Criminal Procedure I - Hall - Spring 2011
Table of Contents
I. Liberty: .................................................................................................................................................................. 1
A. Reasonable Suspicion & Seizure...............................................................................................................................1
B. Terry Stop & Frisk ..........................................................................................................................................................4
C. Scope/Expansion of Terry Stop/Frisk AND Introduction to Arrest .............................................................7
D. Arrest .................................................................................................................................................................................9
II. Evidence: ........................................................................................................................................................... 13
A. Search Warrants .......................................................................................................................................................... 13
1. Particularity & Execution ....................................................................................................................................................... 13
2. Informants / Tipsters, Warrant Challenges .................................................................................................................... 16
B. Bodily Intrusions......................................................................................................................................................... 19
C. Misc. Issues - High-Tech, Undercover Ops, 1st & Administrative Search ............................................... 22
D. Warrantless Search .................................................................................................................................................... 25
1. Search Incident to Arrest & Vehicle Search .................................................................................................................... 25
2. No Reasonable Expectation of Privacy ............................................................................................................................. 28
3. Consent & Vehicles .................................................................................................................................................................... 32
E. Exigent Circumstances Doctrine ............................................................................................................................ 36
III. Right to Counsel / Identification Procedures ..................................................................................... 38
IV. Incriminating Statements: ......................................................................................................................... 41
A. Due Process & Right to Counsel Approaches .................................................................................................... 41
B. Self-Incrimination....................................................................................................................................................... 44
C. Miranda Details ............................................................................................................................................................ 47
1. Content and Custody ................................................................................................................................................................ 47
2. Interrogation & Investigation ............................................................................................................................................... 50
V. Vindicating A Violation: ............................................................................................................................... 52
A. Standing.......................................................................................................................................................................... 52
B. Exclusionary Rule ....................................................................................................................................................... 54
C. Miranda Exclusion ...................................................................................................................................................... 57
D. Fruit of Poisonous Tree; Exceptions: Indep. Source, Inevitable Discovery, & Attenuation ............. 59
I. Liberty:
A. Reasonable Suspicion & Seizure
 4th Amend - Seizure
 See Text of Amend
 Seizure: The 4th Amend is telling us that in order for there to be a seizure it must be reasonable
 If the government conducts a seizure it must act or show it acted reasonable
 Better for defendant -- Showing seizure means the burden falls on the government to show
reasonableness
 If there is no seizure then there is NO reasonableness requirement
 Better from Gov’t’s point of view b/c no need to show reasonableness
 It would only help the defendants to allow an attempted seizure to be a seizure
 Also by allowing seizure by submission it promotes cooperation
 Reasonable Suspicion
 Police must have “reasonable suspicion” to commit a seizure
 Elements
 1) Reasonable suspicion
 2) Based on objective facts
 Hodari Objective Facts: Youth huddled around a car in a high crime area who flee an unmarked car
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 Subjective Facts: I had a gut feeling about it. A hunch or an intuition. But this won’t win a case . . .
3) That the suspect is involved in criminal activity (even if they aren’t thinking of a specific criminal
code §)
 Hodari D
 Facts: Kids in a high crime area, cops roll up and they flee. While pursuing Hodari he ditches some drugs
before he gets tackled
 Issue: At the moment he threw the cocaine away, was he seized? If he was seized then he loses.
 Reasoning
 The presumption in this case (as conceded) is that the seizure wasn’t reasonable if it was a seizure
 Rule
 Seizure: LEO (1) use either physical force to restrain the suspect or (2) the suspect submits to an
assertion of authority (stop freeze -- and he does stop and freeze)
 Holding: Government wins b/c he was not yet seized when ditched the drugs (evidence).
 Notes
 Seizure = Stop (detention and deprivation of liberty also mean the same thing)
 LEO = any law enforcement officer (police, agents, game wardens)
 Problems Under These Standards
 Seizure Time Lag Problem
 Facts: Police assert authority while D is running and he keeps running dumps drugs then soon
thereafter stops.
 How do you deal with the time lag?
 The conflict is that you can view it to favor the suspect or the police. Favoring the police creates
situations that don’t encourage giving up earlier.
 This is just a debate and may be an EXAM issue
 How Much Force Required to Effect Seizure?
 Minimum: Touching on the shoulder; Mere touching can constitute use of physical force.
 Factors affecting this: Uniform v. Plain Clothes = More likely v. Less Likely for mere touching to
work
 Example: Warning shot by police officer to fleeing defendants that inadvertently wounds and stops
suspect
 Under prong for assertion of authority this probably satisfies even though the submission was
unintentional
 Under prong for use of force this also probably satisfies (like it or not) even though he didn’t intend
to hit the suspect
 Example: Car rolls up, officers jump out and yell “Hey You!”
 From a marked cop car and clothed officers it is somewhat slightly more like a seizure, but really
the cops have a good argument that this isn’t a seizure b/c they didn’t tell the suspect to actually do
anything
 Example: Cop car pulls up and suspect just raises his hands (as in you got me)
 No, just because a really timid citizen submits prior to an assertion of authority this isn’t a seizure
 Is a seizure if there is a contemporaneous assertion of authority by the police
 United States v. Drayton
 Facts: Florida had a narcotic check procedure for bus stations whereby one officer stayed in the front of the
bus in the driver’s seat so he didn’t block the aisle and the other officers get behind the people they are
speaking to so there is no blockage. Police question the defendants and they submit to a search even though
they don’t have to.
 Rule
 Another Seizure Test: Seizure occurs if a reasonable person doesn’t feel free to terminate the
encounter
 There is also a seizure if the police ask for your ID and they retain it
 Typically talking about they retain it for more than an inspection (so taking it to their car might be
only a temporary detention)
 Reasoning
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This is a reasonable person standard (objective) so it doesn’t matter if you have a long bad history with
the police or feel strongly or negatively towards them
Delaware v. Prouse
 Facts: Police pull over Prouse in an isolated random stop and Prouse turned out to have marijuana in the car
 Issue: Did they have reasonable suspicion for the stop
 Reasoning:
 If this is a random stop then there is no suspicion.
 Even if they were getting lots of criminals this is still not permitted b/c there will be people who are
innocent and who are being arbitrarily stopped
 Rule:
 Random Stops: An isolated random stop is not allowed (police can’t stop you if they have some
suspicion and it isn’t reasonable) b/c the police have no suspicion
 Notes:
 Why is this a problem?
 Could lead to stereotyping or profiling and then claiming it was random
 “Isolated” “Random” stops give too much power to officers
Michigan v. Sitz
 Rule:
 Roadblocks are sometimes allowed, although this might seem backward compared to random stops
being barred
 Roadblocks: Permitted if the specific primary purpose of the roadblock is related to the road
 Registration checkpoints relate to the road and are permitted
 Sobriety Checkpoints
 Investigatory Checkpoints related to that particular stretch of road (i.e., there was an accident the
prior morning and they are trying to located frequenters as witnesses). See Illinois v. Lidster (p. 38)
 Notes on Suspicionless Searches
 Roadblocks and isolated random searches are two examples of suspicionless seizures, however
roadblocks are a suspicionless seizure that is allowed
 This is a huge exception to the rule that you cannot conduct a suspicionless search
 Others Suspicionless Seizures (See page 30-31)
 International Borders
 TSA
 Exigent Circumstances (i.e., a bomb threat)
 Profiling - If a profile is sufficiently detailed they get to stop someone who matches the profile
even though there is no individual suspicion based on you
 Special Needs: Weird category (i.e., school locker searches)
Indianapolis v. Edmond
 General Policing Roadblocks: Roadblocks are not allowed for general police purposes
Norwell v. Cincinnati
 Facts: LEO approaches Norwell and says I need to talk to you and Norwell keeps going and LEO puts hand
on his shoulder and Norwell pushes his hands off twice and keeps walking. Officer thinks this is suspicious
 Reasoning
 The officer had no reasonable suspicion based on objective facts, even though he had some suspicion.
 Norwell is exercising his rights within their bounds and he doesn’t have to hide his contempt/dislike of
police
 What doesn’t constitute reasonable suspicion?
 A hunch does not constitute reasonable suspicion
 Protest by the suspect (go away)
 Attempts to disengage and terminate the encounter
 Mere refusal to provide ID (absent some other detail)
Brown v. Texas
 Facts: Texas passed a law that made it criminal for you to not provide ID to an officer upon request
 ID Law Catch 22
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 If you don’t comply you are arrested
 If you do comply then you are seized
 Screwed both ways
 Rule
 General ID Request Laws: A general ID law is not permissible because it merely bootstraps an arrest
 Hibbel
 Specific ID Request Laws: ID laws are permissible if there is some character in the ID law that ties it to
the circumstances that led to a reasonable stop to begin with (i.e., a secondary ID requirement)
B. Terry Stop & Frisk
 Terry Stops
 Facts: Terry and his accomplices were “casing” a store and created circumstances that gave the officer a
reasonable suspicion that criminal activity was afoot. They were singularly walking past the store
repeatedly. Total of 6-12 trips. It is daytime and this in some ways discounts the officer’s suspicion. He
approaches them and they mumble something, which doesn’t help their suspicion.
 Overall there is really no lowering of suspicion here.
 Rule
 Terry Stop (Part 1) - Officer needs reasonable suspicion based on objective facts that criminal activity
is afoot in order to conduct a Terry stop (last session we basically covered Terry stops)
 The use / main goal of a Terry stop is for questioning; investigative purpose
 Terry Frisk (Part 2) - Limited search of the suspect
 Also described as a protective search of the outer clothing (or a pat-down)
 Main goal behind the Terry frisk is safety/protection
 Theory: Each additional level of intrusion requires an additional quantum of suspicion
 A Terry frisk requires more than a Terry stop: you need reasonable suspicion that a suspect is
armed and dangerous
 Both armed AND dangerous: For example a grandmother with a kitchen knife might not be
dangerous paired with armed. Or gun rack with a gun on it during hunting season may be
armed but not actually dangerous
 Also, there are some circumstances where someone could be dangerous (they are screaming)
but they are not armed.
 EXAM: remember that these must both be there so the key will be to show that we have
arguments for both elements.
 Reasoning
 Sometimes time of day can aggravate the suspicion, but here it is either neutral or hurts
 A physical seizure / stop occurred when the officer touched Terry and frisked him
 This was use of physical force and Terry appeared to be under his control
 When he ordered them inside that was clearly a showing of authority when they followed his order
by submitting to it
 Alternatively once they were inside they were in the situation where one wouldn’t feel
comfortable terminating the encounter
 The Terry stop and the Terry frisk occurred at the same time (Terry was seized when he was frisked)
 The key to the Terry Frisk is officer safety (and from the officer point of view it is more important)
 How are we getting “armed & dangerous”
 This is daytime and often daytime robberies (more than others) include weapons and (although
somewhat self-evident) if someone has a weapon and you think they are going to conduct a robbery
then they are by nature dangerous (but on EXAM explain this.
 Note:
 When officers say they have experience in the ‘field of shoplifting’ or ‘the area’, then discount that as
basically a “hunch” and this trick might be on the EXAM.
 EXAM: do not combine analysis of Terry Stop and Terry Frisk -- these should be separate paragraphs
 History: The old rule was that you needed PC for a Stop or a Frisk (think 50%) and now we have a
huge drop in the necessary amount of suspicion (reasonable is somewhere less than 50%)
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 Terry Frisk Issues
 When does it usually take place?
 Typically immediately in conjunction with the stop.
 Use it or lose it proposition -- if you wait then it suggests the officer didn’t really have a belief the
person was armed and dangerous
 It has to be prompt in relation to when the officer forms the impression of the suspect being
armed and dangerous
 Two part stop then frisk
 Sometimes someone gets legitimately stopped for one reason and then during the questioning it
becomes apparent that the person may be armed and dangerous
 This is okay as long as your frisk is prompt in relation to the belief
 Logic for a Terry Frisk - Ends of the Spectrum
 The officer is able to either confirm or dispel the suspicion that a person is armed and dangerous
 If confirmed: then this is probably leading to an arrest
 If unconfirmed: then this is merely confirming that the person isn’t armed but they may very
well be (and probably are) still dangerous.
 Thus the encounter does not necessarily end
 The officer only needs to show that (1) reasonable suspicion, that (2) a suspect, was (3) armed and
(4) dangerous
 Officer doesn’t need to show or be scared or anything like that, just armed & dangerous
 EXAM: Don’t let a weird formulation of the question or weird facts on the exam trip you up
on this test
 Sibron v. New York (Sibron)
 Facts: Sibron is hanging out at one spot for many hours and he is talking to numerous known drug addicts
and he is eating pie in a diner as well. Officer orders Sibron outside and then tells him you know what I’m
after and reaches into Sibron’s pocket
 Rule
 The Terry Frisk must not only be reasonable suspicion of armed & dangerous, but it must also be
limited and must be a pat-down not just diving into someone’s pocket
 Officer is allowed to do more than a mere frisk, but going into this analysis depends on what the
officer feels and other objective factors of dangerous (think hand-grenade v. pencil)
 Additional Intrusion: if the officer makes a minor intrusion to confirm what they felt then that is a
good case for the officer (bad one would be if they immediately start disrobing the suspect)
 Additionally, the conduct of the suspect will factor into the circumstances
 Reasoning
 The absence of an exchange or an explanation of what the conversation caused or led to means that the
conversations with the known drug addicts weren’t particularly suspicious
 The Court didn’t focus on the Terry Stop, but jumped instead to the Frisk: they may be suggesting that
the standard is pretty low for a Terry Stop as it seems to have been okay here (but maybe dangerous
[look out for?] on the EXAM)
 Officer didn’t testify that he thought he was armed or dangerous (with armed being the more important
thing that needs to be evidenced)
 Officer might be able to argue that any suspect of drug-dealing is per se likely to be armed, but not
necessarily drug addicts
 EXAM: facts like coat in the summer, bulging coat, or furtive movement towards pocket might be
enough to sustain reasonable suspicion of armed & dangerous
 Holding:
 Even if there had been reasonable suspicion of armed and dangerous, the officer went too far because
he went into his pocket instead of first patting him down
 4th Amend Analysis:
 Totality of Circumstances: Conduct 4A analysis by looking at all the circumstances, not picking apart
the evidence fact by fact
 Sibron v. New York (Peters)
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 Facts: Peters (off-duty officer) sees guys in the apartment complex who are acting suspicious (tip-toeing
during the day, strangers in the building) and he comes out of his apartment and slams the door and they
run away. Tip-toeing in the day makes it pretty suspicious.
 EXAM: Note if they were in a library or if there were some facts about a child or ill neighbor, these
facts could change tip-toeing from being suspicious (because tip-toeing isn’t per se suspicious -- but
carrying guns w/ silencers, for example, is)
 Rules
 Hard object alone isn’t enough, the officer has to stop the frisk at that point
 But hard object that feels pointed or might be a knife (or gun) then he can go further and pull the object
from the pocket
 Reasoning
 Terry Stop occurs when he actually grabs the running guy by the collar
 Terry Frisk: This guy has reasonable suspicion for a frisk because if a belief someone is conducting a
daytime burglary then they would likely be armed
 He feels a hard object during the frisk (but hard object alone isn’t enough for a “more than a mere
frisk”)
 But officer said he thought it might be a knife so he pulls it out
 Isn’t a knife but is burglary tool (thus PC for arrest)
 Adams v. White (note case on pg. 65)
 Facts: Anonymous tip from a repeat source that a suspect parked somewhere has a gun in his waist. When
the officer walks up he taps on the window, the person rolls down the window and officer reaches in and
yanks the gun out of driver’s pants.
 Rule
 More than a mere Terry Frisk can be permissible whenever all the other facts add up to something more
 Reasoning
 This is more than a mere Terry Frisk but is allowed because we have a relatively more dangerous
situation and the additional intrusion appears to be pretty limited (not an extended pat down of the
body)
 Also this tip said the waistband and that is exactly where the officer went, so he had a surgical,
specific tip
 Standards of Suspicion
 What do we want:
 Specific Facts
 Objective Facts
 Articulable Facts
 Not a hunch or an inchoate suspicion
 Officers are allowed to make reasonable inferences based on their experience (i.e., approaching a drug
dealer means he is likely to be armed)
 The suspicion has to exist before the stop
 The reasonable suspicion is evaluated based on what an objective officer in the field would have observed
 Who Observes:
 Officer doesn’t have to observe all the specifics himself
 Officers frequently gets reports from fellow officers, the dispatch, or citizens (this is allowed if
reputable and isn’t controversial at all)
 Informants/Tipster: They are regular sources and this means they are basically living in the criminal
world themselves (this differentiates them from “citizens”) -- Less credibility
 Anonymous Tipsters: Sometimes the fact that you won’t reveal your identity lowers your credibility
 Illinois v. Wardlow (note case on p. 66)
 Facts: Police see suspect holding an opaque bag and he flees when the cops approach him. They stop and
search him and find a handgun. This happens to be a high crime area
 Rule
 High Crime / High Drug Area: Alone this is insufficient to provide reasonable suspicion, but in
conjunction with other things this may add up to be enough
 In effect this means that if you live in a high crime area you have less civil liberty
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
Flight From Law Enforcement: Is suspicious but is not alone enough for reasonable suspicion but tied
with something else, “headlong unprovoked flight might be enough”
 Headlong: not just walking away, but sprinting
 Unprovoked: Not just showing a badge (insufficient), but if there is some crazy show of force or
you know the cop has a problem or is violent (this could constitute provocation).
 Headlong Unprovoked Flight + High Crime Area = Reasonable Suspicion (this isn’t good for civil
liberties)
 Anonymous Tips: [get some more information on these cases]
 Alabama v. White
 Facts: Tipster gave tips that predicted where this woman would be with drugs in trunk and carrying a
brown briefcase
 Reasoning
 Predictive Tips: The more important thing seems to be that the tips were predictive (time,
destination, briefcase [which never happened])
 Contrast with Florida v. JL
 Young black man with plaid shirt with a gun at a bus stop
C. Scope/Expansion of Terry Stop/Frisk AND Introduction to Arrest
 Informant Tips
 More on this later
 When evaluating an anonymous or informant tip when there are concerns about the tipster
 Looking for some indicia of reliability
 Details in the tip suggesting insider information (but this is easily manipulated by careful
observation)
 Corroboration of Details by LEO
 A tip that contains some predictive details
 I.e., Ala. v. White - there were predictive details in the tip
 Pretext - Whren v. US
 Facts: Police in unmarked car observe a pathfinder SUV in a high crime area and it stops for a long time at
a stop sign (at this point probably not enough for Terry Stop). They have a hunch at this point, but can’t yet
act on it. They pre-textually pull them over for failure to signal and speeding-off at an unreasonable speed.
 So we have hunch v. stated pre-textual legitimate reason
 Rule:
 Pretext: The subjective intent of the officers is irrelevant if objective facts support the officer’s actions
 Held: It doesn’t matter that the police were using a pre-textual reason for pulling them over
 Devenpeck v. Alford (pg. 73 note case)
 Facts: Alford pulled over for impersonating an officer. They speak to him and realize he is running a tape
recorder during the stop and they flip-out and arrest him for illegal recording (which isn’t illegal).
 Held: Even though the subjective purpose was bogus (tape recorder) there were known and actual objective
facts supporting PC for the arrest (impersonating officer) so arrest was permissible
 Whren compared to Devenpeck
 Whren: Real reason didn’t matter so long as there was also a good/legit reason
 Devenpeck: Attempted purpose for arresting was no-good, but the known objective facts supported the
arrest
 Contextualizing These Cases
 Reasonable suspicion is a pretty low standard
 Combine this with the permission to use pre-textual reason means that it is very easy for the officer to take
advantage of people
 Basically officers with bad motives have a lot of power to detain you by using little miniscule
information in order to act on a hunch
 Protective Searches
 Terry Frisk is the Classic Version
 Very Limited Search
 Not a search for evidence -- a search for weapons
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 Michigan v. Long
 Facts: Guy drives erratically and runs off the road and he appears to LEO to be intoxicated and he won’t
answer the officers’ questions.
 Hall thinks at this point they have PC for an arrest (although a field sobriety check is a good idea)
 If they arrest him they automatically get to search him (SITA), so they should have just arrested
him
 They frisk Long’s body (uncontroversial) and then see a knife on the floor of the car (plain sight). They
then see an object (not a pouch b/c that wouldn’t be enough for a weapon fear) under the armrest and
reach-in underneath it and see marijuana (if they saw a pouch then they wouldn’t be allowed to look in
it -- again not a weapon risk).
 EXAM: Distinguish b/t a pouch shaped like, or sized for, a gun; versus a pouch the size of a sandwich
 Hypo on Sequencing: What if they saw a guy driving with what looked like a bomb? Even though they
might be able to arrest him, they may want to talk to him first and see if they can acquire some extra
information (he may clam-up if they initially engage in aggressive action).
 This is sequencing the investigation to allow the officers to get more information
 This means there are good reasons to talk to and frisk a suspect before arrest -- before arrest the police
can ask him questions without his lawyer (reference to 5A & 6A materials)
 Rule: The limited Terry search for weapons extends to passenger areas of the vehicle’s passenger
compartment where officers reasonably suspect that the suspect could gain access to weapons immediately
 Immediately in this context is not “imminently” -- i.e., not 1 second but maybe 5-10 seconds.
 Why Limited to Passenger Compartment?
 Because it is the vehicular analogue to the context surrounding the body in a Terry frisk (coat/shirt)
 What Qualifies as the Passenger Compartment?
 Glovebox Locked - Probably no; Glovebox Open - Maybe; Other compartments ???
 SUV Compartment / Third Row - gray area
 Passenger Seat - Probably
 There is a gray area here and it will depend on the particular facts
 Rule Summed Up:
 1) Officer feels no object or object not reasonably a weapon (small pouch or an envelope)
 Search over - suspicion of dangerousness dispelled
 2) Officer reasonably suspects that an object is a weapon
 Gets to expand the search to confirm or dispel the suspicion
 If he goes further and then determines it is a cell-phone, then search over
 3) Officer finds object with an immediately apparent incriminating character
 I.e., simultaneously finds a gun and drugs; officer lifts up armrest and sees drugs
 Now the officer has PC to expand the search even further while sequencing his way to an arrest
 Even if the officer found a gun and the person had a permit, the officer will still take it temporarily
and investigate further.
 It can’t be that you felt a baggie and speculated that upon further investigation you would find
evidence
 How do you know something is immediately incriminating?
 Sight - “Plain View” (as opposed to “Plain View Doctrine” later)
 Smell - Smelling marijuana, alcohol, gunpowder “Plain Smell”
 Sound - Racking a shotgun, chambering a round in a handgun, pulling back the hammer on a revolver
 Feel - Crack-pipe (needs to be something with a distinctive feel)
 Minnesota v. Dickerson
 Facts: Officers following this guy who leaves a drug house and they frisk him down and claim they feel a
lump of crack cocaine in his pocket
 Held: This isn’t the sort of thing that has an immediately incriminating character
 Detention - Illinois v. Caballes
 Facts: This is a traffic stop (Either Terry or a citation stop -- doesn’t matter) and guy is getting a ticket.
While the guy is stopped another guy with a drug dog shows up after hearing it on the dispatch.
 Hypo: what if officer drags the encounter out when he finds out an officer is on his way with the dog
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 Rules:
 Terry Stop Duration: A Terry Stop may last for a reasonable duration (and 10 minutes is a reasonable
duration) even if a shorter duration is possible!
 Once an officer has detained a suspect we don’t want them to rush through things and miss
something. We don’t want them to have to be absolutely efficient
 Drug Dog as Plain Smell: A drug dog is basically “plain smell” being used (even if they are wrong
sometimes) but they don’t alert on things other than drugs
 Arrest
 Arrest Defined: A significant deprivation of liberty (equivalent to being “in custody;” reference to 5A)
 Problems
 Sometimes we have a nice formal/explicit arrest
 This is easy, we have handcuffs or a statement/conduct that you are “under arrest”
 Other times there is an informal arrest: the conduct of the officers deprives the suspect of his liberty
 They never use the word “arrest” but they take him downtown
 How do you determine if this is an arrest or not? Is this a ‘de facto’ arrest?
 Level of Suspicion for Arrest: PC is required in order to do an arrest
 PC: Facts and circumstances along with reasonable inferences sufficient for a reasonable officer to
conclude a crime has been committed and the suspect committed it
 Facts & Circumstances: Officer’s observations; radio dispatch; reliable informant
 Draper v. United States [can I get more on this?]
 Facts: Informant tells officer Draper has drugs and gives him information on appearance, time of arrival,
mannerisms, and what he was carrying. The issue is: Was there PC?
 Held: Yes there was good information from a reliable informant that allowed for reasonable inferences to
conclude a crime was being committed by the suspect
 Dunaway v. New York
 De Facto Arrest: No real test, but factors (reference to 5A)
 If we have a de facto arrest then we will need to have PC even if the suspect isn’t told he is arrested
 1) Intrusiveness / Restraint used by the officers
 2) Movement of the suspect
 I.e., if officer handcuffed 8 guys fighting, then he may not have arrested all of them (may just be
trying to stop them from fighting)
 3) Location - Anything that takes place in public is much more intrusive than things that take place in
private
 Anytime you are moved to Police HQ it feels much more like an arrest than being moved to a
seminar room
 4) Duration - A Terry Stop is relatively brief, but an arrest is a whole lot longer
D. Arrest
 Michigan v. Summers
 Detention during search warrant execution -- Allowed!
 Facts: Police were executing a search warrant on Summers’s house and they see him leaving as they arrive
and they detain him while they perform the search
 Reasoning:
 Safety: the person whose home is being searched might come back and harm the officers, or he might
phone persons in the home and have them hurt the officer or establish a posse and come back
 It’s His House: If they find something then they would have grounds to arrest him (efficiency); Locked
cabinets, doors, suitcases, etc. could be opened by the owner w/o having to destroy the lock (quicker &
more efficient)
 Summers’s Own Interest: His presence might cause the police to behave better
 PC is required for a search warrant, and a Terry stop only requires reasonable suspicion
 Detention During Search Warrant Execution: Not only is detention incident to a search warrant of home
allowed, but the police don’t have to deduce a reason.
 They are allowed to detain people they encounter during the execution of the search warrant
 The warrant carries with it a justification to detain people found at the locale
9
 The court knows this is a screwy doctrine, but still allows it
 Arrest - Hill v. California
 Facts: Police have suspicion that Hill committed a robbery and they go to his house looking for Hill. A
person is inside house who answers door but denies he is Hill and presents other ID; he denies knowledge
about the robbery or the guns. Officers were suspicious that this was deception (a gun was in plain view &
the guy matched description).
 Reasoning:
 There was exculpatory and incriminatory evidence and the officers are not required to only look at the
exculpatory evidence
 This was a good-faith or reasonable mistake
 We don’t care if the officers made a good faith mistake regarding the suspect, we care if they acted
objectively reasonable
 Good-Faith Mistaken Arrest Allowed if:
 They have PC: facts & circumstances along with reasonable inferences sufficient for reasonable
officer to believe that crime committed and suspect committed it
 In this case we have made it almost all the way through the PC analysis except for “suspect
committed it”
 Good Faith Mistaken Arrest: If LEO has PC to make an arrest and they reasonably believe they have
found the suspect, then they can arrest that person.
 Good faith belief that arrestee is the suspect
 Hypo: police arrest you instead of your sibling based on good faith mistake and you have cocaine
on you. Can you get it excluded? No, the arrest was reasonable when made
 A reasonable mistake regarding identity does not render an arrest unconstitutional
 If they catch a bad guy incidentally during this good-faith mistake, then that is still a valid arrest or
discovery of evidence (even though afterwards the arrest wouldn’t be valid)
 If there is PC to arrest at the time of the arrest, then subsequent factual developments do not render
arrest unconstitutional
 Otherwise on acquittal everyone could sue police for false arrest
 Notes
 Bad Faith Arrest:
 What if there is PC to arrest, but the officer does not subjectively believe PC is present, but arrests
anyhow?
 Courts in flux/split [lower courts only?]
 Some: as long as there is objective PC then the arrest is constitutional
 Others: presence of subjective bad faith makes the arrest unconstitutional
 Rationale is that SCOTUS in Whren says that subjective facts don’t matter (pretextual case)
 Under Whren we can guess what the court might hold
 EXAM weird thing like this is the kind of thing that comes up
 Michigan v. Fillippo
 Facts: Police come upon two people in an alley and the woman is dropping her pants and when confronted
she claims she was peeing (probably neutrally affects the suspicion, mostly) and the man claims first he is
an officer and then changes his story. He was ultimately arrested for a failure to produce ID (this type is
constitutionally problematic anyway b/c they bootstrap things into PC). The statute is later ruled
unconstitutional
 Early on this looks like sex in an alleyway and this may be a crime (most likely have PC)
 During this encounter there is an ebb and flow of suspicion, and if police commit an action early on in
the encounter then it changes the reasoning
 Her saying she was peeing exculpates her on the public sex charge but incriminates her on the
public urination
 Says he was an officer (unclear what statement alone does to the suspicion), then when he changes
his answer (he may actually be more suspicious for both lying and impersonating an officer)
 Reasoning:
10

This is good in some ways b/c we want officers enforcing the law, as opposed to making discretionary
decisions about whether they will enforce certain laws -- we want police consistency
 Without this rule, officers face a dilemma:
 Either dereliction of duty or Liability for false arrest
 Arrest on Law Later Ruled Unconstitutional: Arrest based on currently-valid law, later invalidated =
Valid arrest
 Law enforcement obligated to enforce laws until declared unconstitutional
 Exception: If a law is grossly or flagrantly unconstitutional to a reasonably prudent person then the
police probably shouldn’t follow it (this is a really small exception)
 Held: Although the law is later unconstitutional, it was a valid law at the time the arrest was made by the
officer and he was acting in good faith by enforcing a law that wasn’t blatantly unconstitutional.
 Note: A more complex rule where the arrest is still valid and the evidence is then excluded is a possibility
 Gerstein v. Pugh
 Do police officers need to have an arrest warrant to make an arrest?
 If they have PC, then no
 Hypo: If they know the guy is home what can they do w/ PC? They can knock on the door and arrest
him or they can get a warrant
 If you have a warrant then LEO is in a much better position and unless they lied to the judge LEO
will win!
 This would be the judge’s mistake, not LEO’s
 Otherwise, w/o a warrant we are concerned that they might make a mistake and not have PC and
that the mistake may be so wrong that it is unreasonable and we now have an unconstitutional
arrest
 PC Arrest w/o Warrant:
 Officers do not have to get a warrant for a mere arrest (so long as there is PC)
 An arrest with PC, and without a warrant, allows for a reasonable period of detention without a hearing
presumptively less than 48 hours (unless there is some other extenuating circumstance like a holiday or
disaster)
 Once a magistrate review the PC-but-w/o-warrant arrest, then detention can continue
 If arrest is with a warrant then you don’t need to have a hearing b/f the magistrate for prolonged
detention
 Three Options Overview
 1) Arrest with a Warrant
 Allows arrest and prolonged detention (how long under prolonged depends on the jurisdiction
and its bail requirements)
 2) Arrest with PC and w/o a warrant
 2) Allows a brief detention
 Followed by release based on LEO or prosecutorial discretion (discretion meaning that
they don’t have to hold them for up to 48 hours, they could let them go earlier)
 3) Allowed prolonged detention only if
 Followed by prompt judicial determination of PC
 Length of Permissible Brief Detention
 48 Hours is presumptively valid
 If you are the prosecutor:
 If there is an arrest, no warrant, and you think there is no PC, then get them out of there and follow
the Constitution!
 If there is an arrest, not warrant, and you think there is PC, then your goal is to get them a hearing
promptly!
 Payton v. New York
 Issue: Are officers permitted to enter into someone’s house uninvited in order to make a routine felony
arrest?
 Arresting in Home:
 Entry into home for arrest w/o warrant is presumptively unreasonable
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
So what do you do? Well wait until they leave and go outside, or trick them into leaving (ding dong
ditch).
 This rule appears to protect you, but it really only protects you in a really formal sense (they can
work around the rule in many ways)
 I.e., they sit outside and guard the house while a warrant is issued.
 General thought is that we often lay down a rule but find the work-around isn’t that bad
 Arrest warrant implies authority to enter suspect’s dwelling (you don’t need a search warrant to enter to
arrest them, and might not be able to get one b/c you need PC that substances/items are in the location)
 Welsh v. Wisconsin
 Facts: Observer witnesses Welsh run off the road and observer advises him to stay b/c he appears
intoxicated. He leaves and officers go to his house (which was within walking distance) and enter w/o a
warrant on the grounds of exigent circumstances
 Arrest in Home w/o Warrant Exception:
 Exigent circumstances overcome presumption against entry without a warrant in order to arrest
 The burden is on the government
 Exigent Circumstances Examples
 Innocent is in danger of being harmed
 Hot-pursuit
 There may be a balance that goes askew when the crime being pursued is very small / minor
 Police chasing suspect w/ a bloody knife and they are worried the suspect might destroy evidence
 Factors for Exigent Circumstances
 Gravity of underlying offense
 Hot Pursuit
 Threat to Public Safety / Dangerousness
 Investigation - Preservation / Destruction of Evidence
 Reasoning
 There is a measure of public safety here (both for third-persons and for the person himself -- maybe he
was sick)
 Hypo, you smell fire and call the cops. You want them to bust down the door in your apartment
building (both for your own public safety and the occupants)
 They have an exigent circumstance to bust in the door and if there happens to be a marijuana
grow operation then, well dumb-luck! They had reason to go in
 Was a screwy fear that the evidence might be destroyed (he sobers up so blood/breath no longer
incriminating)
 Richards v. Wisconsin
 Knock & Announce Rule
 Vs. Forced Entry
 Even with a warrant you still have to knock and announce
 SCOTUS has said that there is a constitutional requirement that you knock and announce
 Exceptions
 Exceptions are allowed on a case-by-case basis, flexible, and reasonableness [?]
 When Do You Want It
 When drugs might be destroyed
 When they might shoot at you as soon as you enter
 Standard
 Reasonable suspicion that knocking and announcing would be:
 Dangerous - Threat of violence
 Futile
 I.e., the building is empty. But what the hell is the point? Why not just knock and
announce.
 This is just screwy, What’s the harm in knocking and announcing
 Inhibit Effective Investigation
 Preservation / Destruction of Evidence
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
Overview
 This doctrine is excused almost as much as it is used
II. Evidence:
A. Search Warrants
1. Particularity & Execution
 Note: We are shifting gears away from what police need to do to ‘stop’ someone
 Procedures for Obtaining a Search Warrant
 Default/Norm
 Police conduct a search with a warrant
 But really the exceptions are more like the normal, and it is the rare case that police get a warrant
 1) Go Before a Judge
 Neutral and Detached magistrate -- really just any judge or the one specified (need not be an actual
‘magistrate’)
 We have significance here b/c a second branch of government is participating
 This is an objective person who doesn’t care the same way police do / not the same police zeal
 In some jurisdictions there is a hierarchy even w/in the department and it is a real pain in the ass -- the
harder thing can be to get the warrant request past your superiors and the DA (if that is the procedure)
 2) Swear an oath or affirmation; an affidavit is generally attached to the warrant request
 The lawyer doesn’t sign the affidavit, the officer does. The lawyer doesn’t sign b/c if you sign it you
are saying you have knowledge of it and you don’t want the court to hammer you with sanctions if the
facts turn out to be wrong
 Affidavit need not be all personally acquired information/knowledge (one officer told another)
 3) Affidavit must establish PC
 Has to be to a person or a place
 That a crime took place
 PC that we can find evidence of the crime in the place or on the person
 Even if you know a person committed a crime, in order to get a search warrant you need further
evidence that we will find evidence of the crime on the person or in the place.
 Slightly more complex version of PC
 4) Particularity Requirement
 Search
 Seizure
 We have to describe the premises/person with particularity; & the thing we are searching for w/
particularity
 How Particular: For a Place:
 For a Place: An address, an apartment number, floor of a building (if there is only one apartment on
the floor or if you have reasonable cause for all of them)
 Rule: Description sufficient to reasonably allow identification of premises / person / things
 This is not a big challenge -- look it up! We have house numbers generally; if there are none,
just get as specific as possible
 So basically you need an address
 How Particular: For a Person
 Really no different than the mistaken identity materials
 Rule [sort of]: We want a sufficiently reasonable identification [see above]
 Effect of Error
 What if the warrant pointed to apartment 9, and the officers mistakenly search apartment 6 -- this is
a mistake but the warrant was still valid -- executed in a problematic way
 We are going to allow such good-faith mistakes (as long as they really think they are doing right)
 If they good-faith mistakenly search the wrong apartment and find evidence of law-breaking,
then it is not excluded because they made a good-faith effort.
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 There is no deterrence that can be applied through the exclusionary rule because we can’t really
deter good-faith mistakes
 Sort of like the Hill v. California case [mistaken identity].
 If there is an error, but that error produces no ambiguity (ex.: so the error was that the warrant only
said 4th floor, and there turned out to be only one apt. on that floor) then this is not a problematic
mistake
 Less Particularity Rigor for the things you seek
 In a criminal investigation we obviously want evidence of the fruits of the crime, but in order to be
successful in court we also want evidence of motive (so as to sway the jury and show them an
explanation)
 By having less rigor for particularity of things, we can allow for a search of amorphous motive
without exactly knowing what that is beforehand
 Examples: Murder - gun not a gun with a specific serial number; Drugs - not the type but maybe
narcotics / paraphernalia / manufacturing equipment
 Exception: Investigation of stolen goods need precision / particularity
 This makes sense b/c theoretically the victim will be able to say with some heightened level of
specificity what was taken.
 Exception to the Exception:
 Victim isn’t present -- i.e., a robber during spring break while the student isn’t home
 We don’t always require these details, but when they are apparently available we require
them
 Groh v. Ramirez
 Facts: Police are going to search for grenades, grenade launchers, etc.; but what happens is that none of this
was displayed on the warrant in particularity regarding the things to be seized. The facts were on the
affidavit, but not the warrant
 Reasoning:
 Only the facts were included on the affidavit. They only mentioned general “everything in his house”
on the warrant
 When the warrant application asks you, “what are you trying to seize,” write down what you need and
have PC to seize
 Rules:
 The focus of the court’s inquiry is the warrant and not the warrant application
 Basically fill out the forms correctly and don’t make a stupid mistake and just fail to fill out all the
boxes correctly and as required
 Warrant Execution
 Time
 A warrant is only valid for a particular time window, and you must execute it during that window
 Time window is often w/in a month, often a week: these aren’t necessarily burdensome requirements
 Rationale:
 You have PC for the warrant, but PC usually doesn’t last forever -- so equally the PC also has to
evaporate at some time
 Inventory
 Whatever you seize you must inventory (list what you are taking)
 Receipt
 You must prepare a receipt and generally give it to the target
 Exception - In some circumstances where there is an undercover/quiet phase of an investigation and for
a temporary time the officers can keep the warrant and the searches or seizures secret -- but eventually
must reveal
 I.e., if you are investigating the mafia and search while they are away or bug their phone, you
aren’t going to tell them at the time! You tell them later -- temporarily secret
 Return
 You must make a return to the judge. You fill out your inventory, bundle everything together
14

You are acting under the authority of the court so you need to tell them what you did with their
authority
 Ybarra v. Illinois
 Issues: If you have a premises search warrant, does it carry w/ it authority to search any people found on
the premises?
 Facts: Police have a search warrant for a bar and its bartender for heroin. 9-13 people are in the bar. They
pat them all down. Ybarra gets frisked and they find drugs on him, but they only felt a cigarette pack.
 EXAM Strategy
 1) Do they have the authority to conduct a detention? Yes; they have a search warrant and they get to
detain everyone there -- but that is all they get to do
 2) Can they frisk? They need reasonable suspicion that he is armed and dangerous. They don’t have it - they can’t touch him short of effectuating the detention.
 Fact Manipulation Getting Us To The Frisk
 Armed:
 People at the tavern are frequently armed
 He made a furtive motion for his coat
 They already know him to carry a gun
 They can visibly see he has a gun
 Dangerous
 They are drug addicts and maybe they are high (if the fact that only drug addicts attended the
bar)
 As to the patrons they can be detained but not searched unless there are independent facts on the
warrant supporting it or we have armed and dangerous
 Only going to get this under rare circumstances -- i.e., a bar that is “invite only”
 3) Even if we had armed and dangerous, were the drugs properly recovered?
 (a) No, they frisked him and then let time pass suggesting they didn’t really think he was armed
and dangerous
 (b) No they didn’t feel anything that felt like a weapon so they have to stop the frisk
 (c) Yes, had they felt something immediately incriminating in character (i.e., a pipe)
 Rules
 Search of Persons in Premises:
 Yes this can be allowed if it is in the warrant and the basic premise is that we have PC for all the
persons
 Generally a warrant does not allow a search of all persons in a place who are not named in the warrant
 But if we manipulate the facts (as below) then there becomes an inference that there is evidence
that everyone is involved in crime (not a perfect inference but it grows)
 Public v. Private Location
 Maryland v. Pringle
 Facts: at 3:30 AM three men are pulled over in a Maxima and they find cash and baggies of cocaine in the
armrest that all the men are [w/in reach of?]
 Ybarra Relationship to This Case
 In Ybarra there was no relationship b/t the patrons and the premises sufficient to give PC
 There was no reason to think the 9-13 people had access to the heroin
 In the car situation there is a special relationship -- the passengers weren’t just customers they were
acquaintances
 These are invitees that you invited in (in a bar they are people publicly allowed to come and go)
 Ybarra Manipulation
 What if it were the Aurora Tap Club:
 Then this implies they were invitees
 See above: there are a number of factors that might lead us to other conclusions
 Anticipatory Warrants — United States v. Grubbs
15
 Facts: Grubbs ordered child pornography and the police had an informant who knew when the contraband
would be available. The warrant was only going into effect once the “triggering action” occurred of the
video tape being delivered.
 Reasoning
 The warrant wouldn’t take effect until the triggering action of the child porn arriving at his house
 In some ways this was more protective of Grubbs b/c they knew that he was engaged in criminal
activity and the police still sought this more protective warrant
 Anxiety: There is no PC at the moment the warrant is being authorized
 Anticipatory Warrants: Permissible so long as the affidavit contains a triggering condition
 There is a chance that the material might be destroyed or shared so we want the ability to act quickly
right after the triggering condition -- so it is an appropriate compromise
 There is not really an additional time frame attached to this type of warrant, but without the trigger
there is not valid warrant
 Held: They basically already had PC to arrest him, but they chose to wait b/c it was a better strategy
2. Informants / Tipsters, Warrant Challenges
 Can you use a tip/informant as the basis for PC?
 PC: Facts & Circumstances, allowing for inferences, that are sufficient to conclude there should be a search
b/c an officer can conclude that evidence of a crime will be found on a particular person or at a particular
place
 SCOTUS hasn’t elaborated a test, but it appears to be preponderance of the evidence.
 Short answer, is yes.
 Spinelli v. US
 Spinelli Affidavit
 What is in it?
 Most of the affidavit is them following the guy around
 This is good, direct evidence. But this isn’t suspicious conduct -- this is innocent conduct
 One portion is that he was a known bookie to LEOs
 One portion is that an informant said he was a bookie
 Does the informant tip bolster the other findings?
 Yes; The informant tip is the bulk of the finding for PC
 Problems:
 There is no check here b/c the tipster could just make it up
 Protections
 Usually you can grade or score the informant based on what the police know about him
 Should we be bothered by Tips?
 Danger is harassment and leading police astray
 This would be the circumstance where the tipster is a criminal and might have bad motives
 Benefit is that some people are legitimate tipsters
 Frankly it depends on what you have as a world view
 Rule:
 PC cannot rest on a mere assertion or belief of the officer
 Ex.: #3 on pg. 156 -- he was known as a bookmaker/gambler/etc.
 Particular Problem
 Generally we are worried about a confidential or anonymous informants / tips generally
 Named Tips: we are less worried about these b/c D can follow-up at trial and ask about exculpatory
information, and they named individual is liable for making a false statement
 Unnamed Tips: an unnamed tip
 Court applies the tests the same across all types of tipsters (which is kind of weird)
 Aguilar-Spinelli Test (replaced by Gates)
 Two-pronged test for PC sufficiency of tip
 Difficult Test for Law Enforcement
 Why Learn It?
16
 Still the test in some states
 Many [?]
 EXAM: typically one Q involves State LEO, and one usually involves Federal LEO -- the only
point is to know that for the State LEO you have to run Aguilar-Spinelli and Gates tests, but in the
Federal LEO situation you only need to run the Gates test
 Aguilar-Spinelli Test
 Two-Prongs
 1) Basis of Knowledge (this is required)
 1st hand knowledge is better than 2d hand knowledge
 Indicators of 1st hand knowledge:
 Specific Details (rationale is the same as for Future/Predictive)
 Future/Predictive conduct tends to indicate first hand knowledge b/c they seem closer to
the bad guys and will know more details
 Evidence of insider knowledge / evidence they are a participant and not just a witness
 2) Veracity (this is required) [2-3 ways to get veracity]
 Credibility (general veracity)
 Identity of the informant (because liars wouldn’t want to give their name?)
 Who is credible?
 (a) Someone you know is likely to be credible (i.e., your preacher, Robert Khayat, the
mayor, etc.)
 This is the ideal tip, someone calls you who is immediately reliable and
recognizable
 (b) Job Titles - why would someone w/ a prominent title risk all of that?
 (c) Regular Citizens - as opposed to criminals
 Reliability (specific veracity)
 Track record of the informant
 Doesn’t matter that they are low-life scum -- it matters that they are historically
accurate
 Could be a twelve-time felon who just gives always accurate tips
 So even though this isn’t someone you would otherwise trust, trust them for this
 Sometimes . . .
 Admission of involvement / Statement against interest
 I’m a criminal, but not in this enterprise. Or, I’m in a conspiracy and I want “out”
 Cross-reference the increased reliability of hearsay statements against interest
 States that are still employing this test require both prongs
 But if one prong is insufficient, then that prong can be elevated w/ corroboration
 Corroboration:
 If a tip is insufficient on one of the two prongs, that one prong can be elevated because we have
corroboration
 This means that now we have a track record (if we corroborate 9 out of 10 predictive details we
can then speculate that this tip is 90% correct!)
 Corroboration or verification of the tip may elevate an otherwise insufficient tip
 I.e., we did some surveillance not requiring a warrant and were able to corroborate these details so
it is increasingly likely (depending on the facts) that this informant was correct
 Aguilar v. Texas [do the facts matter for Augilar or Spinelli?]
 Illinois v. Gates
 Stop talking about two prongs -- just throw it all together
 Gates Test
 Totality of the Circumstances
 Veracity, Reliability, and Basis of Knowledge
 Deficiency in One
 Possibly compensated for by a strong showing of another factor
 Or other indicia of reliability (just throw all of the details “in the hopper”)
17

Keys
 Corroboration
 Note: details that are “harder” or more challenging for police to corroborate suggest that these
were special details that suggest a greater likelihood of credibility
 Predictive Nature
 Overall:
 May still need corroboration under Gates, but the difference is that you just need a lot of
information (can be veracity, reliability, etc.) but we are looking at the overall weight of the
evidence to address whether or not there is PC
 Easier on Police b/c it is a sliding-scale test
 Facts: Police receive an anonymous hand-written letter charging criminal behavior.
 How does the letter perform under Aguilar-Spinelli?
 Well it appears to be strong on basis of knowledge, but lacks veracity
 So the police corroborate w/ surveillance
 The corroboration is strong b/c it isn’t just regular details, but it is corroborative of the
predictive details also
 Reasoning:
 After the corroboration, the Court’s approach seems to say that this may not raise veracity high enough
 The facts that the police corroborated, are only corroborative of innocent details (maybe on vacation)
 If the police had actual evidence of criminal activity then there would be no need to even use the tip
anymore. Don’t forget that if the facts were different, then they could ditch the tip and just use the
fact that they witnessed crime.
 It is not that at some point police magically see something; it is that they cumulatively collect enough
evidence and then have a basis for PC
 EXAM
 Potentially a question where either basis of knowledge or veracity are really weak, and the remaining
factor is really strong:
 If in an Aguilar-Spinelli jurisdiction then you lose
 But in a Gates jurisdiction you “throw it all in the hopper” and if it weighs out sufficiently then it
works
 Warrant Challenge — Franks v. Delaware
 Facts: Franks is challenging the warrant. The police go to the youth center and find out that Franks has an
“outfit” that he typically wears which matches the type of outfit ID’ed by the victim. D talked to Franks’
bosses and they explained that the interactions differed from what was cited in the affidavit
 Types of Warrant Challenge
 Facial Challenge:
 Invalid Warrant: I.e., lack of particularity in location, search, or seizure; or it contains an inaccurate
date
 PC not present in Affidavit
 Sub-Facial Challenge
 You want to look beneath the surface of the warrant
 Deeper probing
 Reasoning:
 On the surface and what is in the affidavit, the warrant is facially valid and purports PC
 Once we have reason to think the stories don’t add up, we are worried the police made something up
 The fear is that by allowing regular probing of warrants will bog down the criminal system (a trial
before the trial)
 The problem with what Franks’ bosses said is that there is an anomaly in the facts as to the type of
description given
 Warrant Challenge Rule [Franks Hearing]:
 A sub-facial challenge will not be allowed in every case
 D must put on some preliminary offer of proof to show that there is a problem in the warrant
 Can’t be a mere Problem
18
 Needs to be evidence of deliberate falsity
 Knowingly or recklessly false statements in affidavit
 The false statements were necessary for finding of PC
 Not All Deliberate Falsities Created Equal:
 I.e., officer lies about which officer on the basis of covering up an insufficient time sheet
 Such a immaterial falsity won’t affect the PC
 If you succeed, you get the warrant voided, and the fruits suppressed
 Frequently called a “Franks Hearing”
 Overview
 Not easy, not likely that you’ll get a Franks Hearing
 But it is likely you’ll get a Franks Hearing on the EXAM
B. Bodily Intrusions
 Rochin
 Overview
 Know this case by Name: a Rochin Claim
 Rochin Claims get us to the shocks-the-conscience test
 Facts: Rochin is at home when police execute a search. They come in and he is in bed with a bottle of pills
next to him and he chugs them all. The police take him to the hospital and force him to vomit and find
drugs or evidence of them in the vomit.
 Reasoning
 4th Amend: a consent search does not require PC or a warrant -- there is no 4th Amend claim here to
raise [?]
 Rochin is raising a claim that he has an independent right to bodily integrity
 Rule / Right to Bodily Integrity
 Implied fundamental right - substantive due process (comes from the word liberty in the 5th Amend
and it is incorporated by the 14th Amend)
 Any law enforcement conduct that shocks the conscience is unconstitutional -- it violates your liberty
interest. This is not just in the idea of bodily integrity, it is that you have a right of liberty--to be free-from shocking conduct
 EXAM: Thought is that you may have a 4th claim and also have a Rochin claim b/c this shocks
the conscience so much.
 On the exam seek shocking police conduct and try to make an argument that it shocks the
conscience
 We would have thought this meant no torture, but recently not
 What remains is the idea that normal police officers cannot torture you -- this is still shocking
the conscience
 This is a somewhat subjective rule; there is no real test for it; it is really just a place to argue
 There are very few cases that meaningfully involve Rochin each year -- but this is still a functional
doctrine that sometimes helps people
 Next Slide/Case is much more likely to come up on the exam!!!
 Schmerber
 Facts: Schmerber was in a car accident and taken to the hospital. Police had his blood taken for a BAC test
w/o his consent.
 Spectrum of Intrusion
 As intrusions go, this is not really a very high intrusion (versus surgery in Winston below)
 A blood test for alcohol will give us useful facts, while pumping Rochin’s stomach may not have
yielded any results that were useful.
 So . . . it is a minor intrusion that very likely gets us where we want to go
 Reasoning
 We know factually that the blood-test will get us an evidentiary result -- it is in no way speculative
 Winston v. Lee
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 Facts: Guy was robbing a store and was shot by the store-owner. Police ordered surgery to determine that
the bullet. Anesthesia is inherently dangerous -- you typically give informed consent. The surgery also
risked nerve damage.
 Spectrum of Intrusion
 This is reasonably risky, runs the chance of permanent damage, and may lead to longer recovery and
scarification.
 There is no definite answer we may get from the bullet (unless we can confirm the bullet is still in good
condition, then ballistics tests might not work)
 So we have high intrusion and low results
 Schmerber and Winston in Retrospect
 4th Amend:
 There is an expectation of privacy -- the 4th Amend does protect you -- but . . .
 Police need PC to ask for a bodily intrusion
 This is not very different from existing 4th Amend jurisprudence (same requirement for searching a
house / person)
 Test Requirements
 1) Warrant Requirement: In general police need a Warrant to Search your body (other than Terry Frisk)
in order to satisfy the 4th Amend.
 Exigent Circumstances: we can have the same warrant exception for bodily intrusions
 2) Reasonableness
 PC is needed to justify the search
 Really it needs to be PC to justify the intrusion (basically this means a little more than just PC
alone)
 If we want to search an innocent witness’s/person’s body we need a pretty hefty dose of PC
 Reasonableness of Intrusion Itself
 Look at the Test/Intrusion Itself
 Intrusiveness of the Test (pain/risk/trauma of the test)
 Effectiveness (blood tests & breathalyzers vs. a bullet test)
 Method of Performing Test
 Medical Practices & Risk
 Officers in the field performing a breath-test vs. a medical setting performing a blood
test
 Specifics
 BAC: Many courts say that blood-testing and breathalyzers are allowed for DUI
 Rare that there is a warrant because we are facing exigent circumstances and will lose evidence if
they sober-up
 Surgery for Evidence Balancing Test
 Intrusion
 General effect of anesthetic
 The Risk of the intrusion
 Law Enforcement’s Need for the Intrusion
 Is weird b/c a higher ‘need’ for the evidence suggests police rely on it and may be lacking other
evidence -- flimsy case
 So this is kind of screwy but the test above [for (1) warrant requirement, and (2)
reasonableness] is solid -- this factor is just weird
 Does this Mean Weighing: The evidence, gravity of the offense, and the safety [?]
 Katz v. United States
 This is a huge, seminal case -- and it basically tells us what does the 4th Amend Protect
 General Analysis
 The 4th Amend protects persons not places
 Examples
 Do you have privacy in a phone booth? Generally no -- people can see you so you don’t really
have any privacy
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 Imagine you are outside a deaf school in the phone booth -- there they can see you and read
your lips -- where is the privacy?
 Katz does not stand for the proposition that you have privacy in the phone booth
 It does not protect you if you are walking around
 “Search” occurs only if law enforcement examines a place/thing in which a person possesses a
reasonable expectation of privacy
 Katz applies only if you have a reasonable expectation of privacy
 Reasonable Expectation of Privacy Requirements
 1) Subjective or Actual expectation of privacy [required]
 I.e., if you are having a phone call and you know the other side is on speaker phone, then fail
 Problem: Who loses? Paranoid people -- people who operate in the world with a suspicion they are
being listened. Who wins?
 This is a little perverse, but it is the effect of this test
 If you do not think what you are doing is private, the you lose!
 2) Objectively Reasonable expectation of privacy [required]
 If you do something in the open/exposed to the public, you don’t have an expectation of privacy &
cannot claim it is protected
 So everything you do in public is fair game
 What is in public?
 If you are walking around inside your house with the blinds open either naked or w/ drugs
and the police see you then you don’t have a 4th Amend claim
 Sharing w/ public or a Third Party = Assumption of risk
 Emails: When you send an email it is shared with the ISP -- arguably content of email may
contain no 4th Amend protection
 Mail: The contents of the mail are not shared, but the address is shared with the postal service
 Financial Records: Police can get them by asking (but there might be statutes or contractual
protection) and there is no 4th Amend protection
 Checks
 Amount in your bank account
 Credit Card Transactions
 Numbers you Dial on your Cell Phone [Pen Register]
 Intrusiveness
 Did law enforcement place itself in the mere position of a member of the public, then this it not
intrusive
 But if they have gone to great extents to see what you are doing then they may violate 4th
Amend protections
 U.S. v. Knotts & U.S. v. Karo
 Facts: A tracking device was placed on chemicals to track the vehicle. Even though the road was in the
deep woods still place public could have been
 Overview
 We generally little concern about police use of tracking devices
 Subjective Expectation of Privacy about the Location of your Vehicle?
 Generally - No, people see you driving around
 In Your Garage: No probably not, b/c your neighbors can see you
 Objectively Reasonable Expectation of Privacy About the Location of your Car
 Openness / Exposure to Public
 No, when you drive around you are generally travelling in public on public roads, or on private
roads at a place like a shopping mall where the public is invited
 Intrusiveness
 Was placing the tracking device on the car intrusive? Probably not because people touch your
car
 There probably is some intrusiveness, but we are going to let it slide
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 All the tracking device does it put the police in the position of a hypothetical member of
the public
 Reasoning
 It doesn’t matter that the tracking device allowed for a hypothetical member of the public in the deep
woods -- an actual member of the public doesn’t have to be present or even be likely to be present
 Electronic Surveillance / Safe Streets Act Omitted (information purportedly not on the exam)
 Surveillance Review
 Pen Register - A pen register records the numbers you have dialed
 Allowed without a warrant what-so-ever
 Dialed Telephone Numbers
 Logic: it is shared information
 Electronic Tracking Device
 Generally Allowed
 They are typically covering publicly-observable information
 Not Allowed
 But: if the tracking device is installed in a container then it might go somewhere no publicly
viewable
 Note:
 On the EXAM analyze the installation of the device and be on alert for intrusive conduct
C. Misc. Issues - High-Tech, Undercover Ops, 1st & Administrative Search
 High Tech Surveillance — Kyllo v. United States
 Facts: Officers used a thermal, infrared scanner to look at the heat signature of a home suspected of using
high intensity lamps to grow marijuana. Were able to infer from scanner that a portion of the home was
warmer than typical homes and other portions of that home
 What other info would you want for PC & Police rationale
 Observe who is coming and going
 Look in the window from the streets
 Ask the power company (and might be able to get information b/c like the phone #s you dial the power
company info might be available w/o a warrant)
 Adding the power bill plus a few other things might be enough to get PC for a search warrant
 Could they stick a tracking-beeper on the side of the house?
 Yes, the tracker would be monitoring what was in plain view (we can put them on cars)
 Police rationale: under the same thought we can observe what is emanating from the house
 The police were merely monitoring something that was externally visible to the public
 The police could have walked-up and touched the house (Plain Touch)
 Police might have thought that the scanner was much like using a drug dog to augment your senses
 Similar to using a breathalyzer, or a radar-gun, or the tracking device
 In some ways it is less objectionable b/c it is less sophisticated and doesn’t require trespass
 Rule
 You have a reasonable expectation of privacy in your home re: things that are not publicly visible
 Reasoning
 Your expectation of privacy can change based on the state of technology: if you know that everyone
has this technology you would think differently about what sort of privacy you have
 Surveillance of the Home
 Exterior surveillance is permitted
 They can observe from the outside (viewing, listening so long as the technology not too high tech)
 Interior not permitted
 Not permitted unless the device is in general public use
 Equivalent of an intrusion
 What’s this case good for?
 Distinction b/t interior and exterior surveillance and the fact that high-tech devices are no good unless
in general public use
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This case does not engage in a two-part expectation of privacy test
 Subjective Prong
 Objective Prong
 This case suggests that when it comes to a home there is almost no need to analyze the subjective prong
of reasonable expectation of privacy w/ regard to the home
 So the only question we ask is whether the expectation of privacy was objectively reasonable
 Dissent - Hall favors this although I disagree w/ the distinction [through the wall vs. off the wall
distinction?]
Undercover Operations / More Shocks the Conscience
 Why do we care about these operations
 This creates a new avenue through which to make a shocks the conscience argument
 You have no 4th Amend argument here, but you might argue that you didn’t expect to invite the police
into your private drug-dealer meeting
 But, you assume the risk by divulging information to third parties
 Shocks the Conscience Arguments
 Undercover Sting Operations [we are not covering entrapment]
 People make arguments that it shocks the conscience
 Called “outrageous government conduct” but is the same thing
United States v. Simpson (9th Cir.)
 Facts: FBI hired known prostitute and heroin addict as an informant and she had sex with the suspect and
the FBI passively stood-by
 Reasoning:
 The government frequently uses paid criminals to perform undercover operations
 It is rare that informants are good people
 Agents may from time to time engage in conduct that would be criminal if someone else engaged in it.
 Held: Ninth Cir. said this was not outrageous, granted it isn’t pretty.
United States v. Cuellar [Circuit Court Case?]
 Facts: Government had a contingency agreement with an informant so that the more money laundering he
disrupts the more he gets paid -- this could create an incentive for law breaking
 This is an apparently normal pattern of how we get good information
 Analogize to plea bargains: the more criminal you are, then the more info you have and the greater plea
bargain you can likely get
 Rule
 It seems that the government has to do something completely out-there in order to qualify
 All conduct the government does is potentially invalid if the Government’s conduct shocks the conduct
-- although this appears to be very unlikely
 Held: Does not shock the conscience
 EXAM: don’t rush to tell Hall that the government has committed outrageous conduct (unless it is utterly
outrageous)
Zurcher v. Stanford Daily
 3d Party Search
 PC that evidence of crime at location but no PC that owner implicated in crime
 Not an issue; i.e., nothing more is required in terms of PC to search a 3d party
 1st Amend
 There is no special limit imposed by the 1st Amend re: what sort of PC is needed for a 3d party search
of a newspaper
 There may be a slight increase in the particularity requirement
 Note:
 It is not too uncommon for the police to want to search a 3d party/witness who is neither the suspect
nor the victim
 Anything that happens in ‘public’ is not a search: so the officer can look in your window at your home
if your window is in such an place and orientation that a normal passerby could see into it
TLO - Broader Concept - Administrative Searches
 Hypos:
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
Have a gas line in your home and you have a public utility that operates the gas line. Your meter is
indoors and someone from the gas company has to come in each time once a month to read it.
 If he observed something there criminal and reported it, then it wouldn’t be a search because he
was entitled to be there
 Own a restaurant and the inspectors come in there frequently. While investigating they observe
criminal activity & report it
 They had the right to be there to perform the inspection
 Administrative Searches: Searches as part of some regulatory purpose/program (not part of general crime
control)
 Not directly related to criminal law
 Allowed [as a warrant exception]
 How Administrative Searches Work
 We could have an administrative warrant - but this would be a pain in the ass (inefficient)
 I.e., we could have administrative warrants be the norm w/ exceptions
 We could have general exception for regulated businesses (a general exception for the gas reader, etc.)
 PC Requirement
 Doesn’t amount to much, but there has to be some reasonable legislative or administrative standard for
the inspection to take place
 Are they suggesting a legislative act saying we believe in apartment inspections would make them okay
and satisfy the Administrative PC requirement?
 No need for individualized suspicion of crime
 We have administrative inspections anywhere we have regular inspections taking place re: regulation
 These are government “agents” in the agency sense and this is your normal interaction w/ them
 EXAM: if you spot an administrative agency and the inspector is going in as part of their routine duties
then this is permissible if they incidentally turn-up on something
 Special Needs Searches [generally schools]
 Suggests there is some other need/objective than crime control
 Would make more sense if the court came out & said we are not applying the 4th Amend genuinely in
these circumstances
 Special Needs Balancing
 There is no bright-line rule
 The court is merely balancing the state interest v. private interest
 School Searches
 Balancing b/t:
 Operating a school v. the privacy rights of students
 Students regularly loose out
 No warrant, just reasonableness
 This is a huge win for principals by saying this would interfere w/ the swift administration of
discipline
 We want to focus on the mission of the schools and we are willing subjugate privacy interests in
exchange for the state’s interest in running a good school
 School Search Reasonableness
 1) Must be reasonable at its inception
 Must be reasonable as soon as the search begins
 2) Scope of the search must be reasonably related to the initial justification
 There can be extreme situations when a more intrusive search might be allowed
 Other Places for Special Needs Doctrine
 Public Employees, Probationers (people out on probation)
 These people may be searched if the reasonableness elements are met
 There is no hard rule here; on the EXAM he is looking for a couple or a few sentences explaining the
balancing -- but there isn’t a whole lot of explicating the doctrine as there was w/ earlier issues
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D. Warrantless Search
1. Search Incident to Arrest & Vehicle Search
 Chimel v. California
 Facts: Officers had warrant for arrest of a guy suspected of stealing jewelry. They waited at his house for
him (and were let in by his wife) and when he got there they said they were going to take a look around (1
hour search — pretty in-depth)
 Held: Although the scope of the search went too far, we get a fairly dramatic doctrine
 Rule: Officers may conduct a search incident to the arrest as long as it involves the arrestee, items on their
possession, or areas w/in their immediate control
 Reasoning:
 It is reasonable to seize evidence at the time of arrest so we don’t lose evidence
 Safety is the more pressing thought: They are arresting him and there is a chance that he could have
something dangerous on his person, or something dangerous in his immediate vicinity
 Court seems to endorse more that a mere Terry search
 The scope is greater and allows for more intrusion than a pat-down (can reach into pockets)
 United States v. Robinson
 Facts: Officer pulled over vehicle, was arresting the driver and patted down the driver in a face-to-face
fashion. He felt something in the pocket and removed it and it was a crumpled cigarette pack (this exceeded
Terry - this wasn’t a mere pat-down and there was no immediate incriminating nature).
 Officer knew that Robinson had his license revoked and the court suggests that this was enough PC to
justify an arrest.
 Officer didn’t believe that Robinson had any evidence on him re: the arrested offense; the officer is
searching him for safety
 Why is this officer searching Robinson? B/c he thinks he can since he is arresting him (no articulable
reasons for the search)
 Rule: If an officer conducts an arrest, the officer gets a free search w/o any need to articulate suspicion re:
safety or evidence
 Notes:
 1) Gustafson: Case about a hard-pack of cigarettes [discussion about levels of increasing intrusion]
 This type of search is pretty intrusive: he is both going inside of the person’s pockets/compartments
and also opening the ‘thing’ taken . . . and they are going to take it!
 They are not merely impounding it, which would address the issue of it potentially being
dangerous
 They are intruding, even though there are less intrusive methods
 There is some serious additional intrusion that occurs after the officers have taken the object out of
your pants
 Search Incident to Arrest (SITA)
 1) Law enforcement gets to conduct (may) a search at the time of arrest.
 This means formal arrest: have to either say it or it must look like a formal arrest (probably includes
saying you are under arrest; handcuffing them and reading Miranda; or even just handcuffing and
putting you in the back of the cruiser)
 2) Contemporaneousness
 There is a little wiggle room here, so the search may be allowed slightly separate form the time of
arrest
 But we have to have a situation where we are pretty sure that the arrest will ultimately/definitely
happen
 There are circumstances where we don’t want to require the officer to follow legal protocol
 Hypos:
 If there is a dangerous murderer, then the 1st priority might be to disarm the suspect before
formally “arresting” them
 Imagine 1 officer and 8 suspects; Officer instructs them all to lay down and zip-ties them up. There
would be practical reasons for a 20 minute delay b/t searching the 1st and last suspect
 Also imagine a chaotic scene where the arrest might happen later
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
EXAM: Imagine a scenario where there would be a less reasonable 45 minute delay and there might be
an argument that the search went beyond the realm of reasonable contemporaneousness
 Also there might be a situation where the search happens before arrest, and it is unclear whether an
arrest will ultimately happen and it looks like an ex post justification
 But five minutes b/f or after are pretty easy to address fact situations
 3) Scope of SITA
 Acknowledge that SITA is pretty huge
 The Person: Clearly includes search of the person
 Immediate Control: Under Chimel scope definitely includes the area w/in your immediate control
 Hypo:
 If Police arrested Hall, what is in his immediate control, well there is a settled core of things we
know are in his immediate control — but there are less clear areas like the further back rows.
 Also if podium were a desk, then the officers could go inside the drawers
 They could probably do a cursory search on the browser
 Containers: Officers can open up containers (including drawers and wallets) and intrude further
 Officers can open (and perhaps even unlock) otherwise off-limits containers
 Immediately Adjoining Area:
 This is especially disconcerting
 Neighboring rooms, things in the further areas of the room (big house, well maybe there are limits;
but in a small house this might mean the entire house may be searched)
 The depth of the search will probably have limits (maybe not the desk drawers in the next room,
but perhaps a look into the next room’s closets)
 4) Logic of SITA
 Originally
 Safety
 Evidence
 Now
 There is no need for a particularized or articulated showing of the two original needs
 Bright-line Per Se Rule
 Arrest entitles law enforcement to a Search
 Note: a search incident to booking at the station is different from SITA
 These are the two permissible moments: at arrest and during booking
 B/t these two times are distinct moments; so the privilege to search disappears in the interim
(i.e., contemporaneous)
 5) Vehicle Issues
 Citation Stop
 LEO may order:
 Driver
 Passengers
 To exit the vehicle
 This is a seizure, not a search — But it is more intrusive than letting someone stay in the car
 Refusal:
 It may be illegal itself to refuse an order from an officer, or coupled with other facts this may
be suspicious enough to justify an arrest
 Knowles v. Iowa
 Facts: Knowles was stopped for speeding and the officer issues a citation in lieu of arresting Knowles. He
then performed search
 Issue: Does SITA apply if all we have is a citation and an arrest could have been done?
 Held: No, the officer must arrest and the fact that there was the hypothetical ability to arrest doesn’t make
the search permissible
 Officer must actually arrest
 Note:
 Would you rather have the officer cite you and search your car, or arrest you and search your car?
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 Well citation and search would be more efficient, but the Supreme Court has said no
Remember Consent is different
Also, if the officer has an independent reason for looking into your car they may (i.e., PC of evidence
in your car, or plain view of something incriminating)
Pennsylvania v. Mimms
 Facts: Mimms stopped for driving w/ expired license plate. Asks Mimms to get out of the car. Officer sees
a bulge and then we are thrown into Terry.
 Issue: Is the officer allowed to ask the driver and the passenger to get out of the car?
 Held: Yes, the officers may order the suspect or passengers to get out of the car for the duration of the stop
United States v. Chadwick [?]
 Facts: Talcum powder in a R.R. locker is visible, when the passengers arrived the officers arrest them, take
the footlocker back to the station house and open it much later
 Had the officers busted it open at the scene then the officers would have been w/in their privilege
 Reasoning:
 Court isn’t troubled by fact that officers removed the footlocker from the vehicle to impound it
 Police get to: Search Machado & Leary, they get to take the box, they could have opened it there — but
they can’t open it later when they are back at the station [contemporaneousness issue?]
New York v. Belton
 Facts: Officer pulls guys over for speeding and discovers none of the men owned the car. The officer
smelled marijuana (and probably this + speeding gave PC) and then sees a supergold (marijuana related)
packet on the floor.
 Officer pulls suspects out and detains them. He then enters the car and searches it. He opens a pocket
on a jacket in the backseat and finds cocaine.
 There is a significant connection b/t the thought that drugs were being used (smell and rolling papers) and
there was connection to the search for evidence of drugs
More Vehicle Issues
 A search incident to arrest scope with regard to vehicle
 Includes Passenger Compartment of vehicle, and
 Containers (so glove box, jacket pockets)
 Contemporaneous
 As long as arrest occurs contemporaneously with driver’s presence in vehicle
 Also opening of any containers needs to occur contemporaneously with arrest
Thornton v. United States
 Facts: Officer is suspicious & just about to pull suspect over, then Thornton jumped out of the car and then
the officer showed up and then Thornton admitted to having drugs on him, officer arrested him and then
searched his car immediately thereafter and finds a handgun.
 There was not a likelihood of evidence related to car theft (the presumed reason for pulling him over) likely
to be found in the car
 And he was out of the car
Arizona v. Gant
 Facts: Gant is arrested for driving w/o a license. He gets searched and is put in the back of the cruiser. He is
completely secured, and the entire scene is secured. Then officers go search his vehicle and find drugs and
a gun in a jacket in the backseat
 Reasoning:
 It appeared that everything that he was being arrested for was set and done when they arrested him,
there was no good reason to allow the search
 Gant’s Rule / More Vehicle Issues (add to the slide above re: SITA and contemporaneousness):
 If police want to do a [Vehicle?] SITA, they don’t get to do that in a per se manner anymore
 No per se search of a vehicle, contrasted w/ per se search of arrestee/area
 Standards: Only allowed if reasonable belief that
 1) Suspect(s) in close proximity to vehicle
 Access/reaching difference
 Hypo: In some circumstances where the person is still right next to the car and there isn’t a
fleet of officers, then a search my be permissible as within your immediate control
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 Maybe not literally, but it could be if you break free
 Ramifications:
 This is telling officers do your arrest right by your car / the trunk (where it is more
dangerous) so that you can do your search
 This rule creates some perverse incentives for officers in the field
 If officers have an arrest warrant for you and they want to search your car, they should
arrest you when you are in your car and then they get a free-ride to search it
 2) Also allowed if there is evidence of the arresting offense in the vehicle
 Effect on Earlier Cases
 Effect on Belton: Doesn’t overrule it because they were arrested for marijuana and there is a
reasonable belief that there is evidence in the vehicle
 Effect on Thornton: Well Thornton consented to the search for the drugs, so what?
 SCOTUS says they are not overruling Thornton, but Hall thinks it sort-of did
 Practical Effect:
 9/10 times, the officer will have reasonable grounds to think there is additional evidence of
criminal activity
 Does it Matter [does Gant limitation really matter?]:
 Inventory Search
 Inventory Searches are Constitutional
 They may search your person (called a booking search)
 They can make you strip and they can inspect you while you are naked
 Your Vehicle (if they bring it in)
 Containers in the Vehicle
 If this is the routine procedure then officers get to do this, but if they do it just for you they not allowed
 So maybe all these searches in the field aren’t that big a deal since they get to do all this when they
inventory anyway
 In small towns this is too big of a headache and they may not want to do it as a routine procedure every
time they bring someone in
 Could be a burden to have to inventory every car that comes in, and to have to search each
container in the cars
 Likely to be the poorer departments that don’t want to spend the money on these routines
 If it is going to happen anyway then does it matter? To the lay person, no. To the lawyer, yes (still has to
meet the standards).
2. No Reasonable Expectation of Privacy
 Arizona v. Hicks
 Facts: Gun in upper apartment discharged and injured lower level occupant. Officer entered Hicks’s apt. in
search for a shooter/injured-person. They had PC to enter the apartment w/o a warrant b/c of exigent
circumstances. While there officer sees out-of-place high-tech stereo equipment. Officer moves some of it
and copies down the serial numbers, calls them in, & learns the equipment was stolen.
 “Plain View Generally”
 When an officer is in a lawful vantage point, he isn’t conducting a search if he just looks around
 Objects in plain view have no reasonable expectation of privacy (the owner has no expectation). Once
officers are in the apartment legitimately they can look at anything that is visible
 What is the “plain view” vantage point?
 Things visible from a lawful vantage point
 I.e., if one apartment could see into another apartment, they could observe things from that
lawful vantage point
 This might also be constitutional if aided by a little bit of technology (so long as w/in
bounds of Kyllo)
 But can’t look inside of compartments or move things to make them visible
 Additional intrusion (even a small amount) is not allowed
 A mere physical inspection = additional intrusion
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 Similar to line-drawn in Terry-frisks: can’t go beyond a pat-down unless there is danger or
immediate incriminating nature
 Note, there could also be some exigent circumstances when lifting and looking around
things could be an aspect of the vantage point
 Reasoning:
 Dispositive fact appears to be that the equipment was moved in order to find the serial number
 Perhaps if officer had used a mirror and a flashlight this might be okay
 Exigent circumstances allowed officer to enter the apartment and that gave him lawful vantage
 Arguably when the officer moved the turn-table, he seized it
 Washington v. Chrisman
 Plain View Doctrine (as different from “plain view generally”
 Plain View Doctrine is a doctrine that allows the officer to immediately seize an object w/o a
warrant and w/o exigent circumstances
 This probably seldom happens
 “Plain View Generally” just allows officers to observe evidence that may lead to PC for search and
seizure or allow the officer to get a warrant or make an exigency argument
 This probably happens frequently
 Plain View Doctrine Elements: Seizure of Object w/o Warrant
 1) Must be observed form a lawful vantage point
 2) Officer must have a right to physical access: a right to move from the vantage point to the
physical object
 Hypo: Next door neighbor who can see into your apartment — the officers have no automatic
right of physical access into your apartment from that vantage point
 They might could make an exigency argument
 3) If they see an object that is immediately apparent to be incriminating or subject to seizure, then
they can seize it
 Objects Immediately Subject to Seizure: Contraband, fruits or instrumentalities of crime, drugs,
bombs, or other direct evidence of crime (i.e., blood maybe? Maybe more needed)
 Basically the officer has to have PC as soon as they look at the object
 Facts: Student had a bottle of gin and looked underage. Kid said I can show you ID if we go to my room.
Officer goes w/ him to his room. Officer waits in the doorway for 30-45 seconds (showing restraint b/c no
appearance of escape or danger) while kid gets ID, but then sees drugs on table and a nervous acting
roommate. Officer goes in and then seizes drugs & paraphernalia, then searches further and finds LSD.
 Elements
 Observed From Lawful Vantage Point: Overdahl left the door open and the officer can just see in from
the hallway
 Right to Access: (1) it is reasonable for the officer to stay close to the kid, and (2) there is an argument
of consent by the kid in saying let me go get my ID — although court didn’t acknowledge this
 Court hung its hat on the issue of “officers have a right to stay w/ the suspect”
 Officer is thus allowed to walk the 8-10 steps into the room to seize it
 Nature of Object as Subject to Seizure Immediately Apparent
 The seeds alone might not be enough to get him there, but there is a small pipe also associated w/
the seeds
 Held: This was a permissible plain-view doctrine search and seizure
 Hypo:
 What if officer had merely seen the objects but didn’t have access (“plain view generally”)
 Probably Could Arrest Suspects and SITA (search incident to arrest)
 Could go get a warrant (but likely to be destroyed)
 Exigent Circumstances argument could be made that evidence would be destroyed
 Perform this analysis on the EXAM. There are likely to be one or more avenues that get shut-down
 I.e., if they were both passed out then the exigency situation might be unavailable
 But officer could still arrest you if you were passed out (obvious) and then you would need to
argue that the arrest was the best way to get to the evidence
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 Expansion of Plain View Doctrine
 Everything about “plain view generally” and the plain view doctrine can be expanded to
 View
 Hearing (gunshots)
 Smell (drug dogs too)
 Touch (immediately incriminating)
 United States v. Jacobsen
 Facts: FedEx package was damaged and workers (pursuant to shipping agreement) looked inside the
package, saw white powder, and then called the DEA. DEA shows up and doesn’t immediately see the
white powder but sees layers upon layer of white bags (this is probably reasonable suspicion at least b/f any
chemical testing is done—i.e., things meant to mask the smell of drugs). DEA then removes some white
powder with a pocket knife (additional intrusion and seizure of powder) and then he tests the chemicals
(destruction of property)
 Rule:
 Not really a particular doctrine, but an interesting thought that belongs in your outline
 Elements
 Lawful Vantage Point?
 Third-Party/FedEx employees had already invaded the privacy of the object
 Right of Access?
 Court seems to be saying that this is just reasonable
 Immediately Apparent As Contraband
 Court seems to be saying that a trace seizure for reliable field testing is allowed
 Reasoning
 SCOTUS doesn’t seem disturbed that officer conducts additional intrusions and searches and
destruction of property
 We are led to believe that this is a highly accurate field test requiring a small sample (like a
breathalyzer test)
 Don’t try to cram this case into the plain-view doctrine structure
 Note:
 There is tension that the officer is not allowed to move the turn-table, but the officer is allowed to
intrude, seize, and destroy part of the trace chemical for a drug test
 EXAM: if you get something that looks like moving a turn-table; then you can’t do it. If you get
something that looks like a drug test then you get to do it.
 Open Fields Doctrine — Oliver v. United States
 Facts: Police get tip about marijuana being grown. Go to Oliver’s farm and go past a “No Trespassing” sign
by several hundred yards and then there is a shout to go away that they also ignore. They find marijuana
field.
 Reasoning
 This wasn’t exactly open (deep in the embankment) and not really a field (sort of in the mountains)
 Thus when the Court says open fields it is a term of art
 Rule
 Open Field = No reasonable expectation of privacy (nothing to do with the words “open” or “fields”)
 If something is not in your house or in the zone right around your house (curtilage) then it is
open field
 Open Field = Area not w/in curtilage
 Curtilage: Area near the house/building in which expectation of privacy exists
 No Trespassing Signs: As far as the 4th Amend is concerned, officer may ignore no trespassing signs;
have no effect on analysis
 Possibility of a tortious trespass (may violate state law or police dept. procedure) but no impact on
the 4th analysis
 Curtilage
 Area immediately surrounding home and associated with the home
 Area of intimate activity associated with the home
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




How Big is the Curtilage:
 For some houses there may be no curtilage (i.e., a house with no shrubs and w/ high windows)
 Rural folks may have much more curtilage
 Curtilage Test - Dunn Factors
 Proximity to the House: how close is this area to the house
 Does this area fall w/in an enclosure that is part of the house or surrounding the house
 I.e., you have an outdoor garden surrounded by walls and that is connected by a door to your
bedroom — or an outdoor shower attached to your house.
 Nature of Use of the Area
 Outdoor shower vs. 20 foot perimeter wall have different qualities of intimacy
 Steps Take to Protect the Area from Observation
 What type of signs; how high are the walls; are the walls solid or transparent; is there a roof?
United States v. Dunn
 What do they go through
 They go through a perimeter fence, through several internal fences, over a barb-wire fence — half a
mile from the road!
 Don’t breach the fence around the house, but they do go over another fence in approaching the barn
that then has a gate and netting.
 Reasoning
 Although there are a bunch of factors helping the suspect, we are still not within the curtilage because
they are not (1) right next to the house and (2) not within an enclosure surrounding the house
 The curtilage is a very, very small area immediately around the house.
SKIP B/T CLASS MEETINGS
Dunn Factors
 Curtilage
 Proximity to House
 W/in an enclosure surround house
 Nature of Use of the Area
 Steps taken to protect the area from observation
 Fact Sensitive Inquiry: two houses might not have the same treatment
 Police Need [to get in the curtilage?]
 A warrant
 Warrant exceptions: consent, exigency
 Plain view
 What else:
 Police Can Also get Around this Curtilage Issues with
 REMEMBER THIS MOMENT
 Aerial Surveillance
 Police could see into skylights
 This is where aerial surveillance is interesting
 Aerial surveillance isn’t interesting if they are just looking at an open field (they can
already get that)
 EXAM: do not analyze aerial surveillance on the exam by saying the used it to look into an
open field, look at things like looking into skylights and into peoples curtilage
 Also remember that we are only concerned w/ 4th Amend issues
 This is still okay in conjunction w/ open fields -- but it just doesn’t change anything or
give us new doctrine
Aerial Surveillance - California v. Ciraolo
 Facts: This area was well fenced by opaque materials. They are using an airplane b/c they cannot see it and
b/c this is an area that is otherwise within the curtilage.
 Reasoning:
 If you are flying in lawful airspace or on a double decker bus, then you could see it — so from these
lawful vantage points it is sort of plain view
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 Aerial Surveillance Rule
 Aerial Surveillance doesn’t abridge reasonable expectation of privacy if
 Undertake from navigable airspace, and
 Conducted in a physically non-intrusive manner
 This is mostly a gimme b/c typically there won’t be much intrusion
 Maybe this means if the police use a tiny remote controlled aerial device to fly in the house
 EVEN IF OBSERVATION OF ACTIVITY W/IN THE CURTILAGE!
 This is what makes aerial observation special/interesting
 Also may observe activity in the home through a skylight
 Limits: Court seemed to be using a reasonableness analysis to reach this result
 Thus there might be some limit on observation of intimate activity (i.e., evidence for statutory
rape collected by photographing intimate activity — this might be something that would push
the court into thinking this was more intrusive)
 Sex in front of bay window = gross. Sex in the curtilage inside walls = go for it baby.
 There is no per se aerial surveillance rule; it just has been held reasonable
 Note: If we get into satellite imagery / high resolution photography then we run into a Kyllo problem of
whether this tech is too high-tech than we allow
 Abandoned Property - California v. Greenwood
 Abandoned Property Rule:
 You have no reasonable expectation of privacy in Garbage / Abandoned property
 Abandonment can happen as quickly as 5 minutes (merely the act of putting it down there)
 You want to get rid of it! You expect someone else to take possession of it!
 Anything in your garbage is fair game: fingerprints, DNA,
 Curtilage & Abandonment:
 If you take your trash down to the Curb then that is you taking it out of the curtilage
 If the trash can hasn’t been taken to the street yet, then it is arguably still w/in the curtilage
 It wouldn’t matter that it was abandoned property, but that it was police going into the curtilage
 Police could argue that there are exigent circumstances
 Exam: If there is garbage on the exam, then think about this doctrine
 Why is there Controversy
 People put things in the trash that they are embarrassed for others to see (personal items, condoms,
medicine bottles)
 It is somewhat offensive that people might be looking at your personal, embarrassing stuff
3. Consent & Vehicles
 Consent — Bumper v. North Carolina
 Keep in mind that this was during segregated south
 Facts: Mother allowed police into the house when the claimed they had a warrant. After the fact she said
she would not have let them in. Police didn’t actually have the warrant and they came in and searched
 Consent Rules
 If the police say they have a warrant (whether they do or do not) then nothing said afterwards by the
person matters for consent
 If they don’t have a warrant they need to just ask
 Even if they do have a warrant, they should probably just ask for consent (there are good police
reasons)
 Might get to go beyond the extent of the warrant if you ask to search the room and they say yes
 When people give consent and police get in the house, then people proceed typically to
give more and more consent as it is asked for
 Officers are not required, if they have a warrant, to execute it if they get consent
 Consent
 No warrant necessary
 No particular level of suspicion needed
 Burden of Proof is on the Law Enforcement to prove they had consent
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
Consent must be free and voluntarily given
 Can’t be a mere acquiescence to authority (i.e. freezing as if scared may not be acquiescence,
but raising your arms and not suggesting you are protesting could be a non-verbal yes)
 Initial claim of warrant by Law Enforcement Officer
 Generally vitiates any “consent” that is given
 Absence of Duress or Coercion
 Voluntariness of Consent — Ohio v. Robinette
 Were the officers required to tell the suspect they are free to refuse consent? No (not federal rule anyway)
 Voluntariness of Consent
 Totality of the Circumstances Analysis for determining if voluntarily given
 Requirement of Knowledge of Option?
 Federal
 No requirement that officers make known to suspect that they are (1) free to leave, or (2) free
to refuse.
 But remember, if people feel like they are being detained then they may be seized
 States
 Some states impose such a requirement on their own
 Factors Undermining Voluntariness (not determinative but weigh into the analysis)
 Show of Force by the Officers
 Officers waving guns, or officers who beat down a suspect and then ask the other for consent
 Number of Officers
 Repetitive Requests - This suggests to most reasonable people that the police are not going to stop until
you consent
 1-2 = okay; 5-6 = probably not
 Overbearing / Intimidating
 This language is a little conclusory because if we term it intimidating then we have already reached
the conclusion that it isn’t voluntarily given
 What we really get is evidence of things that might be argued as this
 Keep in mind that there is a general presumption that government acts/conduct are valid
 Government can’t function w/o this presumption
 Expansiveness of a Consent-Search
 Consider Expansiveness As:
 Scope of search, time duration of search, intrusiveness of search
 SCOTUS says we will look at it under reasonableness view
 Measured based upon the manner of consent actually given
 “Look only in the bedroom”
 “Look around” (i.e., “look but don’t touch”)
 “Look only for 30 minutes”
 This is pretty practical analysis based on what people will say in response to a request for consent
 Third Party Consent - Georgia v. Randolph
 Facts: Wife gives consent but husband does not when they wish to search the house
 Held: When one party gives consent, but the other does not then and refuses it, then the police cannot
search
 Hypo:
 Mr. Randolph isn’t there — wife can give consent
 Grandmother is home babysitting — can they search w/ consent?
 Maybe: it will depend on what type of authority grandmother has
 Police must ask her some questions (only enough to carry the burden of proof)
 Consent by Non-Suspect
 Anyone w/ common authority can give consent (i.e., Mrs. Randolph has common authority
 Burden of proof is on law enforcement
 Consenting person must have authority
 Or law enforcement must reasonably believe the consent person has authority (apparent authority)
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



 Police don’t want to ask too many questions, just enough to satisfy the test
 Issues / Scope of Authority
 Spouses v. House-Mates
 Spouses: How much does Mrs. Randolph have? Full authority (marital property)
 House-Mates: Depends on the “openness” so if the doors to all the rooms are open then perhaps
one house-mate could give consent for searching w/in the room
 i.e., the house-mate has the ability to walk into the other rooms
 EXAM: This is just more factually complicated so be aware of it
 Two People Present
 One Consents, One Refuses
 Refusal Wins
 Problems:
 Movement of prospective refusing party invalidates consent
 So they couldn’t put Mr. or Mrs. Randolph away in another room and then ask for consent
 What can they do?
 They can sequence events of the investigation
 They could wait until Mr. Randolph left and then ask Mrs. Randolph (assuming probably
that the police have a reason to be talking to the person in Mrs. Randolph’s position)
 Other Cases
 Matlock
 Rodriguez: They are under no obligation to wake-up Rodriguez
 So the police are not required to wait for Mr. Randolph to arrive home
 Refusal
 So consent can be revoked
 Police Deception
 Generally the court allows police to engage in deception
 But there is a line that can be crossed where too much intimidation might exist or the person might
feel intimidated
 Hypo:
 Police show up, roommate is home but suspect is not
 Suspect comes home but before he can tell the police to get out they say “oh hey your roommate
gave us consent so we are just going to keep searching”
 This is probably acceptable (to make suspect think he can’t revoke the consent given by roommate)
SKIP B/T CLASS MEETINGS
Chambers v. Maroney
 Facts: Teen spotted vehicle after robbery at a service station and the witness gave a pretty detailed
description of the car, the number of occupants, and two of the occupants inside (this together gives us PC).
Officers pulled them over and searched the car
 Can the officers search the car despite today’s material?
 SITA - They can search the car incident to the arrest if there is likely to be evidence of the crime here
 But we have this case b/c SITA re: cars had not yet developed
Warrantless Vehicle Searches
 Warrantless searches of cars are permissible if the officers have PC there is evidence of crime w/in the car
 Initial Rationale: The car is mobile (but not required to articulate this)
 Modern Rationale: There is less of an expectation of privacy
 Applies even to RVs/Campers/etc. — but maybe not a stationary double-wide trailer on blocks
 Note: Warrant Exceptions Generally
 We have a warrant preference under the 4th Amend; it is generally applicable to homes & persons, w/
certain exceptions; this rule tells us there is no warrant preference for cars (but officers may still get a
warrant if they have some doubt that they have PC)
California v. Carney
 Facts: Police received information that man in mobile home was trading drugs for sex (they had PC). They
approached the mobile home and entered w/o a warrant
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 Issue: D is arguing that this isn’t mobile enough to fall under the warrantless vehicle exception
 Reasoning
 There was no objective expectation of property b/c vehicles have windows, are subject to vehicular
inspection, are used in public placed
 Your car is protected in that the police have to have PC but no warrant; while your house is protected
b/c police have to have PC and a warrant — basically you have less expectation of privacy.
 United States v. Ross
 Facts: Here we have officers opening containers (consider this locked & unlocked) in the vehicular search.
Opens the glove-box, the trunk, a red leather pouch, a paper bag
 Issue: Why is the officer allowed to open all these containers in the car
 Reasoning:
 When you have a warrant to search a house, it includes the ability to search in closets and drawers so
long as the particularity can be construed to include this
 Otherwise (if precise particularity were required) then it would significantly affect the ability of
law enforcement officers to find anything
 The officers basically get to search everything that they have reason to believe will allow them to find
evidence
 Container Doctrine
 Search of a vehicle w/ PC allows you to search containers found therein. Scope:
 Has to be the same level of particularity that a warrant would allow
 For those things constituting evidence of the underlying crime
 Includes locked compartments and locked containers
 Also includes passengers’ belongings. See Wyoming v. Houghton
 Contrasted with . . .
 SITA: Only allows you to search the area in the immediate control (which means SITA is less
invasive)
 Under SITA probably can’t search a locked trunk, or locked bags in the trunk
 Inventory Search: Allows the probing search of all containers in the car
 Is not a PC based concept; is an administrative concept whereby the officers are cataloging the
contents of the car
 They are allowed to catalog anything they routinely catalog as a matter of procedure
 EXAM - We have multiple interlocking situations when an officer can search a vehicle, so on an
exam we may see some but not all of these and need to identify which procedure the police need to
apply in order to conduct a search
 If there are multiple (say 3 for example) pieces of evidence, this might mean that for each piece
they can only get it using the different methods authorizing searches of the vehicle
 Notes:
 Property rights don’t necessarily interfere w/ 4th Amend rights, so the fact that in Carroll that the
officers cut open the seat upholstery and damaged property doesn’t necessarily undermine their PC to
search
 There could be a “shocks the conscience” argument that the officers conduct in searching was too
extreme (but this is unlikely just like all “shocks the conscience” arguments)
 Wyoming v. Houghton
 Scope of Container Search
 The scope of a container search for a vehicle includes they may also search passengers’ belongings
 They can say, “get out of the car and leave your purses and jackets inside the car”
 California v. Acevedo
 Hypo:
 If an officer stops someone on the sidewalk, what do they have to do?
 They have to arrest them in order to search them (short of an exigency argument)
 PC does not equal sidewalk search
 PC does equal arrest, and then search incident to arrest
 But this won’t work all the time b/c we don’t necessarily know they aren’t innocent couriers
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 If officer waits until the individual gets into the car, then they can search prior to arrest
 This case teaches police officers to sequence their investigation so that the suspect is seized with PC of
evidence in the car, then you get to search the whole car.
 There is a greater scope if you search the guy while in car than on sidewalk
 There is also a greater likelihood that additionally incriminating evidence is stored in the car
 Problem:
 Common concern is that the officers can now manipulate the rule by strategically sequencing their
investigation
 Police can select the search that best fits the type of PC they have
 You now have less privacy in your car than on the sidewalk
 There is less expectation of privacy in your car than on your body (we aren’t so offended by police
touching our cars)
 Dombrowski
 Warrantless Search of a vehicle w/o probable is allowed when:
 They have an impound policy that whenever they impound the vehicle they conduct an inventory
search of the contents
 The inventory search is permissible if this is a standard/routine procedure for that law enforcement
vehicle
 So if there was a vehicle abandoned for 48 hours and their policy says bring it in and inventory
then they can inventory
 Also there may be situations where they don’t have enough PC to search the car even though someone
has been arrested (maybe they just caught him in it or they had to go pick it up), but if they can manage
to bring the car in and impound it, then they can search it even though they have no level of cause or
suspicion
 But remember, isn’t an automatic search; has to be part of the routine procedure
 EXAM
 SITA -- Definitely on the final
 Container Doctrine -- Definitely on the final
 Inventory search . . . maybe on the final
 Despite the fact that many people would commonly think of their car as more private, that is not really
true—you seem to have less privacy in your car
E. Exigent Circumstances Doctrine
 Warden v. Hayden
 Facts: This case looks screwy b/c there appears to be consent, even though she just offered no objection.
The police would bear the burden of showing that consent was given and that may have been to difficult to
prove. They find him pretending to sleep upstairs. This was a guy who was an “armed suspect” fleeing
from police
 Advice to Police: ASK for permission b/f turning to exigent circumstances; get something more
affirmative than “no objection”
 Exigent Circumstances Warrant Exception
 Generally
 This is a warrant exception
 The burden is on the Law Enforcement to show that there were exigent circumstances
 Since you have to prove both consent and exigency, then sequence and ask first so that if you have
to you get a chance to prove both items later at trial
 Factors/Elements
 Gravity of Underlying Offense
 Hayden Ex: Armed Robbery
 Other Ex: Osama Bin Laden engaged in serious offenses, even though he isn’t exactly dangerous
(i.e., he can’t beat you up)
 Hot Pursuit
 Hayden Ex: They were pursuing him
 Public Safety
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 Hayden Ex: He went into a citizens home (dangerous for public)
Preservation of Evidence
 Classic Ex: Drug investigation and worried about the drugs being flushed/destroyed
 EXAM:
 These factors are not necessarily exhaustive
 Also a strong showing in one may make up for a lack of the others
 Scope
 Search to Find the Suspect
 In a lot of these situations this may be all the officers can look for
 So they are allowed to search in places where a human being may be (not drawers, but closets)
 Search for Weapons
 Police get to search for the gun if they know he went in with one, but it isn’t clear that this is
backed-up by an exigency argument
 Search for Evidence - If the exigency is destruction of evidence then they can look for it in places
where it might reasonably be
 Plain View Doctrine via Exigency
 Police follow a suspect into a house based on exigency and then they stumble across another crime by
dumb luck
 They can use the plain view doctrine by way of the exigency doctrine to get all this evidence
 Duration
 They are allowed to stay until the suspect and/or the evidence is located
 They can stay there a pretty long time (they may find a trap-door, or a tunnel)
 They get to stay until the exigency is gone
 So until the ‘hot pursuit’ turn into the ‘trail has gone cold’
 Expanding the Exigent Circumstances Doctrine
 Exigent circumstances is basically fact-intensive, ad hoc reasonableness analysis
 We are really worried about a criminal threat to public safety
 Public Safety
 Including reasonable basis for believing occupant is seriously injured or imminently threated with such
injury
 Things like fires; everyone just left a restaurant that made everyone sick
 We aren’t letting the officers in to search for crime
 It is for the benefit of the occupants, not because they have cause or suspicion
 They are coming to “serve the public”
 Once they are in there they are allowed to use the plain view doctrine
 There is a presumption that we want the police to come to the rescue (even though some of us may not)
 Community Caretaking Function
 Divorced from investigation of crime
 Exception to
 Warrant Requirement
 Probable Cause Requirement
 Plain View Doctrine applies
 Examples
 What if police have found a lost dog with a tag that has your address on it; under this doctrine can
the police come and check the door leaving the dog inside? [Maybe]
 Change it to lost child, even better: officer sticks head in and yells “hello?”
 What about pre-textual Community Caretaking Function? [Who knows, but pretext has been allowed
other places]
 United States v. Rohrig
 Facts: There was loud music being played disturbing the peace. The police are helping the neighbors by
keeping the peace.
 Reasoning:

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
There is an issue of safety of the occupants (so this is easier to perceive if we imagine smoke coming
from the house).
 We don’t know what is wrong with the guy who want come to the front door (maybe he needs help)
 Note:
 Brigham City v. Stuart (2006) [? Review case book?]
 CLASS MEETING SEPARATOR (exam review & practice problems)
III. Right to Counsel / Identification Procedures
 Transition in Content / Review
 Early Stages of Investigation (early semester)
 Mostly 4th Amend
 The goal is:
 Finding a suspect
 Finding Evidence
 Later Stages (where we are now)
 More 5th & 6th Amend Rights & Due Process Concerns
 Continue investigating
 Questioning
 Identification of the suspect by witnesses
 6th Amend - Right to Counsel Introduction
 Mainly a trial right (but trial matters is mostly Crim. Pro 2 . . . we are thinking about pretrial rights
mostly)
 Basic Right
 There is a limit on the ability to interrogate the accused regarding charged offenses w/o the accused’s
counsel being present or without the accused’s permission
 Issues
 When does the 6th Amend right to counsel (RTC) attach?
 There is no 6th Amend claim, until the 6th Amend right attaches . . . ?
 What law enforcement conduct does 6th prevent?
 When does the 6th Amend RTC Attach (i.e., at what stage in the process can a 6th amend claim be made)?
 Commencement of the Prosecution (Kirby)
 This means the first adversarial judicial proceeding, or at the beginning of the judicial proceedings
 For example, the first moment that the suspect is brought into court for an arraignment or some sort
of court appearance
 I.e., when the suspect becomes the accused
 Remember, 6A RTC applies mainly to the trial right of counsel
 Proceeding before a judge
 Even if preliminary
 But not ex parte / non-adversarial proceedings like getting a warrant
 But not Grand Jury proceedings — this isn’t adversarial (only person in there is the prosecutor and
the witnesses)
 Technically the Grand Jury is in charge
 You have no right as a suspect to bring a lawyer into the grand jury room
 Irony:
 6A RTC attaches any time b/f a judge (even if nothing is really happening) and from that
moment forward the right attaches
 However, before the judicial appearance the right never attaches even if things like the grand
jury thing really would matter for the Defendant
 What if we have a line-up, or a show-up w/o counsel b/f proceedings commence?
 Then there is no 6th RTC b/c the adversarial process hasn’t begun
 Doesn’t matter how bad the conduct is b/c the RTC hasn’t yet attached
 EXAM:
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
Likely to see a series/variety of witness ID procedures and the goal is to identify that some of those
procedures will allow for an RTC claim (b/c they are after commencement of adversarial process) but if
[before] then no RTC (but there might some other claim)
 Line-Ups
 What are the? A live witness identification procedure
 Issue? There is no 6A RTC issue w/ line-ups that happen b/f the RTC attaches (circular but important)!
 Rule
 If there is a line-up
 The only time you can raise a 6th RTC claim w/ something to do with a line-up is after an adversarial
judicial proceeding when the RTC has attached
 May law enforcement conduct a line-up after the 6th RTC has attached:
 A corporeal identification procedure
 A witness identification of live suspects
 Generally NO, unless counsel is present
 So what this means is that you shouldn’t attend or waive your attendance for a line-up once RTC
attaches b/c this means police can’t conduct one!
 Reasoning? See Wade rationale
 United States v. Wade
 Facts: There was a bank robbery and the suspect had tape on his face and police had him repeat a
statement said during the robbery. Just prior to the line-up, the witnesses saw the ‘suspect’ standing
with the police and saw the other line-ups in a separate group — this was the functional equivalent to
the suspect being in an orange jumpsuit.
 Note: If the police say that “the suspect is in the line-up” then it is suggestive b/c it pressures the
witness to pick someone even if wrong.
 There is also a thought that people once they make a choice at the line-up, they will stick with it
indefinitely (most likely)
 Rule: Simply, we don’t have line-ups after the 6A RTC has attached unless counsel is present
 Reasoning:
 None of this ultimately really matters b/c we have a pretty black-and-white rule for 6A RTC &
line-ups
 Critical Stage of the Proceedings: This is sort-of a superfluous criterion—doesn’t really tell us
anything (sort of circular)
 Confrontation of Witnesses: Well there is no testimony being given and the confrontation
really doesn’t exist b/c they are sort-of just looking at each other (this is also sort of circular)
 Potential Contamination of Identification at Trial: This thought seems to be a poor justification
b/c this is just as likely to happen with a photo-array
 Photographic Identification
 We only care about this (i.e., only an issue) after the 6th Amend RTC has attached
 But they are allowed!
 What does Photographic ID Procedure mean?
 Non corporeal ID w/o counsel
 United States v. Ash
 Rule: Photo Arrays are permissible after the RTC attaches, so after it attaches don’t do a line-up do a
photo array
 So this is no violation of the right to counsel
 Even though there is no confrontation
 This appears to not be a critical stage of the process
 What about photo ID before 6A RTC attaches? It doesn’t matter b/c we are never concerned with
it
 So the only time that you get a 6th Amend RTC claim in these cases:
 If there is a live proceeding after 6th Amend RTC has attached due to being after an adversarial judicial
proceeding
 Problem: A bad photo array can be suggestive based on how it is present or how it is arranged
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 This is unfair to the Defendant b/c they were selected in part b/c
 Due Process Challenge to Witness ID
 Useful b/c the 6th Amend RTC leaves you unprotected most of the time (see box on page 443)
 Overview
 Even if the 6th Amend RTC doesn’t apply
 Can raise a due process challenge to the identification procedure
 Stovall v. Denno
 Facts: Husband and wife were stabbed. Husband dead, wife recovering. Police come into hospital w/
black guy handcuffed to them and ask, “is this the guy?” He is the only black guy in the room
 Reasoning:
 This is very suggestive to the witness that the police have caught someone they like for the crime
 This likely does contaminate her testimony later at trial
 The only argument the police had was that this was “necessary”
 Today it is not possible to say “we couldn’t create a photo array” (computers do it easily)
 But at this time it might have taken them too long to make a photo array
 They also have to argue that it would be too time consuming or too stressful to do a full line-up
 Today it is much harder for police to argue they wouldn’t have time to do a photo array
 General ID Due Process Rule:
 Generally — In order to exclude the identification (on due process grounds)
 1) Show/Prove in procedure
 (a) it was unnecessary, and
 (b) it was suggestive
 Example:
 Gilbert v. California
 Were many witnesses in the same room together & they were there as
witnesses of diff. crimes
 Kirby v. Illinois
 Victim/Witness is brought in & the 2 suspects were already sitting in the police
dept. (appearing guilty)
 2) Show/Prove there was an Unreliable Identification because of it
 So if the court thinks that the ID still would have been good then it will stand
 See also Multi-Factor Test Below
 Overall this is a totality of the circumstances test.
 Manson v. Brathwaite
 Facts: The witness is an undercover cop (good b/c he is trained to recognize suspects). Glover goes to
do an undercover drug-buy, and he is there to view Manson. But the suggestive part is the undercover
cop leaves a photo on the cop’s desk and says “hey, is this they guy?”
 Multi-Factor Test for Reliability
 (a) Witness’s opportunity to view suspect at/during commission of the offense
 Glover was in good lighting, nearby the suspect, and observed him for several minutes
 (b) Witness’s degree of attention at/during offense
 This wasn’t surprise observation of crime; he knew he was there reconnoitering crime
 (c) Accuracy (think level of detail) of pre-identification description of the suspect
 Glover gave a relatively detailed description of the suspect right after he witnesses the events
 (d) Level of witness certainty at identification
 Although the Court says this matters, modern psychology tells us this really shouldn’t matter
so much
 (e) Time between offense and the identification
 Our thought is that memory may fade over time
 Held: Despite the fact that this was unnecessarily suggestive, there was still likely to be a good
identification
 Overview
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

You only have a 6th Amend RTC claim in limited circumstances (i.e., live line-up + after adversarial
judicial proceeding)
On the other hand, you always have a Due Process claim, but they are hard to win
IV. Incriminating Statements:
A. Due Process & Right to Counsel Approaches
 Confession vs. Incriminating Statements
 Essentially/Legally the same but factually different
 Sometimes we don’t have a full confession, but the statement is still incriminating
 What is the Concern re: Incriminating Statements
 Our concern is the significant possibility for law enforcement misconduct in obtaining the incriminating
statement
 Is incriminating oneself such a bad thing? Well it’s bad against one’s legal interests . . .
 Police Misconception:
 Huge amounts of crimes are solved b/c people surprisingly confess (not through police forensics)
 Remember, criminals are usually stupid and drug addicts, so confessions happen all the time
 But . . .
 We still need to allow police to gather these statements
 Rights Someone Might Have Against This
 Violation of Right to Counsel
 Violation of Due Process
 Violation of Right to Remain Silent (I.e., right not self-incriminate)
 Due Process Concerns
 The Claim Basically
 You are essentially saying that the police conduct in ascertaining your claim “shocks the conscience”
 Compulsion/Coercion vs. Voluntariness
 This is the primary concern; this is what we don’t want police doing to you (whether by torture or
whatever)
 But if your statement is voluntary then it can be admitted as evidence
 Why Are We Concerned
 Truth of Statements
 False Confessions: Innocent people will confess to either (a) stop the mistreatment, or (b) because
they are weak and want to stop the mistreatment
 We are worried that these methods may result in false answers
 Conduct of Law Enforcement
 Innocent until Proven Guilty: Would effectively be allowing the executive branch to inflict
punishment b/f adjudication
 Torture Before & After Adjudication
 If we allow torture to get a confession, then they would get to torture after conviction b/c we
could then skirt cruel and unusual punishment restrictions of 8th Amend
 Due Process Approach
 Overview
 Point of this bullet is to give you a spectrum of understanding of how likely you are to get
suppression of an incriminating statement (basically that it is possible to get lots of things)
 Easy case
 A due process win for the Defense
 An easy case involves brutality or the equivalent of torture
 Actual torture is pretty unlikely
 Intermediate Case? (still a good case for D, but a little harder)
 Physical conduct that is less extreme
 Hard Case
 Not impossible to win, but pretty tough for D (See Lynum)
 Some sort of non-physical compulsion
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
Police Deception:
 Well in Lynum they didn’t really lie that much b/c she would lose her kids, they just
misrepresented the extent to which cooperation would help her. This was actually much more
truthful than the threat it seemed like
 Basic thought is that police get to lie (although not explicitly sanctioned, everyone knows it)
 Incriminating Statement Due Process Test:
 This is not really an “element” test — just know this all goes into it
 1) Involuntary:
 Must prove that the confession statement was involuntary
 Will of suspect overborne by law enforcement
 2) Based on Law Enforcement Misconduct
 Has to be something wrongful or coercive that the police engaged in
 3) Totality of the Circumstances, looking at both:
 The character of the suspect, and
 The official conduct
 4) Objective/Subjective Standard
 Viewed from the point of view of reasonable person in the position of the suspect
 Factors that help us understand the test:
 (a) Types of Coercion
 Actual Force
 Threatened use of force
 By law enforcement
 Threatened use of force by others (hospital staff, lynching mob)
 Psychological Pressure
 Promises of Leniency / Threats of Harshness
 Deception
 Note:
 Look for these things on the EXAM
 Keep in mind that these may be in the hard case category, or the easy case—just watch out
for these factors that help us evaluate the test
 (b) Suspects to Look Out For—Consider the suspect’s:
 Age
 This cuts both ways: “There are some 14-year-olds that are tougher than [Prof. Hall].”
 Mental State
 This is also not a clear distinction that tells us anything: I.e., an athlete might have steelresolve to compete at the pro-level, and then cry afterwards (strange emotional mixture)
 Mental Capacity
 Note: the Court has listed these as things to look out for, even though we don’t get tidy answers
 (c) Factors of the Interrogation
 Length of the interrogation
 Nature of the interrogation (dark room/bright spotlight; cold/hot)
 Number of Officers
 Suspect’s understanding of their own Rights
 (d) Impairments of Free Will
 Deprivation of Sleep/Food
 Intoxicants/Medications
 Injury/Pain
 Procedure for Raising A Due Process Claim
 This slide is likely to not appear on the EXAM b/c jury arguments aren’t likely to be tested
 Raise the issue to the Judge
 Judge Determines the Voluntariness
 The burden of proof is a preponderance of the evidence (50% + 1)
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 Burden is generally on the person challenging the admissibility
Even if the statement is admitted, the jury get to determine the weight
 Defense will want to argue all the factors we highlight above
 Defense will try to establish why the confession was not credible
 Gray Zone
 If inadmissible, then it is out of there, but
 Even if the statement is admissible, defense still gets to argue against it
 Due Process Cases
 Brown v. Mississippi
 Facts: Black guy was hung and abused until he confessed.
 Easy case — suppressed
 Brooks v. Florida
 Facts: Brooks was involved in a prison riot and he was stripped in placed in a 7’ x 7’ cell with three
other men and no windows, etc. Left in there like a month on a restricted diet.
 Classification: This is probably an intermediate case on the easier end of the spectrum
 This isn’t exactly brutality or exact torture
 Lynum v. Illinois
 Facts: Woman charged w/ drugs told that she would loose her kids and they would suffer, etc. if she
didn’t confess
 Classification: This is a hard case b/c this is psychological compulsion (no physical conduct)
 Take-Away: Police regularly engage in conduct like this in Lynum and courts typically find that this did
not violate of the Constitution.
 Beecher v. Alabama
 Facts:
 I) Guy escaped from prison; woman raped nearby. They catch him in a field by shooting him in the
leg. They hold two guns to his head (fire one right next to his ear) and force him to confess.
 II) He is later at a hospital, on a lot of morphine, and then they persuade him to sign a confession
 Reasoning:
 I) His shot to the leg changes things b/c he has definitely been made aware that they will use the
two guns held to his head.
 Classification: This is probably an easy case
 II) The significance of the medical staff persuading him to sign the confession creates the inference
that they might withhold medical care from him if he doesn’t cooperate
 Classification: Intermediate case — he is in physical pain and he is quite intoxicated on the
morphine (even despite the fear that the medical staff might withhold care)
 There is probably enough physicality to put it b/t easy and intermediate
 Spano v. New York
 Facts: Spano got beat-up, then went home got his gun and shot thug. Spano confided in his buddy.
Later the police apprehended him. The interrogation was lengthy & extended (5-6 hours) after D had
said he didn’t want to talk to them. He would likely feel tired and as he had no options; they are
communicating that he can’t leave until he confesses. They move him around to multiple facilities
(maybe if you had an attorney, he couldn’t even find you). They were tag-teaming him w/ multiple
officers (we are going to wear you down). (also used his friend to manipulate him)
 Classification: Probably a hard case, near the intermediate end of the spectrum
 Although there was physical control exerted, this was not face-slapping, etc.
 Massiah v. United States
 Facts: Police used one of the accomplices to get a guy to confess while police were listening
 Classification: Not even on the spectrum; there is trickery but there is no compulsion or coercion
 Brewer v. Williams
 Facts: Used the Christian Burial speech to manipulate mentally ill suspect b/c they know he fears going
to hell and the use his Christian beliefs and Counsel had already been appointed
 Incriminating Statements & Right to Counsel Approach
 Difference From Yesterday

43
 That was about eye-witness identification procedures
 This is about confessions and incriminating statements by the defendant
 After 6th Amend Attaches (this is what we are concerned about)
 Initiation of a prosecution
 Initiation of an adversarial judicial proceeding
 What Can’t the Police Do to You Once it Attached
 They can’t ‘Interrogate’ you
 Literally: This means they can’t ask you questions (literal definition is asking questions)
 Legal Concept: Any effort to deliberately elicit a confession or an incriminating statement
 See Brewer: they talked to him to “get him to talk” and this is [w/in the definition?]
 The Christian Burial speech was a legal interrogation b/c it was intended to elicit a
response w/o counsel present
 No deliberate elicitation w/out counsel
 By Law enforcement interrogation
 By informant/Snitch acting for the government
 See Messiah
 Note: Any regular jail-bird knows that police will ask people if they have heard anything so
people are likely to snitch frequently w/o being prompted by the police
 Also, people frequently lie in prison to sound tough, so these might not be genuine
confessions
 So you can only make the 6th Amend argument here if the police recruit the informant/snitch
 Charge Specific
 The 6th Amend is charge specific, so Police are barred from interrogating about the arresting/indicting
charge, but can ask about other things
 Elicitation regarding other matters is permitted
 Pre-text is not barred
 You can bring someone in on one charge and then interrogate them on a charge you have not yet
“brought”
 Waiver of 6th Amend RTC
 It is possible that 6th Amend RTC attaches, but then gets waived
 Waiver Requirements
 Normally must be (a) Knowing, (b) voluntary, and (c) intelligent
 EXAM:
 Overlapping Analysis (as discussed before)
 There will be multiple incriminating statements
 Some inadmissible under due process; some under 6th Amend RTC; and some under Miranda.
B. Self-Incrimination
 Escobedo v. Illinois
 This is still good law (but for very narrow circumstances) b/c it has never been overruled, but it is
effectively a dead letter
 It is not in general good law, only good if you happen to have these specific facts
 It is a limited departure from normal doctrine
 Normal doctrine is 6th Amend RTC doesn’t attach until commencement of adversarial proceedings,
but this is a special factual circumstance when it does!
 It is basically a segue to Miranda
 Why Can’t we use Last Week’s Doctrine?
 There is no adversarial proceeding yet, so the 6th Amend has not yet attached
 Escobedo Rule
 RTC Attaches if
 Investigation focused on suspect
 Suspect in custody
 Interrogation of Suspect
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 Suspect Denied Requested Consultation w/ Counsel
 Suspect Not Informed of Right to Remain Silent (RTRS)
 With all these things, on these facts, the RTC attaches.
 It is unclear what type of RTC this is (it doesn’t look like 6th Amend law we have already dealt
with)
 And in subsequent 6A cases we don’t have RTC attaching with these types of pre-adversarial
circumstances
 On these facts (and probably these alone) Escobedo says there is RTC
 Miranda v. Arizona
 Why are we Worried About Police Interrogating People
 We are worried brutality, psychological coercion
 But we are also worried about custodial interrogation because:
 Custodial interrogation: deliberate elicitation while under arrest
 Takes place behind closed doors and we don’t really know what happens and what sort of
sophisticated techniques will be used
 Custodial interrogation is an inherently compulsory & evil process (always involves an offensive
amount of coercive pressure)
 Concerned with 5th Amend right to be free from incriminating yourself (not compelled to testify
against yourself)
 Your statements can be read into evidence against you (if you speak to an officer) so the concern is
that you are essentially being compelled to testify against yourself (backdoor into forcing people to
testify against themselves).
 So Miranda isn’t necessarily constitutionally required, it is more of a logical deduction from 5th Amend
rights
 The point of this is that Miranda could theoretically go away
 Miranda was merely a logical leap that if you have compulsory, closed-door interrogations  that
could undermine your 5A rights to not be a witness against yourself
 Some argue that the plain text of the 5th Amend doesn’t require Miranda warnings
 The Rule We Get is:
 We are going to get a rule, but it doesn’t come from RTC, or due process, but teased out of the 5th
 This is a huge extension of the 5th Amend into the investigative process
 Miranda Rule:
 In order to protect your right to not bear witness against yourself you have a bunch of other smaller
rights
 1) 5th Amend right to remain silent (RTRS)
 Why? Could we just have an evidentiary rule . . . ?
 Well sometimes officers don’t use it for court-prep purposes, but to get additional information
out of them
 Note: If you are given (and forced to take) full immunity, then you lose your 5th Amend right
to remain silent! You will be forced to speak (b/c they have taken incrimination off the table)
 2) 5th Amend right to counsel (RTC)
 How do we get to this?
 Well you need some way to protect your RTRS
 Note that this is now a second jump
 Jump 1 = 5th  RTRS
 Jump 2 = RTRS  RTC
 3) Procedural Safeguards — Miranda Warnings are Required (a right to warnings)
 There is no other rights that we give warnings to people for (for example we had lots of
chances to give warnings/notice in 4th Amend law, but didn’t)
 Why? This is based on the Court’s concern that custodial interrogation is problematic and evil
 4) These Safeguards are Triggered by:
 Custodial Interrogation
 Part of the goal of these interrogations is to encourage you not to exercise your rights
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 Fear that police will try to talk people out of staying quiet; out of getting a lawyer
Because this is such a dangerous process, we need to make sure that it is mediated
 Perhaps Miranda is not so much a principled decision, but a pragmatic one
 Police Point of View
 Miranda is good for police b/c these are easy bright lines, unlike the alternative of an
expansive due process test
 Thus, strangely, liberals and conservatives both tend to agree w/ Miranda.
 After Effects:
 People still confess all the time b/c lots of people just want to talk (whether to brag or in an effort
to absolve themselves)
 Miranda has become somewhat of a formality b/c basically everyone already knows what it
includes.
 Invocation of the Rights
 How do you invoke the RTRS & RTC?
 It is easy; you can invoke them if you indicate “in any manner”
 Court abandons this later
 You can invoke either of these rights at any time during the interrogation process
 Invoking the RTC includes the RTRS
 Even after you have made some incriminating statements, this in no way stops you from
asserting your rights thereafter (just b/c you open the door doesn’t mean you can’t ask for
counsel)
 So you don’t permanently give up your RTRS & RTC
 Waiver
 You can also waive your rights at any time
 After you waive your rights, then you can re-invoke them
 Miranda as a prophylactic rule (this bullet is purely information / NOT EXAM)
 Court has later said that Miranda isn’t part of the Constitution, but is merely designed to protect the
constitution (this upset people)
 Congress (in the context of this time) passed a statute saying Miranda was required or an alternative
constitutional mechanism protecting the right (see Dickerson v. United States)
 Dickerson v. United States
 Held: Court stated that Miranda is the constitutional right itself, and got rid of all the business
about Miranda being a prophylactic
 Now it has become ingrained and we have to keep it
 Actual Miranda Doctrine / Details
 Custodial Interrogation: If you are formally under arrest, police can’t ask you questions until there is a
Miranda warning
 Miranda does not apply to
 A routine traffic stop (this is mere detention)
 Berkemer v. McCarty
 You still don’t have to talk usually, but you don’t have a right to Miranda warnings and RTRS
& RTC
 So when there is a detention, you aren’t free to leave but you also don’t yet have Miranda rights
 Best strategy is to just try and end the encounter ASAP
 Miranda does apply to
 De facto arrests: But a de facto arrest is enough custody for custodial interrogation rules to apply
 So they put you in cuffs for a long time
 They don’t use the word arrest, but drag you down to the station
 Something that isn’t called an arrest but is the equivalent
 Custodial Interrogation: What is it?
 Again, deliberate elicitation
 Only custodial interrogation to elicit testimonial response

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
 Only things people say
Sobriety Testing is not Custodial Interrogation:
 Breathalyzers, speaking the alphabet backwards (this is okay), blood tests. Penn. v. Muniz
 Rationale: Even if have to speak the alphabet backwards, the speech is not to get testimony
from you (not for the content of your speech, but to show you are either slurring your speech or
are too drunk to figure out the alphabet backwards)
 Notes:
 Miranda Exceptions
 There is an exigent circumstances / public safety exception where Miranda is not required
 New York v. Quarles
 This was custodial and a de facto arrest b/c this was a show of force (swarm of officers who
didn’t say you are under arrest)
 Officers asked “where is the gun,” and claimed it was a matter of safety for the suspect (if
on him), safety for kids who might find the gun, and safety for someone sympathetic w/
Quarles who might pick up the gun.
 The interrogation was this simple question, where is the gun, which came b/f Miranda.
 Answer wasn’t a full confession, but was still incriminating b/c it identified he had the gun
so it still falls into this
 Terrorism: There have been arguments that Quarles could apply to terrorism for potential imminent
attacks
 Do police have to evaluate that the suspect understands Miranda
 Police must read the warnings no matter who they are (even if it were Justice Scalia or a police
officer)
 Although we are not concerned with understanding of Miranda warnings, we are concerned with
successful delivery
 So deaf persons need to presented them in a way they can digest
 Merely reading it to them probably not be adequate
 If the person interrupts and says they know them, the officers must still read Miranda to them
C. Miranda Details
1. Content and Custody
 Content/Form of Miranda Warnings
 Not Talismanic - You don’t have to read Miranda in an exact order
 Rigid - The officers have to give the warnings, but not in a particular form/order
 Content/Form - You can either give the warning as the way SCOTUS laid it out in Miranda or give some
equivalent
 Required Pieces
 RTRS
 Effect of a waiver of RTRS
 RTC (Before/During/After Questioning)
 An unqualified RTC is okay
 You can either say “you have a RTC” or you can specify “You have a RTC now, during
questioning, and after.”
 As long as there is no restriction
 If indigent, appointed counsel is available
 California v. Prysock
 Facts: The warning that Byrd gave might have suggested that the “right now” was missing from when
counsel was available and arguably this sentence is saying you have to ask at the beginning (and then he
will be available all through the questioning.
 Arguably the during piece is missing
 It might create an misimpression that if you start talking without a lawyer, the you have to keep talking
 Reasoning:
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
Byrd appears to not being doing one or the other (generally saying he has a right, or specifying when he
has a right), he is doing something messier
 The court is granting police lots of authority as long as they give the functional equivalents of the
Miranda warnings
 Why this deference to police:
 There will be circumstances when a talismanic reading of Miranda would be hard (and criminals
might figure this out and try to obstruct it)
 We don’t want a formalist rule that would cause police to lose if they mess it up some
 We also don’t require that the suspect actually understand them, so why worry about how they are
actually phrased
 Byrd’s interest:
 He might want to convince Randall that he either has to waive his Miranda rights now or not (now
is a good time b/c Byrd is being nice) and then once Randall believes he waived his rights, he will
then exert a much more severe interrogation
 Byrd was really shaving at the edge of the basic warning, and he appeared to be okay
 Held: This warning does not mess up the argument that you have to either say unobstructed RTC or you
have a RTC before/during/after questioning
 You are not required to give the Miranda warnings in a specific order
 Note:
 This is a gray area b/c we have unclear answers about whether we need one rule (unobstructed right) or
a more nuanced rule (before/during/after right)
 This means that the rule is more open to manipulation by police
 Exam:
 Likely to see an imperfect Miranda warning and you need to be able to evaluate if it is the equivalent
of Miranda
 Custodial Interrogation
 Orozco v. Texas
 Facts: Orozco was interrogated in his bedroom, which was stormed by a lot of police officers (four)
who later said that he would not have been allowed to leave
 Reasoning
 This was more likely to be custodial since he was in bed, because since he was in his underwear
and in a place of last refuge, then he is less likely to feel like he was able to leave
 Although not huge, if it had been in the living room or something like that then he might feel
more likely to be able to leave
 The encounter didn’t last very long (he wasn’t in custody for a very long time)
 When police come into your bedroom, you likely feel compelled to answer, and the Court defines
this as “Custody”
 When you get interrogated in your house, there is really nowhere else for you to retreat to
 Versions of Custody
 1) Formal Arrest (simplest version) - they explicitly say you are under arrest
 2) Custody at the Station - you are at the station in jail, getting booked, then that is arrest even if they
haven’t explicitly said it
 3) Or otherwise deprived by law enforcement of freedom in a significant manner (“deprived of his
freedom of action in any significant way”)
 Factors:
 Length of detention:
 Location: Encounters in public are less likely to be custodial
 When they have you in secret you worry what they will do to you
 Movement or Control of the Subject vs. Voluntariness
 So them moving you somewhere, instead of them asking you, can be construed as custodial
 Intrusiveness / Force of Restraint used
 So sometimes temporarily handcuffing a drunk won’t be that intrusive
 Difficulty
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 On-the-street vs. in-the-field encounters
 We know that Orozco is easy. We know that encounters on the street are pretty easy.
 What gets challenging is when the encounter starts one place and then it moves to
somewhere else
 I.e., approached on the street and then asked to come into an alley
 This might be a situation where D has a lot of little things to argue and the analysis is
unclear
 Distinguish
 The words are Custodial and Interrogation
 The mere fact that police ask you questions is not necessarily anything
 If police come up to you and start screaming questions at you that is interrogation, but
there are not yet any facts to make this custodial!
 So keep custodial and interrogation separate
 Distinguish Intimidating aspects of any law enforcement questioning vs. Custody
 Custody POV
 Totality of the Circumstances: We analyze this by totality of the circumstances, so if the police are
being jerks in the way they ask questions, then that feeds in there but we don’t automatically have
custody just when we have interrogation
 Mere intimidating is not by itself enough
 Hypo: All we have is a Terry situation and investigative questioning and reads Miranda; well all
the officer has done is immunize the situation in the event he misinterpreted the non-custodial
nature of the interrogation and D brought a Miranda claim
 What must D Prove: To make a Miranda claim (except for Quarles) D must prove that he was in
custody and there was an interrogation
 Hypo: if suspect is arrested by officer w/ only reasonable suspicion, and then officer questions
the suspect. What claims does D have? Improper de facto arrest and failure to Mirandize
 Exam: Any time you see questioning w/o Miranda, try to make an argument that there was custody
to make this a custodial interrogation
 If you are trying to think of what to argue maybe you’ll spot more things!
 Reasonable Person in Suspect’s Position
 Not subjective view of law enforcement
 Oregon v. Mathiason
 Facts: Guy invited to the station house after a telephone call, officer said while he was there that you
are not under arrest
 Reasoning:
 His freedom does not appear to be restrained
 This is a voluntary encounter, the guy came to the police station
 The encounter was pretty short
 Potentially Troubling
 The police lied to him that they had his fingerprints, but this wasn’t fatal
 Rule:
 Lying is okay (basically) - Lying might have some effect on the case, but has nothing to do w/
whether he was in custody
 Notes:
 Hypo: If D agrees to come to the station house voluntarily, and officers have a warrant for arrest,
then it would be stupid for them to not try and question him some first b/f saying D was under
arrest
 They might could even lie that they weren’t going to arrest them, but an in-artful lie that
suggests custody, then that might factor into the custody analysis
 Mathis v. United States
 Facts: Mathis is already in custody, he is in jail. They question him about tax matters in an IRS
investigation unrelated to his current custody. They are investigating something other than a criminal case.
 Avoiding Miranda
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 What effects do these things have
 Suspect in custody for another matter
 If you are in custody for another matter then another officer questions you, they must still read you
Miranda b/c this is still custodial questioning
 Suspect questioned for a Civil Offense
 Not always, but if we have a civil matter that could mature into a criminal matter, then
 Miranda still applies (tax is special b/c the IRS has the option of pursuing civil or criminal remedies)
 Example that doesn’t mature: Suspect is arrest for cocaine, and then ICE goes to question him
about being an illegal immigrant, then that won’t typically mature into a criminal matter
 Another Example: District Attorney also does civil work. D is in jail for something. DA wants to
go see him also about a divorce matter that is also pending. This probably doesn’t trigger Miranda
b/c unlikely to mature into a criminal matter
 When to Read Miranda
 Police officers typically read Miranda right when they take them into custody just to be careful in the
event an admission/confession is said; or some conduct occurs that might suggest I was seeking an
answer
 But they don’t have to, b/c Miranda only comes into play when we have Custody + Interrogation
 Exam: Anything given on the exam, be trying to use it to argue why this is custodial (the factors) and
interrogation.
 Balancing tests, you basically put everything on the scales
 Delivery v. Understanding of Miranda
 Just like a deaf person would need special delivery
 Similarly a non-English speaking person might need some special delivery.
2. Interrogation & Investigation
 Interrogation
 Definition: We need to define interrogation b/c it is one of two components in “custodial interrogation”
 Express Questioning - Easiest when there is a question mark
 Demands for Information - “Tell me what you did last night”
 Functional Equivalent of Questioning / Deliberate Elicitation: Words or actions reasonably likely to
elicit an incriminating response from the suspect
 So do the officers know or should they know their conduct is likely to provoke or elicit a response
 Measured from the suspect’s perspective
 Things that Fall In This Category:
 You name (obviously)
 Things/details related to the person (i.e., “Prof. Cooper, I have this Crim. Pro. I class and
guess what they do in there . . . .”)
 Doesn’t have to be spoken
 Could be the officers holding some sort of evidence (i.e., passing photographs of victim
back and forth b/t themselves)
 But the Law Enforcement not accountable for unforeseeable results (this exception will probably
be on the EXAM)
 Ways to Describe Functional Equivalent
 They are guilt-tripping the suspect into speaking/answering
 Psychological Coercion
 Eliciting a Response Non-Deliberately
 Officers could have said to one another “what are you doing this Tuesday” and then for some reason D
spoke up.
 This would be words of the officers eliciting a response, but this wouldn’t be Deliberate Elicitation,
wasn’t reasonably likely
 This would be a coincidence, or unforeseeable results
 On EXAM analyze whether this was deliberate elicitation or an unforeseeable response
 Rhode Island v. Innis
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 Facts: How would you convince jury that this was questioning. The officers in the front seat were
essentially acting out a play/sham that was intended to invite an answer from Innis. Officers were having
conversation about shotgun potentially hurting handicapped children.
 This probably was intentional, but court held it was not
 Remember, this was 5A and Brewer v. Williams was 6A (attorney had been appointed)
 Resumption of Interrogation
 Basic Rule: Once a suspect invokes his or her rights, then police have to honor them
 Michigan v. Mosley
 This is a case about resumption of interrogation after invocation of RTRS (and often limited to the
facts?)
 Facts: Arrested for one crime. He invoked RTRS. Interrogation ceased immediately. There was a
passage of significant period of time (2 hours sufficient). Another detective came to interrogate him for
Murder / different offense, read him Miranda again and then he signed a waiver form and then
confessed.
 After Invocation of RTRS, interrogation may resume if (unique Michigan v. Mosley facts)
 So there are at least 4 factors you need to talk about, and the time has to be at least 4 hours
 1) Interrogation ceased immediately
 2) Passage of significant period of time (2 hours sufficient)
 The key thought to some passage of time is that D has to have the idea that police really are
honoring his RTRS request
 3) Renewed Miranda warnings
 This is suggesting to D that we really will honor this right
 4) Regarding different offense
 Well maybe he just wanted to reserve his right for one offense and not another
 Some Hornbooks say more factors:
 Different Officer: Not necessarily a critical factor
 If it were the same officer then it wouldn’t suggest that he took the RTRS request serious
 Different Location: Probably a non-factor (but some scholars disagree)
 Maybe the fact that D is in a new location suggests that officers are still honoring the earlier
RTRS request
 Invocation of Miranda RTC (the RTC request is better than RTRS)
 After invocation of Miranda RTC
 Interrogation must cease
 Cannot resume interrogation until after suspect receives counsel
 Probably not going to get to talk to them anyway once counsel gets there b/c they will probably not
let him
 No resumption of interrogation allowed after consultation with counsel
 No resumption of interrogation allowed in the Interim
 This is the main reason that RTC is better than RTRS — Michigan v. Mosley won’t let officers
resume interrogation
 So tell your regular clients to invoke their RTC! And give them business cards that say
something like “I invoke the right to counsel.”
 Regardless of Passage of Time
 Regardless of Unrelated Offense
 How to Invoke RTC
 Must make a clear request for counsel (must unambiguously say you want your counsel)
 Not: (examples of ambiguous request b/f SCOTUS)
 But these words on paper don’t necessarily explain how they were delivered (if these were
delivered in a scream/shout then it might not sound so tentatively)
 Problem is trying to get this before an appellate court which only takes briefs
 Maybe you could insert a hyperlink in your electronic brief?
 Maybe I should talk to a lawyer
 I’m supposed to have a lawyer
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 Could I have a lawyer present?
 Can I get a lawyer right now?
 Unambiguous request needed
 What do officers have to do in the face of a question by the suspect?
 I.e., “Am I supposed to have a lawyer present?”
 Officers don’t have to do anything to an ambiguous request; they can keep interrogating
 There is no duty to clarify an ambiguous request
 Better strategy is to answer the question but to push them away from exercising their RTC
 Fare v. Michael C
 Facts: Michael C apparently thought that his probation officer was equivalent to counsel. He was
basically asking for his parent-figure, or advisor. For normal people this could also be parent/pastor.
Most people might be baffled as to how to get a lawyer. But his request was still ambiguous (even if we
had substituted lawyer w/in “Can I have my probation officer here”).
 Waiver of RTC
 Overview
 Simplest Form
 I am waiving my right to counsel / right to remain silent
 How to waive after you have invoked
 You yell and call the cops and say you want to talk
 Types of Waiver
 Express: Can be right after Miranda or at any time later
 Implied:
 An agreement to Answer Questions
 Even if no agreement to relinquish the rights (so you refuse to sign waiver form, but start
talking)
 If police start asking questions and suspect starts answering, then that is an implicit waiver
 Silence regarding Miranda warnings is insufficient to constitute a waiver
 But silence followed by incriminating statements is a waiver of your rights
 De Facto Waiver - Some call this not so much a search for an implied waiver, but a de factor waiver
 Often times (every time?) a non-police-initiated confession is a waiver
 Another Way of Analyzing Waiver
 The burden of proof is on the prosecution to prove the waiver
 Easiest way is to have direct proof: a waiver form; a video tape
 But you can still win w/ inferential / circumstantial proof
 Volunteered Statements
 Incriminating Statements volunteered by suspect without interrogation
 So say suspect has invoked RTC & RTRS, but then later volunteered a statement
 This constitutes an implicit waiver when they suddenly start blurting things out
 Volunteered statements constitute an initiation of an interrogation by the suspect
 EXAM: Frequently on the old exams we have people invoking their rights one minute, and then
waiving it soon thereafter
 North Carolina v. Butler
 He said he understood his rights, and refused to sign the waiver form, but then he started talking. This
was a waiver. Saying you refuse to waive your rights is not the same as invoking your RTC or RTRS
V. Vindicating A Violation:
A. Standing
 Who can Assert a 4th Amend. Claim
 Basic Thought: Person who can assert is the person who had his right violated (only someone w/ a
reasonable expectation to privacy)
 Rakas v. Illinois
 Facts: D was pulled over in a car and the cops found bullets in the glove box and a gun under the seat (this
was presumptively an unreasonable search).
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 Rule
 The only person who gets to make a 4th Amend. claim in the vehicle is the owner/driver of the car
 Reasoning
 They didn’t have an expectation of privacy
 So if you borrow the car then you are using it like an owner
 A husband and a wife both have such strong ownership of the car to give 4th Amend. rights.
 As passengers of a car, they didn’t have a reasonable expectation of privacy (mere passengers, not
necessarily family members)
 Thought is you are already sharing the space w/ the driver
 Passengers don’t have a fourth amendment right in a car
 If police had searched people’s persons or their backpacks, then there
 Problem:
 If Police want to search Hall, they can wait until Hall gets in Jacob Jordan’s car, and then search the car
unreasonably and circumvent the rules
 Even though they would get the evidence through an unconstitutional search, the evidence would
not be suppressed b/c you can’t bring a 4th Amend suit on behalf of someone else
 Becomes an un-remedied 4th Amend violation
 This doctrine essentially only allows the person who owns the car to sue the 4th Amend. violation.
 Minnesota v. Carter
 Facts: 2 Ds went to house and proceeded to bag cocaine in a basement room. Anonymous tipster reported
they saw them bagging drugs through the window. Officer looks in the window from public place and sees
them with drugs.
 Hypo: Assuming there is a 4th Amend violation, can they bring a 4th Amend. suit?
 Reasoning
 They didn’t have a reasonable expectation of privacy; they were there for a brief amount of time; they
had never been there before; in effect they were paying to be there
 What happens is that Ds don’t have a constitutional right that was violated to say “court, please
suppress this.” Also they can’t assert Thompson’s rights.
 What Could They Argue?
 Maybe a shocks the conscience (but unlikely)
 The “Evidence is Tainted”
 The 4th Amend protects people not property, so the cocaine doesn’t have a 4th Amend. right
 Sullies the robe of the court . . .
 Maybe what gives you a fair trial is that you can raise your rights, not that it is perfect in
keeping everything out
 Maybe the adversarial process is designed to remedy this and the court is just a neutral forum
 Court is in-effect licensing the police to violate the Constitution if they don’t exclude evidence
 We don’t need absolutely perfect deterrents for the police; Thompson’s standing to sue is an
adequate deterrent
 Why do ‘people’ put up with the adversarial system and all its problems?
 Well people are comfortable with the fact that the adversarial system often reveals the truth
(there was no doubt about the truth they were bagging cocaine)
 Minnesota v. Carter Doctrine
 Premises Factors: Does a visitor have a reasonable expectation of privacy?
 1) Nature of the Premises: Commercial v. Non-commercial
 You almost never have an expectation of privacy in a business relationship
 D will want to argue they were a non-commercial visitor
 2) Amount of Time Visitor Spent in Premises
 So when you sleep somewhere it suggests you are in situation of a greater expectation of privacy
 This factor collides w/ the prior factor for hotel guests (you are more likely to win)
 3) Visitor’s Connection to the Premises
 When you stay at a hotel you are basically renting a bedroom for the night
 Problems with this Test
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
If you have people over for dinner, do they have an expectation of privacy?
 In general no (unless close family, like mother or father)
 Denying claim to short-term guests in effect undermines the security of those who have a stronger
connection
 When guests can’t make a claim, it is like telling the host “you can’t protect your guests.”
 Alternative if no reasonable expectation of privacy:
 Supervisory Power
 Judicial Integrity / Procedural Due Process
 Answer: No
 Shocks the Conscience?
 Implied fundamental right . . . to what?
 Answer: Probably not (hard to win factually)
 Hypo:
 What if Carter, Johns, and Thompson (homeowner) were all co-conspirators
 1) You could cut a deal (lighter sentence) with Thompson so that he wouldn’t suppress the
evidence
 2) Or you could cut a much less beneficial deal for Carter or Johns in exchange for them testifying
against Thompson (that we he won’t get a light sentence)
 Critique of the Standing Doctrine
 It doesn’t really matter if Thompson had standing, b/c since there were multiple defendants and
only one could assert the claim, you can work around the 4th Amend. claim by getting the coconspirators to work against one another
 The standing doctrine opens the door for strategic manipulation
 Note, if Thompson were just a civil plaintiff against the Police, then there is no manipulating
we can do b/c Thompson will get her money for a remedy and the other Ds will still face the
evidence
 Right now it is really hard for a criminal claimant to win a civil suit
 Overview
 Standing - We often call this standing doctrine, but some Justices argue that this isn’t about standing but
about if you have a right or not
 But standing is a common facet of our legal system that we use all the time to identify when someone
can sue
 The concept is that you can only assert a 4th Amend claim, when you are claiming that your 4th Amend.
rights were violated
 This doctrine works, but it is weird so just get used to it.
B. Exclusionary Rule
 Exclusionary Rule Generally
 In many areas - Evidence obtained b/c of constitutional violation suppressed, or excluded, from
presentation in court
 Remedy for a constitutional right; but imperfect b/c they have already violated your right
 Terminology: We often talk about the exclusionary rule generally when we really mean 4th Amend
Exclusionary rule
 Some scholars would say there is only a 4th Amend exclusionary rule, and that there are other
exclusionary rules
 In this course, “exclusionary rule” is used sloppily to refer to many rules
 Origins of Exclusionary Rule — Rationales from Mapp:
 Judicial Integrity
 Sully the Robes: Allowing unlawfully obtained evidence makes the court and the judges look bad
 Makes it look like the court is an accomplice to constitutional violations
 Offends our notions of due process
 Implications: if this were the key rationale or basis for the exclusionary rule, then it would always be
applied in all situations there were constitutional violations
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 Exclusion would be imperative / constitutionally mandated
 Deterrence
 Remove incentive to disregard the constitution
 Who & What: we are trying to deter police from violating the constitution
 Police will then be less likely to get a conviction b/c the evidence is suppressed
 Imperfect Deterrent: The burden will ultimately fall on the prosecutor at trial, so we hope that police
departments will tell their officers not to violate the constitution and maybe the DA will lean on the
officers as well
 Implications:
 Is it imperative? Not if there is a particular application that won’t have a deterrent effect
 It is pragmatic - there are lots of exceptions (Swiss cheesy doctrine: more holes or more cheese)
 Problems and Alternatives with the Exclusionary Rule
 Problem: Exclusionary rule by definition operates counter to truth-seeking and law enforcement
 At its heart, the rule is keeping evidence of the truth out of court
 Operates counter to the impulse that we (as a country) want to put bad people behind bars
 Prevents the consideration of evidence of guilt
 Alternative: Constitutional Tort Claim
 But, we can’t ever restore your actual rights
 This is out there right now, but it is imperfect
 Issues:
 There may be immunities by the police or state entities
 May not have a winning constitutional tort claim ever time we bring one
 Criminals who would bring these claims may lack litigation sophistication
 Also, the damages might not be that great (impermissibly seized might only be an award of a
few thousand dollars)
 Procedurally - Federal tort claims act may be problematic as states might cap damages
 Alternative: Management of Law Enforcement
 What if we just talked about (as public policy people) how to manage law enforcement better to avoid
constitutional violations
 Could this be purely an administrative exercise, or also a legislative exercise (better statutes, easier
warrant process)?
 Modern Exclusionary Rule
 A Rule of Exceptions: There are more holes than Swiss cheese.
 Exceptions close to swallowing rule
 Typically judges won’t grant exclusions
 Rationale:
 Judicial Integrity No Longer much of a concern
 Judicial integrity rationale is basically gone
 Deterrence is now the main focus of reasoning
 Implications:
 The rule is judicially created and sub-constitutional
 It is a prophylactic like Miranda
 Exclusionary Rule in General (Main Slide for 4th Amend Violation)
 4th Amend Exclusionary Rule Applies to:
 Prosecution’s Case in Chief - This is the only portion you get exclusion for
 Does not Apply to:
 Pretrial proceedings
 Bail
 Sentencing
 Probation/Parole
 Impeachment of Defendant (i.e., D takes the stand and then can be impeached on Cross Exam)
 Why Exclude to Some Things?
 The things it doesn’t apply to are justified b/c we don’t get a significant enough deterrent effect
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
So we get a huge deterrent effect at the guilt-stage/case-in-chief, and then the other proceedings don’t
really add much to the initial deterrent effect
 THEORY: Is There a Non-Criminal Exclusionary Rule?
 Theoretically possible, but never applied
 The court always looks at a calculation of deterrent value (so if a situation arose that would create
enough deterrence, the door has not been closed/no-per-se-rule-against on extending the
exclusionary rule)
 In practice: There is no exclusionary rule for civil / administrative proceedings
 Some states and some circuits have small exceptions, just not SCOTUS opinion (so try at least)
 EXAM: if you spot a 4th Amend violation, this is the main slide
 If Hall also says not only was there a 4th Amend violation, but also D testifying, then make sure to
mention why this is relevant and evidence isn’t excluded for impeachment
 Call of the Question: If the story keeps going up until the trial, then bring up exclusionary rule. If story
just stops mid-investigation then maybe no need to discuss exclusionary rule
 Also, the question itself might ask for this type of analysis
 Other Exclusionary Rules (Hugely Important Slide)
 Exclusion depends on Constitutional Violation
 Knock & Announce Rule (Hudson v. Michigan)
 Violation does not lead to exclusion
 Knock & Announce rule (if followed) would not change whether the police would find the evidence
 There is no significant deterrent value to applying the exclusionary rule to Knock & Announce
violations
 Coerced Incriminating Statements
 5th Amend due process right to be free from torture
 Exclusionary rule here should be big (sully the robes is actually in play some)
 Excluded for all purposes (not just case in chief; also pretrial, bail, sentencing, etc.)
 This would potentially apply to all shocks the conscience situations
 6th Amend RTC (after adversarial judicial proceedings)
 6th Amend exclusion is equivalent to 4th Amend exclusion
 Excluded for case-in-chief, but not for things like pretrial, bail, sentencing, etc.
 But maybe should receive more protection/exclusion b/c 6th Amend RTC is an absolute right
 Officers are disrespecting the court when they talk to you w/o your lawyer present
 EXAM: On the exam we are likely to see a number of constitutional violations and then be at trial trying to
get things excluded
 A defendant is likely to want to prove due process / shocks-the-conscience (most protection)
 But if you spot a knock-and-announce violation, then don’t waste much time b/c it is toothless
 4th Amend & 6th Amend have dentures ... ha-ha
 Slide on Hudson v. Michigan is just talk (no doctrine)
 Good Faith Exception
 United States v. Leon
 Facts: We actually didn’t have PC and shouldn’t have had a warrant, so was officer acting in good
faith?
 Reasoning:
 If officer Rombach (who did the investigation) executes the warrant, then probably not good faith
 If Rombach gives it to another officer, then does that guy have good faith? Well he doesn’t know
that it was supported by PC
 Good Faith Here: There isn’t literal good faith, but if the officer permissibly relies on the judge’s
signature, that the investigating officers did there job (absence of bad faith) then there is permissible
good faith here
 1) Exclusionary rule does not apply if law enforcement reasonably relies on a search warrant subsequently
determined invalid for lack of PC
 So if officer gives another officer a warrant to execute, and it turns out bogus then it is okay
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
Why its weird: We have a constitutional violation, but no remedy/exclusion. The idea is that we
have an officer w/ warrant in hand and how in the world can we deter this guy who thinks he is
doing something right?
 Logic: There is no deterrent value here
 Exceptions: (so exclusionary rule does apply?)
 Facially Invalid Warrant - We can demand that officers at least read over the warrant and make
sure it looks good facially
 Magistrate not neutral/detached - we are going to throw it out even if officer doesn’t know
 Warrant issued in unreasonable manner
 Officers dishonest/reckless in application of warrant - Officers apply for warrant in bad faith and
then give it to an unknowing good faith officer
 Consider all circumstances, not just the executing officer
 EXAM: if we get some weird warrant procedures but someone executes it in good faith, look at all
the circumstances and try to argue that we have an exception to the good faith rule
 Good Faith Doctrine is the most heavily litigated exclusionary rule area
 Herring v. United States
 Why is this case different from Leon
 Arrest Warrant in Herring; Arrest warrant in Leon
 Neutral & Detached Magistrate in Leon; Basically police actors in Herring
 Issue: Does the good faith exception apply to non warrant searches
 Held: The good faith exception extends to a search incident to arrest following arrest based on report of
facially-valid arrest warrant
 Implications:
 Some would argue that this spells the end of the good faith exception
 But, some would argue that it is still alive and that the applicability depends on whether a police
contingent made the good faith error or whether it was someone else
 This is a major expansion of Leon.
C. Miranda Exclusion
 Miranda Exclusion
 Overview
 Much less effective than 4th Amend exclusion
 Miranda is in the middle of the spectrum of exclusion (not the most not the least)
 If you get Miranda exclusion, you get exclusion of the statement (only) from P’s case in chief
 Admissible for:
 Impeaching the defendant - Often w/ a limiting instruction
 This is similar to the 4th Amend exclusion
 But Remember — If due process
 If statement involuntarily coerced
 Exclusion for all purposes
 Three ways to attack Incriminating Statements
 1) Obtained in violation of Miranda
 2) Obtained in violation of 6th Amend
 Similar to 6th Amend Exclusion
 3) Obtained in violation of 5th Amend Due Process
 Total Exclusion
 Impeachment Exception
 Unlawfully obtained incriminating statements by defendant are admissible to impeach
 D opens the door by taking the stand and testifying inconsistently with the statement
 Hypo: Incriminating Statement - victim always carried a gun; Testified - I had no reason to think he
was dangerous (this is inconsistent)
 Only applies to the defendant
 Limiting instructions are often given for the Defendant
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

But keep in mind these are practically not that effective
Some defense counsels don’t even want the limiting instruction b/c it draws further attention to the
issue (strategy, not a right/wrong answer issue)
 Imperfect Exclusion Exception
 It is rare that D actually testifies
 Not good witnesses; often have criminal records; probably nothing to say anyway (otherwise they
would probably have already pled out)
 But, Defense counsel often puts on:
 Alibi witnesses - such a witness will often testify inconsistent w/ D’s earlier statement
 The concern is that this is perjury by proxy
 By not extending this exclusion exception to D’s witnesses, we extend a license to commit
perjury
 Concern, however, outweighed by fear of a perjury prosecution (it is an adequate deterrent)
 So this is basically we have:
 A general rule  not admissible for case in chief
 Then an Exception  If D takes the stand then admissible for impeachment
 Then Discussion of the Exception  If D’s witness takes the stand it is not admissible for
impeachment
 EXAM: if Hall says “D is contemplating taking the stand,” then note that if he does take the stand then
an otherwise inadmissible statement might come in for impeachment. But Hall might also say that “D’s
brother is going to take the stand,” and then say the inadmissible confession still won’t come in for
impeachment and the concerns about perjury
 Exclusionary Deterrent Balance
 Balance is in favor of this rule, b/c the alternative would be to encourage Miranda violations
 Consecutive Statements Puzzle
 Hypo: Police arrest suspect. They don’t Miranda suspect, then he confesses. Officer realizes fault, says
“crap,” and then goes back and reads him Miranda. Officer asks will you now repeat your confession,
and he does.
 Structure:
 First statement obtained in violation of Miranda, but
 Second statement obtained in compliance
 Is this admissible?
 Normal expectation: Not admissible b/c the suspect only made the 2d statement on account of feeling
like they messed up by making the first statement
 Exclusion should work: there is a presumption of taint / “cat out of the bag”
 Doctrine:
 If the second statement is genuinely untainted
 Evidence of voluntariness, waiver
 Then the second statement is then not excluded, unless (see exception)
 Note: only a Miranda rule (so differs if 6th Amend violated)
 Exception:
 Hypo: Officers get 1st non-Miranda statement b/c they intentionally didn’t give Miranda; goes to
superior and says but we never give Miranda, then goes back for it.
 Not goofy/accidental like the first hypo
 If the first violation of Miranda is intentional
 Then the second statement admissible only if the first violation was unintentional
 Note
 Cases: Oregon v. Elstad & Missouri v. Seibert
 Implications: Tells officer to just go back and get another Mirandized statement from the suspect
 If 1st Statement is Due Process Violation, . . .
 Then we will have a much stronger exclusionary rule
 Taints the second statement: fruit of the poisonous tree doctrine
 But whenever it is just a regular 2-shot Miranda situation, then the taint doesn’t stick around so long
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 Comment on Silence
 Hypo: suspect invokes Miranda rights and doesn’t speak. Can prosecutor bring this up during trial?
 May P comment on D’s post-Miranda silence during interrogation?
 No! Cannot comment on right to silence
 Even if defendant gives an exculpatory evidence/story at trial? No! still cannot comment on the silence
or why didn’t you tell the officers
 Rationale: Invocation of Miranda carries no penalty and we don’t want to chill people exercising it
 Similar to: Rule that P may not comment on D’s decision not to testify (otherwise this would force Ds
to take the stand)
 Reasons: 5th Amend & the burden of proof is on the State (innocent until proven guilty)
 Pre-Arrest Silence: When does Decision not to testify take place?
 P’s Closing Argument:
 Can’t comment on D’s silence during trial 
 Can’t comment on silence during the custodial interrogation 
 But can comment on silence during non-custodial interrogation
 EXAM: Watch out for this transition. Remember (Today’s entire lesson is frequently flubbed-up on the
exam).
 What matters to you as a prosecutor or a defense attorney (where the rubber hits the road) is
whether the evidence will come in or not. Whether there was a constitutional violation or not
doesn’t matter; what matters is whether it will come in as evidence or not
 This is analogous to damages (not liability) being the most important thing in torts suits
D. Fruit of Poisonous Tree; Exceptions: Indep. Source, Inevitable Discovery, & Attenuation
 Fruit of the Poisonous Tree Overview
 Does the unconstitutional arrest undermine an otherwise fair trial?
 Hypo: Arrest takes place unconstitutionally, but as soon as suspect is arraigned there is PC (another
witness had come to the station in the meantime)
 Does the initial unconstitutional arrest render the rest of the process invalid?
 No, the unconstitutional arrest standing alone doesn’t contaminate either:
 1) No contamination of detention based on proper cause
 2) No contamination of subsequent trial
 Otherwise people would have immunity essentially
 Other Constitutional Violations: (say three pieces of evidence led ultimately to PC)
 Do they get to arrest?
 Previously (last section): Evidence obtained directly from a 4A violation is excluded
 Now (this section): Evidence obtained indirectly, or secondarily, from a 4A violation
 We know the first in a chain of three searches is excluded (normal doctrine) if unconstitutional
 But b/c of search #1 police conduct Searches #2 & #3 which are constitutional but a product of
the initial unconstitutional violation
 No, exclusionary rule extends to evidence discovered in a secondary (or tertiary) evidence/search
 This is b/c searches #2 & #3 wouldn’t have happened but-for the first unconstitutional search
 So everything the police learn down the road w/ the help of this unconstitutional search is tainted
 Reasoning:
 Has a deterrent effect, otherwise the right would be tempting to break
 Wouldn’t have found the evidence but for the unconstitutional violation
 Basic FotPT rule is pretty simple, but it is littered w/ exceptions
 Independent Source Doctrine: Evidence is not actually obtained b/c of the original constitutional
violation
 It is fruit of the non-poisonous tree (not like a hearsay exception, but a hearsay exclusion - not even
FotPT)
 Inevitable Discovery Rule - FotPT exclusion inapplicable
 Attenuated Connection Principle
 Independent Source Rule
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 Hypo: Search # 1 is unconstitutional, & they can live w/o this evidence. Police do Search #2 & find critical
evidence that is really needed. Thought detectives would be having is how can we find a constitutional
pathway to the evidence of Search #2 (remember, search 1 is gone forever)
 Imagine there were two teams of officers. Team 1 is doing the unconstitutional search 1 and also search
2. Team 2 is at the station and a witness tells them about the critical evidence also found in search 2.
 This is an exclusion to the FotPT rule b/c there was an independent connection to the evidence
 So if the police can come-up w/ an independent constitutional path then they can keep the evidence
 Doctrine
 Evidence discovered initially & unlawfully (via a link to an unconstitutional 4A search)
 Evidence discovered later & lawfully
 w/o use of initial discovery
 Evidence not FotPT
 But this is a little bogus b/c they only know to establish this constitutional path b/c of the earlier
violation
 But why should police be punished when some police could do some good policing?
 Problems
 There is a possibility for manipulation
 If police have sufficient cause for a warrant, skip it, search anyway, and then if there was evidence
available they then go get the warrant
 Courts are reluctant to allow evidence from this pattern b/c police aren’t really looking for anything
independent
 But: we don’t want to punish the police absolutely and this rule still provides an incentive for police to
do it right by finding an independent source or finding some attenuation
 EXAM: Hall will probably tell us they learned something in the investigation that was discovered
unconstitutionally, and that they also received a tip or an envelope as an independent source
 Note that this and attenuation don’t happen all that often. Don’t be that shocked by it, it is a messy rule
but it works basically
 Attenuation
 Hypo: Search #1 in 2011, ends up being unconstitutional. Search #2 & #3 happen shortly thereafter. Search
#4 was in 2012 and search #5 was in 2013.
 If FotPT is about contamination, then what happens when you stretch it out over time?
 Search 2 & 3 relied a lot on search 1; but search 5 really relied on all the prior searches mixed together.
 Normally - Exclusion If:
 Evidence obtained b/c of exploitation of violation
 Attenuation - No Exclusion If:
 Connection b/t violations & evidence was so attenuated as to dissipate the taint
 Evidence obtained by means sufficiently distinguishable as to purge the primary taint
 Attenuation Factors
 Time - temporal proximity
 Intervening Act of Free Will
 Can sever the FotPT chain
 Hypo continued: what if in search 4 police confront suspect w/ evidence and D volunteers the body
 Although it really looks like D was coerced into admitting, the Court sees this as intervening
 Flagrancy - Really bad violations then the taint takes more to dissipate
 Hypo: what if the original unconstitutional first search/act was torture? Then the “poison” is
stronger so we don’t let it attenuate as easily
 Difficulties
 There are different FotPT rules for different Constitutional Violations
 Specific Violations
 Confession following an illegal arrest (legit confession after illegal arrest, not talking about Miranda issue)
 Thought is that the police are already violating the rules, so why would the suspect not confess
since it seems like the police will just come and get him again anyway
 Factors for Whether this gets excluded from FotPT
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 Miranda - Was suspect Mirandized? If not, then this is sunk anyway
 Time - how soon after the illegal arrest did the confession emerge (less time = worse)
 Intervening Circumstances (anything substantial occurring b/t arrest and admission)
 Purpose/Flagrancy of Official Misconduct
 Voluntariness - to what extent does the suspect’s admission really seem voluntary
 This sounds like attenuation
 Right after a bad arrest = FotPT
 Long after a soft, not so bad arrest = maybe not FotPT
 Arrest in the w/ PC in the home but w/o a Warrant or Exigent Circumstances
 Should we exclude everything they find while inside the home improperly?
 The rule shouldn’t flow directly to the arrest, but to evidence in the residence b/c that is the
problem (the evidence found in the residence, not the arrest, is the problem)
 Only excludes evidence obtained w/in the residence
 If police do arrest in home w/o warrant, then they should not SITA the house; just search the
person and detain him; then go get a search warrant and search the house
 Miranda Violation:
 Hypo: We are in custodial interrogation; there is some sort of Miranda violation (given improperly, not
given, ignored by police); then statement given by defendant that leads to discovery of secondary,
physical evidence (classically location of victim’s body)
 What is excluded: Statement is definitely excluded. At this point, Miranda goals are entirely
satisfied. Secondary evidence is not excluded as FotPT
 The whole purpose of Miranda is to prevent self-incrimination, not to prevent police from finding
evidence
 Only the confession/statement gets excluded and there is no FotPT for physical evidence discovered as
a violation of Miranda
 Nix v. Williams (inevitable discovery)
 Facts: Christian burial
 Why didn’t the volunteers find the body? Wrong question, they would have found the body
 We are pretty confident they would’ve found the body (it was a little kid so the importance was high,
there were many volunteers, and it wasn’t well hidden)
 We don’t know w/ 100% certainty, but common sense tells us they would’ve found the body
 Inevitable Discovery
 No exclusion for FotPT if:
 Lawfully means would have led to discovery of the evidence
 Ultimately or inevitably
 Had they not been interrupted by the unlawful means
 BOP is on Law Enforcement
 Preponderance of the evidence (not really important but just mention it on the exam)
 “Hypothetical independent source”
 How to Argue
 You need some compelling, common sense forces that suggest police would find the evidence had
there not been the interruption
 Hypo: The Cerulean Blue VW Microbus was parked illegally and would have been found anyway
 EXAM: this is fact specific, ad hoc, totality of the circumstances
 Harmless Error (don’t do this on the final EXAM, should include it?)
 But the reality of criminal litigation is dramatically impacted by harmless error
 Typically appellate court won’t reverse if despite the error there were substantial indicators of guilt
 If Trial conducted w/ evidence that court should have excluded
 Reversal only if:
 Reasonable possibility that excluded evidence affected the jury’s deliberation
 Problems: Trial courts commit lots of errors that never get remedied
 No reversal if, for example
 There is overwhelming evidence of guilt
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