ohio Supreme Court.
Temporary Seizure of Effects
1. United States v. Van Leeuwen (1970)
a. Holding Mail for One Day Does Not Violate Terry – “No interest protected by the
Fourth Amendment was invaded by forwarding the packages the following day rather
than the day when they were deposited. The significant Fourth Amendment interest was
in the privacy of this first class mail; and that privacy was not disturbed or invaded until
the approval of the magistrate was obtained.”
2. United States v. Place (1983) (O’Connor)
a. Detention of Luggage – “The limitations applicable to investigative detentions of the
person . . . define the permissible scope of an investigative detention of the person’s
luggage on less than probable cause.”
i. The container may be detained without full PC only so long as could the suspect
from whose possession it was taken, so that the suspect at his option may also
remain at the place of the seizure for that length of time and then reclaim the
container unless in the interim the suspicion has grown into probable cause.
Protective Search
1. Arizona v. Johnson (2009)
a. Frisk During Traffic Stop – “In a traffic-stop setting, the first Terry condition—a lawful
investigatory stop—is met whenever it is lawful for police to detain an automobile and its
occupants pending inquiry into a vehicular violation. The police need not have, in
addition, cause to believe any occupant of the vehicle is involved in criminal activity. To
justify a patdown of the driver or a passenger during a traffic stop, however, just as in the
case of a pedestrian reasonably suspected of criminal activity, the police must harbor
reasonable suspicion that the person subjected to the frisk is armed and dangerous.”
2. Frisk for Weapons
a. Sibron v. New York (1968) (Warren) – “In the case of the self-protective search for
weapons, [officer] must be able to point to particular facts from which he reasonably
inferred that the individual was armed and dangerous.”
b. Adams v. Williams (1972) – Officer had ample reason to fear for his safety upon being
told by an informant that defendant, seated in a nearby car, was carrying narcotics and a
gun.
c. States with Concealed Carry Laws – Most states say that if an individual makes the
fact that he is carrying a gun known to the officer, then this does not justify a search
because she is not dangerous. The individual must be armed and dangerous.
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3. Frisk Procedure
a. Pat Down & Then Search – Terry – “The search for weapons approved
in Terry consisted solely of a limited patting of the outer clothing of the suspect for
concealed objects which might be used as instruments of assault. Only when he
discovered such objects did the officer in Terry place his hands in the pockets of the men
he searched.” Sibron.
b. Sibron – Search not reasonably limited when officer thrust hand into defendant’s pocket
to obtain narcotics.
c. Adams – Search was reasonably limited when officer thrust hand into defendant’s pocket
to obtain weapon.
4. Minnesota v. Dickerson (1993)
a. Rule – Officer cannot manipulate an object from outside defendant’s clothing when she
knows it is not a weapon.
5. Michigan v. Long (1983) (O’Connor)
a. Protective Search of Vehicle – “The search of the passenger compartment of an
automobile, limited to those areas in which a weapon may be placed or hidden, is
permissible if the police officer possesses a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant the officer in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons.”
b. Brennan & Marshall, Dissenting
i. A protective search during an investigative detention must be carefully limited in
scope, that the search of the passenger compartment in the absence of probable
cause violated the Fourth Amendment, and that the use of a balancing test to
determine the scope of a protective search was inappropriate.
6. Pennsylvania v. Mimms (1977)
a. Stepping out of Vehicle – Without any showing the particular suspect may be armed, an
officer may require a person lawfully stopped to alight from his car in order to diminish
“the possibility, otherwise substantial, that the driver can make unobserved movements.”
7. State v. Flynn (Wis. 1979)
a. ID Search – An identification search could be undertaken incident to a stopping if the
suspect refused to identify himself.
8. Hayes v. Florida (1985)
a. Fingerprinting – Detention for on-the-scene fingerprinting would be permissible only if
there were “a reasonable basis for believing that fingerprinting will establish or negate
the suspect’s connection with” the crime justifying the stop
9. United States v. Askew (D.C. Cir. 2008)
a. Unzipping Jacket – Police may not unzip defendant’s outer jacket for ID purposes.
Other Brief Detention for Investigation
1. Davis v. Mississippi (1969) (Brennan)
a. Facts – Petitioner and 24 other black youths were detained for questioning and
fingerprinting in connection with a rape for which the only leads were a general
description and a set of fingerprints.
b. Fingerprinting at Police Station – “Detentions for the sole purpose of obtaining
fingerprints are no less subject to the constraints of the Fourth Amendment. It is
arguable, however, that because of the unique nature of the fingerprinting process, such
detentions might, under narrowly defined circumstances, be found to comply with the
Fourth Amendment even though there is no probable cause in the traditional sense. . . .
[T]he general requirement that the authorization of a judicial officer be obtained in
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advance of detention would seem not to admit of any exception in the fingerprinting
context.”
2. United States v. Dionisio (1973) (Stewart)
a. No PC or Reasonableness for Voice Exemplars – No preliminary showing of PC or
reasonableness is required because:
i. “A subpoena to appear before a grand jury is not a ‘seizure’ in the Fourth
Amendment sense,” and thus Davis is inapposite; and
ii. Requiring a person to give voice exemplars is no search and does not infringe 4th
Amendment rights because “the physical characteristics of a person’s voice, its
tone and manner, as opposed to the content of a specific conversation, are
constantly exposed to the public,” so that “no person can have a reasonable
expectation that others will not know the sound of his voice.”
3. Dunaway v. New York (1979) (Brennan)
a. Facts – Defendant confessed after being picked up and brought to the station for a brief
period of questioning. He had not been told that he was under arrest and had not been
booked.
b. PC Required for Detention for Custodial Interrogation – “The treatment of petitioner,
whether or not it is technically characterized as an arrest, must be supported by probable
cause” because “detention for custodial interrogation—regardless of its label—intrudes
so severely on interests protected by the 4th Amendment as necessarily to trigger the
traditional safeguards against illegal arrest.”
c. White, Concurring
i. The police conduct in question was similar enough to an arrest that the normal
level of probable cause was necessary before the interests of privacy and personal
security had to give way.
d. Rehnquist & Burger, Dissenting
i. The individual was not “seized” within the meaning of the Fourth Amendment,
and therefore his statements need not be suppressed.
ii. Even assuming there was such a seizure, the connection between the allegedly
unlawful detention and the giving of the incriminating evidence was sufficiently
attenuated to permit its use at trial.
Consent Searches
1. Four Questions
a. What are the conditions of valid consent? Schneckloth.
b. How do you determine the scope of extent? Jimeno.
c. Who can consent? (Third-party consent cases.)
d. What happens if the police reasonably, but erroneously, believe that someone had
authority to consent? Rodriguez.
2. Withdrawn Consent – Until search has begun, consent can be freely withdrawn. If the search
has begun, the issue of withdrawn consent is much more tricky and unsettled.
3. Refusal to Consent & PC – Refusal to consent does not alone give rise to PC, and police need
probable cause to search a car.
a. However, an officer may say, “If you don’t consent to a search, I will arrest you and
search you incident to arrest.”
4. Schneckloth v. Bustamonte (1973) (Stewart) (CONSENT SEARCHES)
a. Holding – Upholding a consent to search a car given during a street encounter in which
no Fourth Amendment warnings were given.
b. Voluntaries Test for Consent Searches – “When the subject of a search is not in
custody and the state attempts to justify a search on the basis of his consent, the 4th and
59
14th Amendments require that it demonstrate that the consent was in fact voluntarily
given, and not the result of duress or coercion, express or implied. Voluntariness is a
question of fact to be determined from all the circumstances, and while the subject’s
knowledge of a right to refuse is a factor to be taken into account, the prosecution is not
required to demonstrate such knowledge as a prerequisite to establishing a voluntary
consent.”
i. Policy Justifications – Efficient law enforcement; not too many roadblocks to
enforcement of the law.
1. Court thinks highly of consent searches. Less danger, less property
damage, less high-running emotions.
2. Consent is a good thing. Court wants to enable it, and therefore, it does
not want to set the standard very high.
3.  Counterargument – Police can exert a substantial amount of pressure
on individuals to consent to searches.
c. Two Competing Concerns
i. “The legitimate need for such searches”; and
ii. “The equally important requirement of assuring the absence of coercion.”
d. Police need not inform suspect of her (actual) right to refuse to consent to a search.
i. Court claims that imposing this requirement would be impractical.
(Counterpoint: informing a suspect takes only a few seconds.)
ii. Why do people consent to searches so often? A: They fear retaliation from the
police; or they think that by acquiescing, police will not conduct the search; or
they think that they can talk themselves out of anything.
e. Voluntary Action v. Waiver of Right
i. Question – Is a consent search simply a matter of the consenting party having
acted voluntarily, or is it the waiver of a constitutional right, so as to bring into
play the need to show “an intentional relinquishment or abandonment of a known
right or privilege”?
ii. Waiver of Constitutional Right
1. Knowing – Full awareness.
2. Voluntary – No coercion.
a. Only element required in 4th Amendment setting.
3. Intelligent – Individual knows what she is doing.
iii. Strict Waiver Not Required in 4th Amendment as in Criminal Trials – While
a “strict standard of waiver” applies “to those rights guaranteed to a criminal
defendant to insure . . . a fair criminal trial,” it need not extend to the “protections
of the Fourth Amendment,” which “are of a wholly different order, and have
nothing whatever to do with promoting the fair ascertainment of truth at a
criminal trial.”
f. Marshall, Dissenting
i. Prosecution may not rely on a purported consent to search if the subject of the
search did not know that he could refuse to give consent.
ii. Any fair allocation of the burden of proof would require that the prosecution
show that the subject knew of his rights.
iii. Informing suspect of right to refuse consent would not hamper law enforcement.
5. Bumper v. North Carolina (1968) (Stewart)
a. Burden of Proof – Burden of proof to show voluntariness in consent cases is always on
the prosecution.
b. Consent After Claim of Lawful Authority – “There is no consent to justify the
lawfulness of a search when that consent has been given only after the official conducting
the search has asserted that he possesses a warrant.”
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6.
7.
8.
9.
10.
11.
12.
13.
14.
i. Flat assertion by police that they have lawful authority to search will suffice.
c.  If police can back up their threat, then the consent is not invalid.
United States v. Knights (2001)
a. Holding – Upheld a search by a police detective when the defendant had agreed as a
condition of probation to submit his person, property, and residence to search at anytime
without reasonable cause, by any probation officer or law enforcement officer.
i. Court did not decide how the threat of incarceration affects voluntariness in
consent cases.
Wong Sun v. United States (1963) (Brennan)
a. Consent Following Illegal Arrest – Under “fruit of the poisonous tree” doctrine, consent
may be held ineffective because obtained in exploitation of a prior illegal arrest.
Mental or emotional state of suspect may affect voluntariness of consent.
Higgins v. United States (D.C. Cir. 1954)
a. Consent Following Denial of Guilt – “No sane man who denies his guilt would actually
be willing that policemen search his room for contraband which is certain to be
discovered.”
i. But see Florida v. Bostick (holding that this argument cannot prevail because the
reasonable person test presupposes an innocent person).
United States v. Watson (1976) (White)
a. Warning of 4th Amendment Rights – Failure to give defendant 4th Amendment rights
is not controlling where the “consent was given while on a public street, not in the
confines of the police station.”
Unites States v. LaGrone (7th Cir. 1994)
a. Warning of 5th Amendment Rights (Majority View) – “Because requesting consent to
search is not likely to elicit an incriminating statement, such questioning is not
interrogation, and thus Miranda warnings are not required.”
Tidwell v Superior Court (Cal. App. 1971)
a. Right to Counsel & Consent – A post-charge or post-initial-appearance solicitation of
the defendant to consent to a search would appear to be “critical stage” at which a
defendant could not give consent without the advice of her lawyer—because at that time
the defendant’s 6th Amendment right to counsel would have attached.
Consent by Deception
a. Police may engage in some deception, but not outright fraud.
b. Leon v. United States (1966) – Upholding consent when police went “undercover” and
obtained consent that would not have been given if the defendant had known the officer’s
true identity.
c. Officer’s true identity is known, but she misleads the defendant as to her intentions. 
Conflicting case law.
d. Police cannot pretend that they have a right to search/warrant or mislead a person into
thinking that they have a legal right to conduct a search. This renders the consent
involuntarily.
i. Most Common Situation – Officers say they are searching for one thing (e.g.,
victim of violent crime) but actually are searching for another (e.g., drugs). In
such cases of trickery, the consent is invalid.
Florida v. Jimeno (1991) (SCOPE OF CONSENT)
a. Scope of Consent – Any express or implied limitations on the consent that mark the
permissible scope of that search in terms of its time, duration, area, or intensity.
b. Rule – Objective reasonableness standard. What would the typical reasonable person
have understood by the exchange between the officer and the suspect?
i. “The scope of the search is generally defined by its express object.”
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Third-Party Consent
1. United States v. Matlock (1974)
a. Facts – Following defendant’s arrest in the yard of the house in which he lived, a Mrs.
Graff consented to search of the bedroom she shared with defendant.
b. Common Authority for Third Party Consent – “When the prosecution seeks to justify
a warrantless search by proof of voluntary consent, it is not limited to proof that consent
was given by the defendant, but may show that permission to search was obtained from a
third party who possessed common authority over or other sufficient relationship to the
premises or effects sought to be inspected.”
c. Common Authority
i. Not implied from third party’s mere property interest.
ii. “Rests . . . on mutual use of the property by persons generally having joint access
or control for most purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own right and that the
others have assumed the risk that one of their number might permit the common
area to be searched.”
d. Two Bases for Common Authority Rule
i. The consenting party could permit the search “in his own right”; and
ii. The defendant had “assumed the risk” that a co-occupant might permit a search.
2. Stoner v. California (1964)
a. Consent to Search Hotel Room – A hotel clerk could not consent to search of a guest’s
room because the guest could surrender his rights only “directly or through an agent” and
there was no evidence that the “clerk had been authorized by the petitioner” to permit the
police to enter his room.
3. Illinois v. Rodriguez (1990) (Scalia) (THIRD-PARTY CONSENT)
a. Cites Matlock and Stoner.
b. 4th Amendment Reasonableness Requirement – “What he is assured by the Fourth
Amendment itself, however, is not that no government search of his house will occur
unless he consents; but that no such search will occur that is ‘unreasonable.’”
i. Reasonableness – “In order to satisfy the ‘reasonableness’ requirement of
the Fourth Amendment, what is generally demanded of the many factual
determinations that must regularly be made by agents of the government, whether
the magistrate issuing a warrant, the police officer executing a warrant, or the
police officer conducting a search or seizure under one of the exceptions to the
warrant requirement, is not that they always be correct, but that they always be
reasonable.”
c. Apparent Authority Cases – “What is at issue when a claim of apparent consent is
raised is not whether the right to be free of searches has been waived, but whether the
right to be free of unreasonable searches has been violated.”
i. Test – “As with other factual determinations bearing upon search and seizure,
determination of consent to enter must ‘be judged against an objective standard:
would the facts available to the officer at the moment . . . “warrant a man of
reasonable caution in the belief”’ that the consenting party had authority over the
premises? If not, then warrantless entry without further inquiry is unlawful
unless authority actually exists. But if so, the search is valid.”
ii. Practical Effect – Police ask for consent very widely: roommates. As long as it
was reasonable for police to believe in the authority of the person giving consent,
the search usually is valid.
d. Marshall, Brennan & Stevens, Dissenting
i. Police should have obtained a warrant.
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4. United States v. Duran (7th Cir. 1992) (SPOUSAL CONSENT)
a. Lighter Burden on Government – “In the context of a more intimate marital
relationship, the burden upon the government should be lighter. We hold that a spouse
presumptively has authority to consent to a search of all areas of the homestead; the
nonconsenting spouse may rebut this presumption only by showing that the consenting
spouse was denied access to the particular area searched.”
5. Parent-Child Consent
a. Child is living with parents.  Head of household may consent to search of child’s room.
i. Occasionally a contrary result if child has reached adulthood.
b. Child cannot consent to full search of house.
c. Child may admit visitors and police into the home.
6. Landlord-Tenant; Co-Tenants
a. Chapman v. United States (1961) – Landlord may not consent to search of tenant’s
premises although he may consent to search of common areas.
b. Stoner v. California (1964) – Hotel employees cannot consent to search of room while
rented by a guest.
c. State v. Thibodeau (Me. 1974) – “Where two or more persons occupy a dwelling place
jointly, the general rule is that a joint tenant can consent to police entry and search of the
entire house or apartment, even though they occupy separate bedrooms.”
7. Employer-Employee
a. Employer – Conflicting case law on employer’s authority to consent to search of
employee’s area.
b. Employee – Low-level employee, e.g., janitor, may not consent to search of employer’s
premises, but a high-level employee, e.g., manager, may waive employer’s rights.
8. Frazier v. Cupp (1969) (BAILOR-BAILEE)
a. Holding – Cousin could consent to a search of a duffel bag which he held and in which
both he and his cousin kept some of their personal effects.
i. Assumption of Risk Standard – “Petitioner, in allowing [his cousin] Rawls to
use the bag and in leaving it in his house, must be taken to have assumed the risk
that Rawls would allow someone else to look inside.”
9. Consent as Antagonism – Conflicting case law. See p. 462.
10. Instructions Not to Search
a. Police must abide by if they know of the instructions. People v. Fry (Cal. App. 1969).
b. No violation if police do not know of instructions. People v. Reynolds (Cal. App. 1976).
11. Georgia v. Randolph (2006) (Souter)
a. Consent by One Co-Inhabitant; No Consent by Another – “A warrantless search of a
shared dwelling for evidence over the express refusal of consent by a physically present
resident cannot be justified as reasonable as to him on the basis of consent given to the
police by another resident.”
i. Police cannot search home when one party consents and another does not.
ii. The lack of consent from one party may be overcome if police have, e.g., PC to
believe that there are drugs in the house. For example, a wife shows the police a
sample of drugs taken from the house, but her husband refuses to consent to a
search.
b. Applied very, very narrowly because courts want to allow police to conduct searches.
c. Response – Police have responded by getting the dissenting party away from the location
of the search and then obtaining sole consent from the remaining party.
Limits on the Exclusionary Rule:
Standing, “Fruit of the Poisonous Tree,” Independent Source & Inevitable Discovery
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Standing to Object to the Admission of Evidence
1. Why have a standing doctrine?
a. Danger – Government will intentionally violate one person’s 4th Amendment rights to
obtain incriminating evidence against another person.
b. Two Reasons Standing Doctrine Has Persisted
i. It is relatively rare that one person will share evidence of crime with another such
that the police will be incentivized to violate one’s 4th Amendment rights to
obtain evidence against the other.
1. In conspiracies, government wants to prosecute everybody. Even if the
government violated one’s 4th Amendment rights to obtain evidence
against another, it would not be able to prosecute the person illegally
searched.
ii. Lack of comfort with the exclusionary rule. Standing doctrine is another way
that the Court can pull back on the exclusionary rule but still apply it in cases
where it really is needed.
2. Tension Between Standing & Exclusionary Rule
a. Standing – Atomistic notion of individual, personal 4th Amendment violations.
b. Exclusionary Rule – Regulatory; geared toward safeguarding society from police
misconduct.
3. Alderman v. United States (1969) (White)
a. No Standing for Coconspirators; Codefendants – “Suppression of the product of
a Fourth Amendment violation can be successfully urged only by those whose rights
were violated by the search itself, not by those who are aggrieved solely by the
introduction of damaging evidence. Coconspirators and codefendants have been
accorded no special standing.”
4. United States v. Payner (1980) (Powell) (NO STANDING UNDER SUPERVISORY POWER)
a. Facts – In 1965, the IRS launched an investigation into the financial activities of
American citizens in the Bahamas. An IRS special agent, knowing that the vice president
of a Bahamian bank would be in Miami, agreed to and participated in a scheme whereby
that person’s locked briefcase was stolen for a short period of time while the case was
opened and 400 bank records photographed. This led to other information establishing
that Payner had a bank account in that bank and that he had falsified his federal income
tax return in that connection. This “briefcase caper,” in fact a calculated and deliberate
extreme violation of the banker’s Fourth Amendment rights and also a criminal act, was
undertaken with full understanding by the IRS agent that a person such as Payner—
precisely the kind of violator they were seeking—would not have Fourth Amendment
standing to object.
b. Holding
i. No 4th Amendment target standing.
ii. Overturned the lower court’s conferral of standing under the inherent supervisory
power of the federal courts.
5. Automatic Standing
a. Jones v. United States (1960)
i. Invitee Standing – Because the accused’s presence in the apartment searched
was legal—he was an invitee—he had standing to raise the question of the
legality of the search.
ii. OVERRULED by United States v. Salvucci.
b. Simmons v. United States (1968)
i. Rule – Testimony given by defendant in order to establish his “standing” “may
not thereafter be admitted against him at trial on the issue of guilt.”
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6.
7.
8.
9.
c. United States v. Salvucci (1980) (Rehnquist)
i. Rule – “Defendants charged with crimes of possession may only claim the
benefits of the exclusionary rule if their own Fourth Amendment rights have in
fact been violated.”
ii. OVERRULED Jones v. United States.
Residential Premises
a. Alderman v. United States (1969) (White)
i. Rules
1. One with a present possessory interest in the premises searched, e.g., a
member of the family regularly residing in the home, may challenge the
search even though not present when it was conducted.
2. A person has standing to challenge the legality of electronically
overheard conversations in which he participated “or conversations
occurring on his premises, whether or not he was present or participated
in those conversations.”
b. Rakas v. Illinois (1978) (Rehnquist)
i. Jones in Jones v. United States had a reasonable expectation of privacy in the
premises.
c. Minnesota v. Olson (1990)
i. Overnight Guest – Defendant’s status as an overnight guest showed that he had
“an expectation of privacy in the home that society is prepared to recognize as
reasonable.”
Mancusi v. DeForte (1968) (BUSINESS PREMISES)
a. Reasonable Expectation of Privacy in Shared Office Space – Defendant would
certainly have had standing if the search were of his private office, and the “situation was
not fundamentally changed because DeForte shared an office with other union officers,”
for he “still could reasonably have expected that only those persons and their personal or
business guests would enter the office, and that records would not be touched except with
their permission or that of union higher-ups.”
Rakas v. Illinois (1978) (Rehnquist)
a. Facts – Police stopped what they believed to be a robbery getaway car, ordered the
occupants out of the car, and then searched the vehicle and found a rifle under the seat
and shells in the glove compartment. Passengers disclaimed ownership of the gun and
shells.
b. Passengers Lack Standing – “They made no showing that they had any legitimate
expectation of privacy in the glove compartment or area under the seat of the car in which
they were merely passengers. Like the trunk of an automobile, these are areas in which a
passenger qua passenger simply would not normally have a legitimate expectation of
privacy.”
i. Passengers have no legitimate expectation of privacy under a seat or in a glove
compartment.
ii. Standing and legitimate expectation of privacy mean the same thing.
iii. Passengers would have standing if their 4th Amendment rights were violated. If
either the stopping of the car, the length of the passenger’s detention thereafter,
or the passenger’s removal from it are unreasonable in a 4th Amendment sense,
then surely the passenger has standing to object to those constitutional violations
and to have suppressed any evidence found in the car which is their fruit.
Rawlings v. Kentucky (1980) (Rehnquist)
a. Property Interest Alone Does Not Confer Standing – One cannot challenge a search of
an area simply because she claims ownership of the property seized during the search.
b. Blackmun, Concurring
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i. It is not improper for lower courts to treat the inquiry of whether a particular
defendant has a legitimate expectation of privacy that has been invaded by a
governmental search or seizure, and the inquiry into whether the challenged
search or seizure violates a Fourth Amendment right through illegal conduct on
the part of the police, as distinct components of a Fourth Amendment claim.
ii. A property interest can, in some circumstances, be a weighty factor in
establishing the existence of Fourth Amendment rights.
10. Brendlin v. California (2007) (Souter)
a. Passenger May Challenge Legality of Traffic Stop – “A passenger may bring a Fourth
Amendment challenge to the legality of a traffic stop” because the stopping of the vehicle
is a seizure not only of the driver, but also of the passengers, as “any reasonable
passenger would have understood the police officers to be exercising control to the point
that no one in the car was free to depart without police permission.”
i. Contrary rule would be a powerful incentive for police to form “roving patrols.”
11. Minnesota v. Carter (1998) (Rehnquist)
a. Facts – Respondents were observed by an illegal search while they were in an apartment
engaged with the tenant in bagging cocaine.
b. Social Guest – A social guest would not have to be an overnight guest in order to have
standing in the premises of another.
c. Commercial Guest – Concurring justices held that respondents lacked standing given
“the purely commercial nature of the transaction engaged in here, the relatively short
period of time on the premises, and the lack of any previous connection between
respondents and the householder.”
d. Social Guests v. Commercial Guests
i. Necessary to distinguish between overnight guest and commercial guest
categories.
ii. Visitors who come for a commercial purpose but are permitted to rest overnight
within the premises fall within Olson (holding that overnight guests have a
reasonable expectation of privacy in the premises) rather than Carter.
e. Court is saying that a person invoking the 4th Amendment exclusionary rule must have a
close relationship with the residence/enough rights to justify treating the residence as her
own, even only for a short period.
i. Standing – Owner, renter, temporary resident or overnight guest.
ii. No Standing – Burglar, someone visiting for a half hour to check on things, once
per week housekeeper.
f. Scalia & Thomas, Concurring
i. Focused on the specific language of the Fourth Amendment, which stated that
people had a right to be secure in “their houses, papers, and effects.” Interpreted
the latter phrase to mean, essentially, ownership of the house, paper, or effects.
Since anyone else did not have such an ownership interest, respondents had no
Fourth Amendment expectation of privacy.
ii. Foreshadowing Scalia’s opinion in Jones (GPS case).
g. Kennedy, Concurring
i. Would have expanded the protection of the Fourth Amendment to include “social
guests.” Did not believe that the instant defendants fell into the category of
“social guests” by being in the residence for a short time, specifically to perform
the perfunctory chore of bagging cocaine.
h. Ginsburg, Dissenting
i. Relied on Katz for the view that those who engaged in a common endeavor in
private premises had a reasonable expectation of privacy. Believed that there
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was a sufficient, substantial connection between defendants and the owner of the
residence to justify Fourth Amendment protection.
Fruit of the Poisonous Tree
1. Trio of Causation Doctrines
a. Fruit of the Poisonous Tree
b. Inevitable Discovery
c. Independent Source
2. Causation – Two components for full causation.
a. But-For Cause – If you remove the constitutional violation, would the evidence still have
been discovered?
i. Inevitable Discovery
ii. Independent Source
b. Proximate Cause – Requires a sufficient connection between the unconstitutional act and
the discovery of the evidence.
i. Fruit of the Poisonous Tree
3. Fruit of the Poisonous Tree Analysis
a. Does this defendant have standing?
b. Was the constitutional violation sufficiently connected to the discovery of this piece of
evidence?
i. Fruit of the poisonous tree?
ii. Intervening act breaking the chain of causation?
c.  Fact-specific, piece-by-piece analysis.
4. Attenuation Doctrine
a. Silverthorne Lumber Co. v. United States (1920) (Holmes)
i. Origin of “fruit of the poisonous tree” doctrine.
ii. “If knowledge of them is gained from an independent source they may be proved
like any others, but the knowledge gained by the Government’s own wrong
cannot be used by it in the way proposed.”
b. Nardone v. United States (1939) (Frankfurter)
i. Attenuation Doctrine – “Sophisticated argument may prove a causal connection
between information obtained through illicit wire-tapping and the Government’s
proof. As a matter of good sense, however, such connection may have become
so attenuated as to dissipate the taint.”
5. Wong Sun v. United States (1963) (Brennan)
a. Holding – Confession was untainted by Wong Sun’s illegal arrest because it was given
after he had obtained his release and voluntarily returned to the station later, although
there seemed to be no doubt that he would never have come in and confessed but for the
prior arrest.
i. The chain of causation was broken. Wong Sun’s decision to return and confess
was an intervening act that broke the chain of causation. His confession thus was
not the fruit of the poisonous tree.
b. Rationale – Not “all evidence is ‘fruit of the poisonous tree’ simply because it would not
have come to light but for the illegal actions of the police.” Rather, the more apt question
is “whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.”
6. Brown v. Illinois (1975) (Blackmun)
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7.
8.
9.
10.
11.
12.
a. Facts – Following his illegal arrest defendant was taken to the station and given the
Miranda warnings, after which he gave incriminating statements within two hours of the
arrest.
b. Holding – Confession in the instant case was poisoned fruit, for it was obtained just two
hours after the arrest without any intervening event of significance, and the arrest was
obviously illegal and was undertaken “in the hope that something might turn up.”
c. Miranda warnings alone do not break the causal chain between the arrest and confession.
d. Fact-Specific Inquiry Is Required – Assuming voluntariness, various factors must be
considered:
i. Whether the Miranda warnings were given (though again, if they were not this
would be a basis for suppression without reaching the fruits issue);
ii. The “temporal proximity of the arrest and the confession”;
iii. “The presence of intervening circumstances”; and
iv. “The purpose and flagrancy of the official misconduct.”
Dunaway v. New York (1979) (Brennan)
a. Miranda Warnings – Alone are not necessarily sufficient to attenuate the chain of an
unconstitutional arrest.
Taylor v Alabama (1982) (Marshall)
a. Holding – Petitioner’s confession was the fruit of his illegal arrest even though there was
considerable attenuation.
United States v. Crews (1980) (Brennan)
a. Holding – Defendant’s in-court identification was not the fruit of an unlawful arrest.
b. In-Court ID – Victim’s in-court identification has “three distinct elements”:
i. The victim is present at trial,
ii. The victim possesses knowledge of and the ability to reconstruct the crime and to
identify the defendant from observations at the time of the crime; and
iii. The defendant is physically present.
iv.  Court concluded “none of these three elements ‘has been come at by
exploitation’ of the violation of the defendant’s Fourth Amendment rights.”
New York v. Harris (1990) (White)
a. Rule – Where police have PC to arrest a suspect, the exclusionary rule does not bar the
use of a statement made by the suspect outside his home even though the statement is
obtained after an in-house arrest in violation of Payton.
i. Payton violation is about the home, and defendant was not in the home. Illegality
of the search did not relate to the way that the evidence was gathered.
b. Marshall, Brennan, Blackmun & Stevens, Dissenting
i. Accused’s statement was the fruit of the officers’ illegal entry into his home.
Segura v. United States (1984) (Burger)
a. Facts – Police made a warrantless entry of an apartment, arrested all the occupants (who
were promptly removed from the scene), and then remained within 19 hours until a
search warrant was obtained and executed.
b. Warrant Purges Taint – Illegality of initial entry had no bearing on admissibility of
challenged evidence “because there was an independent source for the warrant under
which that evidence was seized.”
i. “No information obtained during the initial entry or occupation of the apartment
was needed or used by the agents to secure the warrant. The valid warrant search
was a ‘means sufficiently distinguishable’ to purge the evidence of any ‘taint’
arising from the entry.”
United States v. Ceccolini (1978) (Rehnquist) (TAINTED WITNESS)
a. Facts – An officer in a flower shop on a social visit illegally picked up an envelope and
found it to contain money and policy slips, and then learned from his friend, an employee
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there who did not notice his discovery, that the envelope belonged to defendant, who
owned the shop. The information reached the FBI, and four months later an agent
questioned the employee about defendant’s activities without specific mention of the
illegally discovered policy slips.
b. Greater Reluctance to Exclude Testimony – “The exclusionary rule should be invoked
with much greater reluctance where the claim is based on a causal relationship between a
constitutional violation and the discovery of a live witness than when a similar claim is
advanced to support suppression of an inanimate object.”
c. More Direct Link Required for Exclusion – “Since the cost of excluding live-witness
testimony often will be greater, a closer, more direct link between the illegality and that
kind of testimony is required.”
Independent Source Doctrine
1. Murray v. United States (1988) (Scalia)
a. Facts - Government knew that there were drugs inside a warehouse. Police broke in to
confirm and then obtained a warrant. Warrant was executed, and the defendant moved to
exclude the evidence on the ground that the peak into the warehouse was a 4th
Amendment violation.
b. Rule – Evidence observed by police during an illegal entry of premises need not be
excluded if such evidence is subsequently discovered during the execution of an
otherwise valid search warrant sought and issued on the basis of information WHOLLY
UNCONNECTED to the prior entry.
i. As long as there is a fully constitutional source, exclusionary rule does not apply.
ii. Involves but-for causation.
c. Marshall, Stevens & O’Connor, Dissenting
i. Court’s decision fails to provide sufficient guaranties that a subsequent search
was in fact independent of the illegal search, and therefore undermines the
deterrence function of the exclusionary rule.
ii. Where, as in the present case, the same law enforcement officers who participate
in an illegal search immediately thereafter obtain a warrant to search the same
premises, the evidence discovered during the initial illegal entry must be
suppressed.
Inevitable Discovery Doctrine
1. Nix v. Williams (Williams II) (1984) (Burger)
a. Facts – Respondent was found guilty of first-degree murder. He successfully challenged
the conviction on the ground that evidence of his incriminating statements, which led the
police to the victim’s body, should have been excluded because the evidence was the
product of unlawful questioning by the police. At his second trial, no such evidence was
admitted, but the trial court admitted evidence of the body’s location and condition on the
theory that the body would have been discovered in any event, even had the incriminating
statements not been elicited from respondent.
b. Similarity to Independent Source Doctrine – Both are intended to ensure that
suppression does not outrun the deterrence objective: the prosecution is neither “put in a
better position than it would have been in if no illegality had transpired” nor “put in
a worse position simply because of some earlier police error or misconduct.”
c. Burden of Proof – “If the prosecution can establish by a preponderance of the evidence
that the information ultimately or inevitably would have been discovered by lawful
means, the evidence should be received.”
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i. Government must show that it would have discovered the evidence in a
constitutional way even if there had been no constitutional violation. Entirely
speculative inquiry.
ii. Need not show absence of bad faith.
iii. Concerns but-for causation.
d. Applications
i. Applies to primary evidence (evidence acquired during the course of the search
itself) and secondary evidence or derivative evidence.
ii. Applies where the inevitable discovery would have come through the efforts of a
private party who then would have presented the evidence to the police.
iii.  Assumes that discovery would have come through some separate (i.e.,
“independent”) procedure.
iv.  Fact making discovery inevitable must arise from circumstances other than
those disclosed by the illegal search itself.
v.  Does not apply where the prosecution argues that lawful discovery could have
been achieved because the police had the capacity (which they did not exercise)
to meet those prerequisites which would have rendered lawful the illegal action
that actually produced the evidence.
e. Limitation on Doctrine/Motion to Suppress – Government must provide evidence at
the Motion to Suppress that it would have found the evidence anyway. It must provide
some evidence, e.g., witnesses.
f. Stevens, Concurring
i. While the police officer’s Christian burial speech was both unconstitutional and
in breach of a promise to counsel, the inquisitorial process did not affect the trial
because the body would have been discovered anyway.
g. Brennan & Marshall, Dissenting
i. While the inevitable discovery doctrine is constitutional, the prosecution must
prove by clear and convincing evidence that the evidence would have been
discovered as a matter of course if independent investigation were allowed to
proceed.
Culpability Limits on the Exclusionary Rule
1. Trend – A few justices want to get rid of the exclusionary rule, and a few want to narrow it to
only extreme constitutional violations. This is the direction in which we are moving. Herring
and Davis have brought us here.
2. Herring v. United States (2009) (Roberts)
a. Facts – Arresting officer reasonably believed that there was an outstanding arrest warrant
for defendant’s arrest, but that belief turned out to be wrong “because of a negligent
bookkeeping error by another police employee” in failing to indicate that the warrant had
been withdrawn five months earlier.
b. Holding – Error in failing to update database to reflect recall of warrant for accused’s
arrest held, by itself, insufficient to require exclusion, under Fourth Amendment, of
evidence seized during search incident to arrest.
c. Police Culpability Required for Suppression
i. (Constructive) Knowledge of Unconstitutionality Required – “The extent to
which the exclusionary rule is justified by the deterrence principles varies with
the culpability of the law enforcement conduct. An assessment of the flagrancy
of the police misconduct constitutes an important step in the calculus of applying
the exclusionary rule. Similarly, evidence should be suppressed only if it can be
70
said that the law enforcement officer had knowledge, or may properly be charged
with knowledge, that the search was unconstitutional under the 4th Amendment.”
ii. Sufficient Culpability – “To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice
system. As laid out in the case law, the exclusionary rule serves to deter
deliberate, reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence.”
1. Nonrecurring, attenuated negligence is insufficient.
d. Systemic Errors in Warrant System – “In a case where systemic errors were
demonstrated, it might be reckless for officers to rely on an unreliable warrant system.”
e. Ginsburg, Dissenting
i. “The exclusionary rule provides redress for Fourth Amendment violations by
placing the government in the position it would have been in had there been no
unconstitutional arrest and search. The rule thus strongly encourages police
compliance with the Fourth Amendment in the future.”
ii. Problems with Deliberate or Reckless Error Standard
1. “First, by restricting suppression to bookkeeping errors that are
deliberate or reckless, the majority leaves Herring, and others like him,
with no remedy for violations of their constitutional rights.”
2. “Second, I doubt that police forces already possess sufficient incentives
to maintain up-to-date records.”
3. “Third, even when deliberate or reckless conduct is afoot, the Court’s
assurance will often be an empty promise: How is an impecunious
defendant to make the required showing?”
f. Breyer, Dissenting
i. Would apply the exclusionary rule for reasons of administrability.
3. Davis v. United States (2011) (Alito)
a. Clash Between Retroactivity & Good Faith
i. Retroactivity
1. Issue – Does a new decision apply to cases currently moving through the
judicial system? If Court sets new precedent expanding constitutional
rights, should it apply to cases currently pending? Essentially, people in
jail are saying, “I want mine too.”
2. General Rule – All constitutional decisions are applied retroactively.
Formalist notion of the timeless Constitution.
3. Linkletter v. Walker (1965) – Constitution neither prohibited nor
required “an absolute rule of retroaction.” Only a case-by-case
examination of the rules in question was required.
a. Griffin v. Kentucky (1987) – Overruled Linkletter. After a new
rule had been decided in a particular case, “the integrity of
judicial review requires that we apply that rule to all similar
cases pending on direct review.” Question is: Is the conviction
final? If not, then the new right is vindicated.
ii. United States v. Leon (1984) – Good-faith exception to exclusionary rule.
Created tension with the retroactivity decisions.
iii. Court resolved this tension in Davis.
b. Deterrence Purpose of Exclusionary Rule – “The rule’s sole purpose is to deter
future 4th Amendment violations. Where suppression fails to yield appreciable
deterrence, exclusion is clearly unwarranted.”
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c. Balancing Deterrent Value & Heavy Social Costs – “Real deterrent value is a
necessary condition for exclusion of evidence, but it is not a sufficient one. The analysis
must also account for the substantial social costs generated by the exclusionary rule.
Exclusion exacts a heavy toll on both the judicial system and society at large. It almost
always requires courts to ignore reliable, trustworthy evidence bearing on guilt or
innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the
criminal loose in the community without punishment. Society must swallow this bitter
pill when necessary, but only as a last resort. For exclusion to be appropriate, the
deterrence benefits of suppression must outweigh its heavy costs.”
d. Police Culpability & Deterrent Value – “The deterrence benefits of exclusion of
evidence vary with the culpability of the law enforcement conduct at issue.”
i. Strong Deterrent Value – “When the police exhibit deliberate, reckless, or
grossly negligent disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costs.”
ii. Weak Deterrent Value – “But when the police act with an objectively
reasonable good-faith belief that their conduct is lawful [i.e., no culpability], or
when their conduct involves only simple, isolated negligence, the deterrence
rationale loses much of its force, and exclusion cannot pay its way.”
e.  Court is replacing the cost-benefit balance with an inquiry into the culpability of the
officer.
f.  Leon considered the application of the exclusionary rule in a class of cases, but the
Court establishes case-by-case adjudication.
g.  If there is no clear precedent against the search or seizure, officer likely could not
possess sufficient culpability to invoke the exclusionary rule. No suppression unless
officer violated clearly established law.
i. Qualified immunity standard.
h. Remedies for Constitutional Violations Outside Qualified Immunity
i. Violations by municipal officers.
ii. Obtaining an injunction against a police action.
iii.  Not much else. We’re moving back into a pre-Mapp world.
i. Breyer & Ginsburg, Dissenting
i. “The Court finds a new ‘good faith’ exception which prevents application of the
normal remedy for a Fourth Amendment violation, namely, suppression of the
illegally seized evidence.”
ii. “At this point I can no longer agree with the Court. A new ‘good faith’ exception
and this Court’s retroactivity decisions are incompatible.”
iii. “If the Court means what it now says, if it would place determinative weight
upon the culpability of an individual officer’s conduct, and if it would apply the
exclusionary rule only where a Fourth Amendment violation was ‘deliberate,
reckless, or grossly negligent,’ then the ‘good faith’ exception will swallow the
exclusionary rule.”
Undercover Investigations
1. Two Types of Undercover Actors
a. Undercover Law Enforcement Officer
b. Confidential Informant
2. Typical Applications
a. Genuine Eyewitness – Eyewitness wants to talk to law enforcement.
b. Manufactured Eyewitness – Government creates an eyewitness.
c. Undercover police as eyewitness.
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d. All of the above, but with a wire.
e.  Used to investigate victimless crimes; i.e., narcotics, gambling, prostitution; and
conspiracies.
i. Victimless Crimes – There is no eyewitness that is willing to speak to the police.
ii. In conspiracies, it often is hard for police to figure out what is going on.
3. Two Legal Regimes
a. 4th Amendment – Generally does not regulate undercover operators.
i. But see Gouled (regulating the scope of a search).
ii. Regulates when and where searches may occur.
iii. 4th Amendment claims may be litigated before trial, i.e., evidence obtained in an
unconstitutional manner may be suppressed.
b. Law of Entrapment – Regulates undercover operators.
i. (1) Fills the gaps that the 4th Amendment might have filled, or (2) the 4th
Amendment does not need to regulate undercover operators because the law of
entrapment does.
ii. Regulates what government may do once the search has commenced.
iii. Entrapment questions must be litigated at trial.
4. Undercover Agents Are Permitted Under the 4th Amendment – Reasons:
a. History of long-established use.
b. If an undercover agent is regulated under the 4th Amendment, then there is not much
leeway in how they may be regulated. They would be subject to all of the established 4th
Amendment rules, including obtaining PC before obtaining a warrant to go undercover.
i. This would be PC not that the suspect is engaging in crimes, but that the
informant could get the target to talk about crimes within ten days.
c. Undercover searches are like consent searches, and the Court allows consent searches
very liberally. (Kerr thinks the use of undercover agents is easiest to understand as a
form of consent doctrine.)
d. The 1960s represented the height of government investigations into the mob and
organized labor.
5. Hoffa v. United States (1966) (Stewart)
a. Facts – An old friend of the defendant gave incriminating testimony based upon his visits
to defendant’s hotel room as an agent of the government.
b. 4th Amendment Does Not Protect Misplaced Confidence – “4th Amendment does not
protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it.”
i. No reasonable expectation of privacy is violated if you admit someone into your
confidence and it turns out that your confidence was misplaced.
1. Case was decided one year before Katz, so the opinion employs
“constitutionally protected area” language.
ii. 4th Amendment applies to hotel rooms, Jeffers; guileful as well as by forcible
intrusions into a constitutionally protected area, Gouled; and tangibles and oral
statements, Silverman.
iii.  “The petitioner, in a word, was not relying on the security of the hotel room;
he was relying upon his misplaced confidence that Partin would not reveal his
wrongdoing.”
c. Hoffa’s 4th Amendment Argument – “The argument is that Partin’s failure to disclose
his role as a government informer vitiated the consent that the petitioner gave to Partin’s
repeated entries into the suite, and that by listening to the petitioner’s statements Partin
conducted an illegal ‘search’ for verbal evidence.”
i. Court rejects.
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6.
7.
8.
9.
d. Hoffa’s 5th Amendment/Due Process Argument – “The ‘totality’ of the Government’s
conduct ‘offend[s] those canons of decency and fairness which express the notions of
justice of English-speaking peoples even toward those charged with the most heinous
offenses.’”
i. Court rejects.
1. Cites long history of use of confidential informants.
2. The veracity of Partin’s testimony will be tested by cross-examination,
and a jury will judge its credibility.
e. Warren, Dissenting
i. Concerned about Partin’s incentives for gathering incriminating evidence against
Hoffa, i.e., leniency and financial assistance from the Government.
ii. What happened in the instant case was not in keeping with the standards of
justice in the federal system.
iii. The Supreme Court was not bound by the findings of lower courts where
violation of fundamental constitutional rights was alleged. Court should invoke
its supervisory power to ensure quality and fairness of federal law enforcement.
United States v. White (1971) (White) (UNDERCOVER RECORDING EQUIPMENT)
a. Affirmed Hoffa.
i. Katz (decided one year after Hoffa) did not overturn Hoffa.
b. Recording Equipment – Undercover use of recording equipment does not make an
agent’s conduct a 4th Amendment search.
i. “If the conduct and revelations of an agent operating without electronic
equipment do not invade the defendant’s constitutionally justifiable expectations
of privacy, neither does a simultaneous recording of the same conversations
made by the agent or by others from transmissions received from the agent to
whom the defendant is talking and whose trustworthiness the defendant
necessarily risks.”
c. Harlan, Dissenting
i. Seriously questioned whether an informant’s secretly recording his conversations
with an accused comports with the 4th Amendment.
ii. Third-party electronic monitoring violates the 4th Amendment.
iii. Katz should be applied retroactively.
United States v. Longoria (10th Cir. 1999) (FOREIGN LANGUAGE)
a. No Reasonable Expectation of Privacy Based on Foreign Language – “The court
finds no precedent recognizing expectations of privacy based on a listener’s ability to
comprehend a foreign language and declines to find such an expectation for several
reasons.”
i. “First, comprehension is a malleable concept not easily measured by either the
defendant or the court. Attempting to delineate a standard based on subjective
evaluations of linguistic capabilities would be unworkable to say the least.”
ii. “More important, the court does not find such an expectation to be objectively
reasonable. In our increasingly multilingual society, one exposing conversations
to others must necessarily assume the risk his statements will be overheard and
understood.”
United States v. Mayer (9th Cir. 2007) (FIRST AMENDMENT)
a. Facts – Concerned NAMBLA.
b. First Amendment Limitation – “An [undercover] investigation threatening First
Amendment rights,” is permitted when it is “justified by a legitimate law enforcement
purpose that outweighs any harm to First Amendment interests.”
Gouled v. United States (1921) (SCOPE OF CONSENT)
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a. Holding – Where defendant’s business acquaintance gained entry “by falsely
representing that he intended only to pay a social visit,” but once inside he “secretly
ransacked the office and seized certain private papers,” the 4th Amendment was violated.
i. Undercover agents are still government actors.
Entrapment Doctrine
1. Introduction
a. Criminal law defense, not a constitutional claim.
b. Two Different Ideas in Entrapment
i. Inducement
ii. Predisposition
c. Codification of Entrapment – Varies among jurisdictions.
i. Some states have codified it.
ii. In other states and the federal system, it is just common law.
d. Sorrells v. United States (1932)
i. Facts – Suspect-turned-defendant urged Sorrells to commit a crime, i.e., buy him
alcohol during Prohibition. He pushed and prodded Sorrells until he acquiesced.
ii. Origin of Entrapment Defense – “Entrapment is the conception and planning of
an offense by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery, persuasion, or fraud of the
officer.”
1. Court held that Congress would not want to have punished entrapped
individuals.
a. Entrapment is a matter of statutory interpretation focusing on
legislative intent.
2. Entrapment is an affirmative and judge-made defense.
3. Development of the law of entrapment became largely an activity of the
federal courts, with the states then adopting the doctrine thereby created.
e. Two Approaches – Objective Approach v. Subjective Approach
i. Objective – Did the government go to far in pushing and prodding the individual
to commit the crime? One question about inducement.
1. Minority approach. Used by a dozen states and the Model Penal Code.
Sherman (Frankfurter, dissenting).
2. Question of law for the court, not a question of fact.
ii. Subjective – Looks at both inducement and predisposition.
1. Inducement – Looks to government’s pressure. Did the government’s
pressure in pushing and prodding the individual cause the crime to
occur?
2. Predisposition – Looks to defendant. Would this individual have
committed the crime even if the government had not pushed and prodded
her?
3.  Majority approach. Used in federal courts and most states. Sherman;
Jacobson.
4.  Factual question for the jury, not a legal question.
5.  Appellate Review – Limited to accuracy of jury instructions and
whether adequate evidence supports the jury’s findings.
6.  Burden Shifting in Federal Courts
a. Defendant must initially show that government induced her to
commit the crime.
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b. If defendant makes this showing, burden shifts to the
government to prove beyond a reasonable doubt either (1) that
there was no inducement or (2) that defendant was predisposed
to commit the offense.
7.  That federal government uses the subjective approach does not make
much difference w/r/t actual investigations because either (1) the
government does not know defendant’s disposition or (2) the defendant’s
disposition is not clear. Result is that even in subjective jurisdictions,
there is no inquiry into the suspect’s predisposition. All that matters is
that the government does not induce the suspect.
iii. Model Penal Code – Uses a “blended” approach. See p. 475.
2. Inducement
a. Basis of Entrapment/Governmental Inducement – Everyone has a price; at a certain
point, everyone will give in. Thus, with regard to inducement, once the government has
made the deal sweet enough and put enough pressure on the defendant, of course he will
give in. Because the government has created a false environment in which his price has
been reached, the government effectively has induced him to illegal activity.
b. There are no clear lines as to how much government pressure is enough for inducement
because this is ultimately a jury issue.
c. Avoiding Inducement – Government avoids inducement by not pushing defendant too
far. Police try to be passive participants. May provide opportunity, but not pressure.
i. Rule of Thumb – Don’t badger or pressure. Just wait for crime to come to you.
d. Sherman v. United States (1958) (Warren)
i. Facts – In a prosecution for unlawful sales of narcotics, it was established by the
undisputed testimony of the prosecution’s witnesses that the sales, made to a
government informer, were brought about by the informer’s persistent
solicitation in the face of obvious reluctance on the part of the defendant, whom
the informer believed to be undergoing a cure for narcotics addicts, and by the
informer’s appeals to sympathy based on mutual experiences with narcotics
addiction and the informer's tale of his suffering. It was likewise established that
the informer not only procured a source of narcotics but also induced defendant
to return to the habit.”
ii. Warren – Subjective Approach
1. “The fact that government agents merely afford opportunities or facilities
for the commission of the offense does not constitute entrapment.”
2. Two-Part Test – Entrapment occurs only when the criminal conduct was
‘the product of the creative activity’ of law-enforcement officials. To
determine whether entrapment has been established, a line must be
drawn between the trap for the unwary innocent and the trap for the
unwary criminal.”
a. “On the one hand, at trial the accused may examine the conduct
of the government agent”; and
b. “On the other hand, the accused will be subjected to an
appropriate and searching inquiry into his own conduct and
predisposition as bearing on his claim of innocence.”
3. Congressional Intent – “Congress could not have intended that its
statutes were to be enforced by tempting innocent persons into
violations.”
4. Concluded that entrapment was established as a matter of law.
iii. Frankfurter, Dissenting – Objective Approach
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1. One-Part Test – “In holding out inducements [police] should act in such
a manner as is likely to induce to the commission of crime only these
persons and not others who would normally avoid crime and through
self-struggle resist ordinary temptations. This test shifts attention from
the record and predisposition of the particular defendant to the conduct
of the police and the likelihood, objectively considered, that it would
entrap only those ready and willing to commit crime.”
a. Government’s condemnable conduct is key. Defendant’s
predisposition is irrelevant.
b. Factors – “Evidence of the setting in which the inducement took
place is of course highly relevant in judging its likely effect, and
the court should also consider the nature of the crime involved,
its secrecy and difficulty of detection, and the manner in which
the particular criminal business is usually carried on.”
2. Rejects Court’s interpretation of legislative intent (as well as the whole
inquiry). Congress’ only intention was to criminalize certain behavior.
3. Entrapment is a question of law for courts only.
4. Entrapment defense may be raised at any time.
5.  Objective approach has never received more than four votes.
3. United States v. Gendron (1st Cir. 1994) (Breyer)
a. Improper Inducement – “An improper inducement goes beyond providing an ordinary
opportunity to commit a crime. An inducement consists of an opportunity plus
something else, typically, excessive pressure by the government upon a defendant or the
government's taking advantage of an alternative, non-criminal type of motive.”
b. Examples of Inducement – “Courts have found a basis for sending the entrapment issue
to the jury (or finding entrapment established as a matter of law) where government
officials:”
i. Used intimidation and threats against a defendant's family;
ii. Called every day, began threatening the defendant, and were belligerent;
iii. Engaged in forceful solicitation and dogged insistence until a defendant
capitulated;
iv. Played upon a defendant’s sympathy;
v. Played upon sentiment;
vi. Used repeated suggestions; and
vii. Told defendant that she (the agent) was suicidal and in desperate need of money
4. United States v. Russell (1973) (Rehnquist)
a. Facts – An undercover agent supplied the defendant and his associates with 100 grams of
propanone, an essential but difficult to obtain ingredient in the manufacture of
methamphetamine (“speed”); they used it to produce two batches of “speed,” which
pursuant to agreement the agent received half of in return.
b. Russell’s Due Process Challenge – Prosecution should be precluded when it is shown
that the criminal conduct would not have been possible had not the agent “supplied an
indispensable means to the commission of the crime that could not have been obtained
otherwise, through legal or illegal channels.”
i. Court did not pass on this matter because it found that defendants could have
obtained propanone from other sources.
c. Possible Due Process Challenge – “We may some day be presented with a situation in
which the conduct of law enforcement agents is so outrageous that due process principles
would absolutely bar the government from invoking judicial processes to obtain a
conviction.”
i. Instant case did not rise to this level.
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d. Douglas, Brennan, Marshall & Stewart, Dissenting
i. Urged adoption of the objective approach to entrapment and asserted that if
propanone “had been wholly unobtainable from other sources” the agent’s
actions would be “conduct that constitutes entrapment under any definition.”
5. Lopez v. United States (1963)
a. Not All Deception Is Barred – “The conduct with which the defense of entrapment is
concerned is the manufacturing of crime by law enforcement officials and their agents.
Such conduct, of course, is far different from the permissible stratagems involved in the
detection and prevention of crime.”
6. Undercover agents are NOT required to admit that they are police/working with police if asked.
Predisposition
1. Question of fact, not of law.
2. Jacobson v. United States (1992) (White)
a. Facts – Defendant ordered sexually explicit photos of children through the mail after the
government, over two and a half years, made repeated efforts through five fictitious
organizations and a bogus pen pal to explore his willingness to do so.
b. Holding – Government had failed to establish defendant’s predisposition.
c. Burden of Proof – “Where the government has induced an individual to break the law
and the defense of entrapment is at issue the prosecution must prove beyond reasonable
doubt that the defendant was disposed to commit the criminal act prior to first being
approached by government agents.”
d. Timing of Predisposition – Before the government became involved, was the defendant
predisposed?
i. If the government discovers evidence of preexisting disposition after becoming
involved, it still may use this evidence.
ii. Here, it was fatal that the predisposition did not exist until after the government
inducement. Cannot look at predisposition after government inducement.
e. But-For Causation – Would the person have been the kind of person to do this had he
not been induced? Would Jacobson independently (without government pressure) have
bought child pornography?
i. Key predisposition question.
ii. This is a jury question, so there is no clear line. Reduces to factual arguments.
f. Predisposition Rules
i. “Evidence that merely indicates a generic inclination to act within a broad range,
not all of which is criminal, is of little probative value in establishing
predisposition.”
ii. “Evidence of predisposition to do what once was lawful is not, by itself,
sufficient to show predisposition to do what is now illegal.”
g. O’Connor, Rehnquist, Kennedy & Scalia, Dissenting
i. It was reasonable for the jury to infer that the farmer was predisposed beyond a
reasonable doubt to violate the law, even if other inferences from the evidence
also were possible.
ii. Although the fact that the farmer’s purchase of the two magazines from the
bookstore was legal may have had some relevance to the question of
predisposition, it was not dispositive.
3. United States v. Burkley (D.C. Cir. 1978)
a. Predisposition – A “state of mind which readily responds to the opportunity furnished by
the officer or his agent to commit the forbidden act.”
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4. Would the subject have committed the crime without the government present, or would the
subject have committed the crime without the government’s unusual amount of inducement?
a.  Divided case law.
Introduction to Law of Interrogations
[Outline Class 20, pp. 539–49.]
1. Law of Interrogations & Confessions Generally
a. Powerful Rules
i. Requires nothing more than a suspect’s speech; police need not gather other
evidence.
ii. Juries find confessions to be very powerful. Less uncertainty than with tangibles.
b. Two Pieces of the Miranda Puzzle
i. How do interrogations look from the perspective of the police? What do they do
to get suspects to confess?
ii. There is a hole in the constitutional framework that Miranda attempted to fill. It
existed because professional police did not exist when Constitution was drafted.
c. 5th Am. Right Against Self-Incrimination – Created to curtail judicial interrogations.
i. Responded to judicial interrogations. In a world without police, magistrate
judges would interrogate suspects, and if they would not respond, judges would
hold them in contempt until they complied.
ii. Nothing regulated interrogation before a suspect was taken to a judge. The 5th
Amendment right against self-incrimination applies only in the courtroom, not in
the police interrogation chamber.
iii. Police in the 1930s-40s would round up the usual suspects and beat them until
they confessed. Interrogations were abusive and unregulated. (Third Degree.)
d. Police Attitude – Police view Miranda rights as an obstacle to be overcome.
2. Best Ways of Limiting Police Interrogations
a. Public Policy – What kinds of restrictions would be best to impose?
b. Constitutional – How would you construct a constitutional argument to arrive at those
restrictions?
3. Amendments
a. 5th Amendment – “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation.”
b. 6th Amendment – “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.”
c. 14th Amendment, Section 1 – “All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
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person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
4. Due Process Voluntariness/Totality of Circumstances Test for Admitting Confessions
a. Generally
i. Voluntariness was an important concept in the 1960s.
ii. Considered to be part of due process.
iii. Voluntary confessions were admissible. Involuntary ones were inadmissible.
b. Brown v. Mississippi (1936)
i. Facts – Confessions were obtained by brutally beating the suspects.
ii. Holding – Confessions were struck down on the notion that interrogation is part
of the process by which a state procures a conviction and thus is subject to the
requirements of the 14th Amendment due process clause.
c. Ashcraft v. Tennessee (1944)
i. Holding – Court stresses that it “inconceivable that any court of justice in the
land . . . would permit prosecutors serving in relays to keep a defendant witness
under continuous cross-examination for thirty-six hours without rest or sleep in
an effort to extract a ‘voluntary’ confession,” and that due process bars “a
confession where prosecutors do the same thing away from the restraining
influences of a public trial in an open court room”
d. Melinsky v. New York (1945)
i. Holding – Stripping a suspect naked for hours makes a confession involuntary.
e. Other Tactics for Coercing Involuntary Confessions
i. Suggesting that a sibling or child is in physical danger and that a confession is
necessary to help her.
ii. Using a truth serum.
f. Problems with Voluntariness Standard
i. No obvious dividing line. Voluntariness is ultimately a matter of fact. Very little
uniformity among trial judges.
5. McNabb-Mallory Rule – Supervisory Authority over Federal Criminal Justice v. 14th
Amendment Due Process
a. McNabb-Mallory Rule – Court required the suppression of any confession obtained
during custody which was illegal by virtue of a failure to honor a defendant’s right to be
brought promptly before a judicial officer following his arrest.
i. Attempting to place a time limit on interrogations using the FRCP. Responded to
days-long interrogations.
ii. Relies on courts’ SUPERVISORY AUTHORITY.
iii. Applies only in federal courts.
1. Voluntarily adopted by only a few states. Never incorporated.
iv. Less usage today because of increasing resort to right to counsel and privilege
against self-incrimination.
b. McNabb v. United States (1943) (Frankfurter)
i. Facts – Involved the murder of a federal revenue agent during a raid on an illegal
still. Several uneducated mountaineers were arrested late at night and were
subjected intermittently to prolonged questioning over the next several days,
resulting in confessions by three of them. The confessions were admitted as
voluntary and the defendants were convicted.
ii. Holding – Court suppressed confessions because allowing them to stand would
make “the courts themselves accomplices in willful disobedience of law.”
1. Invoked its SUPERVISORY AUTHORITY OVER FEDERAL CRIMINAL
JUSTICE.
c. Mallory v. United States (1957) (Frankfurter)
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i. Holding – A confession was inadmissible because procured in violation of a
provision in the federal rules (not extant when McNabb was decided) to the
effect that an arrested person must be taken before a committing magistrate
“without unnecessary delay.”
6. Right to Counsel & Analogy to the Accusatorial Adversary Trial
a. Crooker v. California (1958) (Clark)
i. Holding – Suppressing a confession because police had denied defendant’s
request to contact his lawyer “would effectively preclude police questioning—
fair as well as unfair—until the accused was afforded opportunity to call his
attorney.”
b. Cicenia v. La Gay (1958)
i. Holding – No suppression of defendant’s confession where defendant's requests
to see his attorney were refused and his counsel was actually turned away at the
station.
c. Spano v. New York (1959)
i. Concurring Opinions – Absolute right to counsel attached prior to interrogation.
1. Because a year earlier Warren, dissenting in Crooker, had taken the
position that the right to counsel should begin even earlier, it appeared
that the position taken by the Spano concurring Justices commanded a
majority of the Court.
7. Massiah v. United States (1964) (Stewart)
a. Facts – Massiah, indicted for federal narcotics violations, retained counsel, pled not
guilty and was released on bail. Codefendant Colson, who unknown to Massiah was
cooperating with the authorities and had a radio transmitter in his car, invited Massiah to
discuss the pending case in that car, and during their conversations Massiah made several
damaging admissions. They were overheard by a federal agent, who testified as to them
at Massiah’s trial.
b. Holding – “Petitioner was denied the basic protections of [the 6th Amendment right to
counsel] when there was used against him at his trial evidence of his own incriminating
words, which federal agents had deliberately elicited from him after he had been indicted
and in the absence of his counsel. . . . ‘If such a rule is to have any efficacy it must apply
to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In
this case, Massiah was more seriously imposed upon because he did not even know that
he was under interrogation by a government agent.’”
i. Decided case on novel 6th Amendment grounds.  After defendant has been
indicted, he has a right to an attorney and should not be able to be interrogated
without his lawyer present.
c. White, Dissenting
i. There was not in the instant case any “inherent danger of police coercion
justifying the prophylactic effect of another exclusionary rule.”
ii. There had been no “unconstitutional interference with Massiah’s right to
counsel” because he had not been prevented from consulting with counsel, no
meetings with counsel were spied upon, and preparation for trial was in no way
obstructed.
8. Escobedo v. Illinois (1964) (Goldberg)
a. Facts – Escobedo was taken into custody and questioned concerning the fatal shooting of
his brother-in-law, but his retained counsel obtained his release. About ten days later one
DiGerlando, who was then in police custody and who was later indicted with Escobedo
for the murder, stated that Escobedo had fired the fatal shots, so Escobedo was again
arrested and then told of that allegation. He repeatedly asked to see his retained attorney,
who came to the police station but was barred from seeing his client. After the police
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arranged a confrontation between DiGerlando and Escobedo, Escobedo incriminated
himself in the killing while claiming that DiGerlando had fired the fatal shots. That
enabled an assistant prosecutor to obtain a more elaborate written confession, which was
admitted at Escobedo’s trial. He was convicted of murder.
b. Reliability of Confessions – “A system of criminal law enforcement which comes to
depend on the ‘confession’ will, in the long run, be less reliable and more subject to
abuses than a system which depends on extrinsic evidence independently secured through
skillful investigation.”
c. Holding – “We hold, therefore, that where, as here, [1] the investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect, [2]
the suspect has been taken into police custody, [3] the police carry out a process of
interrogations that lends itself to eliciting incriminating statements, [4] the suspect has
requested and been denied an opportunity to consult with his lawyer, and [5] the police
have not effectively warned him of his absolute constitutional right to remain silent, the
accused has been denied “the Assistance of Counsel” in violation of the 6th Amendment
to the Constitution as “made obligatory upon the States by the 14th Amendment,” . . . and
that no statement elicited by the police during the interrogation may be used against him
at a criminal trial.”
i. Grounded in 6th Amendment. 6th Amendment right to counsel is triggered at the
moment of arrest.
ii. Holding is very narrowly limited to the facts of the case.
d. Significance
i. Very confusing opinion.
ii. Courts ignore it in a post-Miranda world.
e. Stewart, Dissenting
i. The right to assistance of counsel should not attach until the formal institution of
proceedings by indictment, information, or arraignment.
ii. The majority’s holding would have an unfortunate impact on the fair
administration of criminal justice.
f. White, Dissenting
i. The majority’s decision will be applicable whenever the accused becomes a
suspect, rendering admissions to the police inadmissible unless the accused
waives his right to counsel.
ii. The decision approaches a goal of barring from evidence all admissions obtained
from a person suspected of crime, thus abandoning the voluntary-involuntary test
for admissibility of confessions and rendering the task of law enforcement more
difficult.
9. 18 U.S.C. § 3501
a. Enacted in 1968, after Miranda. Meant to restore much of the pre-Miranda law.
b. Unenforced for many years because it was thought to be unconstitutional.
c. In Dickerson v. United States (2000), the Court held that Miranda was constitutionally
required and thus struck down most of § 3501 as unconstitutional.
i. Only § 3501(c) remains in effect. Concerns the McNabb-Mallory rule.
Interpreted in Corley v. United States (2009).
d. 18 U.S.C. 3501(c) – “In any criminal prosecution by the United States or by the District
of Columbia, a confession made or given by a person who is a defendant therein, while
such person was under arrest or other detention in the custody of any law-enforcement
officer or law-enforcement agency, shall not be inadmissible solely because of delay in
bringing such person before a magistrate judge or other officer empowered to commit
persons charged with offenses against the laws of the United States or of the District of
Columbia if such confession is found by the trial judge to have been made voluntarily
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and if the weight to be given the confession is left to the jury and if such confession was
made or given by such person within six hours immediately following his arrest or other
detention: Provided, That the time limitation contained in this subsection shall not apply
in any case in which the delay in bringing such person before such magistrate judge or
other officer beyond such six-hour period is found by the trial judge to be reasonable
considering the means of transportation and the distance to be traveled to the nearest
available such magistrate judge or other officer.”
e. Corley v. United States (2009) (Souter)
i. Holding – “18 U.S.C.S. § 3501 modified McNabb-Mallory without supplanting
it. Under the rule as revised by § 3501(c), a district court with a suppression
claim must find whether the defendant confessed within six hours of arrest
(unless a longer delay was reasonable considering the means of transportation
and the distance to be traveled to the nearest available magistrate). If the
confession came within that period, it is admissible, subject to the other Federal
Rules of Evidence, so long as it was made voluntarily and the weight to be given
it is left to the jury. If the confession occurred before presentment and beyond
six hours, however, the court must decide whether delaying that long was
unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the
confession is to be suppressed.”
ii. Alito, Dissenting
1. Argued that 18 U.S.C. § 3501 is unambiguous in stating, “[i]n any
criminal prosecution brought by the United States . . . a confession . . .
shall be admissible in evidence if it is given voluntarily.”
Miranda v. Arizona
1. Generally & Context
a. TV Understanding – An arrestee must be read her rights upon arrest. This is erroneous
because there is not yet custodial interrogation.
b. Miranda effectively became its own constitutional amendment. Grounded in the 5th
Amendment, but it really is its own jurisprudence. Courts do not really consider it to be a
part of the 5th Amendment.
c. Pinnacle of Warren Court’s criminal procedure revolution. Required a sea change in how
police interrogate suspects. Nixon ran for president on an anti-Warren Court agenda.
d. Relevant Supreme Court History – Replacement of Frankfurter (restrained, conservative)
by Goldberg (liberal, judicial activist).
2. Pre-Miranda Law of Police Interrogations
a. Due Process Voluntariness Test – Confession was admissible if voluntary but
inadmissible if involuntary.
b. Messiah v. United States (1964) – 6th Amendment right to counsel.
c. Escobedo v. Illinois (1964) – 6th Amendment right to counsel. Very confusing opinion.
3. Miranda v. Arizona (1966) (Warren)
a. Facts – Involved kidnapping and raping of a young girl. Defendant denied guilt but
eventually confessed. Then he signed a written statement attesting that he was aware of
his rights even though he probably was not. (Facts were not inherently special. Just one
exemplary case.)
b. Underlying Idea – Concern for Police Abuse/Power Differential
i. Warren had been the Attorney General of California.
ii. Majority examined “various police manuals and texts,” a “valuable source of
information about present police practices.” From the several psychological
ploys and stratagems outlined therein, the Court concluded that even without
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resort to brutality “the very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weaknesses of individuals.”
iii. Police control interrogations 100%. Court wanted to insert the law into the
interrogation room. Because the Court could not be present in the box, it forced
the police to do certain things, i.e., advise suspects of their rights. Big Idea: if
suspects are aware of their rights, then they will be able to exercise them.
c. Court relied on 5th Amendment Right Against Self-Incrimination
i. Had been briefed as a 6th Amendment case. No one thought that this 5th
Amendment right applied this early in criminal proceedings.
1. Brennan convinced Warren to make Miranda a 5th Amendment case, not
a 6th Amendment case. Avoiding the 6th Amendment avoided having to
comply with Messiah and avoided ending all interrogations. Using the
5th Amendment gave the Court more room to roam.
ii. Incorporation – Based on the Incorporation Doctrine and Malloy, the Court now
has the ability to apply these constitutional rules to state police interrogations.
d. Two Kinds of Miranda Rights
i. Right to remain silent.
1. 5th Amendment.
2. Preexisting.
ii. Right to counsel.
1. 5th Amendment (in addition to 6th Amendment).
2. New substantive right.
e. Summary of Rules
i. Possibility of Other Rules – These rules are required to safeguard the privilege
against self-incrimination, and thus must be followed in the absence of “other
procedures which are at least as effective in apprising accused persons of their
right of silence and in assuring a continuous opportunity to exercise it.”
ii. Timing/Custodial Interrogation – These rules apply “when the individual is
first subjected to police interrogation while in custody at the station or otherwise
deprived of his freedom of action in any significant way,” and not to “[g]eneral
on-the-scene questioning as to facts surrounding a crime or other general
questioning of citizens in the fact-finding process” or to “[v]olunteered
statements of any kind.”
1. Two Key Components – (1) Custody and (2) interrogation.
2. If police may arrest someone with no intention of interrogating her, then
no warnings are required.
iii. Right to Remain Silent – Without regard to his prior awareness of his rights, if a
person in custody is to be subjected to questioning, “he must first be informed in
clear and unequivocal terms that he has the right to remain silent,” so that the
ignorant may learn of this right and so that the pressures of the interrogation
atmosphere will be overcome for those previously aware of the right.
1. Police must read rights to all suspects, even a lawyer or Earl Warren
himself. Court does not want to deal with fact-specific inquiries into
individual suspects’ knowledge of their constitutional rights.
a. Such fact-specific inquiries harken back to the voluntariness test.
b. Making the warning automatic is easily administrable by police.
iv. Consequences of Speaking – The above warning “must be accompanied by the
explanation that anything said can and will be used against the individual in
court,” so as to ensure that the suspect fully understands the consequences of
foregoing the privilege.
1. Informs a suspect of consequences of waiving her right to remain silent.
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f.
2. “Will” – There is not 100% certainty that any statements will be used
against a suspect. However, using “will” is designed to pique suspects’
attention.
v. Right to Counsel – Because this is indispensable to protection of the privilege,
the individual also “must be clearly informed that he has the right to consult with
a lawyer and to have the lawyer with him during interrogation,” without regard to
whether it appears that he is already aware of this right.
1. Right did not exist before Miranda. Court simply created it.
2. Both a warning and the establishment of a new constitutional right.
vi. Appointment of Lawyer – The individual must also be warned “that if he is
indigent a lawyer will be appointed to represent him,” for otherwise the above
warning would be understood as meaning only that an individual may consult a
lawyer if he has the funds to obtain one.
1. Both a warning and the establishment of a new constitutional right.
2. Unlike the previous three warnings, which are mandatory, police need
not read this warning if the police are certain that the suspect can afford
an attorney. See Miranda n.43 on p. 573.
vii. Invocation at Any Time – The individual is always free to exercise the
privilege, and thus if he “indicates in any manner, at anytime prior to or during
questioning, that he wishes to remain silent, the interrogation must cease”; and
likewise, if he “states that he wants an attorney, the interrogation must cease until
an attorney is present.”
1. Suspect may invoke her rights at any time, and at that point, the
interrogation must stop.
2. Suspects are never advised of this right.
viii. Waiver – If a statement is obtained without the presence of an attorney, “a heavy
burden rests on the Government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his right to
retained or appointed counsel,” and such waiver may not be presumed from the
individual’s silence after warnings or from the fact that a confession was
eventually obtained.
ix. Suppression – Any statement obtained in violation of these rules may not be
admitted into evidence, without regard to whether it is a confession or only an
admission of part of an offense or whether it is inculpatory or allegedly
exculpatory.
x. No Penalty for Invocation – Likewise, exercise of the privilege may not be
penalized, and thus the prosecution may not “use at trial the fact that [the
defendant] stood mute or claimed his privilege in the face of accusation.” (This
branch of Miranda does not render inadmissible the defendant’s refusal to answer
specific questions within the context of a broad waiver of rights and general
willingness to talk, or the defendant’s stated refusal to put his oral confession in
writing. Nor does it render inadmissible defendant’s statement denying the
crime or defendant’s claim of the privilege when introduced to explain why an
interview ended when it did or incidental to making some legitimate proof.)
Clark, Dissenting in Part, Concurring in Part
i. Admitted that the statements might not have been involuntary in the traditional
terms, but found that the majority opinion added more to the requirements that
the accused was entitled to consult with a lawyer and that he had to be given the
traditional warning that he could remain silent and that anything that he said
could be used against him.
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ii. Would have continued under the rule which was dependent on the totality of the
circumstances evidencing an involuntary admission of guilty on a case-by-case
basis.
g. Harlan, Dissenting
i. Would have adhered to the due process test and rejected the new requirements of
the majority opinion.
ii. Believed that the Due Process Clauses provided an adequate tool for coping with
confessions and that, even if the 5th Amendment privilege against selfincrimination was invoked, its precedents, as a whole, did not sustained the
majorities’ rules.
h. White, Dissenting
i. The proposition that the privilege against self-incrimination forbade in-custody
interrogation without the warnings specified by the majority opinion and without
a clear wavier of counsel had no significant support in the history of the privilege
or in the language of the Fifth Amendment.
ii. Judged by any of the standards for empirical investigation utilized in the social
sciences the factual basis for the majority opinion’s premise was patently
inadequate.
iii. Determined that the values with regard to the privilege should not have been the
sole consideration, but that society’s interest in generally security was of equal
weight.
4. Miranda Steps
a. In custody; interrogation.
b. Warnings.
c. Waiver or assertion of rights.
d. Invocation of rights.
5. Other Possible Ways of Regulating Interrogations
a. Once an arrest occurs, there may be no police questioning at all.
i. Easy 6th Amendment framework if right to counsel attaches at the time of arrest.
b. Time Approach – E.g., one hour of questioning permitted.
c. Recording – All interrogations must be audio- or visually recorded.
d. No trickery permitted; police may not use deceit or manipulation.
i. Court did not adopt this because this is what gets suspects to confess.
e. Miranda Warnings.
i. As a police regulation, Miranda clearly is a half measure. It informs suspects of
some rights, but not all of them. It hampers police somewhat, but not entirely.
Miranda was a test; the Court was wading somewhat cautiously into this area.
Warnings & Meaning of Custodial Interrogation
1. Miranda Issues
a. Threshold Issues
i. Custody
ii. Interrogation
b. Warnings
c. Waiver
d. Invocation
e. Remedy
2. State v. McKnight (N.J. 1968)
a. Exploiting Criminal’s Ignorance – “It is consonant with good morals, and the
Constitution, to exploit a criminal’s ignorance or stupidity in the detectional process.”
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3. Collins v. Brierly (3d Cir. 1974)
a. Intelligent v. Wise Waiver – “It is not in the sense of shrewdness that Miranda speaks of
intelligent waiver but rather in the tenor that the individual must know of his available
options before deciding what he thinks best suits his particular situation. In this context
intelligence is not equated with wisdom.”
4. Duckworth v. Eagan (1989) (Rehnquist) (ADEQUACY OF WARNINGS)
a. Rule – “The inquiry is simply whether the warnings reasonably convey to a suspect his
rights as required by Miranda.”
b. No Particular Words/Only Message Required – Warnings may be phrased differently
as long as they convey the essential underlying message.
i. Court wants to avoid “magic words.”
ii. Warning about appointed counsel for indigent may be omitted. See Miranda n.43
on p. 573.
c. Right to Counsel – “Miranda does not require that attorneys be producible on call, but
only that the suspect be informed, as here, that he has the right to an attorney before and
during questioning, and that an attorney would be appointed for him if he could not
afford one. If the police cannot provide appointed counsel, Miranda requires only that
the police not question a suspect unless he waives his right to counsel.”
5. Florida v. Powell (2010) (Ginsburg) (ADEQUACY OF WARNINGS)
a. Facts – Defendant was told he had “the right to talk to a lawyer before answering any of
[the officer’s] questions” and also that he could invoke this right “at any time you want
during this interview.”
b. Holding – Such warnings sufficed, as those two admonitions, respectively, told
defendant he could consult counsel before answering any particular question and could
exercise his right to an attorney while the interrogation was underway.
c. No Particular Words/Only Message Required – Warnings may be phrased differently
as long as they convey the essential underlying message.
6. Colorado v. Spring (1987) (Powell)
a. Being Informed About Subject Matter of Questioning – There is no affirmative
obligation on the police to advise the defendant about the crime concerning which they
wish to interrogate—even when the circumstances rather strongly suggest the desired
questioning will be about a matter quite different from that later encompassed by the
interrogation.
i. “The additional information [about the subject matter of the questioning] could
affect only the wisdom of a Miranda waiver, not its essentially voluntary and
knowing nature.”
ii. “The Court has never read the Constitution to require that the police supply a
suspect with a flow of information to help him calibrate his self-interest in
deciding whether to speak or stand by his rights.”
b. Only Four Basic Warnings Required – As long as the substance of the four Miranda
warnings is provided to the suspect, no additional warnings are required. Court will not
add to the existing Miranda warnings.
c. Marshall & Brennan, Dissenting
i. One of the relevant factors to consider in determining the validity of a waiver of
the 5th Amendment privilege against self-incrimination is whether the suspect
was aware before the waiver, either through the circumstances surrounding his
arrest or through a specific advisement from the arresting or interrogating
officers, of the crime or crimes he was suspected of committing and about which
the officers intended to ask questions.
Custody
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1. Rejection of Focus Test
a. Beckwith v. United States (1976) (Burger)
i. Facts – Petitioner claimed that he was entitled to the full Miranda warnings when
he was interviewed at home by agents of the Intelligence Division of the IRS,
because he was at that time the focus of a criminal investigation.
ii. Court Rejected Petitioner’s Argument – “An interview with government
agents in a situation such as [this one] simply does not present the elements
which the Miranda Court found so inherently coercive as to require its holding.
Although the ‘focus’ of an investigation may indeed have been on [petitioner] at
the time of the interview in the sense that it was his tax liability which was under
scrutiny, he hardly found himself in the custodial situation described by the
Miranda Court as the basis for its holding.”
iii. Definition of Focus – “Miranda implicitly defined ‘focus,’ for its purposes, as
questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way.”
b. Stansbury v. United States (1994)
i. Rule – “An officer’s subjective and undisclosed view concerning whether the
person being interrogated is a suspect is irrelevant to the assessment whether the
person is in custody.”
2. Non-Custodial Situations
a. Police questioning on the street, in a public place, or in the home or office (absent special
circumstances, e.g., arrest at gunpoint or forced submission).
b. Suspect’s voluntary presence at stationhouse.
c. Voluntary accompaniment of police to stationhouse.
d. Police-station questioning designed to produce incriminating statements.
e. Roadside questioning of motorist pursuant to a traffic stop.
3. J.D.B. v. North Carolina (2011) (Sotomayor) (CUSTODY TEST & CHILD’S AGE)
a. Facts – Concerned police questioning of a 13-year-old in a closed-door school conference
room for over half an hour. 13-year-old was not read his Miranda rights.
b. Custody Test – “Whether a suspect is ‘in custody’ is an objective inquiry. Two discrete
inquiries are essential to the determination: first, what were the circumstances
surrounding the interrogation; and second, given those circumstances, would a reasonable
person have felt he or she was at liberty to terminate the interrogation and leave. Once
the scene is set and the players’ lines and actions are reconstructed, the court must apply
an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on
freedom of movement of the degree associated with formal arrest.”
i. Objective inquiry.
ii. Two preliminary questions and one ultimate inquiry.
c. Child’s Age Informs Custody Analysis – “So long as the child’s age was known to the
officer at the time of the interview, or would have been objectively apparent to any
reasonable officer, including age as part of the custody analysis requires officers neither
to consider circumstances ‘unknowable’ to them, nor to anticipate the frailties or
idiosyncrasies of the particular suspect whom they question.”
i. Children often feel bound to submit to police in circumstances in which adults
would feel free to leave.  AGE RELATES TO FREEDOM OF ACTION.
d. J.D.B. supplanted Yarborough (2004), where the suspect was 17 and one-half years old.
e. Alito, Dissenting
i. “The Court’s decision in this case may seem on first consideration to be modest
and sensible, but in truth it is neither. It is fundamentally inconsistent with one
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of the main justifications for the Miranda rule: the perceived need for a clear rule
that can be easily applied in all cases. And today’s holding is not needed to
protect the constitutional rights of minors who are questioned by the police.”
4. Berkemer v. McCarty (1984) (Miranda WARNINGS & TRAFFIC OFFENSES)
a. Rule – Miranda warnings are required prior to custodial interrogation of a person arrested
for a traffic misdemeanor.
b. Traffic Stops Are Not Custodial – Traffic stops are per se not custodial for Miranda
purposes.
5. Maryland v. Shatzer (2010) (Scalia) (REFINING CUSTODY TEST)
a. Release from Custody – When a suspect has been released from custody and returned to
normal life before the police later attempt interrogation, there is little reason to believe
that the suspect’s change of heart was coerced. The appropriate period of time for a
person to be re-acclimated to normal life is 14 days.
6. Howes v. Fields (2012) (Alito) (REFINING CUSTODY TEST)
a. Questioning in Prison – Mere imprisonment and private questioning about events in the
outside world are not sufficient to create a custodial situation for Miranda purposes.
i. Custodial interrogation requires the same concerns that were present in the
Miranda stationhouse.
Interrogation
1. Courts require the coercion concerns about the box to trigger requirement of Miranda warnings.
2. Rhode Island v. Innis (1980) (Stewart) (INTERROGATION)
a. Facts – Defendant was arrested for robbery with a sawed-off shotgun and promptly given
his Miranda warnings, at which he said he wished to speak with a lawyer. The arresting
officers then began their journey to the station with the prisoner, and during this time the
officers conversed among themselves about the desirability of finding the shotgun
because there was a school for handicapped children in the vicinity. At this, defendant
said he would show the officers where the gun was located, which he did.
b. Holding – Statements were admissible because defendant was not interrogated.
c. Police Questioning/Reasonable Suspect – “The Miranda safeguards come into play
whenever a person in custody is subjected to either express questioning or its functional
equivalent. The term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect. The latter portion of this
definition focuses primarily upon the perceptions of the suspect, rather than the intent of
the police. A practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to interrogation. But, because the
police surely cannot be held accountable for the unforeseeable results of their words or
actions, the definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit an
incriminating response.”
i. Rejects Two Extremes
1. Miranda applies only to express questioning.  Miranda Court was very
concerned with psychological ploys, which are not express questioning.
2. Miranda applies to all officer statements.
ii. Rejects a form-of-a-question standard. It is very easy to phrase questions as
statements or orders.
iii. A normal investigative interview is not interrogation. For example, if an arrestee
has invoked his right to silence and a second officer investigating an unrelated
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crime in which the arrestee is not implicated wants to speak with the arrestee, this
would not qualify as interrogation for Miranda purposes.
iv. Functional Equivalent of Express Questioning – “Any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating response
from the suspect.”
1. Exception for words or actions normally attendant to arrest and custody.
v. Officer’s Subjective Intent – Not relevant. Focus is on how a reasonable
suspect will respond.
1. But see Innis n.7 on p. 602 – “This is not to say that the intent of the
police is irrelevant, for it may well have a bearing on whether the police
should have known that their words or actions were reasonably likely to
evoke an incriminating response. In particular, where a police practice is
designed to elicit an incriminating response from the accused, it is
unlikely that the practice will not also be one which the police should
have known was reasonably likely to have that effect.”
d. Burger, Concurring
i. The result was not inconsistent with the decision in Miranda.
e. Marshall & Brennan, Dissenting
i. Miranda safeguards apply whenever police conduct is intended or likely to
produce a response from a suspect in custody, and the defendant in the case at bar
had been interrogated in the police car.
f. Stevens, Dissenting
i. “‘Interrogation’ must include any police statement or conduct that has the same
purpose or effect as a direct question,” that is, both those “that appear to call for a
response from the suspect” and “those that are designed to do so.”
ii. Rhode Island Supreme Court should have been affirmed because the statements
made within the defendant's hearing in the police car were as likely to elicit a
response as a direct question.
3. Arizona v. Mauro (1987) (Powell)
a. Holding – After defendant invoked his right to counsel, the police acceded to a request of
his wife, also a suspect in the investigation of their son’s death, to speak with defendant,
but had a police officer and tape recorder conspicuously present at the meeting. The
Court held this did not constitute “interrogation” under the Innis formulation.
i. Not a “sufficient likelihood of incrimination” to constitute “interrogation.”
ii. Reflects an unwillingness of a majority of the Court to ground the “interrogation”
determination in the subjective intentions of the police.
4. Illinois v. Perkins (1990) (Kennedy) (SURREPTITIOUS INTERROGATION)
a. Holding – Miranda does not apply where an undercover police agent, posing as a fellow
inmate, questioned an incarcerated suspect.
i. Stressed the absence of a “police-dominated,” “coercive atmosphere” and
rejected the “argument that Miranda warnings are required whenever a suspect is
in custody in a technical sense and converses with someone who happens to be a
government agent.”
1. Coercion is determined from perspective of suspect.
2. No coercion when a suspect considers himself in the company of
cellmates and not officers. Miranda concerns were not present.
ii. Logical Extension – Miranda would apply when the presence of the police
and/or other circumstances would lead the person held in custody to believe that
the questioner is acting on behalf of the police.
b. Marshall, Dissenting
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i. The suspect’s confession was inadmissible because the suspect had received no
Miranda warnings before the suspect had been subjected to custodial
interrogation since (a) the compulsion proscribed by Miranda includes deception
by the police, for the pressures unique to custody allow the police to use
deceptive interrogation tactics to compel a suspect to make an incriminating
statement and (b) such compulsion is not eliminated by the suspect’s ignorance
of the interrogator’s true identity.
ii. The Court’s adoption of an “undercover agent” exception to the Miranda doctrine
(a) was incompatible with the principle that the Miranda doctrine should remain
simple and clear and (b) established a substantial loophole in the jurisprudence
protecting suspects’ Fifth Amendment rights.
5. Pennsylvania v. Muniz (1990) (Brennan) (ROUTINE-BOOKING EXCEPTION)
a. Facts – Defendant, arrested for driving under the influence, made incriminating remarks
when asked by officers to perform physical sobriety tests and to submit to a breathalyzer
examination.
b. Slurred Speech/Lack of Coordination Is Not Testimonial & Admissible
i. “The physical inability to articulate words in a clear manner due to the lack of
muscular coordination of his tongue and mouth is not itself a testimonial.”
ii. “[Under] Schmerber . . . any slurring of speech and other evidence of lack of
muscular coordination revealed by Muniz’s responses to Officer Hosterman’s
direct questions constitute nontestimonial components of those responses.”
c. Testimonial Evidence
i. Test for Testimonial Evidence – Is “the incriminating inference of mental
confusion drawn from a testimonial act or from physical evidence”?
1. Testimonial – “I don’t know when my 6th birthday was.”  Shows that
suspect is drunk.
2. Nontestimonial – Slurred speech.  Also shows that suspect is drunk.
d. Routine-Booking Exception
i. “Muniz’s answers to these first seven questions are nonetheless admissible
because the questions fall within a ‘routine booking question’ exception which
exempts from Miranda’s coverage questions to secure the ‘biographical data
necessary to complete booking or pretrial services.’ The questions appear
reasonably related to the police’s administrative concerns.”
1. Questions designed to establish suspect’s identity. E.g., asking a
suspect’s name. Miranda had not intended to reach these questions.
e. Incriminating Utterances During Sobriety Tests Are Admissible
i. Police made no statements calling for a response. All of Muniz’s statements
were voluntary.
ii. “These limited and focused inquiries were necessarily ‘attendant to’ the
legitimate police procedure and were not likely to be perceived as calling for any
incriminating response.”
6. New York v. Quarles (1984) (Rehnquist) (PUBLIC-SAFETY EXCEPTION)
a. Facts – Police chased a rape suspect, who was reportedly armed, inside a supermarket
and then arrested him there; a frisk uncovered an empty shoulder holster, so one officer
asked him “Where is the gun?”; the suspect gestured toward a stack of soap cartons and
said, “The gun is over there,” and police then found a revolver behind the cartons.
b. Holding – “Under the circumstances involved in this case, overriding considerations of
public safety justify the officer’s failure to provide Miranda warnings before he asked
questions devoted to locating the abandoned weapon.”
c. Public-Safety Exception – “There is a ‘public safety’ exception to the requirement that
Miranda warnings be given before a suspect’s answers may be admitted into evidence,
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and the availability of that exception does not depend upon the motivation of the
individual officers involved. In a kaleidoscopic situation where spontaneity rather than
adherence to a police manual is necessarily the order of the day, the application of the
public safety exception should not be made to depend on post hoc findings at a
suppression hearing concerning the subjective motivation of the arresting officer.”
i. Not very clear when the exception applies.
ii. Officer’s Intent – Irrelevant, i.e., police need not be actually concerned about
public safety.
iii. Overriding Public-Safety Interests – “The need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the
prophylactic rule protecting the Fifth Amendment’s privilege against selfincrimination.”
d. Applied extensively in TERRORISM cases.
i. A federal statute saying that police need not read Miranda warnings to terrorism
suspects would not be legally relevant because Quarles is constitutional law and
cannot be impugned by normal congressional lawmaking.
e. O’Connor, Concurring in Part, Dissenting in Part
i. Miranda required suppression of the incriminating statement but not the gun
itself.
f. Marshall, Brennan & Stevens, Dissenting
i. The majority’s “public-safety exception destroys forever the clarity of Miranda
for both law enforcement officers and members of the judiciary.”
ii. The majority’s cost-benefit analysis was irrelevant under the reasoning in
Miranda and in any event failed to take account of the fact that police could
lawfully question for public safety purposes provided the defendant’s statements
and the fruits thereof were not later used against him.
1. Police may ask questions in the interest of public safety, but the
government should bear the burden of the coerced statements.
iii. No danger to public safety in this case. At the time of the questioning, Quarles
was handcuffed and in the custody of four armed officers, and thus there was no
danger whatsoever that he could get at the gun. Nor was there the slightest
suggestion that he had been aided by an accomplice in the rape. As for the
possibility that some other person might come onto the gun before the police
could locate it, this seems equally fanciful in light of the facts that the events
occurred after midnight when the store was apparently deserted and that the
police knew the gun had been discarded in the immediate vicinity.
7. United States v. Carrillo (9th Cir. 1994) (OFFICER-SAFETY EXCEPTION)
a. Exception for Officer Safety – If an officer asks whether a suspect has drugs, needles,
etc. in her pockets prior to a search incident to arrest, then the suspect’s response is
admissible.
i. Falls under the public-safety exception.
ii. May also fall under the routine-booking exception.
8. People v. Dean (Cal. App. 1974) (RESCUE DOCTRINE)
a. Rescue Doctrine – “While life hangs in the balance there is no room to require
admonitions concerning the right to counsel and to remain silent. It is inconceivable that
the Miranda court or the framers of the Constitution envisioned such admonishments first
be given under the facts presented to us.”
Waiver
1. Generally
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a. Uncorroborated testimony of an officer that she gave complete Miranda warnings and
obtained a waiver is sufficient.
b. Few states require audio- or visual recording of interrogations. When they do, the
requirement usually applies only in homicide investigations.
i. For state trends in recording interrogations, as well as a discussion of its costs
and benefits, see pp. 623–625.
c. Approximately 80% of custodial suspects waive their Miranda rights. Many do so to
avoid looking guilty.
d. Custodial suspects with felony records are three or four times more likely to invoke their
rights than those with no prior records.
2. North Carolina v. Butler (1979) (Stewart) (IMPLIED WAIVER)
a. Implied Waiver – “An express written or oral statement of waiver of the right to remain
silent or of the right to counsel is usually strong proof of the validity of that waiver, but is
not inevitably either necessary or sufficient to establish waiver. The question is not one
of form, but rather whether the defendant in fact knowingly and voluntarily waived the
rights delineated in the Miranda case. As was unequivocally said in Miranda, mere
silence is not enough. That does not mean that a defendant’s silence, coupled with an
understanding of his rights and a course of conduct indicating waiver, may never support
a conclusion that a defendant has waived his rights. The courts must presume that a
defendant did not waive his rights; the prosecution’s burden is great; but in at least some
cases waiver can be clearly inferred from the actions and words of the person
interrogated.”
b. Brennan, Marshall & Stevens, Dissenting
i. An express waiver of the right to counsel during interrogation is required under
the Miranda decision, and in the absence of an affirmative waiver in the form of
an express written or oral statement, the Supreme Court of North Carolina had
correctly granted a new trial in the case at bar.
3. Connecticut v. Barrett (1987) (Rehnquist) (QUALIFIED OR CONDITIONAL WAIVER)
a. Facts – After receiving his Miranda warnings the defendant repeatedly asserted his
willingness to talk about the incident and his unwillingness to give a written statement
unless his attorney was present.
b. Holding – “Barrett’s limited requests for counsel . . . were accompanied by affirmative
announcements of his willingness to speak with the authorities. The fact that officials
took the opportunity provided by Barrett to obtain an oral confession is quite consistent
with the Fifth Amendment. Miranda gives the defendant a right to choose between
speech and silence, and Barrett chose to speak.”
i. If a suspects attempts to offer a conditional or qualified waiver as to certain
subjects only, courts will find that she has waived her Miranda rights in full.
c. Brennan, Concurring
i. The state eliminated an apparent ambiguity in the accused’s waiver when the
state demonstrated that the accused’s waiver of his right to silence was voluntary,
knowing, and intelligent; but
ii. Had a written statement been obtained as a result of police efforts to change the
accused’s mind, the written statement would have been inadmissible.
4. Fare v. Michael C. (1979) (Blackmun) (INVOCATION OF RIGHTS)
a. Facts – A juvenile in custody on suspicion of murder was given his warnings and he then
asked to have his probation officer present; this request was denied, a waiver of rights
was obtained, and the juvenile then made incriminating statements.
b. Question – Whether a request for someone other than an attorney constitutes an
invocation of Miranda rights?
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5.
6.
7.
8.
9.
c. Holding – Request to see the probation officer was not a per se invocation of Miranda
rights (that is, not the equivalent of asking for a lawyer), but rather was merely a factor to
be considered in the “totality of circumstances” determination of the voluntariness of the
subsequent waiver.
i. NO INVOCATION  Unlike a lawyer, a probation officer is not trained in the
law, not in a position to advise the accused of his legal rights, etc.
d. Marshall, Brennan & Stevens, Dissenting
i. “Miranda requires that interrogation cease whenever a juvenile requests an adult
who is obligated to represent his interests. Such a request constitutes both an
attempt to obtain advice and a general invocation of the right to silence. A
juvenile in these circumstances will likely turn to his parents, or another adult
responsible for his welfare, as the only means of securing legal counsel.
Moreover, a request for such adult assistance is surely inconsistent with a present
desire to speak freely.”
Michigan v. Mosley (1975) (Stewart) (INVOCATION OF RIGHT TO REMAIN SILENT)
a. Facts – Defendant was arrested for several robberies and at the station was given
his Miranda warnings; he declined to discuss the robberies and no effort was made to
have him reconsider his position. Two hours later another detective in another part of the
building sought to question defendant about an unrelated murder; he was given
the Miranda warnings again and thereafter gave an incriminating statement.
b. Rule – “The admissibility of statements obtained after the person in custody has decided
to remain silent depends under Miranda on whether his ‘right to cut of questioning’ was
‘scrupulously honored.’”
i. No violation. Police respected his initial invocation, but the right to remain silent
does not last forever.
ii. Warnings and waivers apply to individual crimes involving the same suspect.
Three Minimal Requirements for Resumption of Questioning After Invocation
a. Immediately ceasing the interrogation;
b. Suspending questioning entirely for a significant period; and
c. Giving a fresh set of Miranda warnings at the outset of the second interrogation.
Edwards v. Arizona (1981) (White) (INVOCATION OF RIGHT TO COUNSEL)
a. After Invocation No Questioning Without Counsel – “An accused, having expressed
his desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges or conversations with the
police.”
i. Why is this different than the right to remain silent? A: Police are in control of
access to lawyers, but they are not in control of whether a suspect remains silent.
Arizona v. Roberson (1988) (INVOCATION OF RIGHT TO COUNSEL)
a. After Invocation No Questioning as to Other Crimes – Once a suspect effectively
asserts her Miranda-Edwards right to counsel, police cannot even initiate interrogation
about crimes other than the one for which the suspect has invoked his right to counsel.
b. Kennedy, Dissenting
i. Court’s rule was not necessary to protect the rights of suspects, and it would in
many instances deprive law enforcement authorities of a legitimate investigative
technique that has been routinely used to resolve major crimes.
Berghuis v. Thompkins (2010) (Kennedy) (INVOCATION OF RIGHT TO REMAIN SILENT)
a. Facts – After determining that defendant understood English, police read him his
Miranda rights and then asked him to sign a form indicating he understood his rights,
which he declined to do, although defendant did not say he wanted to remain silent, that
he did not want to talk to police, or that he wanted an attorney. During the 3-hour
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b.
c.
d.
e.
interrogation that followed, defendant was virtually silent, but then, near the end,
answered “yes” when asked if he prayed to God to forgive him for the shooting.
Question – Does Thompkins’ statement constitute waiver of his right to remain silent?
Holding – Defendant had not invoked right to remain silent because he had waived it.
Implied Waiver – “Where the prosecution shows that a Miranda warning was given and
that it was understood by the accused, an accused’s un-coerced statement establishes an
implied waiver of the right to remain silent.”
i. Government’s Burden – Prosecution must show (1) that Miranda warnings
were given and (2) that defendant understood them. Only then does an
uncoerced statement constitute implied waiver.
1. Much lower burden then in Miranda.
2. Any conduct in conflict with the assertion of Miranda rights may be
construed as waiver.
ii. Court found implied waiver:
1. There was “no contention” defendant “did not understand his rights”;
2. The fact defendant “made a statement about three hours after receiving a
Miranda warning does not overcome the fact that he engaged in a course
of conduct indicating waiver”; and
3. There was “no evidence” defendant’s statement was coerced.
Asserting Right to Remain Silent
i. Proper Procedure – Court applied instead the principle from Davis v. United
States (1994) that a suspect must invoke his rights “unambiguously,” which the
defendant here could easily have done by saying “that he wanted
to remain silent or that he did not want to talk with the police.”
1. Miranda warnings do not state that affirmative assertion is required.
ii. SILENCE IS NOT SUFFICIENT TO ASSERT RIGHT TO REMAIN SILENT.
iii. Difference from Asserting Right to Counsel – Right to counsel is a request; the
police have to do something for a suspect. The right to remain silent is not a
request; police have to do nothing. Thus, it does not make sense to require a
suspect to affirmatively assert her right to remain silent.
Assertion of Rights
1.
How clear?
How long does it last?
Re-initiation?
To counsel
Davis
Edwards; Shatzer
Oregon v. Bradshaw
To remain silent
Berghuis
Mosley
?
a. Requesting consent to search is not interrogation because it is not likely to elicit an
incriminating response.
b. How long does it last? (How long must the government wait before it has to obtain a
second waiver of the right?)
i. Edwards – As soon as a suspect asserts her right to counsel, that is it. Police
cannot ask whether she wants to waive her right after that point.
1. Minnick – Edwards applies even after a suspect has talked to a lawyer.
After she invokes her right to counsel, police cannot talk to her without
her lawyer present. Avoiding difficult line-drawing.
2. Shatzer – Edwards presumption lasts during custody and for 14 days
thereafter.
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ii. Mosley – Invocation of right to remain silent lasts for an indeterminate period of
time.
iii.  Ultimately, whether a lawyer shows up is up to the government. This is the
reason for the differentiation.
c. Re-initiation (As soon as a suspect has asserted her right, what happens if a suspect
herself reinitiates the conversation?)
i. Oregon v. Bradshaw – Negates the Edwards presumption.
ii. No cases about re-initiation of the right to remain silent.
1. Not nearly as important because officers may reinitiate conversation
under Mosley.
2. Edwards probably would apply to the right to remain silent because
Berghuis invoked Davis.
2. Oregon v. Bradshaw (1983) (Rehnquist) (REINITIATING COMMUNICATION)
a. Facts – Defendant asked for a lawyer and then asked police, “What is going to happen to
me now?”.
b. Two-Step Test for Admissibility
i. Did defendant initiate further communication?
1. Broad Interpretation – If a suspect asks questions that could be construed
as related to the case, then she has reinitiated communication and police
can reinitiate the interrogation.
ii. If so, did defendant waive his right to counsel and to silence, “that is, [was] the
purported waiver was knowing and intelligent . . . under the totality of the
circumstances, including the necessary fact that the accused, not the police,
reopened the dialogue with the authorities”?
1. Police must provide the Miranda warnings again, and if knowing and
intelligent waiver is obtained, any statements afterward may be admitted.
iii.  Only thing overcome by re-initiation of communication is the Edwards
presumption. A second waiver of the Miranda rights is required for statements to
be admissible.
c. Powell, Concurring
i. Agreed that the accused had knowingly and intelligently waived his right to
counsel, but concluded that it was not necessary to first require as a separate
matter that the accused initiated communication with the police indicating a
desire to discuss the criminal investigation.
1. Would not divide inquiry into two parts.
d. Marshall, Dissenting
i. Agreed that it must first be found that the accused initiated a communication with
the police indicating a desire to discuss the criminal investigation before
inquiring into the separate matter as to whether the accused knowingly and
intelligently waived his right to counsel, but concluded that the accused did not
initiate such a communication by inquiring as to what would be happening to
him, since the communication itself was not about the subject matter of the
criminal investigation.
3. Davis v. United States (1994) (O’Connor) (UNAMBIGUOUS ASSERTION OF RIGHTS)
a. Unambiguous Assertion of Rights Required – “The suspect must unambiguously
request counsel. A statement either is such an assertion of the right to counsel or it is not.
Although a suspect need not speak with the discrimination of an Oxford don, he must
articulate his desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for an
attorney. If the statement fails to meet the requisite level of clarity, the officers are not
required to stop questioning the suspect.”
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4.
5.
6.
7.
i. Two Justifications:
1. Court requires a high threshold because the ultimate issue is whether a
suspect asserted her rights, and we must be absolutely clear about this.
2. The heart of Miranda is the warnings, not the downstream rationale.
b. Souter, Concurring in Judgment
i. Interrogators have a legal obligation to discover what a custodial subject means
by an ambiguous statement which can reasonably be understood to express a
desire to consult a lawyer.
Collazo v. Estelle (9th Cir. 1991)
a. Police Influencing Suspect – Police cannot attempt to discourage a suspect from
speaking to a lawyer, cannot lead him to think that he can “reap some legal benefit” by
excluding a defense lawyer from the process or suggest that somehow he will be
“penalized” if he invoked his right to a lawyer.
Michigan v. Jackson (1986) (Stevens)
a. Rule – After a defendant requests assistance of counsel, any waiver of 6th Amendment
rights given in a discussion initiated by police is presumed invalid.
i. Imposed Edwards v. Arizona rule (5th Amendment) onto the 6th Amendment.
ii. Kerr characterizes it as a “quirky” rule.
b. OVERRULED BY Montejo v. Louisiana (2009).
McNeil v. Wisconsin (1991) (Scalia)
a. Invocation of 5th & 6th Amendment Right to Counsel Differ – While the Edwards
rule per Roberson is “not offense-specific,” the 6th Amendment right to counsel “is
offense-specific” and does not focus exclusively upon custodial interrogation, so
invocation of the 6th Amendment right is not also invocation of Miranda, which is
broader “because it relates to interrogation regarding any suspected crime and attaches
whether or not the ‘adversarial relationship’ produced by a pending prosecution has yet
arisen.”
b. 5th Amendment Right to Counsel Cannot Be Invoked Anticipatorily – “We have in
fact never held that a person can invoke his Miranda rights anticipatorily, in a context
other than ‘custodial interrogation’—which a preliminary hearing will not always, or
even usually, involve. If the Miranda right to counsel can be invoked at a preliminary
hearing, it could be argued, there is no logical reason why it could not be invoked by a
letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must
be asserted when the government seeks to take the action they protect against. The fact
that we have allowed the Miranda right to counsel, once asserted, to be effective with
respect to future custodial interrogation does not necessarily mean that we will allow it to
be asserted initially outside the context of custodial interrogation, with similar future
effect.”
i. Majority Rule.
ii. Some states allow suspects to invoke their 5th Amendment right to counsel if
interrogation is “imminent.”
Maryland v. Shatzer (2010) (Scalia) (“BREAK IN CUSTODY” RULE)
a. Facts – A prison inmate, who invoked his right to counsel when subjected to custodial
interrogation in 2003, was reapproached by police in 2006 and then gave a confession
during subsequent custodial interrogation.
b. “Break in Custody” Rule – Edwards presumption (of involuntariness regarding any
waiver of rights in connection with a police-initiated contact following defendant’s
invocation of his Miranda right to counsel) does not extend to instances in which “a
suspect has been released from his pretrial custody and has returned to his normal life for
some time before the later attempted interrogation.”
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i. Rationale – In such a case “there is little reason to think that his change of heart
regarding interrogation without counsel has been coerced,” as he “has no longer
been isolated,” “has likely been able to seek advice from an attorney, family
members, and friends,” and “knows from his earlier experience that he need only
demand counsel to bring the interrogation to a halt” and “that investigative
custody does not last indefinitely.”
1. Miranda is judge-made law, and as long as judges are making rules, the
Court might as well make some more.
ii. 14-Day Standard – 14 days “provides plenty of time for the suspect to get
reacclimated to his normal life, to consult with friends and counsel, and to shake
off any residual coercive effects of his prior custody.”
1. 14 Days Is Easily Administrable – If the period were longer, e.g., one
year, would police departments across the country need to maintain a
nationwide database of suspects that had asserted their right to counsel.
2. Edwards presumption lasts (1) during custody and (2) for 14 days after
custody ends.
iii. Return to General Population Constitutes Break in Custody – This is the
setting in which the inmate lived. It was his normal life. No coercive pressure
because the guards had no power to extend his sentence.
iv. “Catch & Release” – Responds to the problem of “catch and release,” wherein
each break in custody would negate the Edwards presumption. Police would
arrest and release suspects over and over to break their resistance.
c. Holding – Edwards consequently did not apply in the instant case, as the interval was 2½
years, during which defendant “was released back into the general prison population” and
thus benefitted from “a break in Miranda custody.”
d. Thomas, Concurring
i. Agreed that release into the general prison population constitutes a break in
custody.
ii. Would not extend the Edwards presumption for 14 days after custody ends.
There is no basis for the rule, and it is not a close fit to the interests that it seeks
to protect.
e. Stevens, Concurring in Judgment
i. Would not create a per se rule extending the Edwards presumption for only 14
days after custody ends.
ii. General prison population remains a coercive environment.
iii. Although he would not specify a terminus for the Edwards presumption, but in
the instant case, 2½ years is enough to overcome it.
8. Montejo v. Louisiana (2009) (Scalia)
a. Current Rule – As regards the 6th Amendment right to counsel, if a person is arraigned,
the judge can appoint counsel or decline to do so, but there is no special rule about when
a person can be approached to be interviewed about a crime.
b. OVERRULED Michigan v. Jackson (1986). Jackson had become unworkable.
i. As for the state’s interpretation, that the accused would have to actually invoke
his right to counsel at an arraignment or similar proceeding, the Montejo majority
found this alternative “undesirable” because defendants in the majority of states
where counsel is appointed without any request would be “out of luck” unless
courts were to seek evidence of invocation on a case-by-case basis, impractical
because such proceedings are frequently not recorded or transcribed.
ii. As for the defendant’s solution, that the mere fact “a defendant is represented by
counsel” should suffice, the Montejo majority found this “untenable as a
theoretical and doctrinal matter” because it would depart from the rationale
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of Jackson, purportedly intended only to prevent police from badgering
defendants into changing their minds about the right to counsel once they have
invoked it.
iii. Court characterized Jackson as a prophylactic rule on top of a prophylactic rule
(adding to Miranda, Edwards, and Minnick), and so it was permissible for the
Court to remove a layer of only “marginal benefits.”
c. Stare decisis did not require adherence to Jackson:
i. Jackson was “only two decades old”;
ii. Eliminating it “would not upset expectations”; and
iii. Jackson was not well reasoned, considering its “marginal benefits” (given the
application of Miranda in all “custodial interrogation” situations, leaving only a
few “uncovered situations” which “are the least likely to pose a risk of coerced
waivers”) and “substantial costs” (i.e., “letting guilty and possibly dangerous
criminals go free”).
Is Physical Evidence or a “Second Confession” Derived from a Failure to Comply with Miranda
Admissible?
1. Body of Miranda Law
a. Never a clear majority on the Court that is enthusiastic about Miranda.
i. A few think it should be overturned; that it should be replaced; that never would
have signed onto Miranda; etc.
ii. As a result, Miranda exists as a weird, halfway constitutional doctrine.
iii. Supreme Court Today
1. Overturn – Scalia, Thomas
2. Not willing to overturn, but would construe narrowly – Kennedy,
Roberts, Alito
3. Fans of Miranda – Ginsburg, Breyer, Sotomayor, Kagan
b. Dickerson v. United States (2000) (Rehnquist)
i. In 1968, Congress enacted 18 U.S.C. 3501 to overturn Miranda by enacting an
alternate set of protections. This case concerned a challenge to § 3501.
1. If Miranda rules were constitutional rules, Congress could not modify.
2. If they were not, Congress could modify.
ii. Court refused to strike down Miranda. Held that it represented constitutional
rules.
2. Remedies for Miranda Violations
a. Normal Remedies
i. Fruit of the Poisonous Tree Doctrine
b. No Miranda civil suits. It is not a civil legal violation to fail to read a suspect her
Miranda rights or to obtain a statement in violation of Miranda. A suspect cannot obtain
any damages for such violations. The only remedy is that the statements obtained in
violation of Miranda cannot be admitted.
i. The Miranda violation occurs when the statement is admitted, not when the
statement is obtained. This creates tension in the law.
c. Suppression remedy is narrower than 4th Amendment remedies. This follows from the
view that Miranda rights are prophylactic rights situated on top of 5th Amendment rights.
They protect underlying constitutional rights but are not constitutional rights themselves.
i. There is a narrower case of violations that leads to suppression.
3. Oregon v. Elstad (1985) (O’Connor)
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a. Facts – Interview 1: in the home; suspect gives an incriminating statement; no Miranda
warnings. Interview 2: police station; Miranda warnings and waiver; incriminating
statement.
b. Elstad’s Argument – First statement must be suppressed because there was custodial
interrogation and he was not read his Miranda warnings. Second statement must be
suppressed pursuant to the fruit of the poisonous tree doctrine.
i. Court rejects. Reading of Miranda warnings followed by waiver cleanses any
taint from the prior unconstitutional statement.
c. Fruit of the Poisonous Tree Doctrine Inapplicable – Fruit of the Poisonous Tree
Doctrine does not apply to Miranda. It applies only to real constitutional rights and
violations, not halfway ones like Miranda.
4. United States v. Patane (2004) (Thomas)
a. Facts – At an accused’s home, a police officer arrested the accused for allegedly violating
a restraining order. A second police officer, who had been told by a federal agent that the
accused, a convicted felon, illegally possessed a pistol, (1) attempted to inform the
accused of his rights under Miranda but (2) got no further than the right, under the selfincrimination clause of the 5th Amendment, to remain silent before being interrupted by
the accused, who asserted that he knew his rights. Neither officer attempted to complete
the Miranda warnings, and, eventually, the accused, in response to questioning from the
second officer, revealed the location of the pistol.
b. Miranda Violation Is Not Constitutional Violation – A failure to give the Miranda
warnings is not itself a violation of a suspect’s constitutional rights (or even of the
Miranda rule), which occurs only if the unwarned confession is admitted into evidence,
meaning that exclusion of the confession is itself a complete and sufficient remedy for
such violation and that there is no reason to apply the “fruits” doctrine with respect to the
mere failure to warn because there is nothing to deter.
c. Self-Incrimination Clause – Self-Incrimination Clause applies only to testimony, not
PHYSICAL EVIDENCE.
i. Miranda rule protects against violations of the Self-Incrimination Clause, which
is not implicated by the introduction at trial of physical evidence resulting from
voluntary statements.
ii. Prosecution is not admitting any “statement” (it is admitting physical evidence),
and since there is no statement, there is no problem here.
d. Perverse Incentive – Police are allowed to question suspects about whatever they want,
but the statements may be inadmissible.
i. Thus, police may elicit from a suspect many inadmissible statements about drugs
in order to find physical drugs. If the officers find the drugs though, all of the
inadmissible statements will have been worth it. The drugs themselves are
admissible.
ii. Creates an incentive to violate Miranda, and in that way, it undercuts Miranda.
e. [Separate opinions omitted. See p. 681.]
5. Missouri v. Seibert (2004) (Souter)
a. Facts – An accused who had made an incriminating statement to a police officer at a
police station—after the accused had (1) been warned, pursuant to Mirands, of her right,
under the 5th Amendment, to remain silent, and her federal constitutional right to the
assistance of counsel; and (2) signed a waiver of these rights—was charged with murder.
Prior to the officer’s giving the accused the Miranda warnings, the officer had obtained a
confession during 30–40 minutes of questioning the accused.
i. Question-First Strategy – Officer never intends to introduce the first statement.
But by obtaining the first statement, the police deemphasize the importance of
the Miranda warnings. Takes advantage of knowledge asymmetry and Elstad.
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b. Holding – Seibert’s second confession must be suppressed, not because it was the fruit of
the first confession, but simply because the circumstances in which the Miranda warnings
were given meant they could not “function ‘effectively’ as Miranda requires,” so that the
second confession was itself, in effect, an unwarned confession subject to suppression
under Miranda.
c. Plurality Rule – “Unless the warnings could place a suspect who has just been
interrogated in a position to make such an informed choice, there is no practical
justification for accepting the formal warnings as compliance with Miranda, or for
treating the second stage of interrogation as distinct from the first, unwarned and
inadmissible segment.”
i.  NOT ADOPTED BY MOST LOWER COURTS. Kennedy’s concurrence is
binding.
ii. “Factors that bear on whether Miranda warnings delivered midstream could be
effective enough to accomplish their object:”
1. The completeness and detail of the questions and answers in the first
round of interrogation;
2. The overlapping content of the two statements;
3. The timing and setting of the first and the second;
4. The continuity of police personnel; and
5. The degree to which the interrogator’s questions treated the second round
as continuous with the first.
iii. Take-Home Message – At least as to deliberate two-step interrogations in
which Miranda warnings are intentionally withheld until after the suspect
confesses, the central voluntariness inquiry of Elstad has been replaced by a
presumptive rule of exclusion, subject to a multifactor test for change in time,
place, and circumstances from the first statement to the second.
d. Breyer, Concurring
i. Good Faith Test – With respect to the two-stage interrogation technique of the
type in question, there ought to be a rule under which courts excluded the “fruits”
of the initial unwarned questioning unless the failure to warn was in good faith,
as (1) prosecutors and judges had long understood how to apply the “fruits”
approach; and (2) in the workaday world of criminal-law enforcement, the
administrative simplicity of the familiar had significant advantages over a more
complex exclusionary rule.
e. Kennedy, Concurring
i.  Most lower courts consider Kennedy’s opinion to be binding because it is the
most narrow.
ii. The technique used by the officer in the instant case had distorted the meaning of
Miranda and furthered no legitimate countervailing interest.
iii. If, as in the instant case, a deliberate two-step strategy had been used, then postwarning statements that were related to the substance of pre-warning statements
ought to be excluded unless curative measures—such as a substantial break in
time and circumstances between the pre-warning statement and the Miranda
warning or an additional warning that explained the likely inadmissibility of the
pre-warning statement—were taken before the post-warning statement was made.
1. An accidental two-step strategy is OK because it does not implicate
Miranda.
2. Intent of the officer is key.
3. Very narrow.
4. Applies only when the second statement relates to the substance of the
first statement.
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5. What if there are two officers and one intended to employ the two-step
strategy and the other did not?
a. It is not clear what the result would be under Kennedy’s
approach. Kennedy writes his opinion with one officer in mind.
b. Demonstrates the difficulty of applying an intent test.
f. O’Connor, Dissenting
i. This case is the same as Elstad.
ii. Plurality is bringing in the Fruit of the Poisonous Tree Doctrine.
g. Example – Suspect has been arrested for (1) burglary and (2) narcotics offenses. Officer
uses two-step technique. First confession relates to narcotics offense. After reading the
suspect his Miranda rights and obtaining a waiver, officer obtains a second confession
relating to both offenses. RESULT: Only the portion of the second confession relating to
the narcotics offense must be suppressed.
6. Seibert and Patane are pointing in different directions.
a. Seibert – Do not use the two-step, question-first technique.
b. Patane – Do what you must to obtain physical evidence.
i. Rule – Physical evidence is not suppressed for Miranda violations. When these
two holdings conflict, go with Patane.
ii. Plurality opinion is the law for all Miranda violations.
Due Process Voluntariness Test Revisited
1. Two Types of Suspects
a. Talkative & Unsophisticated – Receive less protection than they need.
b. Quiet & Sophisticated – Receive more protection than they deserve.
2. Applicability of Voluntariness Test
a. Admissibility of statements given after valid waiver of Miranda rights must be
determined on the basis of the voluntariness test.
b. Applicable when:
i. Suspects not in custody are questioned by police;
ii. Suspects in custody-like situations are questioned (or threatened) by private
citizens; and
iii. Prosecution seeks to use a confession to impeach a defendant’s testimony at trial
or to use the “fruits” of a confession, e.g., the murder weapon, but not the
confession itself.
1. Statements obtained in violation of Miranda may be used for
impeachment, but not coerced or involuntary statements.
2. Courts will permit the use of evidence derived from a Miranda violation,
but not the “fruits” of an involuntary confession.
3. Miller v. Fenton (3d Cir. 1986)
a. Voluntariness Test – “The test for voluntariness is not a but-for test, but a question of
whether the confession is a product of free choice.”
i. Psychological Ploys – “[Psychological] ploys may play a part in the suspect’s
decision to confess, but so long as that decision is a product of the suspect’s own
balancing of competing considerations, the confession is voluntary.”
ii. Officer’s Lies – “While a lie told to a detainee about an important aspect of a
case may affect the voluntariness of the confession, the effect of the lie must be
analyzed in the context of all the circumstances of the interrogation.”
iii. Threats & Promises – “To be voluntary, a confession must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises,
however slight. Bram v. United States (1897). The test is not a per se
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proscription against promises made during interrogation, nor is a but-for test used
when promises are made during an interrogation.”
1. Often difficult to distinguish expressions of sympathy and compassion
from promises of leniency. See note 4 on p. 708.
2. “Threats and promises are to be taken seriously but these are rarely
determinative on their own. If such evidence is present, the court must
view that inducement along with other key factors in determining if the
resulting statement was given voluntarily.” Paul Marcus.
iv.  TRICKERY IS PART OF THE GAME. It is permissible as long as it does
not overcome a suspect’s free choice.
b. Take-Away Message – Once Miranda rights are given and waived, we are back in the
territory that we were in before Miranda, i.e., due process/voluntary land.
c. Gibbons, Dissenting
i. Officer put heavy psychological pressure on the defendant and used lies and
promises of leniency.
ii. Notes that after the defendant confessed, he went into shock and required
medical attention. This indicates that he was not physically or mentally fit to
give a confession.
4. United States v. LeBrun (8th Cir. 2004)
a. Holding – Even if officer’s statements were reasonably interpreted as a promise of no
prosecution, defendant’s confession is still deemed voluntary, as police had not “overbore
LeBrun’s will and capacity for self-determination,” as interrogation only lasted 33
minutes and defendant “was a sophisticated individual with legal training.”
i. Polestar – Whether authorities overbore defendant’s will and critically impaired
his capacity for self-determination.
5. State v. Cayward (Fla. App. 1989) (MANUFACTURING FALSE EVIDENCE)
a. Manufacturing of False Documents Renders Confession Involuntary – “The
manufacturing of false documents by police officials offends society’s traditional notions
of due process of law under both the federal and state constitutions.”
i. General Police Deception – Does not render confession involuntary.
ii. Manufacturing False Documents or Scientific Evidence – Renders confession
involuntary.
6. Arizona v. Fulminante (1991) (White)
a. Facts – Involved a defendant who confessed to a fellow prison inmate (who was actually
a government agent) after that inmate expressed concern for defendant’s safety and
offered to protect him.
b. Holding – Confession had been coerced.
i. Two Justifications
1. The circumstances presented “a credible threat of physical violence
unless Fulminante confessed;” and
2. As a result, “Fulminante’s will was overborne in such a ways as to render
his confession the product of coercion.”
c. Rehnquist, Dissenting
i. Found no grounding in the record for the majority’s conclusion that the defendant
(described by the dissent as “an experienced habitué of prisons and able to fend
for himself”) had “his capacity for self-determination critically impaired” by a
perceived need for protection against possible physical recriminations by his
fellow inmates.
ii. Stressed the stipulation in the proceedings below that “at no time did the
defendant indicate he was in fear of other inmates nor did he seek Mr. Sarivola’s
‘protection’.”
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7. Colorado v. Connelly (1986) (Rehnquist)
a. Facts – A man approached a police officer in downtown Denver and, without any
prompting, confessed to a murder. The officer immediately advised him of his Miranda
rights, but the man said he understood these rights and still wanted to talk about the
murder because his conscience was bothering him. After another police officer arrived,
the man was again advised of his rights and was asked “what he had on his mind.” He
answered that he had come all the way from Boston to confess to the murder of a young
girl who had been killed in Denver. The man was taken to police headquarters, where he
openly detailed his story to several officers and agreed to show them the scene of the
killing. Two officers drove him there, and he pointed out the exact location of the
murder. Having been held overnight, the man became visibly disoriented the next
morning and stated for the first time that “voices” had told him to come to Denver and
confess. The man was then sent to a state hospital and was evaluated by a psychiatrist.
b. Requirement of Police Coercion – “Coercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the meaning of the Due Process
Clause of the 14th Amendment.”
c. Casual Relation Requirement – “Absent police conduct causally related to the
confession, there is simply no basis for concluding that any state actor has deprived a
criminal defendant of due process of law.”
d. Defendant’s Mental State Is Not Conclusive – “While mental condition is surely
relevant to an individual’s susceptibility to police coercion, mere examination of the
confessant’s state of mind can never conclude the due process inquiry.”
i. Mental impairment alone cannot negate defendant’s free choice. (Seems
erroneous because plenty of mental impairments affect free choice.)
e. Brennan & Marshall, Dissenting
i. The absence of police wrongdoing does not, by itself, determine the
voluntariness of a confession by a mentally ill person.
ii. Due process requires that a trial court find substantial indicia of reliability, based
on extrinsic evidence, before admitting such a confession into evidence.
iii. The government must prove voluntary waiver of Miranda rights beyond a
reasonable doubt.
iv. Police coercion is not a requirement for a finding of involuntary waiver of
Miranda rights.
v. The Colorado Supreme Court was free on remand to reconsider such issues as
whether the requirement of a knowing and intelligent waiver of Miranda rights
was satisfied.
8. Current State of Law – “The Court has also moved from a voluntariness test related to the
reliability of the confession to a doctrine that explicitly rejects such a concern. Police
misconduct, not reliability, is now the sole determinant of involuntariness. . . . In what has
become essentially a faux remedy, the Miranda warning regime has virtually replaced a vibrant
and developing voluntariness inquiry that took into account the vulnerabilities of the particular
suspect as well as the inducements and conditions of the interrogation. As far as the Supreme
Court is concerned, that protection of the innocent has vanished from the law of confessions.”
Steven B. Duke.
Introduction to Grand Jury Investigations
1. Ways of Investigating Criminal Cases
a. Searches and Seizures
b. Undercover Investigations
c. Interrogation
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d. Grand Jury Power
2. Grand Jury
a. History – Group of citizens investigating criminal cases and deciding whom to charge.
No professional police or prosecutors in the old days.
b. Dual Roles
i. Offensive/Sword – Investigating cases. E.g., calling eyewitnesses to testify.
ii. Defensive/Shield – In most jurisdictions, there cannot be serious criminal
charges unless a grand jury determines that there should be. Grand jury must
issue an indictment (known as a true bill), in which it states that it has found PC
that a suspect has committed a crime.
c. Changes – Professional police and prosecutors developed, and they took over many of
the roles of the grand jury.
d. Grand jury today is premised on a legal fiction, i.e., that its jurors are investigating cases
and are in charge. In reality, prosecutors are investigating cases and supervise the
charging suspects, thus leaving a very minimal role for the grand jury.
i. Grand jury still may conduct independent investigations, but this is rare (in large
part because most people do not know what grand juries do).
3. Investigative Advantages of Grand Jury
a. Subpoena ad testificandum;
b. Psychological pressure imposed by the grand jury setting;
c. Immunity grants;
d. Subpoena duces tecum;
e. Grand jury secrecy requirements; and
f. Public confidence attributable to lay participation.
4. Subpoena Power
a. Subpoena – Latin for “under force of law.”
b. Two Types
i. Duces Tecum – Latin for “bring it with you.” Must bring a document or item
(tangible evidence) before the grand jury.
1. Primary method of obtaining documents from third parties.
a. Generally, there is no 4th Amendment protection for third-party
records. E.g., one cannot stop her bank or phone company from
releasing records relating to her bank account or phone calls.
2. No PC or reasonable suspicion required.
3. Recipient of subpoena must collect and deliver requested documents.
4. Penalties for an invalid subpoena are less severe than the penalties for an
invalid search warrant.
ii. Ad Testificandum – Latin for “to testify.” Must come before the grand jury and
testify.
1. No PC or reasonable suspicion required.
2. Witness may refuse to speak to police, but not a grand jury.
3. Witness may invoke the privilege against self-incrimination.
4. Witness must testify under oath and thus may be prosecuted for perjury.
c. Subpoena need not reveal the nature of the inquiry.
d. Enforcement – Both types of subpoenas are supported by the court’s authority to hold in
civil contempt any person who willfully refuses, without legal justification, to comply
with a subpoena’s directive.
e. Issuance
i. Very different than search warrants, which require PC, specificity, etc.
ii. Subpoena is just a piece of paper signed by the clerk of the court. Prosecutors,
not grand jurors, send out subpoenas. They usually say, “Please show up here, at
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5.
6.
7.
8.
9.
this time, with these documents; or if that is not convenient, send the documents
to the prosecutor within the next few days.”
1. Shows that the prosecutor is in charge of issuing subpoenas.
f. Restrictions on Subpoena Power
i. Boyd was one answer, but it was quickly overturned.
ii. 4th Amendment – Restrictions are modest.
iii. 5th Amendment – More weighty restrictions.
g. Challenging Subpoenas
i. Subpoenas are not self-enforcing because an individual must bring documents,
objects, or herself before the grand jury.
ii. Challengers usually say that subpoenas are invalid or overbroad.
iii. Motion to Quash – Motion to render the subpoena a nullity, i.e., invalid.
Psychological Pressure
a. Carries the moral weight of the community.
b. Hostile, intimidating interrogation setting.
c. Questioning may be wide-ranging.
d. Potential for perjury prosecution impels witnesses to be truthful.
Immunity Grants
a. Purpose – Supplanting witness’ self-incrimination privilege. Once immunity is granted,
witness no longer may invoke the privilege.
i. A suspect may be held in contempt if she refuses to testify after having been
granted immunity.
b. Not available for persons who simply refuse to give statements to police.
c. Usually employed only in conjunction with a subpoena ad testificandum.
d. Apply to both federal and state governments.
Secrecy
a. Parties Bound to Secrecy
i. Prosecutor;
ii. Prosecutor’s staff (including investigators);
iii. Grand jurors; and
iv. Grand jury stenographer.
b. Parties Not Bound to Secrecy
i. Grand jury witnesses.
c. Five Objectives of Secrecy Requirements – United States v. Proctor & Gamble Co.
(1958)
i. To prevent the escape of those whose indictment may be contemplated;
ii. To insure the utmost freedom to the grand jury in its deliberations, and to prevent
persons subject to indictment or their friends from importuning the grand jurors;
iii. To prevent subornation of perjury or tampering with the witnesses who may
testify before grand jury and later appear at the trial of those indicted by it;
iv. To encourage free and untrammeled disclosures by persons who have
information with respect to the commission of crimes; and
v. To protect innocent accused who is exonerated from disclosure of the fact that he
has been under investigation, and from the expense of standing trial where there
was no probability of guilt.
Maintaining Public Confidence
a. Important in cases involving public officials or claims of police or prosecutor harassment.
Indictments
a. Grand juries must hand down indictments. As soon as they do, their role is over.
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b. Grand juries may hand down superseding indictments (i.e., an indictment filed
subsequent to an original indictment, perhaps based on new facts), but this usually does
not happen.
c. Hearsay is permitted during grand juries. Unconstitutionally obtained evidence may be
heard. There is no suppression remedy.
d. Very low threshold to bring an indictment. Grand juries effectively only hear the
prosecution’s side. Only a bare majority vote is required.
10. Boyd v. United States (1886) (Bradley)
a. Origin of 4th Amendment Exclusionary Rule – Court held that the forced disclosure of
papers amounting to evidence of crime violated the 4th Amendment and that such items
therefore were not admissible in the proceedings against Boyd. Though the 4th
Amendment, in contrast to the 5th, contains no express exclusionary rule, the Court
reached this result by linking the two amendments together, noting it had “been unable to
perceive that the seizure of a man’s private books and papers to be used in evidence
against him is substantially different from compelling him to be a witness against
himself.”
b. 4th & 5th Amendment Challenges to Subpoena – A subpoena requiring the production
of a document was subject to challenge under both the 4th Amendment and selfincrimination clause of the 5th Amendment.
i. 4th Amendment Challenge – “A compulsory production of a man’s private
papers to establish a criminal charge against him, or to forfeit his property, is
within the scope of the 4th Amendment, in all cases in which a search and seizure
would be; because it is a material ingredient, and effects the sole object and
purpose of search and seizure.”
ii. 5th Amendment Challenge – Just as the 5th Amendment prohibited
“compulsory discovery by extorting the party’s oath,” it also prohibited
discovery by “compelling the production of his private books and papers.” The
documentary production order was simply another form of “forcible and
compulsory extortion of a man's own testimony.”
iii. “As suits for penalties and forfeitures incurred by the commission of offences
against the law, are of quasi-criminal nature, they are within the reason of
criminal proceedings for all the purposes of the Fourth Amendment, and of that
portion of the Fifth Amendment which declares that no person shall be compelled
in any criminal case to be a witness against himself; and a compulsory
production of the private books and papers of the owner of goods sought to be
forfeited in such a suit is compelling him to be a witness against himself, within
the meaning of the Fifth Amendment, and is the equivalent of a search and
seizure—and an unreasonable search and seizure—within the meaning of
the Fourth Amendment.”
c. Two Issues
i. First Issue – Government ordered Boyd to turn over documents. It did not go out
and get them itself.
1. The subpoena accomplished the government’s objctive. Requiring Boyd
to produce the documents is no different than the government going out
and getting them. This is therefore a search.
ii. Second Issue – Reasonable or unreasonable search?
1. This was an unreasonable search. Violated his right of personal security
as well as his right against self-incrimination.
iii.  Court is very offended by this exercise of government power.
d. Boyd is no longer good law.
i. It lasted about twenty years.
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ii. Hayden – Court overturned the “mere evidence” rule about obtaining warrants.
iii. Hale – Implicitly overturned Boyd.
11. Warden v. Hayden (1967)
a. Overturned the “mere evidence” rule, whereby items were subject to lawful seizure only
if they were the fruits or instrumentalities of crime.
12. Hale v. Henkel (1906) (Brown)
a. Self-Incrimination Privilege Not Available to Corporations – Self-incrimination
privilege was not available to a corporation and therefore Boyd does not bar a grand jury
subpoena duces tecum requiring production of corporate records.
i. Two Justifications
1. Self-incrimination privilege is designed in large part to protect interests
unique to the individual.
2. State’s greater regulatory power over corporations, which were merely
“creature[s] of the state.”
ii. Corporation retained protection of 4th Amendment reasonableness requirement.
b. Reasonableness Test for Subpoena – Subpoena duces tecum is invalid if its breadth is
“far too sweeping . . . to be regarded as reasonable.”
i. Reasonableness for a subpoena, like reasonableness for a search warrant, requires
“particularity” in the description of the documents to be produced.
ii. While the government might have need for many documents, it would have to
make some showing of “materiality” before it could “justify an order for the
production of such a mass of papers.”
iii. Recipient must be able to comply with the subpoena.
iv.  If a subpoena is too burdensome, recipient may come forward with a Motion
to Quash. Government may respond by issuing a narrower subpoena.
c. McKenna, Concurring
i. Distinguishing Searches from Subpoenas – “The distinction is based upon
what is authorized or directed to be done—not upon the form of words by which
the authority or command is given. “The quest of an officer” acts upon the things
themselves—may be secret, intrusive, accompanied by force. The service of a
subpoena is but the delivery of a paper to a party—is open and aboveboard.
There is no element of trespass or force in it. It does not disturb the possession of
property. It cannot be finally enforced except after challenge, and a judgment of
the court upon the challenge. This is a safeguard against abuse the same as it is
of other processes of the law, and it is all that can be allowed without serious
embarrassment to the administration of justice.”
Compelling Testimony & Identification Exemplars
1. United States v. Dionisio (1973) (Stewart)
a. Facts – A special federal grand jury, which was investigating possible violations of
gambling statutes, and which had received in evidence voice recordings from authorized
wiretaps, subpoenaed about 20 persons and directed them to make voice exemplars at the
United States Attorney’s office by reading the transcript of the wiretaps into a recording
device, such exemplars to be then compared for identification purposes with the wiretap
recordings.
b. Holding – Reversed the judgment upon a finding that the subpoena to appear before a
grand jury and directive to give a voice exemplar posed no unreasonable search and
seizure in violation of respondent’s rights.
c. Constitutionality of Compulsory Production of Exemplars – “The constitutionality of
the compulsory production of exemplars from a grand jury witness necessarily turns on
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d.
e.
f.
g.
h.
i.
the same dual inquiry [as in Schmerber]—whether either [1] the initial compulsion of the
person to appear before the grand jury, or [2] the subsequent directive to make a voice
recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.”
Subpoena to Appear Before Grand Jury Is Not a 4th Amendment Seizure
i. Even though it may be inconvenient or burdensome.
ii. Civic Obligation to Disclose Evidence – “The public has a right to every man’s
evidence.”
iii. Social stigma of arrest is not present.
No 4th Amendment Restrictions on Subpoena Ad Testificandum – “A grand jury
subpoena to testify is not that kind of governmental intrusion on privacy against which
the 4th Amendment affords protection, once the 5th Amendment is satisfied.”
i. 4th Amendment protects against unreasonable searches and seizures, and asking
someone to appear before a grand jury is not a search or seizure.
ii. Applying Katz, a person does not have a reasonable expectation of privacy with
regard to her voice because whenever she speaks, this is a public act.
iii. Grand jury could subpoena everyone in the United States to appear if doing so
was necessary to its investigation of a crime.
iv. Practical Check on Grand Jury Power – Prosecutor must be present when the
grand jury is questioning witnesses. Will not tolerate wastes of her time.
1. This check does not exist for subpoenas to produce items or documents.
v.  Kerr does not buy that compelling someone to appear before a grand jury is
not a seizure and that compelling someone to provide a voice exemplar is not a
search.
Limits on Subpoena Power
i. No self-incriminating testimony or tangible evidence need be produced.
ii. Subpoena duces tecum cannot be unreasonably overbroad.
iii. Subpoena cannot be used as an instrument of government harassment.
No Reasonable Expectation of Privacy in Voice Exemplar – “The 4th Amendment
provides no protection for what a person knowingly exposes to the public, even in his
own home or office. The physical characteristics of a person’s voice, its tone and
manner, as opposed to the content of a specific conversation, are constantly exposed to
the public. Like a man’s facial characteristics, or handwriting, his voice is repeatedly
produced for others to hear. No person can have a reasonable expectation that others will
not know the sound of his voice, any more than he can reasonably expect that his face
will be a mystery to the world.”
Practical Problems – It would produce tons of litigation if suspects were allowed to
challenge every step of the grand jury process. This arguably could impede law
enforcement. A grand jury could not get a witness to testify until her challenge had been
litigated all the way through the Supreme Court.
Marshall, Dissenting
i. Although it was not necessary to determine the 5th Amendment claim in this
case, he had serious reservations as to whether the 5th Amendment privilege
against self-incrimination should be limited to only testimonial evidence, since
the government should not be allowed to compel a person to provide possibly
incriminating physical evidence which could be acquired only with the person’s
affirmative co-operation.
ii. The 4th Amendment, which was intended to protect the individual from arbitrary
and unreasonable intrusion into his private life and personal liberty, should be
applied to grand jury subpoenas directed to obtaining physical evidence from the
witness, such as exemplars, rather than “testimony.”
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2.
3.
4.
5.
iii. When the grand jury requested physical evidence from a witness, the government
should first be required to establish the reasonableness of such request in an
adversary proceeding, thus protecting the citizen from unreasonable and arbitrary
governmental interference and insuring that the broad subpoena powers of the
grand jury would not be turned into a tool of prosecutorial oppression.
Subpoena to Appear in a Lineup
a. Some courts hold that Dionisio applies in such situations.
b. Some courts hold that require that such a subpoena be approved by a grand jury itself.
Subpoena for Blood Sample
a. Special showing is needed to compel the taking of blood, which is considered a search
when performed at the direction of police.
b. Courts have divided over whether the presence of a grand jury subpoena alters the
character of the required showing.
Subpoena for Saliva – See p. 807.
United States v. Calandra (1974) (Powell)
a. Exclusionary Rule Does Not Apply in Grand Jury Settings – Majority took into
account only the deterrence function in holding that a grand jury witness may not refuse
to answer questions on the ground they are based upon illegally seized evidence,
reasoning that any “incremental deterrent effect which might be achieved by extending
the [exclusionary] rule to grand jury proceedings is uncertain at best.”
i. Costs outweigh benefits.
ii. Court does not want to turn grand jury proceedings into mini-trials.
Grand Jury Testimony & the Privilege Against Self-Incrimination
1. 5th Amendment Privilege Against Self-Incrimination – “No person . . . shall be compelled in
any criminal case to be a witness against himself . . . .”
a. Justifications
i. Allowing this would be too great of a shortcut for the government; would set the
stage for abuses.
ii. We want to put the onus on the government to build its case without the
assistance of self-incrimination.
b. Avoids the “Cruel Tri-Lemma”
i. If you tell the truth, you may be found guilty of the crime.
ii. If you lie, you may be found guilty of perjury.
iii. If you refuse to testify, you may be found guilty of contempt.
c. Assertion
i. Must be asserted affirmatively, unlike most rights.
ii. Must invoke privilege at the beginning of question—before a suspect begins to
answer question.
iii. Cannot invoke the privilege later (with regard to the same crime) once some
questions have been answered. Rogers.
d. Test for Whether Privilege Exists – Court must look to the setting in which the question
is asked to determine whether an answer would produce injurious results. Hoffman v.
United States (1951) (Clark).
e. Three Requirements
i. Testimonial – Reveals the contents of a person’s mind.
1. Non-Testimonial – Blood samples, voice exemplars, handwriting, etc.
These may be from a person’s body, but they are hard evidence, not
communications. Do not reveal the contents of a person’s mind.
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2.
3.
4.
5.
ii. Compelled – Required by law, e.g., subpoenaed. If you refuse to testify, you
may be held in contempt, which constitutes a backup, remedial structure.
1. Does not mean an environment of compulsion, as in Miranda.
iii. Incriminating
1. Criminal liability only.
2. Incriminating to witness, not a third party.
3. Two Tests
a. When there is reasonable cause to apprehend danger from a
direct answer, i.e., reasonable cause to believe that answering a
question would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime. Hoffman.
i. See also Ohio v. Reiner (2001) (the standard of
“reasonable cause to apprehend danger” by providing a
“link in the chain of evidence” recognizes that “truthful
responses of an innocent witness, as well as those of a
wrongdoer, may provide the government with
incriminating evidence”).
b. Real and substantial danger of the above occurring.
iv.  Court decides whether requirements are met. Hoffman.
Counselman v. Hitchcock (1892)
a. Rule – Privilege against self-incrimination is available to grand jury witnesses.
i. Privilege applies to any witness that is being compelled to give testimony that
might incriminate him in a criminal case.
ii. Also applies in those judicial and administrative proceedings that serve as an
alternative to grand jury proceedings.
Incrimination Under Laws of Another Sovereign
a. Murphy v. Waterfront Comm. (1964)
i. Rejected “separate sovereign” precedent.
1. Separate Sovereign Doctrine – Privilege against self-incrimination
protected only against incrimination under the laws of the sovereign that
was attempting to compel the incriminating testimony.
ii. Rule – “Policies and purposes” of the 5th Amendment require that the privilege
protect “a state witness against incrimination under federal as well as state law
and a federal witness against incrimination under state as well as federal law.”
b. United States v. Balsys (1998)
i. Rule – Separate sovereign doctrine continues to apply as to incrimination under
the laws of a foreign country.
Rogers v. United States (1951) (TESTIMONIAL WAIVER OF PRIVILEGE)
a. Facts – Witness there testified before a grand jury that, as treasurer of Communist Party
of Denver, she had been in possession of party records, but had subsequently delivered
those records to another person. She refused, however, to identify the recipient of the
records, asserting that would be incriminating.
b. Testimonial Waiver – A witness is not allowed to disclose a basic incriminating fact and
then claim the privilege as to “details.”
Compelling Target to Appear
a. Majority Rule – 5th Amendment, as to the target and any other grand jury witness,
presents only an option of refusal and not a prohibition of inquiry. The obligation to
appear is no different for a person that may himself be the subject of a grand jury inquiry.
O’Connell v. United States (2d Cir. 1930).
i. Federal courts and most states.
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b. Minority Rule – The target of an investigation is, in effect, a “putative” or “de facto”
defendant, and he therefore should be allowed to exercise his privilege in much the same
manner as a “de jure defendant” at trial. Unless the target expressly waives his selfincrimination privilege, prosecution cannot use a grand jury subpoena to force him to
appear.
6. Entity Exception
a. Hale v. Henkel (1906)
i. Entity Exception – Privilege against self-incrimination is a personal right, and it
is not available to a corporation.
1. Two Justifications
a. Self-incrimination privilege is designed in large part to protect
interests unique to the individual.
b. State’s greater regulatory power over corporations, which were
merely “creature[s] of the state.”
b. United States v. White (1944) (Murphy)
i. Entity Exception Applies to Labor Unions/Unincorporated Entities – The
president of an unincorporated labor union could not invoke his personal
privilege to a subpoena demanding union records.
1. Exception is derived from the inappropriateness of affording the
privilege to an impersonal collective entity, whether or not that entity
took the corporate form.
2. Privilege against self-incrimination is related to uniquely human
qualities.
c. Bellis v. United States (1974)
i. Entity Exception & Independence of Entity – Entity exception remains
applicable even though the entity embodied personal as well as group interests.
The function key is that the organization “be recognized as an independent entity
apart from its individual members.”
7. Shapiro v. United States (1948) (REQUIRED RECORDS EXCEPTION)
a. Holding – Upholding against a self-incrimination objection a subpoena directing
production of records of commodity sales that the petitioner, a wholesale fresh produce
dealer, was required to keep, and to make available for inspection by federal regulators,
under the wartime Emergency Price Control Act.
i. Applies if the records are those of a business conducted as an individual
proprietorship. Grand Jury Subpoena Duces Tecum (Underhill) (6th Cir. 1986).
ii. Three Prerequisites – Grosso v. United States (1968)
1. First, the purposes of the United States’ inquiry must be essentially
regulatory;
2. Second, information is to be obtained by requiring the preservation of
records of a kind which the regulated party has customarily kept; and
3. Third, the records themselves must have assumed “public aspects” which
render them at least analogous to public documents.
8. Doe v. United States (Doe II) (1988) (Blackmun) (TESTIMONIAL LIMITATION)
a. Rule – The communicative element of an act, even the act of making a statement, rises to
the level of testimony only where the government’s objective is to seek to have the actor,
through that act itself, “relate a factual assertion or disclose information.”
b. Holding – A court order requiring an individual to sign a form directing any foreign bank
to release the records of any account he might have at that bank did not compel
“testimony” for 5th Amendment purposes.
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i. The government did not seek to use the signed form itself as a factual assertion of
the individual (although it would use the documents that might be produced by
the bank in response to the signed directive).
ii. The government was not relying on the “truth-telling” of the directive, but simply
requiring the petitioner to engage in the act of producing that directive.
9. Andresen v. Maryland (1976) (Blackmun) (PERSONAL COMPULSION LIMITATION)
a. Holding – Because the records had been “voluntarily committed to writing,” and because
the defendant had not been forced to produce or authenticate them, use of the records did
not compel the defendant to incriminate himself.
i. Key – The “records seized contained statements that petitioner had voluntarily
committed to writing” and their seizure did not require the defendant “to say or
do anything.”
Act-of-Production Doctrine
1. Fisher v. United States (1976) (White)
a. Facts – Sole owners of separate businesses had delivered to their attorneys various work
papers that had been prepared by their accountants in the course of filing income tax
returns.
b. 5th Amendment
i. “5th Amendment is limited to prohibiting the use of physical or moral
compulsion exerted on the person asserting the self-incrimination privilege.”
ii. “5th Amendment protects against compelled self-incrimination, not the
disclosure of private information.”
c. “Incriminating” Requirement – Privilege Only for Self-Incrimination
i. “[The privilege against self-incrimination] is never intended to permit a person to
plead the fact that some third person might be incriminated by his testimony,
even though he were the agent of such person. The amendment is limited to a
person who shall be compelled in any criminal case to be a witness against
himself.”
ii. “The privilege against self-incrimination protects a person only against being
incriminated by his own compelled testimonial communications.”
iii.  Requesting tax documents from attorneys does not directly implicate the 5th
Amendment. 5th Amendment prevents compelled incrimination of oneself, and
the tax documents were not produced by the attorneys, but by the clients.
d. Limits of Attorney-Client Privilege
i. “Confidential disclosures by a client to an attorney made in order to obtain legal
assistance are privileged. The purpose of the privilege is to encourage clients to
make full disclosure to their attorneys. However, since the privilege has the
effect of withholding relevant information from the factfinder, it applies only
where necessary to achieve its purpose. Accordingly it protects only those
disclosures, necessary to obtain informed legal advice, which might not have
been made absent the privilege. Pre-existing documents which can be obtained
by court process from the client when he is in possession may also be obtained
from the attorney by similar process following transfer by client in order to
obtain more informed legal advice.”
ii. “When the client himself would be privileged from production of the document,
either as a party at common law or as exempt from self-incrimination, the
attorney having possession of the document is not bound to produce.”
e. Act-of-Production Doctrine – The act of producing subpoenaed documents “has
communicative aspects of its own, wholly aside from the contents of the papers
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f.
produced.” Compliance with a subpoena “tacitly concedes the existence of the papers
demanded and their possession or control by the [subpoenaed party].” It also would
indicate that party’s “belief that the papers are those described in the subpoena,” and in
some instances this could constitute authentication of the papers.
i. Focus is on the act of producing documents, not documents’ contents.
ii. A subpoena compels the act of producing documents.
1. Key to Fisher – The subpoena power to compel production is the
equivalent of compelling statements, but what is compelled are not the
statements in the documents. The statements in the documents may have
been made entirely voluntarily.
2. Where the preparation of subpoenaed records was voluntary, those
records “cannot be said to contain compelled testimonial evidence.”
iii. Three Elements of Production – Test for whether subpoena production is
subject to 5th Amendment challenge.
1. Acknowledgment of existence;
2. Acknowledgment of possession or control; and
3. Potential authentication by identification.
4.  Foregone Conclusion Doctrine – Subpoena compels all three
because by complying with a subpoena, one implicitly is
assenting/testifying to all three of these facts. “These papers exist; I have
them; and they are what you think they are.”
a.  Privilege against self-incrimination does NOT apply when
these three elements are a foregone conclusion.
b. Non-Testimonial Nature – Where the existence and possession
of the documents to be produced are a “foregone conclusion,”
the act of production “adds little or nothing to the sum total of
the government’s information” and therefore is no more
testimonial than other compelled physical acts (e.g., handwriting
exemplars). The government in such a case obviously is not
seeking the assertions of the subpoenaed party as to the facts of
existence and possession, and his incidental communication as to
those facts, inherent in the physical act that the government had
the authority to compel, therefore does not rise to the level of
compelled “testimony.”
c. Non-Testimonial Nature – Where the communicative elements
of the act of producing a preexisting document merely
established what is already a foregone conclusion, that factor
suggests that the government is compelling the act for what it
will produce (the voluntarily prepared documents, with a content
not itself compelled) rather than the communications inherent in
the act. To allow the privilege to be claimed simply because the
required act incidentally provided information, even though the
government did not seek that information, would be to make
every compelled act a testimonial communication.
5.  Whether production is “testimonial” and “incriminating” depends on
the “facts and circumstances of particular cases or classes thereof.”
iv. Ask: (1) Is complying with the subpoena equivalent to a statement? (2) Were the
facts to which the defendant implicitly assented by complying with the subpoena
a foregone conclusion?
Brennan, Concurring
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i. Given the prior access by the taxpayers’ accountants to the papers involved in the
instant proceedings, and given the wholly business nature of the papers, the
privilege against self-incrimination did not protect the papers from production.
ii. But the privilege should be construed to safeguard against governmental
intrusions on personal privacy to compel either self-incriminating oral statements
or the production of self-incriminating evidence recorded in one’s private books
and papers.
g. Marshall, Concurring
i. The Court’s new approach for deciding when the 5th Amendment privilege could
be asserted to bar production of documentary evidence—resting on the tacit
verification inherent in the act of production that the document existed, was in
the possession of the producer, and was the one sought by the subpoena—should
be applied to provide substantially the same protection as the Court’s prior focus
on the contents and private nature of the document subpoenaed.
2. United States v. Doe (Doe I) (1984) (Powell)
a. Facts – Involved a subpoena directing a sole proprietor to produce for grand jury use a
broad range of records, including billings, ledgers, canceled checks, telephone records,
contracts, and paid bills.
b. Compulsion – That a record was prepared by a subpoenaed party and is in his possession
is “irrelevant to the determination of whether its creation . . . was compelled.” The
business records here, like the accountant’s work papers in Fisher, had been prepared
voluntarily, and therefore only their production, and not their creation, was compelled.
c. Rejection of “Zone of Privacy” – Rejected the argument that the 5th Amendment
created a “zone of privacy” that protected the content of such papers.
i. Originally rejected in Fisher.
ii. The respondent could not avoid compliance with a subpoena “merely by
asserting that the item of evidence which he is required to produce contains
incriminating writing, whether his own or that of someone else.”
d. Current Law
i. Doe I and Fisher preclude self-incrimination protection of the contents of a
voluntarily prepared document, no matter how personal.
ii. Act-of-Production Doctrine protects only diaries, pocket calendars, etc.
3. Act-of-Production Immunity – Murphy v. Waterfront Commission (1964).
a. Need be only as broad as the privilege against self-incrimination.
b. Need only protect respondent from self-incrimination that might accompany the act of
producing his business records.
4. Braswell v. Unites States (1988) (Rehnquist) (CORPORATE CUSTODIAN)
a. No Privilege for Corporate Custodian – Corporate custodian cannot rely upon the
privilege against self-incrimination to avoid personal production of corporate documents.
i. “A corporate custodian is not entitled to resist a subpoena on the ground that his
act of production will be personally incriminating.”
ii. “Because the custodian acts as a representative, the act is deemed one of the
corporation and not the individual. Therefore, the Government may make no
evidentiary use of the ‘individual act’ against the individual. For example, in a
criminal prosecution against the custodian, the Government may not introduce
into evidence before the jury the fact that the subpoena was served upon and the
corporation’s documents were delivered by one particular individual, the
custodian.”
b. Act of Production Against Corporate Custodian – “The Government has the right,
however, to use the corporation’s act of production against the custodian. The jury may
draw from the corporation’s act of production the conclusion that the records in question
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are authentic corporate records, which the corporation possessed, and which it produced
in response to the subpoena. And if the defendant held a prominent position within the
corporation that produced the records, the jury may, just as it would had someone else
produced the documents, reasonably infer that he had possession of the documents or
knowledge of their contents.”
5. Baltimore City Department of Social Services v. Bouknight (1990) (NON-DOCUMENTARY)
a. Act-of-Production Doctrine for Physical Evidence – A subpoena requiring production
of some item of physical evidence can also be challenged if the acknowledgment of
existence and possession through the act of production is “testimonial” and
“incriminating.”
b. Holding & Reasoning – Court rejected a self-incrimination objection to a subpoena
directing respondent Bouknight to produce her infant son, who was a ward of the court.
The Court noted that the respondent could not claim the privilege based upon “anything
an examination of the [child] might reveal,” as that would be a claim based upon “the
contents or nature of the thing demanded.” However, the mother could conceivably
claim the privilege because “the act of production would amount to testimony regarding
her control over and possession of [the child].” While the state could “readily introduce
[other] evidence of Bouknight’s continuing control over the child” (including the court
order giving her limited custody and her previous statements), her “implicit
communication of control over [the child] at the moment of production might aid the
state in prosecuting Bouknight [for child abuse].”
6. United States v. Hubbell (2000) (Stevens)
a. Facts – In 1994, upon the request of the U.S. Attorney General, an Independent Counsel
was appointed to investigate possible criminal violations relating to, among other matters,
the President’s relationships with various business entities. In the course of this
investigation, a former U.S. Associate Attorney General was charged with mail fraud and
tax evasion arising out of his billing practices as a member of an Arkansas law firm from
1989 to 1992. In a guilty-plea agreement, the former official promised to provide the
Independent Counsel with information about matters relating to the investigation. In
1996, the Independent Counsel obtained a subpoena duces tecum that called on the
former official to produce documents before a federal grand jury sitting in Little Rock,
Arkansas. The former official appeared before the grand jury and invoked the 5th
Amendment privilege against self-incrimination. However, the independent counsel
produced a federal court order which (1) directed the former official to respond to the
subpoena; and (2) granted him immunity under 18 U.S.C. § 6002 against the use and
derivative use of compelled testimony. The former official then delivered the specified
documents.
b. Holding – Indictment against Hubbell must be dismissed because the constitutional selfincrimination privilege applied to testimonial aspects of his response to a subpoena and
the government had not shown any prior knowledge of documents respondent produced
under subpoena.
c. Key Dilemma – By providing the documents, Hubbell was testifying as to the contents
of his mind, i.e., whether or not he thought that the documents would be responsive.
i. The investigation alleged, “You did not give us everything before, and you know
it. Give us all of your documents, and we will prove it.”
ii. This case turns on authenticating the documents that Hubbell had turned over.
His act of production in complying with the subpoena would be used against him.
d. No Foregone Conclusion – Production of the documents is not a foregone conclusion.
i. KEY DISTINCTION FROM Fisher.
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ii. No way that the government could have known which documents were valid
without Hubbell testifying to as much. No foregone conclusion because the
government was not aware of the existence, authenticity, etc. of the documents.
iii. “Whatever the scope of this ‘foregone conclusion’ rationale, the facts of this case
plainly fall outside of it. While in Fisher the Government already knew that the
documents were in the attorneys’ possession and could independently confirm
their existence and authenticity through the accountants who created them, here
the Government has not shown that it had any prior knowledge of either the
existence or the whereabouts of the 13,120 pages of documents ultimately
produced by respondent. The Government cannot cure this deficiency through
the overbroad argument that a businessman such as respondent will always
possess general business and tax records that fall within the broad categories
described in this subpoena. The Doe I subpoenas also sought several broad
categories of general business records, yet we upheld the District Court’s finding
that the act of producing those records would involve testimonial selfincrimination.”
e. Distinction from Fisher
i. Fisher – Government was not interested in using the existence of the documents.
Wanted to use their contents. There was a foregone conclusion that the
documents existed.
ii. Hubbell – Government was relying on Hubbell’s testimony to make its case.
Needed Hubbell to authenticate his income statements, financial records, etc. in
order to prove a discrepancy with what he had disclosed earlier. In disclosing the
documents, it would have been a foregone conclusion that they were authentic.
f. Lessons
i. Must understand the nature of the criminal case (very fact-specific).
ii. Is the government trying to learn something new from the act of production, not
from the contents of the documents produced?
iii. Typical Procedure – Defendant asserts her 5th Amendment privilege, and a court
determines whether or not it exists.
g. Thomas & Scalia, Concurring
i. Although the Court properly applied the act-of-production doctrine (1) that
doctrine could be inconsistent with the original meaning of the 5th Amendment’s
self-incrimination clause, (2) a substantial body of evidence suggested that the
5th Amendment privilege protected against the compelled production not just of
incriminating testimony, but of any incriminating evidence, and (3) the scope and
meaning of the self-incrimination clause ought to be reconsidered in a future
case.
h. Rehnquist, Dissenting
i. Would have reversed the Court of Appeals’ judgment in part for the reasons
expressed by a dissenting Court of Appeals judge, to the effect that the inquiry
about the subpoenaed documents ought to have been limited to verifying that the
Independent Counsel, in securing the former official’s indictment, had only used
information that would have been used if the documents had appeared in the
Independent Counsel’s office, unsolicited and without explanation.
7. Encrypted Computers – Government wants to obtain a suspect’s password in order to decrypt
his computer. Does the suspect have a 5th Amendment interest in her password? Does the
privilege against self-incrimination apply.
a. Underlying Crime – Usually possession of child pornography.
b. Government wants to check the computer, but it cannot access it without the password.
In these cases, there usually is a 5th Amendment privilege because existence, possession,
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authenticity, etc. are not foregone conclusions. This is just what the government is trying
to prove. If the suspect knows the password, it shows that she possesses the computer.
c. In a case where police officers had seen child pornography on a suspect’s computer
before it was locked, the court held that it was a foregone conclusion that the suspect
possessed the computer and the illegal files thereon. Court required the suspect to
provide the password.
Gideon & Introduction to the Right to Counsel
1. Defense Counsel Generally
a. What do defense attorneys do?
i. Interview witnesses.
ii. Collect evidence about witnesses.
iii. Gather evidence for motions to suppress.
iv. Navigate 4th Amendment rules; Miranda rules; Massiah rules.
v. Advise client about sentencing or plea offers.
vi. Hiring and preparing expert witnesses.
vii. Processing bail issues.
viii. Preparing for trial: opening statement, direct examinations, cross examinations,
closing argument, motions to dismiss, etc.
b. Ultimate Question – How good are defendants at doing all of these things? Are they as
effective as defense attorneys?
i. Defendants in jail are not capable of interviewing witnesses, collecting evidence,
etc.
ii. Defendants almost certainly do not know the arcane, technical, and
counterintuitive rules of criminal procedure and evidence.
2. 6th Amendment – “In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.”
3. History
a. English History – Right to retain a lawyer if you could afford one. English courts did
not always allow defense attorneys. They did not want defense attorneys to “mislead”
the jury.
b. 6th Amendment Right to Counsel – Historically understood to guarantee the right to
counsel only if a defendant could afford one. Did not originally mean a right to counsel
for those that could not afford lawyers.
i. It was unclear whether the right to counsel applied to the states.
4. Powell v. Alabama (Scottsboro Boys Case) (1932) (Sutherland)
a. Facts – Nine black youths had been charged with the rape of two white girls in the
vicinity of Scottsboro, AL. A lawyer had been appointed for them on the morning of
their trial. Eight of the youths had been convicted, with the jury imposing the death
sentence.
b. Holding – The due process clause of the 14th Amendment guaranteed to defendants a
right to be represented by retained counsel, and to implement that right, a trial court must
give the defendant reasonable time and opportunity to secure counsel.
i. Not a 6th Amendment case.
c. Special Circumstances – Holding was narrow and very fact-specific.
5. Johnson v. Zerbst (1938)
a. Rule – 6th Amendment guarantees indigent federal defendant (at least all felony
defendants) a right to appointed counsel.
6. Betts v. Brady (1942) (Roberts)
a. OVERTURNED BY Gideon v. Wainwright (1963).
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7.
8.
9.
10.
b. Rule – In view of fundamental fairness, due process requires the appointment of counsel
only where the special circumstances of the particular case indicate that the indigent
defendant needs a lawyer to obtain a fair trial.
i. Due process does not impose a flat requirement of appointed counsel in all
serious state trials.
ii. 14th Amendment Due Process Clause does not incorporate 6th Amendment right
to counsel. “We cannot say that the [14th] Amendment embodies an inexorable
command that no trial for any offense, or in any court, can be fairly conducted
and justice accorded a defendant who is not represented by counsel.”
iii.  Betts was better able to represent himself than the defendants in Powell. The
totality of the circumstances indicated that Betts representing himself was not
fundamentally unfair. No due process violation.
c. Right to Appointed Counsel in Capital Case – “In a capital case, where the defendant
is unable to employ counsel, and is incapable adequately of making his own defense
because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court,
whether requested or not, to assign counsel for him as a necessary requisite of due
process of law.”
d. Lesson – Attorneys always are helpful to some degree. It is more difficult to distinguish
instances in which they are essential from instances in which they are merely helpful.
e. Black, Dissenting
i. “I believe that the 14th Amendment made the 6th applicable to the states.”
Bute v. Illinois (1948)
a. Counsel in Capital Cases – Flat requirement of counsel in capital cases.
Hamilton v. Alabama (1961) (Powell)
a. Counsel at Arraignment – Arraignment is so critical a stage in AL procedure that denial
of counsel at that stage in a capital case violates due process.
Absolute Right to Retained Counsel
a. Chandler v. Fretag (1954)
i. Right of petitioner to be heard through his own counsel is unqualified.
b. Ferguson v. Georgia (1961)
i. State may not deny a criminal defendant the right to have his own counsel guide
him on direct examination.
c. United States v. Gonzales-Lopez (2006)
i. “The 6th Amendment right to counsel of choice commands not that a trial be fair
but that a particular guarantee of fairness be provided—to wit, that the accused
be defended by the counsel he believes to be best.”
Gideon v. Wainwright (1963) (Black) (FUNDAMENTAL RIGHT TO COUNSEL)
a. Facts – In 1963, whether a defendant would be appointed a lawyer depended on whether
she was sophisticated. Betts. Gideon was not appointed a lawyer. He represented
himself and oversaw his own case competently. He was convicted and argued that he had
a right to be appointed a lawyer and that he was denied this right.
b. Holding – (1) Rejected the special circumstances rule of Betts and (2) extended the right
to appointed counsel in state cases to all indigent felony defendants.
c. Fundamental Right to Counsel/Overruled Betts – Betts “was wrong in concluding that
the 6th Amendment’s guarantee of counsel is not one of these fundamental rights.”
i. Contrary to what Black says, Betts was consistent with precedent.
ii. Betts was overturned not because it was inconsistent, but because no one knew
how to apply its vague standards.
iii. Gideon establishes an easily administrable bright-line rule.
iv. Underlying Rationale – Criminal proceedings have become very complex.
Defendants no longer can effectively represent themselves.
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d. Clark, Concurring
i. Rested his decision on the Due Process Clause of the 14th Amendment.
e. Harlan, Concurring
i. Pointing out that the Court’s decision should not be interpreted as automatically
carrying over the entire body of federal law on the point and applying it in full
sweep to the states.
ii. Also pointed out that Betts was consistent with precedent.
11. Argersinger v. Hamlin (1972) (Douglas)
a. Facts – Defendant was convicted of a misdemeanor with a penalty of up to six months in
jail and a fine.
b. Right to Counsel for Offenses Carrying Jail Time – “Absent a knowing and intelligent
waiver, no person may be imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at his trial.”
i. Even seemingly minor cases may be complex.
ii. Applies to cases in which there is an actual prison sentence, not cases in which
the defendant is not actually sentenced to prison, i.e., only fine or probation.
iii. Alabama v. Shelton (2002) – Suspended sentence still counts as imprisonment
for purposes of Argersinger.
iv. Bright-Line Rule – Court adopts the “jail-no jail” line because it is an easily
administrable line of demarcation. Losing your liberty through imprisonment is a
different category of punishment than a fine or probation.
c. Judge’s Discretion – If a judge decides not to impose a prison sentence for an offense,
then the judge can deny the defendant her right to appointed counsel.
i. Policy – Judge typically asks prosecution whether the government is seeking jail
time.
1. If yes, judge appoints a lawyer.
2. If not, judge must consider whether she might want to impose jail time if
the defendant is convicted. She must consider this before she knows all
the facts. If she gets it wrong and fails to appoint a lawyer, but later
thinks that she might want to impose jail time, the only way to correct
the constitutional violation is not to sentence the defendant to jail.
a. Depends on resources too. Are there enough public defenders?
d. Determining Whether Defendant Is Indigent – Clerks’ office usually determines this
by assessing all of a defendant’s assets. This issue has never been litigated.
e. Powell & Rehnquist, Concurring
i. Disagreed with the Court’s holding that absent a knowing and intelligent waiver,
no person could be imprisoned unless he was represented by counsel at his trial.
ii. The inflexible rule established by this holding would result in problems of
availability of counsel, of costs, and especially of intolerable delay in an already
overburdened system, and might raise more 14th Amendment problems than it
resolved.
iii. The right to counsel in petty offense cases is not absolute, but that trial courts
should have reviewable discretion to determine, on a case-by-case basis, whether
the assistance of counsel is necessary to assure a fair trial in a petty offense case.
12. Scott v. Illinois (1979) (Rehnquist)
a. Rule – “The 6th and 14th Amendments require only that no indigent criminal defendant
be sentenced to a term of imprisonment unless the state has afforded him the right to
assistance of appointed counsel in his defense.”
b. Affirming “jail-no jail” line in Argersinger.
13. Nichols v. United States (1980) (Rehnquist)
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a. Enhancing Sentence for Subsequent Offense – An uncounseled misdemeanor
conviction which was valid under Scott (no term of incarceration having been imposed)
could be used to enhance the imprisonment sentence for a subsequent offense.
14. Alabama v. Shelton (2002) (Ginsburg)
a. Rule – A state may not impose a suspended sentence on a misdemeanor conviction,
where that sentence “may end up in the actual deprivation of a person’s liberty,” upon a
subsequent revocation of probation, if the state had failed to make counsel available to
the indigent defendant.
i. If a suspended sentence is possible, court must appoint counsel for defendant.
ii. Distinguishing Nichols – Unlike Nichols, where the imprisonment was imposed
for the subsequent felony, taking account of the earlier conviction, here the
subsequent imprisonment sentence would be imposed for the underlying
uncounseled conviction (the probation violation not constituting an independent
basis for incarceration).
b. Scalia, Dissenting
i. The Court’s extension of the misdemeanor right to counsel to cases bearing the
mere threat of imprisonment ignored a long and consistent jurisprudence.
ii. The Court ought not to have asked whether the procedural safeguards attending
the imposition of the defendant’s suspended sentence complied with the
Constitution until the state sought to imprison the defendant.
Point at Which Right to Counsel Attaches
1. Rule – Defendant is not entitled to the assistance of counsel unless (a) adversary judicial
proceedings have commenced and (b) the encounter is a “critical stage” of the criminal
proceeding.
a. “A person is entitled to the help of a lawyer”—assuming the stage of the “prosecution” is
a “critical” one—“at or after the time that judicial proceedings have been initiated against
him—whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment.” Brewer v. Williams (1977).
b. 6th Amendment right to counsel does not attach at a mere PC hearing (because the
suspect has not yet been charged).
2. United States v. Gouveia (1984) (Rehnquist) (ADMINISTRATIVE DETENTION)
a. Rule – A person has not become an accused for 6th Amendment purposes simply
because he has been detained by the government with the intention of filing charges
against him (i.e., administrative detention).
i.  Administrative detention of prison inmates for 90 days because of a pending
felony investigation held not to constitute an “accusation” for 6th Amendment
purposes.
3. Rothgery v. Gillespie County (2008) (Souter)
a. 6th Amendment Standards – “The 6th Amendment right of the accused to assistance of
counsel in all criminal prosecutions is limited by its terms: it does not attach until a
prosecution is commenced. For purposes of the right to counsel, commencement is
pegged to the initiation of adversary judicial criminal proceedings, whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment. The rule is
not mere formalism, but a recognition of the point at which the government has
committed itself to prosecute, the adverse positions of government and defendant have
solidified, and the accused finds himself faced with the prosecutorial forces of organized
society, and immersed in the intricacies of substantive and procedural criminal law.”
b. Right to Counsel Attaches at Initial Appearance
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i. “The right to counsel attaches at the initial appearance before a judicial officer.
This first time before a court, also known as the preliminary arraignment or
arraignment on the complaint, is generally the hearing at which the magistrate
informs the defendant of the charge in the complaint, and of various rights in
further proceedings, and determines the conditions for pretrial release.”
ii. “By the time a defendant is brought before a judicial officer, is informed of a
formally lodged accusation, and has restrictions imposed on his liberty in aid of
the prosecution, the State’s relationship with the defendant has become solidly
adversarial.”
iii. “Under the federal standard, an accusation filed with a judicial officer is
sufficiently formal, and the government’s commitment to prosecute it sufficiently
concrete, when the accusation prompts arraignment and restrictions on the
accused's liberty to facilitate the prosecution.”
iv. “Attachment occurs when the government has used the judicial machinery to
signal a commitment to prosecute as spelled out in case law. Once attachment
occurs, the accused at least is entitled to the presence of appointed counsel during
any critical stage of the post-attachment proceedings; what makes a stage critical
is what shows the need for counsel’s presence. Thus, counsel must be appointed
within a reasonable time after attachment to allow for adequate representation at
any critical stage before trial, as well as at trial itself.”
v. “A criminal defendant’s initial appearance before a judicial officer, where he
learns the charge against him and his liberty is subject to restriction, marks the
start of adversary judicial proceedings that trigger attachment of the 6th
Amendment right to counsel.”
vi.  Statements in both the majority and concurring opinions strongly suggest that
where a first appearance involves no more than making an ex parte probable
cause determination, giving notice of the charges, and setting bail, it does not
constitute a “critical stage.”
c. Summary
i. Old Rule – Right to counsel attaches at the indictment, i.e., when formal charges
are filed.
1. Rationale – The investigation has entered a new stage. It is no longer
about who committed the crime, but it is about prosecuting the person
that did commit the crime.
ii. New Rule – Right to counsel attaches when the government has made a
commitment to prosecute, i.e., when the government has used the judicial
machinery to signal a commitment to prosecute, the right to counsel attaches.
1. Best Way of Reading Rothgery – Right to counsel attaches after an
article 15.17 hearing.
2. Normal Procedure – A lawyer is appointed at the initial hearing before a
judge. However, each state’s procedure is different, so answering this
question for all jurisdictions is impossible.
The 6th Amendment Massiah Right to Counsel
1. Two Different Rights to Counsel
a. Miranda – 5th Amendment privilege against self-incrimination (and therefore right to
counsel).
b. Massiah – 6th Amendment right to counsel.
2. Comparing the 5th Amendment (Miranda) & 6th Amendment (Massiah) Rights to Counsel
a. What is the trigger? When do the rights begin?
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i. 5th Amendment – Custody. Miranda.
ii. 6th Amendment – Adversary judicial criminal proceedings. Rothgery. The right
to counsel triggers when the Rothgery line is passed, and once that switch has
been flipped, it is always on. The right applies from that point forward.
b. What is the standard for interrogation?
i. 5th Amendment – Miranda setting; Innis (reasonably likely to elicit an
incriminating response). Objective test.
ii. 6th Amendment – Brewer v. Williams. Subjective test: intentionally/deliberately
eliciting an incriminating response.
c. What is waiver standard?
i. 5th Amendment – Knowing and intelligent waiver.
ii. 6th Amendment – Same as the Miranda standard. Patterson (really the only
case).
1. Brewer is relevant to some degree too.
iii.  Same standard. Whatever counts as a Miranda waiver counts as a Massiah
waiver too.
d. What is the remedy?
i. 5th Amendment – Patane; Seibert; Elstad: suppression is appropriate in some
circumstances, but not others. It is a less robust remedy than in 4th Amendment
contexts.
ii. 6th Amendment – Supreme Court has not addressed this question.
e. Does this apply to all offense or only one offense?
i. Texas v. Cobb question.
3. Brewer v. Williams (Williams I) (1977) (Stewart)
a. Facts – Williams was arraigned in Davenport, Iowa on an outstanding arrest warrant prior
to his transportation to Des Moines on a murder charge. Though the police had assured
Williams’ lawyer that he would not be interrogated during the trip, a detective made a
“Christian burial speech,” to the effect that because of the worsening weather it would be
necessary to find the body now to ensure the victim a Christian burial. Williams then
directed the police to the body.
b. Attachment of 6th Amendment Right to Counsel – “The right to counsel granted by
the 6th and 14th Amendments means at least that a person is entitled to the help of a
lawyer at or after the time that judicial proceedings have been initiated against him—
whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment.” Kirby v. Illinois.
i.  Williams had been arraigned, so the 6th Amendment right to counsel had
attached.
c. Massiah Rule – “Once adversary proceedings have commenced against an individual, he
has a right to legal representation when the government interrogates him.”
d. Interrogation Test – Intentionally/deliberately eliciting an incriminating response.
Subjective test focused on the officer’s state of mind.
i. Why is this test different than the Miranda test?
1. 5th Amendment right against self-incrimination and 6th Amendment
right to counsel serve different purposes.
a. Miranda Right to Counsel – Help defendants in custody.
b. Massiah Right to Counsel – Prevent interference with defense
counsel’s job.
2. Miranda – Suspects in the box feel compelled to comply with police
orders. The key is the environment as perceived by the defendant. What
is going on in the mind of the officer is irrelevant.
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3. Massiah – We are worried about police trying to squeeze information out
of a defendant. The question is whether the officer is trying to
circumvent a right that exists. We are not worried about police creating
an environment of compulsion, as in Miranda.
e. Waiver of 6th Amendment Right to Counsel
i. “An accused can voluntarily, knowingly and intelligently waive his right to have
counsel present at an interrogation after counsel has been appointed. The
prosecution, however, has the weighty obligation to show that the waiver was
knowingly and intelligently made.”
ii. “In determining the question of waiver of counsel as a matter of federal
constitutional law—it is incumbent upon the State to prove an intentional
relinquishment or abandonment of a known right or privilege. The right to
counsel does not depend upon a request by a defendant, and courts indulge in
every reasonable presumption against waiver. This strict standard applies
equally to an alleged waiver of the right to counsel whether at trial or at a critical
stage of pretrial proceedings.”
iii.  Waiver of the Miranda right to counsel effectively waives the Massiah right to
counsel too.
f. Burger, Dissenting
i. The accused made a valid waiver of his right to counsel when he led the police to
the body.
ii. Even if there was no waiver, the exclusionary rule should not be applied to nonegregious police conduct, such as was involved in the case at bar, where the
prisoner’s disclosures were voluntary and un-coerced, and where his guilt was
manifest.
g. White, Dissenting
i. The record in the instant case established that the prisoner had knowingly and
intentionally waived his right to assistance of counsel.
h. Blackmun, Dissenting
i. The Court’s holding that the right to counsel was violated whenever police
engaged in any conduct, in the absence of counsel, with the subjective desire to
obtain information from a suspect after arraignment, was too broad.
ii. There was no “interrogation” by the police in the case at bar.
iii. Thus, the judgment of the Court of Appeals should be vacated and the case
remanded for consideration of the issue of voluntariness of the prisoner’s
statements, in the constitutional sense.
4. Interrogation v. Deliberate Elicitation
a. Interrogation – Miranda standard. Requires a police-dominated atmosphere and
compulsion. Suspect must know that she is talking to police.
b. Deliberate Elicitation – Massiah standard. Can occur after a suspect has been indicted
even though she is speaking freely with someone that she does not perceive to be a police
officer (e.g., someone posing as a fellow inmate). Police can deliberately elicit
statements without the suspect being aware of it.
5. United States v. Fellers (8th Cir. 2005)
a. Fruit of the Poisonous Tree Doctrine – “The similarities between the 6th
Amendment context at issue in Fellers’ case and the 5th Amendment context at issue in
Elstad support our conclusion that the Elstad rule applies when a suspect makes
incriminating statements after a knowing and voluntary waiver of his right to counsel,
notwithstanding earlier police questioning in violation of the 6th Amendment.”
i. Fruit of the Poisonous Tree Doctrine does NOT apply to Massiah violations.
ii. Kerr thinks that Fellers was wrongly decided.
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6.
7.
8.
9.
iii. Massiah right to counsel is not a set of judicially created, prophylactic rights (like
Miranda rights). Rather, it is an ordinary constitutional right. For that reason, all
of the ordinary 4th Amendment remedies, i.e., Fruit of Poisonous Tree Doctrine,
etc., should apply.
Patterson v. Illinois (1988) (White)
a. Waiver of 6th Amendment Right to Counsel – “An accused who is admonished with
Miranda warnings has been sufficiently apprised of the nature of his 6th
Amendment rights, and of the consequences of abandoning those rights, so that his
waiver on this basis will be considered a knowing and intelligent one.”
i.  Same standard for waiver of Miranda and Massiah rights to counsel.
ii. Exception to 6th Amendment Waiver (Footnote 9)
1. “This does not mean, of course, that all Sixth Amendment challenges to
the conduct of post-indictment questioning will fail whenever the
challenged practice would pass constitutional muster under Miranda. For
example, we have permitted a Miranda waiver to stand where a suspect
was not told that his lawyer was trying to reach him during questioning;
in the Sixth Amendment context, this waiver would not be valid.”
2. “Thus, because the Sixth Amendment’s protection of the attorney-client
relationship—‘the right to rely on counsel as a “medium” between [the
accused] and the State’—extends beyond Miranda’s protection of the
Fifth Amendment right to counsel, there will be cases where a waiver
which would be valid under Miranda will not suffice for Sixth
Amendment purposes.”
“No Contact” Rule
a. Rule 4.2 of ABA Model Rules of Professional Conduct – “In representing a client, a
lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court order.”
b. Citizens Protection Act – Requires federal prosecutors to comply with state laws and
rules, as well as local federal court rules, that govern lawyer conduct in the states where
the federal prosecutors work.
c. Interim Rule – Requires DOJ attorneys and lawyers acting pursuant to DOJ
authorization to comply only with state rules of ethical conduct, such as codes of
professional responsibility—not with state evidentiary and procedural rules or substantive
state law.
d. United States v. Lowery (11th Cir. 1999) – Even though the Citizens Protection Act
requires federal prosecutors to comply with state or local rules of professional conduct, it
does not follow that evidence obtained in violation of such rules has to be excluded.
Maine v. Moulton (1985) (Brennan)
a. Rule – “Incriminating statements pertaining to pending charges are inadmissible at the
trial of those charges, notwithstanding the fact that the police were also investigating
other crimes, if, in obtaining this evidence, the state violated the 6th Amendment by
knowingly circumventing the accused’s right to the assistance of counsel.”
Passive v. Active Secret Agents
a. United States v Henry (1980) (Burger)
i. Facts – Government agents contacted a federal informant serving a term in a city
jail and “told him to be alert to any statements made by the federal prisoners, but
not to initiate any conversation with or question Henry regarding the bank
robbery.” The informant later reported “that he and Henry had engaged in
conversation and that Henry had told him about the robbery of the Janaf bank,”
and he so testified at Henry’s trial.
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ii. Holding – Incriminating statements had been deliberately elicited. The
government “intentionally creat[ed] a situation likely to induce Henry to make
incriminating statements.”
iii. Powell, Concurring
1. The Massiah doctrine “does not prohibit the introduction of spontaneous
statements that are not elicited by governmental action. Thus, the 6th
Amendment is not violated when a passive listening device collects, but
does not induce, incriminating comments.”
b. Kuhlman v. Wilson (1986) (Powell)
i. Rule – Because “the primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equivalent of direct police
interrogation,” “a defendant does not make out a violation of that right simply by
showing that an informant, either through prior arrangement or voluntarily,
reported his incriminating statements to the police. Rather, the defendant must
demonstrate that the police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating remarks.”
ii. Brennan, Dissenting
1. “The State intentionally created a situation in which it was foreseeable
that respondent would make incriminating statements without the
assistance of counsel. While the coup de grace was delivered by
respondent’s brother, the groundwork for respondent’s confession was
laid by the State. Clearly the State’s actions had a sufficient nexus with
respondent’s admission of guilt to constitute deliberate elicitation within
the meaning of Henry.”
c. Listening Devices in Prison Settings – It seems clear mere use of the device does not
infringe upon the right to counsel, for it cannot be said that the bugging in any sense
“increases the defendant’s predisposition toward making an incriminating response.”
10. Private Citizens v. State Agents
a. Lower courts have struggled to discern standards for differentiating.
b. Relevant Criteria
i. Existence of an explicit agreement or prearrangement between law enforcement
and an informant;
ii. Source of an informant’s motivation;
iii. Benefits accruing to the informant; and
iv. Governmental involvement in placing the informant near the defendant.
11. Remedies for Massiah Violations
a. Massiah – Supreme Court has not addressed this question. There is conflicting case law.
b. Fruit of the Poisonous Tree Doctrine
i. Brewer v. William (Williams I) – Should apply.
ii. United States v. Fellers – Should not apply.
c. In practice, Massiah violations simply do not occur very frequently. When a suspect has
a lawyer, police know not to question her. Thus, there are few cases.
12. Texas v. Cobb (2001) (Rehnquist)
a. McNeil v. Wisconsin (1991) – “The 6th Amendment right to counsel is offense-specific.
It cannot be invoked once for all future prosecutions, for it does not attach until a
prosecution is commenced.”
i. Miranda – Miranda right to counsel is not offense-specific. The compelling
environment of the box is not offense-specific; it is compelling very generally.
1. Whole point of the Miranda right to counsel is the environment of
compulsion. This feeling of compulsion is not offense-specific.
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b.
c.
d.
e.
ii. Massiah – Point of the Massiah right to counsel is preventing interference with
defense counsel’s preparation of her case. If no charge has been brought, there is
no case with which to interfere. This is why the police cannot ask about an
offense that has been charged, but police can ask about offenses that have not
been charged.
Rejected the claim that a truly offense-specific limitation on the 6th Amendment right to
counsel would permit the police almost total license to conduct unwanted and
uncounseled interrogations.
i. Defendants still have the protections of Miranda; and
ii. The Constitution does not negate society’s interest in the ability of the police to
talk to those witnesses and suspects charged with other offenses.
Attachment of 6th Amendment Right to Counsel for Multiple Offenses – “When
the 6th Amendment right to counsel attaches, it does encompass offenses that, even if not
formally charged, would be considered the same offense.”
i. Test for Offenses “That Would Be Considered the Same Offense” – “Where
the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does
not.” Blockburger v. United States (1932).
1. Exact Same Elements? – Does each crime have exactly the same set of
elements? E.g., possession is a lesser-included offense of possession
with intent to distribute. However, burglary and murder are completely
different although they may arise from the same set of facts.
2. Definition of “offense” applied in Double Jeopardy Clause.
Kennedy, Concurring
i. Found that the suspect had the right to elect to speak with investigators after the
5th Amendment Miranda warning. Justice Kennedy stated that it was the
commencement of the formal prosecution, indicated by the initiation of adversary
judicial proceedings, which marked the beginning of the 6th Amendment right to
counsel. Thus, in the absence of a showing that the prisoner had the intent not to
speak, his confession was admissible.
Breyer, Dissenting
i. Concluded that respondent prisoner’s murder confession was inadmissible under
the 6th Amendment. Justice Breyer believed that the term “offense” constituted
the crime that the prisoner committed on a particular occasion, including criminal
acts that were “closely related to” or “inextricably intertwined with” the
particular crime set forth in the original charging instrument. Thus, the burglary
was “closely related” to the double murder because the prisoner committed the
first murder of the wife in furtherance of the burglary and the second murder of
the child to cover up the crimes.
Ineffective Assistance of Counsel
1. Powell v. Alabama (1932)
a. Court first recognized a right to effective assistance of counsel.
2. Glasser v. United States (1942)
a. Rule – In a federal case the 6th Amendment was violated by judicial action that denied
defendant’s “right to have the effective assistance of counsel.”
3. Jones v. Barnes (1983)
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4.
5.
6.
7.
8.
9.
a. Rule – Following its recognition of an equal protection right to appointed counsel on first
appeal, the Court held that a defendant taking such an appeal also had a constitutional
right to the effective assistance of his appellate counsel.
Evitts v. Lucey (1985)
a. Rule – After concluding that the constitutional right to counsel on a first appeal of right
also had a due process grounding and therefore applies as well to retained counsel, the
Court found that defendant was entitled a fortiori to effective representation by retained
counsel on that appeal.
Wainwright v. Torna (1982)
a. Facts – Defendant argued that he had been denied the effective assistance of counsel
when his retained attorney failed to file a timely application for discretionary review at
the state’s second-level of appeal.
b. Holding – Noting that “Ross v. Moffitt [had] held that a criminal defendant does not have
a constitutional right to counsel to pursue [such] discretionary state appeals,” the per
curiam majority opinion concluded that the lawyer’s negligence therefore did not violate
any constitutional right of the defendant. The Court reasoned: “Since respondent had no
constitutional right to counsel, he could not be deprived of the effective assistance of
counsel by his retained counsel’s failure to file the application timely.”
Anders v. California (1967)
a. Appointed Counsel Withdrawing from Appeal – To ensure the indigent defendant
“meaningful access” to the appellate process, appointed counsel cannot withdraw from
that obligation by mere assertion that the appeal would be frivolous.
Pennsylvania v. Finley (1987)
a. Rule – The Anders safeguards were not constitutionally required in a post-conviction
proceeding because the state had no constitutional obligation to appoint counsel in such a
proceeding.
i. Court noted that Anders established “a prophylactic framework that is relevant
when, and only when, a litigant has a previously established constitutional right
to counsel,” and that “the procedures followed by respondent’s habeas counsel
fully comported with ‘fundamental fairness.’”
Coleman v. Thompson (1991)
a. Holding – Recognized no such limitation in the analysis of Finley, and concluded
that Finley rejects ineffective-assistance claims as a general matter for all proceedings in
which there is no constitutional obligation to provide appointed counsel.
Cuyler v. Sullivan (1980) (Powell) (RETAINED & APPOINTED COUNSEL)
a. Prosecution’s Argument – In any event, “the alleged failings of . . . retained counsel
cannot provide a basis for a . . . [constitutional violation] because the conduct of retained
counsel does not involve state action.”
i. Court rejected.
b. Eliminated Constitutional Distinction Between Retained & Appointed Counsel –
“The vital guarantee of the 6th Amendment would stand for little if the often uninformed
decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement
to constitutional protection. Since the State’s conduct of a criminal trial itself implicates
the State in the defendant’s conviction, we see no basis for drawing a distinction between
retained and appointed counsel that would deny equal justice to defendants who must
choose their own lawyers.”
c. Constitutional Violations Where There Is No Right to Effective Assistance
i. (1) State has a constitutional duty to provide a particular process and (2) there is
no duty to appoint counsel.  Ineffective performance of counsel, whether
retained or appointed, may be challenged by reference to the adequacy of that
process.
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ii. Defendant argues that ineffective assistance resulted in a denial of her
constitutionally guaranteed procedural rights and therefore did not comport with
due process.
10. Raising an Ineffectiveness Claim
a. Two Major Obstacles
i. Attorney on appeal usually is trial counsel, and attorneys (1) are unlikely to look
on their own ineptitude in developing grounds for appeal and (2) may be placing
themselves in conflict situations if they challenge their own performance.
ii. Record on appeal is limited to actions taken in recorded proceedings, thus
excluding potentially relevant evidence.
b. Claim should be presented on collateral attack, i.e., after a sentence has been imposed,
because (1) defendant may present evidence beyond the trial record and (2) defendant
may proceed pro se or with a different attorney.
i. Evidentiary hearing for expanding the record.
ii. Defendant may require trial counsel to testify.
1. Ineffectiveness claim implicitly waives attorney-client privilege.
c. Defendant’s Burden on Appeal – Must establish that there could be no explanation for
counsel’s performance other than counsel’s ineptitude.
i. If defendant fails to do this on the trial record, there is no possibility of
expanding the record on collateral attack because rejection of a claim on appeal
usually precludes reconsideration on collateral attack.
11. Federal Habeas Review of State Claims & AEDPA – See p. 143.
12. Strickland v. Washington (1984) (O’Connor) (INEFFECTIVE ASSISTANCE OF COUNSEL)
a. Standards Applicable to Any Adversary Criminal Justice Proceeding – Court clearly
indicated that the standards announced would be applicable to alleged incompetency in
any adversary stage of the criminal justice process.
i. E.g., capital sentencing proceeding, plea bargaining, appellate review, etc.
b. Same Standards for Retained & Appointed Counsel
c. Two-Part Test for Ineffective Assistance
i. Deficient Performance – Proximate cause.
ii. Prejudice – But-for cause.
iii.  Ultimate Question: Did the defendant’s ineffective assistance cause the
conviction? Need deficient performance that would have made a difference.
iv. “A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components. First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the counsel guaranteed the defendant by the 6th Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
d. Deficient Performance
i. Objective reasonableness of defense counsel’s actions.
ii. Look at counsel’s performance as it appeared at the time of trial—not with the
benefit of hindsight.
iii. Burden of Proof – Defendant must overcome a very high burden. Presumption
that lawyer’s conduct was within the realm of professional competence.
iv. Standard – Defendant must identify acts or omissions.
1. ABA standards can be guides to reasonableness, but they need not be.
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2.  To describe the applicable standard, one needs to know what defense
lawyers typically do, what tactics work, etc. This kind of knowledge
only comes with experience and exposure.
e. Prejudice
i. Reasonable probability that but-for the conduct of the defense lawyer, the result
would have been different.
ii. Must be enough to undermine one’s confidence in the outcome. If there are
aggravating circumstances that would have secured a guilty verdict anyway, then
defendant cannot succeed on an ineffective-assistance claim.
iii. In a capital case, this would mean that but-for the defense counsel’s ineffective
assistance she would not have received the death penalty.
iv. At the merits stage, it means that the defendant would have been acquitted.
f. Usually Do Not Consider Judge’s Idiosyncrasies – “It should not depend on the
idiosyncracies of the particular decisionmaker, such as unusual propensities toward
harshness or leniency. Although these factors may actually have entered into counsel’s
selection of strategies and, to that limited extent, may thus affect the performance inquiry,
they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of
decision, if not part of the record of the proceeding under review, and evidence about, for
example, a particular judge’s sentencing practices, should not be considered in the
prejudice determination.”
g. Ineffective Assistance Rules
i. To establish ineffective assistance requiring reversal of a conviction, a defendant
must show both (i) that “counsel made errors so serious that counsel was not
functioning as ‘counsel’ guaranteed . . . by the Sixth Amendment,” and (ii) that
the “deficient performance prejudiced the defense.”
ii. The “proper standard for [measuring] attorney performance is that of reasonably
effective assistance,” as guided by “prevailing professional norms” and
consideration of “all the circumstances” relevant to counsel’s performance.
1. Certain Basic Duties – Counsel had an obligation to “avoid conflicts of
interest,” to “advocate the defendant’s cause,” to “consult with the
defendant on important decisions and . . . keep [him] informed of
important developments,” and to “bring to bear such skill and knowledge
as will render the trial a reliable adversarial testing process.”
iii. More specific guidelines in applying that standard are “not appropriate.”
1. Use of a checklist is inappropriate.
2. Fact-sensitive inquiry.
iv. The proper standard for measuring prejudice is whether there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceedings would be different.”
h. Marshall, Dissenting
i. Opined that the performance standard adopted by the majority opinion was so
malleable that in practice it would either have no grip at all or would yield
excessive variation in the manner in which the 6th Amendment was interpreted
and applied by different courts. Justice Marshall took exception to the majority
court’s mandate that counsel act “reasonably” because such a statement tells
counsel almost nothing. Justice Marshall also objected to the prejudice standard
adopted by the Court for two reasons: the difficulty in telling whether a
defendant would have fared better if counsel had been competent and assumption
that the only purpose of the constitutional guarantee of effective assistance of
counsel was to reduce the chance that the innocent would be convicted. Justice
Marshall stated that the constitutional guarantee also functions to ensure that
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13.
14.
15.
16.
convictions are obtained only through fundamentally fair procedures. A showing
that the performance of counsel departed from constitutionally prescribed
standards required a new trial regardless of whether the defendant suffered
demonstrable prejudice.
ii. Would not require a prejudice inquiry, but would have a deficient-performance
inquiry only.
iii. Fundamentally Different Approach
1. Majority is viewing the purpose of ineffective-assistance-of-counsel
claims as giving innocent defendants another shot.
2. Marshall says that such claims are only about the lawyers. Majority does
not care about the obviously guilty defendant that had a bad lawyer
whereas Marshall does.
i. Significance
i. Only benefits criminal defendants that may be innocent. Clearly guilty
defendants with terrible lawyers are not provided any relief.
ii. Strickland claims only prevail in situations where the proof of guilt is very slight.
Also applies in situations where a defendant may have been guilty but received
an unduly harsh sentence.
iii. Strickland does not provide relief for mediocre lawyers, even when a good
lawyer could have had a defendant acquitted.
Remedy for Ineffective Assistance – Typically a new trial; new capital-sentencing stage.
Remedy is a do-over, not acquittal.
a. If a case is very old, the remedy might be acquittal.
Nix v. Whiteside (1986) (Burger)
a. Breach of Ethical Duty Is Not Fatal – An attorney’s performance could conceivably
meet the reasonably competent attorney standard even where the attorney breached an
“ethical standard of professional responsibility.” The critical factor here would be
whether the violation was in the interest of the defendant.
b. Automatic Satisfaction of Strickland – An action taken by an attorney to keep from
violating professional responsibility necessarily meets Strickland’s performance standard.
i. Majority seemed to suggest this.
ii. Four concurring justices disagreed. They stressed that such a sweeping
conclusion could lead to “blanket rules” of performance, rather than the careful
examination of particular circumstances prescribed by Strickland.
McClure v. Thompson (9th Cir. 2003) (BREACH OF CONFIDENCE)
a. Holding – Breach of client confidentiality was permissible under the standards of
professional responsibility, to prevent possible dangers to the children left unattended in
remote locations (and to keep a kidnapping charge from becoming a possible homicide
charge), if the attorney reasonably believed that the children were alive, and thus,
whether the attorney’s action constituted incompetent performance rests on whether his
belief that the children might be alive was reasonable.
b. Rule – A breach of client confidentiality, even if made in a good-faith belief that the
circumstances justified the breach under “further-criminal-acts” exception, constitutes per
se incompetent performance for 6th Amendment purposes if not actually justified under
professional responsibility standards.
Yarborough v. Gentry (2003)
a. Highly Deferential Review – Court warned against reviewing courts deeming “totally
unreasonable” (and hence ineffective assistance) decisions made in traditional areas of
counsel strategy. Referring back to Strickland’s comments on strategic choices, the
Court again emphasized the need for “highly deferential” review, and add that review
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must be “‘doubly differential’ when [review] . . . is conducted through the lens of federal
habeas corpus.”
b. Presumption of Tactical Choice – “When counsel focuses on some summation issues to
the exclusion of others, there is a strong presumption that he did so for tactical reasons
rather than through sheer neglect. That presumption has particular force where a
petitioner bases his ineffective-assistance claim solely on the trial record, creating a
situation in which a court may have no way of knowing whether a seemingly unusual or
misguided action by counsel had a sound strategic motive. Moreover, even if an
omission is inadvertent, relief is not automatic. The 6th Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of hindsight.”
17. Wiggins v. Smith (2003) (O’Connor) (DECISION NOT TO INVESTIGATE)
a. Holding – Held that the investigation leading to that decision had been so inadequate as
to violate Strickland’s “reasonable professional judgment” standard.
i. Noted both that the trial court record strongly suggested that counsel's “failure to
investigate thoroughly [defendant’s personal history] resulted from inattention,
not reasoned strategic judgment,” and that “counsel’s decision not to expand their
investigation beyond the PSI and the DSS records fell short of the professional
standards that prevailed in Maryland [at the time of the trial].”
b. Less Deference to Decision Not to Investigate – Court will give somewhat less
deference to counsel’s decision not to investigate.
Lineups, Show-Ups & Photo Arrays
Wade & Gilbert: Constitutional Concern About the Dangers Involved in Eyewitness Identifications
1. Terminology
a. Lineup – Formal arrangement in which many suspects are brought forward and presented
to a witness for purposes of identification.
b. Show-Up – One suspect is brought forward, and the witness says whether or not the
suspect is the individual that she saw, etc. “Is this the guy? Yes or no?”
c. Photo Array – Similar to a lineup, but with photos.
i. Uses photographs instead of live appearances. Could use a group of photographs
or one photograph. Much cheaper and easier. Much less formal.
ii. Does not require presence of defendant or defense counsel.
2. To what extent should the law regulate eyewitness identification?
a. Eyewitness testimony is uniquely powerful, but uniquely subject to manipulation.
b. Eyewitness identification is not as reliable as many people think it is.
c. Two potential constitutional limitations on the use of eyewitness testimony:
i. Wade – 6th Amendment right to counsel.
ii. Stovall – Due process.
d. Before 1967, there were no constitutional limitations on the use of eyewitness testimony.
3. United States v. Wade (1967) (Brennan) (RIGHT TO COUNSEL AT PRETRIAL LINEUP)
a. Facts – After an accused had been indicted and arrested for robbery of a federally insured
bank, and counsel had been appointed to represent him, an FBI agent, without notice to
the accused’s counsel, arranged to have two bank employees observe a lineup of the
accused and five or six other prisoners in which those in the lineup were required, like the
robber, to wear strips of tape on their faces and to say, “Put the money in the bag.” The
bank employees identified the accused as the robber. At the accused’s trial, both
employees identified the accused on direct examination. The pretrial lineup identification
was then elicited from them on cross-examination. Defense counsel’s motion to strike
the courtroom identifications was denied, and the accused was convicted.
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b. Two Different Eyewitness Identifications at Issue
i. Identification at the lineup.
ii. Identification in court.
1. Following this identification, prosecutor will ask if the witness ever had
identified the defendant before, and she will respond, “Yes, at the
lineup.” Eyewitness is recalling her earlier identification.
c. Identification at Lineup
i. Right to Counsel at Lineup – Court established a 6th Amendment right to
counsel at pretrial lineups, as pretrial lineups are a “critical stage” of criminal
proceedings.
1. Absence of counsel at pretrial lineup violates defendant’s 6th
Amendment rights.
ii. Results of pretrial lineup could settle an accused’s fate and reduce the trial to a
mere formality.
iii. Distinguishing Pretrial Scientific Analyses
1. E.g., fingerprint analysis, blood analysis, clothing fiber analysis, etc.
2. “Knowledge of the techniques of science and technology is sufficiently
available, and the variables in techniques few enough, that the accused
has the opportunity for a meaningful confrontation of the Government’s
case at trial through the ordinary processes of cross-examination of the
Government’s expert witnesses and the presentation of the evidence of
his own experts. The denial of a right to have his counsel present at such
analyses does not therefore violate the 6th Amendment; they are not
critical stages since there is minimal risk that his counsel’s absence at
such stages might derogate from his right to a fair trial.”
iv. Role of Defense Counsel During Pretrial Lineup
1. Observing the process and noting any possible grounds for challenging
it.
a. Defense counsel can testify as to any grounds for challenging the
lineup. This prevents the defendant from having to take the
stand, which would expose her to other questioning.
2. Defense counsel could play a much more active role. “This is a very
suggestive lineup.”
a. Most defense lawyers do not want to intervene. Rather would
allow an extremely biased lineup and then point out that extreme
bias later.
i. Extreme evidence of bias could be golden for defense.
b. Sometimes, police ask defense lawyers whether they have any
objections to the lineup.
d. Identification in-Court
i. Burden on Government – “To establish by clear and convincing evidence that
the in-court identifications were based upon observations of the suspect other
than the lineup identification.”
1. There must be an independent basis for the in-court identification.
a. If the witness saw the defendant only for a few seconds, this
probably may establish a basis for inadmissibility if there was an
earlier unconstitutional lineup. Imprinting by witness.
b. If, however, the defendant had been observed by the witness for
a long time (e.g., bank robbery with a hostage-taking situation),
then the government will easily be able to show that the witness’
identification is not the source of the identification in court.
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c.  Courts readily find independent bases for in-court ID.
ii. Exclusionary Remedy – In-court identification will be excluded if it is the fruit
of the earlier unconstitutional identification at the pretrial lineup.
1. “The proper test to be applied for the exclusion of witnesses’ in-court
identification, where an accused’s counsel was not present at a lineup
identification, is whether, granting the establishment of the primary
illegality, the identification evidence has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.” Wong Sun.
2. Factors
a. The prior opportunity to observe the alleged criminal act;
b. The existence of any discrepancy between any pre-lineup
description and the defendant’s actual description;
c. Any identification prior to lineup of another person;
d. The identification by picture of the defendant prior to the lineup;
e. Failure to identify the defendant on a prior occasion;
f. The lapse of time between the alleged act and the lineup
identification; and
g. Those facts that, despite the absence of counsel, are disclosed
concerning the conduct of the lineup.
iii. Risk of bias at pretrial lineup is too great.
1. Difficult to review lineup procedures at trial.
2. Difficult to recreate lineups at trail.
3.  “The accused’s inability effectively to reconstruct at trial any
unfairness that occurred at the lineup may deprive him of his only
opportunity meaningfully to attack the credibility of the witness’
courtroom identification.”
iv. The presence of counsel at a pretrial lineup often averted prejudice and assured a
meaningful confrontation at trial.
e. Pretrial Lineup Rules
i. Defense counsel must be notified of lineup.
ii. Defense counsel must be present at lineup, absent an “intelligent waiver.”
f. Risk of Prejudicial Delay – Court stated that in the instant cases counsel already had
been appointed and would not have prejudicially delayed the lineups.
i. Possible Substitute Counsel – Court leaves open the question of whether
substitute counsel might be appointed to avoid prejudicial delay.
ii. Court refuses to assume that defense counsel will seek to “obstruct the course of
justice” in bad faith.
g. Black, Dissenting in Part, Concurring in Part
h. White, Dissenting in Part, Concurring in Part
4. Refusal to Cooperate
a. Since lineups or the taking of exemplars are not protected by the 5th Amendment
privilege against self-incrimination, prosecution may comment on a suspect’s refusal to
cooperate.
i. Circumstantial evidence of consciousness of guilt.
b. Courts may use civil or criminal contempt to coerce or punish suspects that refuse to
comply with court orders to participate in lineups.
c. Police sometimes proceed to conduct an identification procedure over a suspect’s
objection.
5. Suspect Alters Her Appearance
a. Bring it to the attention of the jury as circumstantial evidence of consciousness of guilt.
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b. Simulate the suspect’s earlier appearance at the lineup.
The Court Retreats: Kirby & Ash
1. Kirby v. Illinois (1972) (Stewart) (RIGHT TO COUNSEL AT POST-INDICTMENT LINEUP)
a. Facts – Involved a police station identification of the defendant shortly after his
warrantless arrest and before he had been formally charged in any way.
b. Wade Right to Counsel at Pretrial Lineup – Applies only to identifications occurring
“at or after the initiation of adversary judicial criminal proceedings—whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.”
i. Wade is limited to post-indictment, pretrial lineups.
1. Pre-indictment is not a “critical stage.”
ii. Simple Rule – Right to counsel for post-indictment lineup, but not preindictment lineup.
iii. Justification – The constitutional right to counsel has traditionally been so
limited, and with good reason, in that only after such initiation is a defendant
“faced with the prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law.”
c. Two Ways of Interpreting
i. Good-Faith – Pre-indictment, the government has not figured out who it will
charge. Thus, the government’s incentive to be biased is much less. In a postindictment lineup, the government has an incentive to implicate the person
against whom an indictment has been issued.
1. It also is relevant that a defendant does not have counsel pre-indictment.
ii. Cynical – Big difference between the Court in 1967 and 1972. By 1972, Nixon
had appointed four justices committed to “law and order.”
1. Court did not want to interfere with “alley confrontations.” See p. 757.
d. Brennan, Douglas & Marshall, Dissenting
i. Although Supreme Court decisions establishing the exclusionary rule happened
to involve post-indictment identifications, the rationale behind the rule was
equally applicable to the present case.
e. White, Dissenting
i. Wade and Gilbert govern this case and compel reversal of the judgment below.
2. Moore v. Illinois (1977) (Powell) (RIGHT TO COUNSEL AT ONE-ON-ONE SHOW-UP)
a. Right to Counsel at One-on-One Show-Up – Wade was more expansively stated as
being “that a corporeal identification is a critical stage of a criminal prosecution for
Sixth Amendment purposes,” and thus the Court concluded that there was a right to
counsel at a one-on-one show-up.
i. Such a procedure is so highly suggestive that the need for counsel is especially
great.
3. United States v. Ash (1973) (Blackmun)
a. Facts – After an accused’s indictment for bank robbery and shortly before his trial, an
FBI agent and the prosecutor showed five color mug shots, including one of the accused,
to government witnesses, in the absence of the accused’s counsel.
b. No Right to Counsel at Photo Array – There is no right to have counsel present when
the police show photographs of the defendant and others to witnesses, and this is so even
if the defendant has already been indicted.
i. Photo array is not a “critical stage.”
ii. Wade does not apply to photo arrays. Wade is limited to post-indictment lineups
and show-ups.
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c. Role of Counsel (Textual Argument) – “The function of the lawyer has remained
essentially the same as his function at trial,” which is to give the accused “aid in coping
with legal problems or assistance in meeting his adversary.”
i. Active role of defense counsel—not observer role.
ii. Defendant’s presence is a prerequisite to need for lawyer’s assistance.
iii. There is no such right at photo-identification, as unlike a lineup there is no “triallike confrontation” involving the “presence of the accused.” The accused is not
present to be taken advantage of.
iv. Absence of counsel from the photo-identification would not impair effective
cross-examination at trial as would absence from a lineup, for photographic
identifications are relatively easy to reconstruct.
v. Counterargument – There were no photographs when the 6th Amendment was
drafted.
d. Rationales
i. Cynical – Court membership had changed.
ii. Stronger Rationale – Difficult line-drawing problem if counsel is required for
photo arrays. Photo arrays may be used like lineups, but they also may be used
to help the government prepare its case. If defense counsel must be present
whenever a witness views an array of photographs, how far does this rule extend?
Does it extend into every aspect of trial preparation? Because of concerns for
skewing testimony, will we eventually require that defense counsel be present
whenever prosecutors confer with trial witnesses?
iii.  Defense’s Appropriate Response – Cross-examination.
1. Threat of cross-examination may deter prosecutor.
2. Cross-examination is the traditional means by which biased facts are
drawn out.
e. Safeguards from Abuses – “The primary safeguard against abuses of this kind is the
ethical responsibility of the prosecutor. If that safeguard fails, review remains available
under due process standards. These same safeguards apply to misuse of photographs.”
f. Brennan, Douglas & Marshall, Dissenting
i. Constitutional right to counsel extends to photographic displays as well as to
pretrial lineups.
ii. Photo arrays are very susceptible to manipulation and difficult to preserve.
iii. Photo arrays are a “critical stage.”
iv. Emphasizes role of defense counsel as an observer, which the majority ignores.
Due Process “Back-Up” Test
1. Applies to lineups, show-ups, and photo arrays.
2. Analytical Framework
a. Post-indictment lineups and show-ups. Wade.
b. Due process test; unnecessarily suggestive tactics. Manson.
i. If present, look for other indicia of reliability.
3. Stovall v. Denno (1967) (Brennan)
a. Facts – A victim of a stabbing was hospitalized for major surgery, and defendant, arrested
for the offense, was brought to the victim’s hospital room for a confrontation. The
defendant was handcuffed to one of the seven law enforcement officials who brought him
to the hospital room, and he was the only black person in the room. After being asked by
an officer whether the defendant “was the man,” the victim identified him. At his trial,
both the victim and the police who were present in the hospital room testified to that
identification.
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b. Holding – Affirmed denial of habeas relief because the unique circumstances of the case
put a usual police-station lineup out of the question.
c. Due Process Test – It must be determined by a consideration of “the totality of the
circumstances,” whether the confrontation “was so unnecessarily suggestive and
conducive to irreparable mistaken identification” that the defendant was denied due
process of law—“a recognized ground of attack upon a conviction independent of any
right to counsel claim.”
4. Simmons v. United States (1968)
a. Earlier ID & In-Court ID – When the issue is whether a witness at the earlier
identification may now identify the defendant at trial, then it must be determined whether
the identification procedure “was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.”
5. Manson v. Brathwaite (1977) (Blackmun)
a. Question – “Whether the Biggers analysis applies to post-Stovall confrontations as well
to those pre-Stovall”?
b. Biggers Rule – “The admission of testimony concerning a suggestive and unnecessary
identification procedure does not violate due process so long as the identification
possesses sufficient aspects of reliability.”
i. Two Issues
1. Unnecessarily suggestive; and
2. Indicia of reliability.
c. Two Approaches to Out-of-Court Identification Evidence
i. Per Se Approach – “The first, or per se approach, focuses on the procedures
employed and requires exclusion of the out-of-court identification evidence,
without regard to reliability, whenever it has been obtained through unnecessarily
suggested confrontation procedures.”
1. Out-of-court ID would be inadmissible, and in-court ID would be
automatically admissible.
ii. Totality of the Circumstances Approach – “The second, or more lenient,
approach is one that continues to rely on the totality of the circumstances. It
permits the admission of the confrontation evidence if, despite the suggestive
aspect, the out-of-court identification possesses certain features of reliability. Its
adherents feel that the per se approach is not mandated by the Due Process
Clause of the 14th Amendment. This second approach, in contrast to the other,
serves to limit the societal costs imposed by a sanction that excludes relevant
evidence from consideration and evaluation by the trier of fact.”
1. Case-by-case approach.
2. Even if a photo array was unnecessarily suggestive, it still should be
admissible if there are other indicia of reliability. This is a prejudice
issue. If the identification is not the result of the unnecessary
suggestiveness, it should be admitted.
a. If the way in which an identification occurs encourages a person
with a bad memory to fill in the gaps using the suggestion, then
it is unnecessarily suggestive.
iii.  Factors to be considered and taken into account when determining the
admissibility of an out-of-court photo identification:
1. “The driving force is a concern with the problems of eyewitness
identification.”
2. “The second factor is deterrence. Although the per se approach has the
more significant deterrent effect, the totality approach also has an
influence on police behavior.”
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3. “The third factor is the effect on the administration of justice.”
d. Test – “Reliability is the linchpin in determining the admissibility of identification
testimony for both pre- and post-Stovall confrontations. The factors to be considered
include the opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the crime and
the confrontation. Against these factors is to be weighed the corrupting effect of the
suggestive identification itself.”
e. Exclusionary Remedy – Weak; only applies when other indicia of reliability are not
present.
f. Marshall & Brennan, Dissenting
i. Pointed out that many studies had shown the high incidence of miscarriages of
justice that had resulted from the admission of mistaken eyewitness identification
evidence at criminal trials. He asserted that the Supreme Court had originally
created different due process tests for pretrial identifications and in-court
identifications and that the Supreme Court had moved away from distinction.
Justice Marshall asserted that the per se rule of exclusion was the proper rule for
pretrial identifications that occurred as a result of suggestive police procedures,
and he believed that the per se rule would enhance, rather than detract from, the
effective administration of justice.
6. Suggestions to Increase Accuracy of Eyewitness Identifications – Wells & Seelau. See p.
770–71.
a. The person conducting the lineup or photo-spread should not be aware of which member
of the lineup or photo-spread is the suspect.
b. Eyewitnesses should be told explicitly that the suspected offender might not be in the
lineup or photo-spread and therefore that they should not feel they have to make an
identification.
c. The suspect should not stand out in the lineup or photo-spread as being different from the
distractors on the basis of the eyewitness’ previous description of the offender or other
factors that would draw special attention to the suspect.
d. At the time the identification is made, and prior to any feedback, a clear statement should
be taken from the eyewitness regarding his degree of confidence that the person
identified is the actual offender.
e. People (or photos in a display) should be shown to witnesses one at a time—
sequentially—rather than in a group at the same time.
f.  Some states have codified these recommendations, but most have not.
7. Duke Lacrosse Case – North Carolina’s Three New Remedies for Identification Violations:
a. A requirement that failure to comply with any of the procedures is to be “considered by
the court in adjudicating motions to suppress eyewitness identification”;
b. Admission of evidence of such failure as evidence for the jury to consider regarding a
claim of misidentification; and
c. A requirement that, where evidence of compliance or noncompliance has been presented,
the court is to instruct the jury that it may consider such evidence to determine reliability
of the identifications.
8. Detention for Identification Procedures in the Absence of PC
a. Davis v. Mississippi (1969) (Brennan)
i. Holding – Held that petitioner’s prints should have been excluded as the fruits of
a seizure in violation of the 4th Amendment, but intimated that a detention at the
station might sometimes be permissible on evidence falling short of the
traditional PC needed for an arrest.
b. Hayes v. Florida (1985) (White)
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i. Field Fingerprinting – “A brief detention in the field for the purpose of
fingerprinting, where there is only reasonable suspicion not amounting to
probable cause, is necessarily impermissible under the 4th Amendment.”
1. Would justify seizure from the home for the purpose of a lineup or showup, based solely on a judicial finding of reasonable suspicion.
c. Courts generally have found no 4th Amendment violation when a person lawfully in
custody for one crime is ordered into a lineup for other crimes for which there is no PC to
arrest him.
i. Some courts still require reasonable suspicion that the person committed the
other crimes.
d. When a defendant is released on bail, he generally is subject to the control of the court,
which is empowered to order his appearance.
i. Courts use this power to order defendants to appear in lineups for unrelated
crimes.
ii. Some courts require reasonable suspicion that the person committed the other
crimes while others do not.
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