Criminal Procedure I – Outline (Skeleton)

Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects,”
- Guarantees security in fourth different categories, otherwise 4th amendment does not apply:
1. Persons (includes withdrawal of blood, person’s conversations even though
intangible)
2. Houses (any structure (including offices or commercial buildings) that people
commonly use as a residence, even for a temporary purpose, i.e. hotel room; also
includes the curtilage, i.e. attached garage & backyard); must distinguish with “open
fields”
3. Papers (papers not necessarily personal)
AND
4. Effects (is not equivalent to property)

“…against unreasonable searches and seizures, shall not be violated,”

- Reasonableness Clause of the 4th Amendment.
- If what a police officer does, does not fall within a search or seizure  4th amendment
does not apply
- What makes a search or seizure unreasonable? Topic of the course

“…and no warrants shall issue, but upon probable cause, supported by Oath or affirmation,”
- Warrant Clause of the 4th Amendment (warrant requirement)
- Person providing the probable cause must be reliable
- Person provided affirmation subject to perjury charges

“…and particularly describing the place to be searched, and the persons or things to be
searched, and the persons or things to be seized.”
- Particularity Clause of the 4th Amendment
- Framers wanted to avoid “general warrants,” therefore everything must be specific as to
what and where the police are looking for

1. Most of the 4th amendment focuses on rights  what are our rights?; but all rights must
have remedies in case of violations.  Exclusionary Rule
a. Exclusionary Rule: if evidence is recovered in violation of 4th amendment the
evidence will be “suppressed” or excluded from trial (Always an evidentiary
issue) (with exceptions)
2. 4th amendment requires that the wrongdoer MUST BE a PUBLIC OFFICER (does not set
limits on the behavior of your snoopy neighbor)

WHAT IS “SEARCH”

Boyd – every invasion of private property however minute is a trespass  4th amendment did not
apply in the absence of a physical trespass/intrusion into a constitutionally protected area (house)
Katz – (changed the law to a privacy view) critical to understanding the term “search”; Seminole
case in 4th amendment law.
 - Guy entered into a glass telephone booth which he closes that government had placed
wire tapping. (government intrusion into a person’s private conversations)
- Majority: 4th amendment protects people not places (not constitutionally protected areas);
did not offer a bright line rule: “what a person knowingly exposes to the public even in
home or office is not subject to 4th amendment protection, but what a person seeks to
preserve as private even in an area accessible to the public maybe constitutionally
protected”; uninvited eye vs. uninvited ear
- This case does not mean that the government cannot wire tap; it only means that this was
an unreasonable search because it lacked a warrant
- Concurring: Primary Test: Each of us is entitled to a reasonable expectation of privacy
and when the police intrude on that expectation = SEARCH
1. Subjective expectation of privacy AND
2. Must be one that society recognizes as reasonable/legitimate

Hoffa - S.Ct. says that NO SEARCH occurs if a police informant or undercover agent(s) reports
on the defendant’s statements made by the defendant to the false friend.
- When a person voluntarily speaks to another person and thus deliberately reveals the
speaker’s mental impressions to the second individual the speaker thereby assumes the
risk that the listener is not who he claims to be (in fact an informant or undercover agent)
- If you want to keep your thoughts private  keep them to yourselves.

U.S. v. White – Ct. decided they would leave Hoffa undisturbed; a person cannot have a
reasonable expectation of privacy in the ideas and words that are being voluntarily provided to a
person who then later betrays you = NO SEARCH. So this falls outside the 4 th amendment and
you have no protection. It does not matter that your “false friend” is wired.

Oliver v. U.S. - “open fields doctrine”; S. Ct. said we don’t have a reasonable expectation of
privacy in activities in open fields because persons who have open fields know that “no trespass”
signs are not observable. Further, open fields are observable from public navigable air space.
NO SEARCH occurs but curtilage is protected.

U.S. v. Dunn – Four factors that determine if it is curtilage

1. proximity of the area to the home
2. whether the area is included within an enclosure to the house (fence)
3. nature of the use to which the area is being put to
4. what steps were taken by the resident to prevent observation
Curtilage is the area immediately surrounding the sanctity of man’s home

U.S. v. Miller – no expectation of privacy regarding the information you provide your bank
Smith v. Maryland – no expectation of privacy regarding the phone numbers you dial; not the
conversations, but the numbers dialed.
California v. Ciraolo - Even activities within the curtilage does not constitute a search if the
surveillance occurs from public navigable air space without a physical intrusion (maybe a
subjective expectation of privacy BUT not a societal reasonable expectation of privacy)
Florida v. Riley – limiting warning signals; helicopter did not come so low to cause a physical
intrusion
Kyllo – police while parked on public land used a thermal imaging device on a particular device
and determined areas in the home was much hotter then the rest of the home and surrounding
homes; police went and got a warrant
- Was the use of the thermal imaging a search?
- Owner did possess a reasonable expectation of privacy because the inside the home is
very intimate and demands special protections
- Where the police use a device that is not yet in general public use to explore details of the
home that would previously have been unknowable without physical intrusion the
surveillance is a SEARCH.
- 4th Amendment protects the most in the HOME (somewhat going back to the pre-Katz
era)

EXAM
Love to ask questions that have not been resolved by the Supreme Court
Court uses the following factors to determine borderline SEARCH:
1. nature of the place observed – (a home and what is going inside the home is protected
far more than what is protected
2. What steps were taken by the individual to enhance privacy (windows open or shut,
fences)
3. How intrusive was the government action/activity (pen register less intrusive)
4. Where was the observer while they were doing the surveillance
a. Air vs. physical trespass (curtilage vs. open field)
b. Technology not generally in public use  considered search if those activities
could not have been known but for the technology without a physical intrusion
5. Nature of the activities being observed

WHAT IS A “SEIZURE”?

1. Seizures of Property

U.S. v. Jacobson: A seizure occurs when there is a meaningful interference with an individual’s
possessory interest in that property.

Police are not permitted to seize just any type of property with or without a warrant.
Only four: (1) contraband, (2) fruits of a crime (money stolen), (3) instrumentalities of the crime
(gun used), (4) mere evidence of a crime.

2. Seizures of Persons

PROBABLE CAUSE

Rules of Thumb
1. An arrest without probable cause is ALWAYS an unreasonable seizure of that person
whether the arrest occurs with or without a warrant.
a. Arrest – a seizure of a defendant person
 2. Subject to Various exceptions: A search or seizure of property is constitutionally
unreasonable unless that search or seizure is conducted on the basis probable cause
whether it is done with or without a warrant.

Probable Cause is required:

1. All warrants
2. All Arrests even without a warrant
3. Most Searches or seizures of property even without a warrant

What constitutes probable cause:

- Arrest: when the facts and circumstances known personally to a police officer and/or
which the officer has reasonably trustworthy secondhand information would be sufficient
to suggest to a person of reasonable caution that a crime has occurred and the defendant
has committed that offense.
- Seizure: when the facts and circumstances within the officer’s knowledge and/or which
the officer has reasonably trustworthy second hand information would be sufficient to
warrant a person of reasonably caution to believe that she will find criminal evidence
in the place she is looking.

What type of information should a police officer furnish to the judge?

- anything the officer has personally observed (believable because it is made under oath
and punishable by perjury)
- second hand information
o Aguilar/Spinelli Test (overruled)
1. Basis of the knowledge of the informant
2. Reliability or Veracity of the Informant
 Both of these prongs had to be met in order for the judge to consider it
 If both of the prongs could not be met the police officer would have to
independently corroborate the informant’s fact
 Draper: predicted everything about the defendant and the police then
observed the defendant act out all of the predictions
o Illinois v. Gates (overrules Aguilar/Spinnelli)
 Fly to FL and back to traffic drugs received from an ANONYMOUS
informant. Police corroborated some of the information.
 No longer have to present evidence of both of the Aguilar test
 Instead invoked: the totality of the circumstances test
 As long as one of the prongs was strong it would made up for any
weaknesses in the other prong

Probable Cause is always looked at OBJECTIVELY NEVER SUBJECTIVELY.

Court does not care about the police officer’s subjective motive even if they are racist or
harassment motives.
Whren vs. U.S.
- Young kids in a car late at night, one of the young men looked to its lap, the car turned
without signaling and driving at an unreasonable speed. Officers observed large plastic
bags in the passenger’s lap.
- Defendant’s argued that the officers only stopped the car because they wanted to
investigate for drugs; the traffic stop was a pretext.
- Everyone agrees that the police officers did not have probable cause regarding drug
activity.
- S. Ct. Unanimously held that as long as there is probable cause to stop the car for a traffic
violation the officer’s motive was irrelevant.
- Objective probable cause to ticket the driver is ENOUGH.
- If the defendants feel there is an equal protection clause violation they should bring such
action

“WARRANT REQUIREMENT”

- If you don’t have a warrant the search is per se unreasonable and therefore violative of
the 4th amendment UNLESS the case falls within a recognized EXCEPTION to the rule.
- Why do we want police to get a warrant?
o S. Ct. responds by saying that the probable cause determination by a neutral and
detached party, a judge, rather than a police officer who may so heatedly involved
in the case.
o Not based on the idea that police officers are untrustworthy.
o Framers prefer that the probable cause determination be made in advance of the
search by a neutral arbiter.
- What happens if a magistrate issues a warrant based on false information by the officer?
o Franks v. Delaware:
 An affidavit is presumed to be valid because it is under oath, defendant
cannot later attack the affidavit and thus the warrant
 A defendant can only attack the warrant if he can make a substantial
preliminary showing of three matters:
1. Provide substantial evidence there was false statement included in the
officer’s affidavit
2. Provide substantial evidence that the officer made the false statements
intentionally or with reckless disregard for the truth
3. That these false statements were necessary to the magistrate’s finding
of probable cause (“but for” test)
- Must look at the warrant’s particularity
o If a house search is to be conducted then an address is needed, apartment number
needed.
o If only a portion of a house for a particular item then the warrant needs to
delineate what area is supposed to be searched
o Warrant is to be as specific as it can realistically be expected
 Example: jewelry – cannot specify what kind of jewelry because very
many
- Warrant itself needs to be executed reasonably
 o At common law, police could not execute a warrant without a requesting
admission and if they were dismissed, they were allowed to forcefully enter
o Wilson v. Arkansas
 That common law principle is embedded in the fourth amendment
reasonableness analysis
 Avoid the risk that defendants will use violence against would be intruders
 Reduces invasions of privacy
 No bright line rule; “Knock and Announce” rule, however, has three
exceptions; if there is reasonable suspicion that:
 If there is a threat of violence of the police or others that would be
aggravated if they would announce themselves
 If there is reason to believe that evidence would be destroyed if they
announce themselves
 If they are in hot pursuit of the suspect

Richards v. Wisconsin
Police only need to have reasonable suspicion that any one of those three exceptions are at play
in order for them to avoid knocking and announcing.
What is reasonable suspicion? A lower/lesser standard of proof than probable cause. Requires
police to have more than a hunch but not much more than a hunch.
Once you learn reasonable suspicion that this knock and announce requirement is not much of a
requirement at all, because a lot can come in under reasonable suspicion.
Generally, police may not enter even with a valid warrant without knocking first, announcing
their intentions, and requesting admission.

United States vs. Banks (How long must the police wait before entering after announcing)
∆ Banks was showering. Police came to execute a warrant for cocaine, they knocked and
announced and waited for 15-20 seconds to enter. Court said this was a close case, but
ultimately the 15-20 second wait was sufficient reasonable suspicion under the totality of the
circumstances that the defendant could be destroying the cocaine.

ARREST WARRANT REQUIREMENT(S)

General Rule: A search conducted without a warrant was per se unreasonable. They didn’t talk
about arrests.

United States v. Watson

∆ was arrested at a restaurant that was open to the public and the police had probable cause. No
constitutional requirement for a warrant if the defendant is arrested in a public place. All
arrests require probable cause. Defendant cannot complain about the lack of an arrest warrant,
they may only seek redress by attacking the police’s probable cause for arrest.

Payton v. New York

Police had probable cause to arrest ∆, but they lacked a warrant, and had no consent to enter.
Court held that the 4th Amendment prohibits warrantless nonconsensual entry into a person’s
home for a routine felony arrest even though the police have probable cause unless there are
exigent circumstances or consent. “Physical entry of a home is the chief evil to which the 4 th
amendment is directed.”

How do we draw the line?

U.S. v. Santana
Police wanted to arrest ∆ but had no warrant. Police observed Santana standing in the doorway.
When ∆ saw the police she jumped into her home. Police knocked down the door. Court held
that a doorway with a door open is a public place for purposes of the 4 th amendment. Police
were in hot pursuit because she had been in a public place. There was an emergency.

Steagald vs. United States

Police believe that ∆ can be found in a neighbor’s home and they want to arrest him. Police
come to the neighbor’s home show the neighbor ∆’s arrest warrant and ask to come in to the
house to search for ∆. Neighbor denies consent to enter the house, but the police enter anyway.
If police want to make an arrest of a ∆ in a third party’s home, they must have both an arrest
warrant and a search warrant.

SEARCH WARRANT EXCEPTIONS

Warrantless searches are per se unreasonable subject to a few well delineated exceptions

1. EXIGENT CIRCUMSTANCES
If the police don’t have time to get a warrant, if the circumstances make it impracticable to get a
warrant, they don’t need one.

Warden v. Hayden
Police had probable cause to believe that a man involved in an armed robbery had fled into his
home. Police went to the house and a woman allowed them to enter the home where they found
the defendant in his bed pretending to be asleep. While in the house the police found evidence in
the flush tank of a toilet and a washing machine that implicated the defendant in the armed
robbery. Government argued that the warrantless search was justified in light of the
circumstances because they were looking for a weapon just as looking for the defendant. Court
held that the police could enter the house without a warrant because they were in hot pursuit
(exigent circumstances: impracticable to get a warrant) , search the whole house for the
defendant, could search any place a weapon might be found and used against them. MUST
HAVE PROBABLE CAUSE TO ENTER THE HOUSE!!!

2. SILA (Search Incident to Lawful Arrest)

Generally a police officer who makes a lawful arrest may conduct a warrantless search of the
arrestee’s person and body and of the area of the arrestee’s immediate control. (Chimel)
If arrest occurs within a home, the police may search for person’s in the adjoining rooms to the
place of arrest. (Maryland v. Buie)

Three areas the police may search when incident to a custodial LAWFUL arrest
1. Search the person himself
2. Search the area within the arrestee’s immediate control
 3. Search closets adjoining the place of arrest

Rationale/Justification:
1. The arrest itself creates an exigency of its own, arrestee may reach the grabbing area
for a weapon
2. Arrestee may try to destroy evidence and therefore police must be able to secure it
3. There might be people that may pose a threat to the police

Scope:
- Search of the person is automatic. There does not need to be probable cause that
- Where an arrestee may grab a weapon or destroy evidence (no bright line rule)
- In a home, police have a right to look into areas that are immediately adjoining where the
person was arrested, and only areas where a person might be found.

In an exam you must first determine:

- Did police in fact conduct a lawful arrest? (traffic citation not enough – Knowles)
- Was the arrest based on probable cause?
- If the arrest was in the home, was there a search warrant?

Robinson v. United States (search of the person)

Police took defendant in for driving without a license. When they searched the defendant they
found a cigarette box wherein there were drugs, which they then seized. Court held that the
right to search the defendant was automatic and no probable cause was required. Police may
also search any containers found on the person of the arrestee.

New York v. Belton (bright line rule on scope – vehicle)

Police may contemporaneously to the arrest of a car occupant not only search the arrestee’s
person but may search the entire compartment of a vehicle, including open or closed containers
found in the vehicle, except the trunk. Rationale: anything in a vehicle is within the defendant’s
grabbing area while the defendant was an occupant of the vehicle.

Thornton v. United States (recent occupant; close proximity)

Police followed a suspicious car but before he could pull over the vehicle, the driver parked his
car and got out. After a talk, the police arrested the driver. Here the arrest takes place after the
driver was already outside of the car. Court held that Belton still applied because the driver was
a recent occupant of the vehicle and he was in close proximity of the vehicle. Dissent: Would like
to overrule Belton and permit a search of the car incident to arrest only if officer has reason to
believe that he will find criminal evidence in the vehicle.

3. MOTOR VEHICLE EXCEPTION

In general, a police officer may conduct a warrantless search of a car if the officer has probable
cause to believe it contains criminal evidence.

When may the police conduct a warrantless search of a vehicle?

California v. Carney
Police wanted to search a mobile home. Police observed the mobile home at a public parking
lot, but it was not on a highway, its occupant was suspected of exchanging sex for marijuana.
Police did not get a warrant and instead searched the mobile home. Assuming you have probable
cause police may conduct a warrantless search of a “vehicle being used on the highway or if the
vehicle is readily capable of such use and is found stationary in a place not regularly used for
residential purposes.” (Left open what would happen if the mobile home was on stumps in a
place regularly used for residential purposes)

Carroll v. United States, 1925

Police stopped vehicle on a highway and searched it on the highway for bootleg liquor. Police
had probable cause for search but did not have probable cause for arrest. The mobility of the car
created an emergency/exigency. The exigency justified the search.

Chambers v. Maroney
Police stopped vehicle on the highway suspecting them of a robbery. Police had probable cause
to arrest the occupants and search the vehicle believing it to contain evidence of the robbery.
(SILA) Police, however, chose to take the car to the station to search it, instead of searching it at
the scene, while the occupants were already arrested. Court upheld the warrantless search of the
car because the car was still mobile.

Rationale:
1. Apparent Mobility of the motor vehicle
2. We have a lesser/reduced expectation of privacy in our automobiles than our homes.
a. Reduced expectation of privacy is because of extensive governmental regulation
of motor vehicles
b. Frequency of vehicles being involved in an accident or can be disabled in a public
highway
c. Extent of police or government contact is substantially greater than contact with a
home, office or other belongings
d. Primary function of car is for transportation, therefore a vehicle seldom serves for
residential purposes or repository of personal effects
e. Vehicles have little capacity for escaping public scrutiny; it is on public highway
where its content and occupants are in public/plain view

Containers found in car

United States v. Chadwick
Federal officers believed they had probable cause to believe that a huge double locked foot
locker that the defendant took from a train contained contraband. Officers had prior notice (2
days) to obtain a warrant and did not arrest or search the foot locker when he arrived. Police
waited until the foot locker was placed in a vehicle’s trunk before the car could drive away, the
police arrested the defendant and the vehicle’s occupants and took the trunk to the station to
search it. Court held that the officers had probable cause to search the container but not the
vehicle. Court held that there was a complete expectation of privacy in our closed containers
unlike cars; Federal officers should have lawfully seized the container but then obtained a
warrant for the search of the container.
California v. Acevedo
Police officers had reason to believe that the defendant had just purchased drugs from a home
from which he was leaving. Police observed the defendant place the bag in the trunk. Police
stopped the vehicle and immediately searched the bag within the trunk.
Once a container is put into a vehicle and once the auto is on the highway or otherwise meets all
the other conditions of the auto exception, since we have a reduced expectation of privacy in our
vehicles, we also have a reduced expectation of privacy in the containers that are in the vehicle
and since the container is in the car it is too inherently mobile. Court held this was simply a car
search, because the police had probable cause to search the car trunk for the paper bag and
they had probable cause to believe there was drugs within the paper bag. Proviso: May open
the containers that are found within the car as long as the container is large enough to hold
what they are looking for.

If the police had stopped Acevedo as soon as he had left the house, before he reached his car,
the police may only have seize the paper bag but they would have had to get a warrant to
search the paper bag. Container must be linked to the vehicle. Unless the police had probable
cause to arrest Acevedo because then the SILA would have been triggered.

4. INVENTORY SEARCH EXCEPTION

South Dakota v. Opperman

Held that the police may conduct a search/inventory of a car without a warrant or probable
cause if it is conducted pursuant to routine operating procedures within that community for
conducting an automobile inventory. If they find criminal evidence during the inventory, they
can use it against you.

Rationale: Since the inventory search is not part of a criminal investigation but rather a routine
administrative function, the 4th amendment’s warrant or probable cause requirement does not
apply. All that is left is that the police conduct the inventory search REASONABLY under the 4 th
amendment.

All that is left is whether the inventory search was REASONABLE:

1. To protect the car owner against theft of property (Caretaking function of the police)
2. Protect police against false claims of theft
3. Police need to have a right to look in a car for any dangerous instrumentalities that are
in the car. (ie guns, bombs)

Government interest vs. reduced expectation of privacy in a vehicle

If the inventory procedure requires the police to open containers found during the inventory
search, they may be opened. Containers may only be opened if there is a written inventory
procedure that deals with this.

Also deals with persons who are being taken into jail. Contents of whatever is on a person’s
body must be searched, without a warrant or probable cause.
 5. PLAIN VIEW / PLAIN TOUCH

Previous exceptions were to the requirement of a warrant to conduct a search. This exception is
an exception to the 4th amendment’s requirement for a warrant to seize an object. An object of
an incriminating nature may be seized without a warrant if three conditions are met:
1. Officer observes the object from a lawful vantage point
2. Officer must have a right to physical access from that vantage point
3. Officer must have probable cause to believe that he has a right to seize this
contraband (fruit of a crime, instrumentality of a crime, evidence of a crime)

Minnesota v. Dickerson
Officers lawfully stopped Dickerson because they suspected him of drug activity. Officers
confronted Dickerson and frisked him for weapons. As the police patted down the suspect for
weapons he felt a small object in his clothing that he could instantly tell it was not a weapon but
he could not tell if it was crack cocaine. He then finished patting Dickerson down and then went
back to the object which he manipulated and then placed his hand in the pocket to remove it and
discovered crack cocaine. Court was prepared to accept a plain touch doctrine, officer’s conduct
was valid if he met the three conditions for plain view doctrine. In this case, once the police
ended the frisk and they were sure what he had felt was not a weapon, the right to physical
access of the defendant had ended.

6. CONSENT

Validly obtained consent renders a warrantless reasonable and renders the requirement of
probable cause unnecessary.

Used in 90% of the search cases.

On an exam:
1. Was the consent voluntary? (totality of the circumstances)
a. Any show of force (display of guns) preceding consent
b. Officer make repetitive requests (badgering into consent)
c. Age, level of education, mental competency
d. Any and all factors are relevant
e. One factor and only one is whether the person who gave consent knows that
they could have refused consent. (Schneckloth v. Bustamante: knowledge of
right to refuse is NOT an essential prerequisite for justifying a consent search)
2. Did the officer’s actions exceed the scope of the consent?
a. Police may only search as far as consent was provided for. Car v. trunk
b. Florida v. Jimeno: Officer asked for and received consent to search a car for
drugs. During the search they found a folded paper bag, which they searched
and found drugs. Court concluded that the scope of a valid consent search is
determined by what a reasonable person would have interpreted the consent
to mean. It was reasonable for an officer to believe he had consent to search
the bag as long as the bag was large enough to contain the drugs the officer
 was looking for. Reasonable officer cannot have assumed that the consent
included a locked suitcase/briefcase in the car.
c. If police find drugs in a place you provided consent for, the police might
obtain independent probable cause to search additional areas you did not
consent to.
3. May a third person grant consent for the individual?
a. United States v. Matlock: Police were looking for evidence against Matlock
and received consent from a woman who lived with him. Court held that
anyone of the co-habitants/users of a property may give consent to search
their property. If you share property with others each have an independent
right to give consent. Court noted that this holding was due to the fact that
Matlock was not there when the consent was received. (assumption of risk
analysis)
b. Georgia v. Randolph: If both occupants of property are present and one says
yes and the other says no, the No trumps the Yes.
4. What if the police officer receives consent from someone who has no right to give
consent, but police believe the person has a right to consent?
a. Apparent authority: Illinois v. Rodriguez: Woman reported to the police that
she had been abused by her boyfriend and she took the police to their
apartment to arrest the defendant even though she no longer lived there,
although she had a key. Court held that as long as a reasonable police officer
in these circumstances would have believed that she had authority to give
consent, then the consent is valid. Objective Standard: would the facts
available to the officer at that moment warrant a person of reasonable
caution to believe that the consenting party had authority over the premises.

TERRY DOCTRINE
Terry v. Ohio:
1. Balancing Approach
a. Single most important case in 4th Amendment jurisprudence.
b. Court for the first time in a criminal investigation dispensed entirely with the
warrant clause focusing entirely on the reasonableness requirement of the 4 th
amendment and for the first time applied a balancing test to determine whether
police conduct in a criminal investigation was reasonable or unreasonable.
c. Has come to be known as the primary standard in the Fourth amendment.
d. Once your start balancing the government interest in conducting a warrantless
search against the individual’s interest in requiring a warrant it does not become
so difficult to imagine a court’s finding on the side of law enforcement.
e. Court’s find it easy to find to weigh more heavily on the side of government’s
interest because they can sympathize with those interests
2. Lesser Standard – REASONABLE SUSPICION
a. Searches and seizures can vary in their intensity or intrusiveness
b. Searches and seizures that are less than ordinarily intrusive may be conducted on
a standard less than probable cause: reasonable suspicion
c. Full searches and seizures ordinarily require probable cause
 d. Less than ordinarily or intrusive searches and seizures require reasonable
suspicion
e. Non-searches and nonseizures may be done without probable cause or reasonable
suspicion.

Terry v. Ohio
Experienced Police observed as three men were conversing, which he believed were casing the
store. Officer then frisked the individuals and felt a pistol, which he pulled out. At this time the
officer lacked probable cause or a warrant. Government argued that since the officer was not
arresting the individuals it was not a search. Court held that there could be seizures of a person
short of an arrest. A seizure is when an officer accosts an individual and restrains his freedom
to walk away by either force or by show of authority. Pat down was a search albeit less than a
full search. Court concluded that the warrant requirement does not apply to these police
practices. Essential inquiry is the reasonableness requirement under the totality of the
circumstances. Balancing the government need against the invasion which that search and
seizure entails.

Continuum
- Temporary Stop  full arrest
- Pat down search  full search

Government Interest vs. Individual’s Interest to be free from government intrusion

Terry’s Interest: Less then a full blown search, the intrusion on Terry’s security was less then
would be the case of an ordinary case
VS.
Government Interests
1. General interest in effect law enforcement and detection (“crime may be afoot”)
a. Court has allowed temporary seizures of persons AFTER crime has occurred
2. Immediate interest of that officer conducting the stop

Keep the seizure and the search separate!!!!

An officer may stop/seize a person short of an arrest on less than probable cause but the seizure
must be temporary/brief otherwise probable cause would be required. If after seizing the person,
the officer also has reasonable suspicion that the suspect is armed and is presently dangerous, the
officer may conduct an exterior pat down search only for weapons.

Right to seize a person doest not automatically provide officer’s with the right to pat down
the suspect!!!!!!!!!!! For Example: If officer reasonably suspected that defendant was trying to
shoplift, does not provide reasonable suspicion that the defendant is armed and presently
dangerous.

If during a pat down the officer does not feel a weapon, the pat down/search has to stop unless
the officer has probable cause to do more.

What is reasonable suspicion?

 - Requires less proof of wrongdoing than is required for probable cause
- Some minimal level of objective justification
- Something more than a hunch or unparticularized facts;
o Officer must be able to point to specific and articulable facts which taken
together with rational inferences from these facts reasonably warrant the
intrusion

Alabama v. White (measuring stick as to what constitutes R.S.)

Apply the same Gates approach when dealing with an informant except the informant’s
information does not have to be strong or as reliable as in Gates. Informant said that White
would be leaving a specific apartment at a specific time to a specific place with cocaine in a
brown attache. Officers did not confirm what apartment White came out of and police stopped
the car before White reached the specific place mentioned. Court held that for purposes of
reasonable suspicion had enough evidence because they had corroborated sufficient of the
anonymous tip.

Florida v. J.L
Anonymous caller reported that two Black youths were at a bus stop and one of them had a
weapon on him. Caller described the clothing the youths were wearing and based solely on the
caller’s information the police patted down the youth in question. Court held there was less to
support this tip than in White, which had been a close case. This tip did not predict any future
conduct by the youths. In the absence of a predictive conduct being corroborated there was no
specific basis to find reasonable suspicion to pat down this youth.

(seizure of persons)
Is a person seized if police walks up to an individual for questioning? NO!
United States v. Mendelhall: Federal officers came up to Mendelhall at an airport, who fit a drug
courier profile, identified themselves as federal officer and started to ask for her ID and ticket.
Person is not seized for 4th amendment purposes unless a reasonable person in the actor’s
situation would believe that he/she is not free to go. In other words, even if a person is not in fact
free to go she is not considered seized unless a reasonable prudent person in her situation would
also believe that she is not free to go. Supreme Court seems to believe that a reasonable
person rarely feels that they are not free to go.

California v. Hodari D.
Officers observe defendant and they have a hunch he is a drug dealer, so the police begin
following him on foot and the defendant starts running and the police chase the defendant.
Person is not seized in a pursuit typed situation unless the officer physically touches the
individual or the individual submits to the officer’s assertion of authority by stopping. Seizure
really means the bearing or laying hands on a person, use of force to restrain movement.
Seizure requires submission to authority.

Chase without reasonable suspicion (no seizure), and while chasing the defendant throws
something on the ground, the defendant has abandoned it (contraband) and MAY BE
USED AGAINST Defendant.
SEIZURE REQUIREMENTS (1) a reasonable person in the actor’s situation would believe
he was not free to go AND (2) Must be a touching of the person by the officer so as to
restrain him or there must be a show of authority by officer followed by submission to the
officer’s authority

Dunnaway v. New York

Police came to D’s house and took him into custody (police station) without probable cause.
Court held this was not a brief detention on the street. Held that even though the defendant was
not arrested, this was tantamount to an arrest which requires probable cause. Taking a person
from a place he has a right to be to a police station/interrogation room (or its equivalent)
against his will requires probable cause.

Florida v. Royer
Stopping an individual at an airport and taking individual against his will to a small room in an
airport consists of a full scale seizure.

Michigan v. Long (car pat down)

Police were on a rural law and observed a knife in Long’s car. A search of the passenger
compartment resulted in finding drugs for which Long was charged. When the police lawfully
stop a car, if they have reasonable suspicion there is a weapon in the automobile then the police
may conduct a limited weapon’s search of the passenger compartment to look for the weapon.

Maryland v. Buie (protective sweeps)

Police entered a Buie’s house to arrest him, he was found hiding in the basement; officer
standing at the top of the stairs ordered Buie to come upstairs and then arrested him. Police were
worried there might be someone else in the basement that may pose a danger to them before they
could safely get out of the house. Officer who went downstairs discovered incriminating
evidence in plain view in the basement. If the police have reasonable suspicion that the area to
be swept might harbors an individual posing a danger to them or others they may conduct a
protective sweep (Quick cursory visual inspection of areas where people might be hiding and
represent a threat to the police).

United States v. Place

Police seized Place’s suitcase at an airport based on reasonable suspicion that it contained drugs.
Police held the suitcase for 20 minutes while they waited for drug sniff. If police have
reasonable suspicion that some piece of property (i.e. luggage) contains criminal evidence they
may temporarily detain the property/container on the basis of reasonable suspicion in order to
conduct a more thorough investigation; get a warrant. Court held that the 20 minute seizure
was too long under the circumstances. The seizure of the luggage was equal to seizing Place for
20 min., in addition police knew in advance that Place was going to arrive therefore they could
have had the dogs waiting for him.

Michigan Department of State v. Sitz (sobriety check points)

Michigan set up sobriety highway check points. Stopped 126 cars, drivers were checked briefly
for signs of intoxication for no longer than 25 seconds. If police suspected a driver of
intoxication they were held for a longer period of time for further investigation. Court held this
sobriety check point was constitutional even though there was no individualized suspicion.
Court weighed the government’s interest (eradicating drunk driving) vs. the intrusion on the
motorist’s security was very slight. Court did not care whether the state had less restrictive
methods to accomplish their government interest.

City of Indianapolis v. Edmond

Use of a checkpoint to discover illegal narcotics was not permissible based on reasonable
suspicion. Court held that we have never approved a checkpoint program whose primary
purpose was to detect evidence of ordinary criminal wrongdoing. Cannot have checkpoints to
investigate crimes in general. Apprehending drunk drivers was really an effort to deal with a
very specific problem that had to do with a problem on the highway.

Court left open the issue of how the court would deal with a checkpoint that deals with
drugs and drunk driving.

Illinois v. Lidster
Upheld a highway checkpoint designed to elicit information from motorists about a fatal hit and
run accident which had occurred on that highway a week earlier. Some very specific
checkpoints, although they require seizure of persons without suspicion, will be permitted if the
governmental interest is great and the intrusion is light.

Special Governmental Needs Exception to Search Warrant Requirement

- Special needs beyond the normal need for law enforcement may make the warrant and/or
probable cause requirement impractical. (i.e. Sitz)
- Special needs exception is broad but it only involves needs that are somewhat separate from
traditional law enforcement investigatory activity.

(drug and alcohol testing: taking of blood or urine)

Searches of railroad employees after an accident were automatically tested, without any warrant
or suspicion whatsoever. Blood, breath and urine tests were taken of all employees on duty at
the time of the accident.

Testing for drugs of federal employees in safety sensitive occupations.

Factors: Tests are more favorably if:

1. employees are working in job that is already pervasively regulated by the government
(essentially you assume the risk)
2. significant relation between the employee’s job responsibility and the government
employer’s concern about drug or alcohol use
3. if the regulation authorizing the testing remove most or all of the discretion of the
employer in determining who will be tested and under what circumstances (less
discretion means less arbitrariness)
4. preferable but not essential for the employer to provide some empirical evidence of a
need for the testing
5. scrupulous care to ensure the dignity of the person being tested in the specimen collection
process.
This drug testing has also been extended to public school students

New Jersey v. T.L.O. (public school searches)

Search of female student’s purse by school official based on reasonable suspicion that the student
had been smoking cigarettes. Search revealed marijuana.
Public school teachers and administrators may search students without a warrant if two
conditions are met:
1. They possess reasonable suspicion that the search will result in evidence that the
student has either violated a
a. criminal law or
b. school regulation
2. Search is not too intrusive in light of age, sex of student and in light of the nature of
the infraction

Ferguson v. City of Charleston

State run hospital that performed diagnostic urine tests of maternity patients who were suspected
of drug use and were therefore jeopardizing the health of their unborn baby. The negative results
were then handed over to law enforcement for prosecution. Court observed that in true special
needs exception cases they have tolerated suspension of the 4th amendment warrant and
probable cause requirement because there was no law enforcement purpose behind the searches
and therefore little entanglement with law enforcement. Too much entanglement in this case and
ordinary 4th amendment requirements should apply.

STANDING
- first issue you should consider in a 4th amendment question
- Does the individual who seeks to have the evidence excluded on the grounds of a 4 th
amendment violation have standing to contest or challenge the police conduct
- Only person who may raise a 4 th amendment challenge is the victim of the unreasonable
search or seizure
- So, who is the victim?

Rakas v. Illinois (Similar to Katz)

Police stopped 4 persons in a car and found weapons and ammunition in a glove compartment
and under a passenger seat. These items were used against one of the passengers of the car,
Rakas. Rakas wanted to contest the search of the car because the police did not have probable
cause to search. Court held that Rakas could not contest the search because he didn’t prove that
he, Rakas, had a legitimate expectation of privacy in the specific areas of the car that were
searched because he was not the owner of the car and the owner was in the car.
A person has standing to contest a search if he has a legitimate expectation of privacy in the
invaded place (the particular area that was searched).
Distinction with Katz: Katz asks if a citizen in general has a reasonable expectation of privacy,
Rakas asks if the particular person has a reasonable expectation of privacy.

Rawlings v. Kentucky
Rawlings had some drugs in a drug vile and placed them in a friend’s purse with her consent.
When police unconstitutionally searched the purse and found the drugs, Rawlings sought to
exclude the drugs as evidence against him. (fact specific case: he did not know the woman, and
had never given property to her)
Court held that Rawlings did not have a reasonable expectation of privacy in his friend’s purse
he did not have standing to contest the search of her purse even though the search resulted in
seizure of property that belonged to him.
Even if you have an ownership or possessory interest in a piece of property that does not
necessarily give you a reasonable expectation of privacy as to the search of the area of where
the property was found.

Minnesota v. Olson (overnight guests)

Overnight guests have standing to contest the entry and search of that home where the guest is
staying. Overnight guest has a reasonable expectation of privacy because it merely recognizes
the everyday expectations of privacy we all share because it is the long standing social custom
as valuable by society.

Minnesota v. Carver
Two men were in another person’s home for the sole purpose of packaging illegal drugs (illegal
commercial activity) for two hours and were observed through blinds by a police officer. Officer
secured a warrant and entered the home. These guests did not have standing to challenge the
search. Concurring Kennedy: If a person has a substantial connection to the home he will have
standing. Dissent: “When a homeowner/lessor personally invites a guest into her home to share
in a common endeavor, whether it be for conversation to engage in leisure activities, or for
business purposes, licit or elicit, that person should share the host’s protection shelter against
unreasonable searches or seizures.”

EXCLUSIONARY RULE

Other remedies:
Trespass, false imprisonment
Civil rights actions
Tort liability

Remedy for a 4th amendment violation is the exclusion of evidence seized under such violation.

Why do we have this rule?

Primary Purposes:
1. Judicial Integrity: courts should not be involved in wrongdoing as accessories to the
illegality. Unconstitutionally seized evidence should be excluded. (Weeks)
2. Deterrence: Exclusion of evidence is a method of deterring police misconduct. (main
one) (Mapp v. Ohio)

Mapp v. Ohio
Exclusionary rule is an implicit requirement of the 4 th amendment. Due to its constitutional
origins it follows that all states must apply the exclusionary rule because they cannot violate the
federal constitution.
YET,
Court now describes the exclusionary rule is no longer seen as a constitutionally compelled
remedy but rather a judicially created remedy. 4th amendment rather mandates some remedy that
deters police misconduct.

Key Critique of Exclusionary Rule: Bars prosecutors from introducing evidence what is usually
extremely reliable evidence of a defendant’s guilt. Too expensive (high cost) a doctrine to
justify.

EXCEPTIONS TO EXCLUSIONARY RULE

General Rule: The exclusionary rule applies to any direct or secondary evidence that is the fruit
of the poisonous tree.

1. Impeachment

Exclusionary rule only applies to the prosecutor’s case in chief, however a prosecutor may use
the illegally obtained evidence to impeach a defense witness at trial.

2. Objective Good Faith* (only applies when there is warrant)

U.S. v. Leon
Officers obtained a warrant to conduct a search but the warrant they executed was later
determined to be based on insufficient probable cause. Court held that when a search warrant is
obtained and that warrant is later determined to be invalid, the evidence obtained in execution
of that warrant may nonetheless be introduced at trial, even in the prosecutor’s case in chief, if a
reasonable, well-trained officer would have believed that the warrant was valid. Rationale: the
deterrent value of the exclusionary rule is not benefited in throwing out evidence in such a case
because the 4th amendment is seeking to prevent POLICE misconduct not judicial misconduct. If
you can show that the police knew or a reasonably well trained officer would have believed that
the warrant was invalid (at least negligence), then the evidence would be excluded.

Exceptions to Good Faith:

1. If magistrate who issued the warrant relied on information in the affidavit
supplied by the police officer who knew the information in the affidavit was
false or recklessly disregarded the truth (applies even if the officers who
execute the warrant are different from the one who wrote the affidavit)
2. If the issuing magistrate wholly abandoned the judicial role so that you
cannot describe them as a neutral, detached magistrate
3. Officer may not rely on a warrant that is based on an affidavit that is wholly
devoid of facts supporting probable cause as to render any official believe of
the existence of probable cause entirely unreasonable
4. If an officer relies on a warrant that is facially deficient, that is it does not
meet the particularization requirement

3. Independent Source Doctrine

If the government can demonstrate that it found the evidence independent of the initial illegality
then the secondary evidence may be used against the defendant because it is not a fruit of a
poisonous tree. The evidence must not be the PRODUCT of the illegality.

Murray v. United States

Police had a lot of evidence linking Murphy to a warehouse which contained drugs. Police
illegally entered the warehouse, then while inside, the police left to obtain a warrant but did not
tell the magistrate that they were already in there instead they only told the magistrate of the vast
evidence they had before illegally entering. Magistrate issued the warrant and they seized what
was within the warehouse. Court upheld the police conduct because they had independent
evidence to enter the warehouse; police had to demonstrate that they were going to get a search
warrant even before entering. Had the police only illegally entered to confirm their suspicions,
the entry would have been illegal.

4. Inevitable Discovery Doctrine

Evidence that is causally tied to the initial illegal police misconduct. As long as the government
can prove by a preponderance of the evidence that they would have found the evidence lawfully,
even though they found it unlawfully, the evidence is admissible.

Nix v. Williams
Police improperly interrogated a murder suspect in violation of his 6th amendment right to
counsel. As a result of this interrogation (Christian burial) the suspect told the police where they
can find the body, but the police were already looking for the body in the surrounding area of
where the suspect led police to. His statements to the police is excluded but the secondary
evidnce (the body) is not excluded because the government proved by a preponderance of the
evidence that they would have found the body inevitably.

5. Attenuation Doctrine

Even if evidence was obtained as fruit of the poisonous tree, that fruit may be admitted if the
taint of the poison has dissipated. (fruit is admissible/edible)

No Bright Line Rule, must look at each case

Factors to consider:
1. temporal proximity between the initial illegality and the evidence trying to be
admitted (the longer, the more likely the taint will be removed)
2. existence or lack thereof of some act of free will on the part of the actor involved
3. Flagrancy of the violation (bad faith of police conduct)
4. Totality of the circumstances

Wong Sun v. United States

Wong Sun was illegally arrested and then was released and went home, but he later agreed to
come back to the station where he provided incriminating statements.
Fourth Amendment Exam MENTAL Checklist
1. Discuss each item of evidence separately
2. Discuss each item in chronological order of when it was seized
3. As to any time of evidence you are considering, if the prosecutor is going to introduce
it against multiple defendants, discuss it as to each defendant (standing)
4. Divide answer very clearly (I. State v. Jones, (a) gun, (b) diary; II. State v. Smith…)
5. As to any particular item of evidence and as to any particular defendant, you must
start with:
a. first fourth amendment is issue you should look at is whether the defendant
has STANDING to challenge
b. Then, Did the police activity implicate a person, house, paper or effect
c. Then, did the police activity constitute a search and/or seizure
d. Then, was that search and/or seizure reasonable or unreasonable
i. What level of search or seizure occurred? Terry v. Full Search
ii. Did the officer have adequate grounds to conduct that search and/or
seizure?
- Did the police have PC or RS?
- Remember that checkpoints don’t require PC or RS,
iii. Did the officer have a search and/or arrest warrant?
- Was their lack of warrant justified?
e. What evidence must be excluded due to the fact that the search was
reasonable or unreasonable?
i. Impeachment use vs. case in chief
ii. Good Faith Exception
iii. Fruit of the poisonous tree doctrine
1. Independent Doctrine
2. Inevitable doctrine
3. Attenuation doctrine
POLICE INTERROGATIONS

Brown v. Mississippi (historically)

Tied a Black person down and whipping him in order to secure a confession.

14th Amendment Due Process Cases

What form of process is a person due when a person is being interrogated? Due process is
violated if the police obtain an involuntary confession; and any involuntary confession will be
excluded from trial. Student must look at the totality of the circumstances, no bright line rule.

Factors which courts look at to determine if the confession was voluntary:

1. Was the confession obtained by threat or actual use of violence by the police
2. Psychological circumstances:
a. How long did the interrogation take
b. What were the physical conditions
c. What was the suspect’s age
d. What was the mental capacity of the suspect
3. Deception by the police
a. MAY render the confession involuntary
b. Mild deception is commonly used and acceptable

5th Amendment – Privilege Against Self Incrimination

“No person shall be compelled to be a witness against himself.”
This privilege did not apply to the states until 1964, when the Court decided that the 5 th
amendment right was a fundamental right and therefore applicable to the states. Before 1964,
State cases came under the due process of the 14th amendment.

Graham v. United States

Any improper techniques by the police, including promises of leniency, was deemed compelled
under the 5th amendment.

The 14th amendment due process factors is now applicable to 5th amendment cases.

Martinez v. Chavez
The text of the 5th amendment is not violated unless and until the defendant is a compelled
witness against himself. If the police do obtain an illegal confession, but the prosecution is
decides not to use it, his rights were not violated because he was not made a witness against
himself. Court suggested that the general due process right may be violated as soon as the
statement was compelled.

5th Amendment prevents the use of any confession against the defendant in either its case in chief
or impeachment purposes.

No good faith exception to this rule.

Fruit of the poisonous tree doctrine is applicable. All of the doctrines apply here except
impeachment and good faith.
5th Amendment – Miranda requirement

Miranda v. Arizona
Determined that totality of the circumstances was not enough. Any statement obtained as a
result of custodial interrogation may not be used against the speaker unless the prosecutor
proves that the police provided certain procedural safeguards to secure the suspect’s 5 th
amendment privilege against self incrimination. Court said that Congress and state legislatures
may come up with alternative safeguards. A violation of the Miranda requirements would
constitute a violation of the 5th amendment.

Police must state in clear and unequivocal terms:

1. that the suspect has a right to remain silent
2. consequences of giving up that right must be stated, anything he says will be used
against him
3. Has a right to consult a lawyer and have the attorney present during questioning
4. If the suspect is indigent, an attorney will be appointed to him at no cost to him

Even after giving these warnings, the prosecution may not use any statements unless the
prosecution proves that the suspect waived his rights.

If it is not a constitutional principle, then S.Ct. cannot tell the states what to do.
Dickerson v. United States, 2000
Court stated that Miranda was a constitutional decision, therefore the 1968 legislation
purported to overrule Miranda, and returning the law to old rule was unconstitutional.
Court said it must be a constitutional rule because the Court had consistently applied it to the
states.

What is custody?
Not the equivalent of seizure in the 4th amendment.

“Any person taken into custody or otherwise deprived of his freedom of action in any significant
way” (i.e. Any person under arrest)

Berkhemer v. McCarty
Custody must either be under arrest or the equivalent to an arrest, something more than a Terry
detention. Police officer’s hidden, unstated intention to take that particular person into custody is
not the key. The relevant inquiry is how would a reasonable person in the suspect’s shoes would
have understood the situation. (objective circumstances)

What is interrogation?

Rhode Island v. Innis

Police had taken suspect in for a shooting. During the police car ride, an officer made a
statement to another officer, in front of the suspect, that it would be awful for one of the
neighborhood handicap children to find the gun and get hurt or killed. Innis therefore revealed
where the gun could be found. Court concluded that there was no reason for the officer to think
that it was likely to result in an incriminating response. Nothing to lead the officers to believe
that Innis’ conscience would be overwhelmed by their statements.
Two forms of interrogation:
1. Express questions.
2. Any conduct by the police which is the functional equivalent of express questioning
a. Any words or actions on the part of the police that the police should know
are reasonably likely that would elicit an incriminating response from the
suspect. (negligence standard)

Under what circumstances may a person waive?

Prosecution MUST prove a valid waiver by a preponderance of the evidence.

North Carolina v. Butler

Court held that an express waiver of a suspect’s Miranda rights is neither sufficient nor
necessary to render it valid. There can be an implicit waiver of one’s Miranda rights.
What must a prosecutor prove to show the rights were waived?
1. Waiver must be voluntary rather than the result of intimidation
a. Totality of the circumstances test under the Due Process Clause
2. Waiver must be knowing and intelligent (waiver must have been made with full
awareness of what rights you have and the consequence of giving up those rights)
a. Reading the Miranda rights should be sufficient

What if the police question a suspect for robbery and waives his rights, but the officers then start
questioning him about a murder and incriminates himself.

Colorado v. Spring
Anything that you say can and will be used against you, therefore there is no need for the police
to inform you as to the nature of the questioning.
1. Miranda warnings are not crime specific. Person is entitled to Miranda warnings if he
is in custody for any crime, even if it relates to a crime for which he is not in custody.
2. Waiver of Miranda rights is not invalid simply because the suspect was mistaken as to
the crime/subject of the questioning.

Michigan v. Mosley (right to remain silent)

If a person asserts his rights to silence, the police must seize interrogation, but this does not mean
that the police must never resume interrogation after the assertion of the right to silence. Police
must scrupulously honor the suspect’s right to silence on a case by case basis.

Factors:
1. How long did the police seize interrogation?
2. When they returned to interrogate did they reread Miranda? (not legally required, but
makes a stronger argument)
3. When the police returned, did they continue interrogation on the same crime or
different crime?
a. After all, the suspect may have asserted his rights as to one crime and not
another.
 4. Did the officers who came back know of the suspect’s assertion of silence?

Edwards v. Arizona (right to counsel-bright line rule)

Anytime a suspect UNEQUIVOCALLY (cannot be ambiguous) invokes his right to consult with
an attorney, then the suspect is not subject to further interrogation by the authorities until
counsel has been made available unless the accused himself initiates communication further
communications with the police about that crime.

Exceptions to Miranda

New York v. Quarles (Public Safety)

Police arrested defendant in grocery store after midnight for rape. Cops had reason to believe he
had used a gun during the rape, but when they arrested him, he did not have the gun with him.
Officer simply asked, where is the gun? Quarles provided an incriminating statement.
Court held that under certain circumstances, specifically where there is a public safety concern,
the police may conduct brief questioning without giving Miranda warnings and thus the
statements obtained as a part of the brief questioning will be admissible notwithstanding
Miranda. Will not consider the hidden motivations of an officer, will only look at it objectively.

Illinois v. Perkins (Covert custodial interrogation)

Police put an undercover agent in a jail cell with the defendant and the undercover agent claimed
to be a burglar and the informant elicited (by direct questioning) certain information from
Perkins. Court held that Miranda warnings do not have to be given when a suspect is unaware
that he is being interrogated by a law enforcement officer and gives an otherwise voluntary
statement. What makes Miranda warnings essential is the pressure that comes from being in
custody in conjunction with knowing that the person interrogating you is a police officer.

(routine booking question)

When a person is being booked and taken into custody, there are obvious questions that must be
asked. Miranda warnings are not necessary during this period as long as the questions are not
intended to elicit incriminating responses.

Assuming we have a Miranda violation what is the scope of the Miranda exclusionary rule?
1. Impeachment – it can be used against the defendant if he testifies to an inconsistent
statement to that of the coerced confession (If you find a Pure coerced confession, in
other words if it would be inadmissible under traditional 5th amendment or due
process grounds, that coerced confession is inadmissible even for impeachment
purposes)
2. Fruit of the Poisonous Tree Doctrine:
a. Oregon v. Elstead: Police conducted an interrogation of Elstead. Police failed
to give Miranda warnings because they didn’t consider Elstead in custody.
However, the police were wrong in their assessment and a court determined
that Elstead was in custody at the time, so Miranda should have been given.
Elstead’s statements that were given at that time were inadmissible, but later
police provided Miranda warnings, rights were waived, and provided
additional incriminating statements. Court held that the latter statements
 were admissible, even though the statements, arguably is a fruit of the
poisonous tree. A violation of Miranda is not treated as a violation of the 5 th
Amendment and therefore the Court were not willing to apply the fruit of the
poisonous tree doctrine.
b. United States v. Patane: Court ruled that a gun that was discovered as a fruit
of the poisonous tree (illegal confession – violation of Miranda) was
admissible.
c. Missouri v. Seibert: Police intentionally violated Miranda in order to obtain
the fruits (police purposefully conducted initial confessions pre-Miranda and
once they had a confession, they provided Miranda and lead the suspect
through the previous statement into a post-Miranda second statement).
Questionable tactics threatened the viability of Miranda and therefore, the
fruits of the poisonous tree (second statement) were excluded. Look at the
break in time between the two statements, giving the suspect a warning that
the first statement would not be used against you.

How do you analyze a Miranda issue in an exam:

1. Was there custody?
2. Was there interrogation?
3. If there were both, Miranda must be given, subject to the exceptions:
a. Public Safety
b. Covert Interrogation
c. Routine Booking
4. Assuming Miranda were properly given, was there a valid waiver?
a. Waiver may be expressed or implied
b. But must be Waiver must be voluntary, knowing, and intelligent
c. If invocation of silence – police must scrupulously honor that requirement
d. If invocation of attorney – bright line rule: must seize all questioning until an
attorney is present or suspect until the suspect initiates conversation
5. No fruit of the poisonous tree doctrine under Miranda except in Seibert bad faith
purpose by police
6. Statements obtained in violation of Miranda are admissible to impeach.

Distinction between 5th Miranda and Sixth

» Under Miranda, a suspect’s right to counsel is only triggered when there is custodial
interrogation, which can occur at the time of arrest or prior to arrest
» For Sixth, the defendant’s right to counsel is not triggered upon arrest, but upon the initiation
of formal judicial proceedings.
» Miranda right to counsel requires the defendant be in custody for it to apply
» 6th A. right to counsel does not require custody (remember Messiah, out on bail)
» 6th A. right to counsel requires deliberate elicitation (not synonymous Miranda interrogation)
» Under Miranda, a negligence standard applies: words or actions that an officer should realize
is likely to elicit in an incrimination statement = interrogation
» 6th amendment is crime specific, so if a person is indicted for crime X and police want to
question him about crime Z, the police can do so as long as no formal judicial proceedings
have not commenced.
6th Amendment – Right to Counsel
Guarantees that in all criminal prosecutions the accused shall enjoy the right to have the
presence of counsel for his defense

Messiah v. United States

Defendant was indicted for violation of certain narcotics laws. Retained a lawyer, pleaded not
guilty and was out on bail. One of Messiah’s co-defendant decided to cooperate with the police.
Police rigged the co-defendant’s car in order for them to listen to their conversations, in the
absence of Mesiah’s lawyer. Conversations resulted in incriminating statements that were later
used against him at trial. Court held that the 6th amendment was violated when there was use of
Mesiah’s own incriminating statements against him at trial that were deliberately elicited from
him after he had been indicted and in the absence of counsel. A defendant has a right to counsel,
when he becomes the accused, basically, when criminal proceedings have begun and he has the
full force of the government against him.

Brewer v. Williams
Brewer was arrested and arraigned for abduction of a girl that was believed to be dead. He was
transported from one county to another where he was subjected to the burial speech. The police
knew that the defendant was a deeply religious person, and talked about how this child’s body
was not yet found and how great it would be for the child’s family to give the child a burial.
Court held that even though there was no interrogation, there was a deliberate elicitation,
after an arraignment, of an incriminating response.

Michigan v. Jackson (covert interrogation  waiver?)

D was being arraigned for murder. Jackson requested an attorney because he was indigent.
Notice was mailed to law firm that would serve as Jackson’s public defender, a few days later
and before the firm received notice, Jackson was contacted by police in jail, read him Miranda,
and the defendant waived his rights to counsel and made incriminating statements. Court held
that this was invalid waiver of his 6th amendment rights because he had already asserted his
right to counsel and police initiated questioning with a suspect who had already asserted his 6 th
amendment rights, and the government cannot come and question him in the absence of a
lawyer, unless the suspect initiates the conversation (similar to Edwards).

Patterson v. Illinois (valid waiver)

When D was in jail he was approached by police, given Miranda, and volunteered to answer
questions, was later indicted, police came back to see him again, read Miranda, and again waived
rights. Court held that this was a valid waiver because the police warned him that he was
indicted, read him Miranda, and he voluntarily, knowingly, and intelligently waived his 5 th and
6th amendment rights.
PRE-Trial Identification (Physical line-ups, one on one ids, and photo id’s) Procedures
When dealing with identification you implicate the 6 th amendment right to counsel and due
process rights.

Sixth Amendment – right to counsel

United States v. Wade and Kirby v. Illinois
 Person has a sixth amendment right to counsel that is conducted AFTER adversarial judicial
proceedings have commenced.
 No right to counsel before indictment or arraignment at ANY identification procedure.

United States v. Ash: Even after formal judicial proceedings have commenced, there is no right
to counsel, at non-corporeal (not physical) identifications.

What if there is a 6th amendment right counsel violation of the identification procedure?
» Evidence of this out of court identification is per se INADMISSIBLE at trial.
» If there is a violation, government will be barred from asking the witness to make an in-
court identification UNLESS the government can prove by clear and convincing evidence
that this in-court identification is not tainted by the tainted out of court identification.

Due Process Clause Rights

Due Process can require the exclusion at trial of any pre-trial identification, whether it occurred
before or after judicial proceedings commenced and whether it was corporeal or non-corporeal.

Defendant has the right to have any pre-trial identification excluded from trial if based on the
totality of the circumstances, the procedure used to obtain the identification was unnecessarily
suggestive AND if there is a very substantial likelihood of misidentification. Mason

Stoval v. Denim
Black was taken to a hospital the day after the victim of a stabbing had undergone life saving
surgery. Fear victim was going to die soon, so they needed an id right away. Brought Black D
handcuffed to one of five white police officers and they asked victim for id. Court agreed the id
was highly suggestive, but it was not unnecessarily suggestive, under the circumstances (victim
could die). Police did not have time to put together a less suggestive procedure.
» Even if the court concludes a procedure was unnecessarily suggestive, the key inquiry of a
due process violation, the court will look at whether there was a substantial likelihood of
misidentification in that procedure.
» Courts will look at various factors:
1. Did eyewitness have a good opportunity to see the assailant at the time of the crime
(dark/light, 10 sec v. 10 minutes)
2. Did the witness originally give a very specific detailed description of the criminal and
does the description fit closely to the suspect

If there is a due process violation, your remedy is similar to right to counsel:

» The pretrial identification is inadmissible at trial
» Any in court identification will be barred unless the prosecutor can show that the id
was not tainted by the original unfair, unnecessarily suggestive procedure
 Right to have Counsel
th th
5 – Miranda 6 – Right to Fair Trial 6th
Right to have Counsel Present During Right to Have Counsel at Trial Right to Fair Trial
Interrogation
Miranda Warning Right to be free from DELIBERATE
(custodial intetrrogation) ELICITATION w/o counsel present
Waiver: Knowing, Voluntary & Waiver: Feretta Waiver:
Intelligent Strickland: right to an When can you waive your 6th
Invocation of Rights effective counsel amendment?
1. Right to Remain Silent: Did - Judge must have given
police scrupoulously honor the cautionary instructions.
invocation?; police may re- - Miranda warnings
question you within a significant - Freely relinquishing right
time lapse; re-miranda; valid (Brewer)
waiver (express or implied);
2. Right to an Attorney: Edwards
rule may not question suspect until Offense Specific – applies to the
attorney is present unless suspect defendant whether he is in custody or
reinitiates. Cannot question him not, but it only applies to the offense
even if he has already consulted for which he is indicted.
w/attorney.
- Are not trying to protect the ∆’s
trial rights, so police do not have to
inform suspect that an atty. is
waiting outside or even requesting
to see you.
- Not Crime Specific – applies to all 4th A. does not require a knowing
crimes while you are under waiver, just voluntary and not
custodial interrogation coercive.
Miranda (Perkins)
Police may use covert tactics (CI) to get suspect to voluntarily confess w/o a requirement of Miranda warnings.
Courts are concerned with coercive police conduct, which are not present, when the suspect is freely bragging
about his crime [concerned about free will]. State agents
Vs.
Messiah (Kuhman + Henry)
You are not allowed to use covert tactics to obtain a confession, once judicial criminal proceedings have
commences without counsel present UNLESS there is a passive covert tactics vs. active covert tactics.
State Agents are treated differently under 5th (deliberate or passive) and 6th (can only have passive elicitation)
Once you have been indicted, and you have invoked your right to counsel, the police may not question the
suspect on unrelated crimes, because under Edwards, he is free from police custodial interrogation.
Unless:
1. Passive or Active CI can ask specific questions about UNRELATED crime
2. Waiver + Re-Initiation
3. If he is not in a custodial interrogation
5th 6th
Investigation Implicated when formal proceedings commence
Applies to all crimes Offense specific
Concerned with free will Concerned with fair trial

Miranda Gideon Massiah Due Process ID

5th A 6th A./14th A. 6th A. Confessions (Ashcroft,
*actual charges Spano, Connelly)
arraignment Id
indictment
Impending investigation Formal proceedings
Custodial interrogation Fair trial Focus on the police and
the coercive tactics
If (in ID) the activity is
unduly suggestive
Inherently coercive Counsel is entitled to help of his
attorney at “all critical stages.”
Warnings Cannot involve the deliberate
elicitation of incriminating
statements by govn’t 
otherwise would violate right to
fair trial
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Freewill Fair trial