A Sketch of Criminal Procedure
Criminal Procedure, Fall 2012, BYU Law, Prof. S. Baradaran
Contents
I.
Introduction ............................................................................................................................................... 3
A.
4th Amendment .................................................................................................................................. 3
B.
5th Amendment .................................................................................................................................. 3
C.
6th Amendment .................................................................................................................................. 3
D.
14th Amendment ................................................................................................................................ 3
E.
Themes................................................................................................................................................ 4
II.
Search.......................................................................................................................................................... 4
A.
Open Fields and Curtilage ............................................................................................................... 4
III.
Seizure of Property ................................................................................................................................ 5
IV.
Probable Cause ...................................................................................................................................... 5
A.
V.
Informants .......................................................................................................................................... 6
Arrest Warrants ......................................................................................................................................... 6
A.
Execution ........................................................................................................................................... 6
B.
Exigent Circumstances ..................................................................................................................... 6
C.
Does the 4th Require a Warrant? ..................................................................................................... 6
VI.
Search Warrants ..................................................................................................................................... 6
A.
Required Elements ............................................................................................................................ 6
B.
Execution ........................................................................................................................................... 7
1. Knock and Announce ...................................................................................................................... 7
2. Seizure of Property in Anticipation of Warrant............................................................................ 7
3. General Principles of Execution ..................................................................................................... 7
VII.
Exception to Requirement for Search Warrant ................................................................................ 8
A.
Exigent Circumstances ..................................................................................................................... 8
B.
Search Incident to an Arrest ............................................................................................................ 8
1. Home .................................................................................................................................................. 8
2. Person ................................................................................................................................................. 8
3. Automobile ........................................................................................................................................ 8
Page 1 of 16
C.
Automobile Exception (and Containers) ....................................................................................... 9
1. Containers .......................................................................................................................................... 9
D.
Plain View........................................................................................................................................... 9
E.
Consent .............................................................................................................................................10
1. Voluntary? ........................................................................................................................................10
2. Factors the Cops Have to Deal With ...........................................................................................10
F. Stop and Frisk—Terry ........................................................................................................................10
1. De Facto Arrest ...............................................................................................................................10
2. Car Frisk ...........................................................................................................................................11
3. Reasonable Suspicion .....................................................................................................................11
VIII.
Exclusionary Rule............................................................................................................................11
A.
Policy .................................................................................................................................................11
B.
Standing to Claim Exclusionary Rule ...........................................................................................12
C.
Good Faith Exception....................................................................................................................12
D.
Fruit of the Poisonous Tree...........................................................................................................12
1. Exceptions ........................................................................................................................................12
E.
IX.
A.
Pushback Against the Exclusionary Rule ....................................................................................13
Fifth Amendment ................................................................................................................................13
Miranda .............................................................................................................................................13
1. Exceptions ........................................................................................................................................14
B.
5th-14th Due Process ........................................................................................................................15
C.
5th Self-Incrimination ......................................................................................................................15
D.
Lies the Cops Tell you ....................................................................................................................15
E.
Waiver of Rights ..............................................................................................................................15
F. Invocation of Rights ...........................................................................................................................16
G.
X.
Re-initiation ......................................................................................................................................16
Sixth Amendment ...................................................................................................................................16
Page 2 of 16
I.
Introduction
A.
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Who are people? (Are they citizens, residents, foreigners, or expatriates? Apparently,
4th doesn’t apply to foreigners searched abroad, and only the reasonable part applies
to expats, but if you’re in the U.S., the 4th reigns.) What are searches and seizures?
What are persons, papers, house, and effects? Remember that we’re talking about
rights vis-à-vis the government.
B.
5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury. . . . Nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law . . . .
C.
6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence.
With the Scottsboro cases, the Court inquired as to whether the defendants were in
substance denied the right of counsel, and if so, whether such denial infringed Due
Process as per Amendment 14. The Court concludes that where defendant is unable
to employ counsel, and is incapable of self defense, it is the duty of the court, even
on its own volition to assign counsel, and such duty is not fulfilled by doing
something that precludes the giving of effective aid.
D.
14th Amendment
DUE PROCESS: No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
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E.
II.
Themes
 Racial tensions
 Government versus individual rights
 Difference between state and federal power
 Accuracy: We want to get people, but have the reasonable doubt standard to
make sure we don’t convict innocent people.
 Fairness: Is it fair to trick people? What about ignorant people?
 Efficiency: Plea bargain keep the system going?
 Liberty and Safety?
Search
In analysis, you establish whether it was a search, then you worry about whether it was legal.
A search can be legal via warrant or reasonableness.
Katz’s phone booth gives us the reasonable expectation of privacy standard. When
applying the reasonable expectation of privacy standard, consider:
 Nature of the place
 Whether there is a trespass/nature of the intrusion
 Objective and subjective expectation of privacy
 Means of intrusion/technology, the practice, and extent of impact on security of
society and privacy of individuals.
The pen register was okay because it was installed at the phone company, the intrusion was
minimal, the phone book said in their phone book that they can/will trace calls thus
lowering expectations, and overall, recording phone numbers is not serious.
The snitch wearing a bug is not so serious because he is free to tell the cops everything
anyway. However, you can make arguments under the pertinent analysis.
Other incidents: The Court has allowed a beeper on public roads and whatnot. But, the
Court has not approved of a beeper tracking movements inside a house because that is
pretty much like having the cops wandering around inside.
Dog sniffing and plain view are not classified as searches.
A.
Open Fields and Curtilage
Open fields are not protected. An open field is an unoccupied/undeveloped area
outside of the curtilage of a home. Generally, analysis on whether a search has
occurred goes back to the elements above.
Curtilage is determined by analysis:
 Proximity of area claimed to be curtilage to home
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
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Whether area is included within an enclosure surrounding the home
Nature of the uses to which area is put (horse riding probably doesn’t count)
Steps taken by resident to protect area from observation. (Not overly
determinative)
Cops can still flyover in most instances. Things to consider with flyover:
 Noise/dust
 Intrusion/interference with use of property
 Intimate activities
 Purpose of observation
 Legal limits of altitudes
 Does general public use this technology with regularity?
With Kyllo, the Court decided on a case where they used heat sensing to peek into the
home. The test that seemed to emerge, but was not overly different from Katz was
information has been obtained by search if obtained by:
 Sense-enhancing technology
 Information regarding the interior of the home
 That could not otherwise have been obtained without physical intrusion
in a constitutionally protected area
 Where the technology in question is not in general public use
III.
Seizure of Property
Seizure of property has occurred when the police cause meaningful interference with a
possessory right. Often, a search can involve seizure, especially where the cops are
detaining stuff.
Items subject to seizure, particularly even if the cop only barely saw it:
 Contraband (illegally possessed)
 Fruits of a crime
 Instrumentalities used in the commission of an offense
 Mere evidence (bloodstained shirt)
IV.
Probable Cause
No warrants shall issue but upon probable cause.
For an individual: Facts and circumstances within police knowledge and of which they have
reasonably trustworthy info to warrant person of reasonable caution in belief that offense
has been or is being committed by person to be arrested.
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For a search: Facts and circumstances within police knowledge and of which they have
reasonably trustworthy info to warrant person of reasonable caution in belief that evidence
subject to seizure will be found in the place to be searched. (See above for evidence subject
to seizure).
A.
V.
Informants
There must reliable information (basis of knowledge) and a reliable informant
(veracity). With basis of knowledge, that involves the cops knowing things about the
likelihood that the target is not legit. With veracity, that has to do with the leads
playing out. As per Spinelli, the cops need to know more about the informant before
they can start going beyond that. As per Gates, you can use a totality of circumstances
as long as there is some basis of knowledge and veracity.
Arrest Warrants
Presumably, the arrest warrant issues on probable cause. You especially need a warrant when
you’re going to somebody’s home to carry out the arrest. A public arrest is easier and
probably doesn’t need a warrant, so long as there is probable cause.
A.
Execution
The relevant case is where the cops busted in to arrest some guy and found plain
view evidence, but no guy. The evidence got suppressed. Apparently, there weren’t
really enough exigent circumstances to justify what they did.
B.
Exigent Circumstances
 Hot pursuit of fleeing felon
 Imminent destruction of evidence/person getting away
 Risk to police/persons
Once a warrantless arrest occurs, there needs to be a probable cause decision by a
judge within 48 hours.
C.
VI.
Does the 4th Require a Warrant?
Some say that the judge decides whether it was reasonable, and that is sufficient. On
the other hand, it is very easy to get warrants these days. Furthermore, after the fact,
it is difficult to say whether the cops actually had probable cause. On the other hand,
textually it does not say a warrant is required in all circumstances. The idea is to
avoid general warrants.
Search Warrants
A.
Required Elements
 Probable Cause
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



B.
Oath
Affirmation
Particularity (can’t just do a general warrant and then sort through
everything)
Neutral, detached magistrate (judge can’t go over and have a porn party)
Execution
1.
Knock and Announce
Knock & Announce is required so as to protect property, protect
privacy/dignity, and to prevent violence or threats to anybody’s safety. If
there appears to be no response, or whatever, the cops can knock down the
door after 15-20 seconds.
Knock and announce is not required if cops have reasonable suspicion that
knock and announce under circumstances would be dangerous or futile or
that it would inhibit effective investigation of crime by destruction of
evidence. The judge should decide ahead of time, but things can change on
the doorstep, and that can go both ways for the officers as long as they make
a reasonable judgment.
2.
Seizure of Property in Anticipation of Warrant
Cops may seize property for a couple of hours while waiting for warrant.
This could include preventing somebody from going in their house or leaving
their house.
Principles:
 Cops have reason to believe that contraband was in property
 Reasonable fear of evidence destruction
 Reasonable efforts are taken to maintain privacy
 Limited restraint
3.
General Principles of Execution
 Police may search only containers large enough to hold the criminal
evidence for which they are searching.
 Cops may seize an object not described in warrant if they have
probable cause to believe it is an item subject to seizure.
 Information learned immediately prior to search may require officers
to cease or narrow search, notwithstanding warrant. (Also,
information realized after search begins.
 Persons on premises may be reasonably detained during search.
 To search a person, you need a warrant.
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VII.
Exception to Requirement for Search Warrant
A.
Exigent Circumstances
For instance, hot pursuit is a legit reason, but only if it is circumscribed the
exigencies. The taxi robbery was legit for the officers to bust into the house
immediately after and search for the guy and weapons.
B.
Search Incident to an Arrest
1.
Home
As per Chimel, the cops can search the area within reach of the arrestee for
officer safety and evidence protection.
a)
2.
Person
As per Robinson, a person can be search at arrest, so long as the arrest is
constitutional, even if the state might not be okay with the arrest. It must be
an arrest, however, and not just a citation.
a)
3.
Terry Extension
As per Buie, the cops may do a limited protective sweep in
conjunction with an in-home arrest where there is a reasonable belief
based on articulable facts that an area to be swept harbors people
posing a danger to the arrest scene. The policy is officer safety.
Anything superfluous will be frowned on, probably.
Incarceration
Person gets searched once they’re thrown into the jail.
Automobile
Cops may search passenger compartment if they have reason to believe that
1) arrestee might have access to vehicle at time of search, so for safety of
officer or 2) if the cops believe that evidence of the offense for which the
person was arrested might be in the vehicle. Previously, Belton allowed search
of entire compartment at arrest, but this was modified in Arizona v. Gant.
The search must be somewhat contemporaneous with the arrest.
a)
Pre-Textual Stops and Arrests
Officer’s motive in pulling someone over doesn’t invalidate
objectively justifiable behavior. If cops think car might have drugs,
pulling them over for something legit is still okay.
b)
Impoundment
Cops may search entire vehicle after impounding it—not completely
disassembling it, however.
Page 8 of 16
C.
Automobile Exception (and Containers)
If police have probable cause to believe that a vehicle contains contraband, fruits,
instrumentalities, or evidence of a crime, they may search the vehicle without a
warrant. (Carroll)
 Cars are mobile and likely to move before officer returns.
 Furthermore, the expectation of privacy in a car is lower than expectation in
home.
 Also, the government regulates cars.
Whether the exception applies depends on whether the vehicle has the attributes of
mobility. A motor home in a parking lot is searchable—in a junkyard, not so much.
A car in a driveway is not searchable. (Carney—mobile home, and Coolidge—
driveway not cool)
If they’re looking for an illegal alien, they can’t search the glove compartment. But if
they’re searching for drugs, then they can search everywhere.
Apparently, towing the car to the station is acceptable as per Chambers.
1.
Containers
As per Acevedo, if cops have probable cause to believe something is in a
container placed in a car, they may search the car for the container (searching
inside things big enough to contain container) and then search the container.
Acevedo overrules Sanders, which had said that cops needed warrant to look
in container.
Example: If cops believe briefcase has contraband, they cannot search unless
they arrest D or unless they get warrant. Once the briefcase is in the car, they
may search car for briefcase.
With Chadwick, just because they arrested him doesn’t mean they can search
two hours after the arrest without a warrant.
D.
Plain View
Officer can seize without a warrant evidence and contraband found in plain view
during lawful observation. There must be probable cause to believe it is contraband,
etc. Also plain smell. The example is the turntable that the cop had to move to see
the serial number.
 Lawfully present in place where evidence can be viewed
 Lawful right of access to object
 Incriminating character is “immediately apparent”
 Probable cause to believe item is evidence, contraband, or fruit or
instrumentality of a crime.
Page 9 of 16
E.
F.
Consent
Police may conduct warrantless search if they have voluntary consent.
1.
Voluntary?
 Consent is freely given under reasonable circumstances. The court
determines this by the totality of the circumstances. Statements made
by individual, a vulnerable state of the individual, and perhaps the
level of intelligence, though ignorance of rights isn’t necessarily a
good reason to invalidate consent.
 Consent can’t be product of coercive tactics, statements, or
questions. Lack of warning and knowledge that they can refuse is all
right.
2.
Factors the Cops Have to Deal With
 Scope: Cops have to follow the reasonably apparent scope of the
consent.
 Duration: There is some sort of implied time limitation—a quick
look doesn’t take an hour.
 Withdrawl: Person can withdraw consent
 Third party is giving the consent:
o Cops have to make sure person has apparent authority to
authorize search—this is based on facts available to officers
at time.)
o Common authority—joint ownership. Though, if one owner
is present and objecting, the cops can’t do anything.
Stop and Frisk—Terry
In Terry, the cop observed guys casing a joint. As per Terry, a cop may stop a person
probable cause for without probable cause if there is a reasonable suspicion of
criminal activity. If there is reasonable belief that person may be armed and presently
dangerous, the cop may frisk for weapons.
The allowed boundary is exceeded if the stop and frisk terms into a de facto arrest.
1.
De Facto Arrest
 Person moved to where the interrogation takes place. The cop shop
is per se de facto.
 Person not informed they are free to go
 Length of detention considered
 Whether the person is actually free to leave considered
 Bottom line: A person has been seized if in view of all circumstances,
a reasonable person would have believed he was not free to leave.
Page 10 of 16

VIII.
A seizure has not occurred if the suspect has not yielded.
2.
Car Frisk
Cop that has properly stopped a car may order the driver out. If the cop
reasonably believes that the driver or any passenger may be armed and
dangerous, cops may frisk person and search car for weapons, but only
where weapons might be found.
3.
Reasonable Suspicion
Reasonable suspicion requires more than an inchoate and particularized
suspicion or hunch. There needs to be some minimal level of objective
justification. Nervous, evasive behavior combined with a high crime areas
has been sufficient.
Exclusionary Rule
The Exclusionary Rule, adopted for federal courts by Wolf and extended to state courts by
Mapp, declares that evidence seized in violation of the Fourth Amendment may not be used
at trial. The exclusionary rule does not apply to preliminary hearings, sentencing, probation,
and civil proceedings.
A.
Policy
For
 Deterrent for police misconduct
 There is no other viable remedy.
 Promotes professionalism.
 Doesn't let the government profit
from wrongdoing.
 Preferable to keep government in
check than to punish one criminal.
 Protects more innocent people than
guilty people that gets off for their
crime.
 Police adherence to the 4th has
increased, and they are more aware.
 Easier to have a hard and fast rule.
 Search warrants have increased
because of the broader requirement.
 It is debatable whether tons of
criminals are going free because of
this.
 It's a nice way to head off the need
for private rights of action against the
cops or states.
Page 11 of 16
Against
Not a deterrent because the
consequences wouldn't get back to
the cops in time to learn them a
lesson.
 Doesn't affect police any
 Officers might lie about what
happened in order to dodge the rule.
 Cost/benefit of allowing guilty people
to go free for minor violations by the
cops.
 This doesn't do anything for innocent
people anyway.
 Promotes cynicism among the public
about whether people are really
innocent--it gives defense attorneys a
bad rap because they're letting guilty
people go back on the street.

B.
Standing to Claim Exclusionary Rule
One way the court limits the cost of the rule is to be careful about to
whom the rule applies. As per Rakas, where the Court allowed evidence
taken from a car, the rule emerged that without a possessory interest or
property interest there is no reasonable expectation of privacy. Olsen
extends protection to house guests, but Minnesota v. Carter, stops at
extending protection to people only in the home for a bit to do some
business. Furthermore, as per Rawlings, mere ownership of an item doesn’t
prevent the cops from searching the container in which it is located, unless
there is some sort of possessory or property interest.
C.
Good Faith Exception
Evidence seized on mistakenly issued warrant is not excluded if it is
obtained on a reasonable, good faith belief that the searcher was in accord
with the 4th Amendment. However, this doesn’t cover situations where 1)
the affiant knew the statements were false, 2) the magistrate abandoned his
neutral and detached position (and was somewhat obvious), and 3)
probable cause is completely lacking. Court distinguished between police
and judicial action. Enacting the exclusionary rule here wouldn’t affect the
police.
D.
Fruit of the Poisonous Tree
Fruits of illegal searches and seizures are excluded. You can’t copy the
papers, return them, but still use the information.
1.
Exceptions
a)
Independent Source
If a magistrate would have issued the warrant without the
tainted information, then those fruits will be allowed. The
classic case is going to the magistrate and not including
tainted information on the warrant. The major concern is
that there will be preliminary searches before the cops go to
the bother of getting a warrant. This is a major point of
debate.
b)
Inevitable Discovery
If the cops can show that the cops inevitably would have
found the evidence through lawful means, there no point in
excluding it because that puts the cops worse off than if
they had not done anything illegal. There is dispute as to
what the standard of proof is, though.
Page 12 of 16
c)
E.
Attenuation
At some point, the poison dissipates. Factors:
 Length of time between illegality and seizure of fruit
in question
 Flagrancy of illegal act
 Existence of intervening cause between illegality
and seizure
 Presence or absence of an act of free will by the
defendant resulting in the seizure.
Pushback Against the Exclusionary Rule
As per Hudson, a violation of the knock and announce rule isn’t a violation
of the 4th Amendment that can result in the exclusionary rule being applied.
The idea is that deterrence isn’t going to have much effect here—the cops
have been doing great lately (because of the exclusionary rule).
Unfortunately, there isn’t much of a civil remedy for the knock and
announce violation.
Additionally, it is Herring that shows Chief Justice Roberts saying that
evidence shouldn’t be excluded if:
 Isolated negligence—there was no reckless reliance or action
(Culpability) With Herring, it was a computer error. Is that the limit?
 The price isn’t worth the deterrence (is there every a price that is
worth it though?) (Deterrence)
IX.
Fifth Amendment
A confession is a gold ticket to jail, and sometimes the cops used to be pretty
brutal about getting a confession.
A.
Miranda
Miranda applies to custody and interrogation. You must be informed of a right
to counsel and a right to remain silent. When you invoke right, you shouldn’t
be questioned further. Questioning before Miranda is excluded. The cops have
the burden to show that you waived your rights voluntarily, knowingly, and
intelligently. No fruit of poisonous tree doctrine. You may use non-Miranda
material to impeach. A Miranda violation isn’t a Constitutional violation, per
se, but Miranda is regarded as Constitutional and not subject to statute
superseding it.
Page 13 of 16
1.
Exceptions
a)
Public Safety
The safety of the public is weighed against the prophylactic
need. (Quarles grocery store rapist.)
b)
Routine Booking Exception
What you spit out to administrative questions at booking isn’t
inadmissible under Miranda.
c)
Elstad/Seibert—Was There an Interrogation?
Under Elstad, the first statement you give without being
Mirand-ized is not admissible, but the second statement might
be admissible.
What were the effects of the first interrogation on the second
interrogation? (You're interested in whether the cops were
trying to get around Miranda.)
Five factors:
1. Completeness and detail of the questions and answer in the
first round of interrogation
2. Overlapping content of statements
3. Timing and setting of the first and second
4. Continuity of police personnel
5. Degree to which the interrogator's questions treated the
second round as continuous with the first. (Like a reminder of
the 1st statement in the 2nd round.)
ALSO: What was the intent? (This is required by Kennedy who
is your fifth vote and narrows the plurality.)
You're in trouble if there was a deliberative 2-step interrogation
was there. And if something looks bad, was there curative
steps? Timing is important. Additional warnings also.
Express questions and/or words/actions that are
reasonably likely to elicit incriminating responses.
(Reasonable police officer test). ANYTHING the
reasonable police officer might know will result in
persuasion or will result in them spilling their guts.
d)
Was it Custody?
Miranda Custody
1. Deprived of freedom in way associated with formal
arrest. (Mathiason--Berkemer) (objectively)
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2. Reasonable person in Defendant's situation (as in who
he is, subjective stuff generally) (feeling as to answer of
question above) If they don't realize they're up the
creek, they're not in custody for Miranda purposes)
(based on circumstances, not what's going on in their
head)
McCarty:
1. Miranda applies to misdemeanor arrests
2. Routine questions of motorists detained in traffic
stops is not custodial interrogation
B. 5th-14th Due Process
The question is voluntariness according to totality of circumstances as per Spano
or even Bram (guy on boat, changing clothes when kind of tricked). This didn’t
work all that well because the cops got more subtle. As for whether it’s allowed
in court, anything involuntary wipes it from being used ever.
Spano:
 # of officers
 Psychological techniques--pressure, deception
 Length of detention/time of day
 Feed him, go to bathroom
 Physical force or threat thereof
 Requested/not permitted counsel
 Defendant:
 Young
 Lack of education
 ESL
 Mental and physical condition
 Race, ethnicity, experience level with police
C.
5th Self-Incrimination
This applies to 1) Compelled, 2) Incriminatory, and 3) Testimonial (documents and
statements, not physical evidence). Exclusion will follow the poison tree for
documents and statements. The final caveat, is that it only applies when there are
criminal proceedings against that person involved.
D.
Lies the Cops Tell you
Some lies deemed coercive and inappropriate—due process. Extrinsic lies are nasty,
but intrinsic are okay—bluffing basically. Doesn’t affect the innocent person.,
allegedly.
E.
Waiver of Rights
Waiver must come knowingly, intelligently, and voluntarily. Knowing and intelligent
is a subjective test. Voluntarily is the standard totality of the circumstances thing.
Page 15 of 16
X.
F.
Invocation of Rights
Right to Counsel: Defendant must unambiguously request counsel. "I want to
speak to a lawyer." Then the officers must stop questioning.
Right to Silence: If suspect wants the cops to stop questioning, they have to speak
up and invoke their right to silence.
G.
Re-initiation
Both: If invoked no more questions unless suspect starts general discussion about
investigation.
Right to Counsel: Suspect must initiate the discussion once the right has been
invoked. "A generalized discussion" relating to the investigation suffices. But,
custodial garbage doesn't count.
Cops can come back after 2 weeks and re-approach.
Right to Silence: Police can approach after they have scrupulously honor right to
silence. Mosley. Different detective, time, offense, etc. But remember that Miranda
isn't offense specific. Don't try to pin analysis on different crime.
Sixth Amendment
5th Amendment/Miranda
6th Amendment
Attaches
Custody w/ interrogation
Formal criminal
proceedings have
begun
Offenses:
Not offense specific
Offense specific
Waiver
Waiver covers 6th
Waived by waiving
Miranda.
Focus of
inquiry
Custody & interrogation
Deliberate elicitation
Re-approach
Not allowed to reapproach unless some
other factor met (see other
notes)
Allowed to reapproach about a
different offense (if
there isn't custody or
interrogation)
Fruit
No fruit
Yes fruit
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