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CRIMINAL PROCEDURE – BURKE – FALL 2010

MAIN THEMES

 Double Jeopardy
o Kansas v. Hendricks established a two-part test that it is not a second punishment if
the second charge is categorized as a civil regime. TEST: (1) Labels – is it labeled
criminal or civil? (2) Defer to label unless the actual regime is completely
incompatible with the label. For example, unless it looks exactly like criminal, they
will uphold it as civil. It will be the defendant’s job to convince the court that it is
criminal law, whereas the state will argue that the punishment does not come under
retributivist or utilitarian, and therefore is not criminal.
o Smith v. Doe uses the labeling test, and says that the purpose of the Meghan’s Law is
not to punish the convicts for what they did, but to protect the residents of the
neighborhoods in which the convicts lived. Thus, it was a civil purpose being served,
and there was no double jeopardy claim.
 Incorporation
o ISSUE: Whether the right to due process is incorporated within the Constitution.
o Duncan v. Louisiana gave way to this argument that finally got the SC to address
incorporation of due process in a global way. There were three different opinions:
 Justice Black (Full Inc.): Thought the intention of the drafters of the Bill of
Rights was to fully incorporate. This is at one end of the spectrum of the
opinions in the holding. Due Process = Bill of Rights.
 Justices Harlan/Stewart (No Inc.): Fundamental rights theory: not all rights in
the Bill of Rights apply to the states. Due process does not equal the Bill of
Rights. It is less than the Bill of Rights. He essential says that we are talking
about states and he does not care about what the federal government says.
 Justice White (Selective Inc.): This is the majority. We should be guided by
fundamental fairness. Juries need to be included in the process on a federal
and state level, and it is fundamental and part of due process. White buys
incorporation, but not the full concept. As opposed to Black’s opinion, he
thinks Due Process is a basic level of minimal fairness that ties us together as
50 states. It is not the full equality between the theories. He buys into the
notion that there are provisions in the Constitution that do apply to the states.
He just wants to stop and ask about each federal right – is it important? Does
it affect fundamental notions of fairness? If so, it applies. This is the
difference between him and Black, who just wants to sweep it all in.
o Justice Black is the winner practically, while White was the winner rhetorically
because it is the standard for incorporation. However, everything has been
incorporated so Black is really the winner.

FOURTH AMENDMENT

 ISSUE: Whether the government’s action constitutes reasonable search and seizure.

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o Searches and seizures are different. You have to be careful in analyzing what the state
actor is doing to someone. It might be one and not the other (or it could be both).
 Search implicates privacy interests in your things and your self; seizure
implicates possessory interests and freedom of movement. In your body and
your things.
 SUMMARY OF RULES
o STEP 1: Is it a search? If no, then there is no 4th Amendment problem. If yes, then
we move on…
o STEP 2: Is it reasonable? This is where Katz comes into play:
 Two things must be true: (1) SUBJECTIVE: The defendant himself must
manifest a subjective, reasonable, and genuine expectation of privacy; and (2)
OBJECTIVE: Society must think that this is a reasonable expectation of
privacy.
 Concepts of Reasonableness
 Normative Expectations: It should not be private because it is not used
for the things we associate the 4th Amendment protection with.
o “What should a person expect?”
 Empirical Concept: Everyone knows that people cut through the fields,
so therefore it is unreasonable to think you have privacy in an open
field.
o “Typically or statistically what does a person expect?”
 BURKE: The best way to think of them are as devices for framing the
reasonableness inquiry. Ultimately Katz may prove unsatisfactory
because it leaves too much to case-by-case determination and ad hoc
decision making, but these conceptions provide at least some
framework for discussing what reasonableness *might* mean.
o STEP 3: Does reasonable expectation of privacy get crossed with Katz’s progeny?
 False friends; curtilage vs. open fields; public surveillance.
 Katz v. U.S.
o Police listen to Katz’s conversation while he is in a closed phone booth. They put a
device outside of the phone booth that enabled them to listen. Government argues this
is neither a search nor a seizure. It is a phone booth – it is public space!
o Violates 4th Amendment! The 4th Amendment governs not only the seizure of
tangible items, but extends to the use of electronic surveillance equipment. This is
about privacy as much as it is about property!
o HARLAN’S TWO-PRONG RULE ESTABLISHED (SEE ABOVE). The 4th
Amendment protects people, not property. The government was not certain that his
activity was illegal until they listened to the conversation – potentially invading the
legitimate privacy and possessory interests of the innocent.
 Application of Katz v. U.S.
o Curtilage vs. Open Fields (Oliver v. U.S.) – Curtilage is the stuff that is right outside
the house – whether it be garden or a porch, whereas open fields are the surrounding
lands.

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 OPEN FIELDS RULE: There is no reasonable expectation of privacy in an

open field. The only way the defendant can argue this is to claim that it is
curtled.
 CURTILAGE DEFINITION: As per U.S. v. Dunn, in determining whether
property is inside curtilage, the court should consider factors including: (1)
proximity of the area to the home; (2) whether the area is included within an
enclosure surrounding the home; (3) nature of the uses the area was put to;
and (4) steps taken by the resident to protect the area from the observation of
passerby.
 Caution: Visual observation from area outside curtilage alone does not permit
physical search into the home, curtilage, or any other unclear area.
o Public Surveillance – There is no 4th Amendment issue when the government is
acting in a way that is consistent with how you would reasonably expect the public to
act with regard to your privacy. If they are taking advantage of things the public does
not otherwise use, then it cannot fall under the public access rationale.
 Aerial Surveillance: You have to expect that people should be able to see
things from above your home (aerial surveillance). You put it out there to the
public eye!
 Florida v. Riley – helicopter flying overhead. The Court held that
information is exposed to the public when it is legally possible for
citizens to conduct themselves in the manner employed by the
government.
 Exploratory Touching: In Bond v. U.S. a bus passenger’s bags were squeezed
by police officers. The Court determined this was more than what an ordinary
person would reasonably expect. The public doesn’t ordinarily touch luggage
in this manner (foreseeability). The government loses because the person
doesn’t reasonably expect someone to be squeezing your bag. You can expect
that someone might use the palm of their hand to push your stuff aside, but
you do not expect someone to poke and prod a bag to inspect the inside of it.
That goes beyond public access!
 Dog-Sniffing: No expectation of privacy implicated at all. The government’s
action (sticking the dog on your bag) can only reveal illegality. It is not like
the dog can say it is perfume and not pot. All the dog can do is freak out or not
freak out.
 Heat Detection: From Kyllo v. U.S., the use of sense-enhancing technology to
obtain information regarding the interior of the home that could not otherwise
have been obtained without physical intrusion constitutes a search.
 The government loses here because it cannot be compared to the drug-
sniffing dog because it does not just reveal a yes or no answer. For
example, it shows a woman drawing a bath.

WARRANTS

Reasonable Search?

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 BIG PICTURE: At this point, we are to assume that it is a search. We are now trying to
determine if the search is reasonable. Remember: (1) a warrant, and (2) probable cause.
 Warrant Requirements
o RULE: Neutrally detached magistrate is required to grant the warrant. Four reasons:
 #1. In order to check the police officer’s discretion. Some police officers
might be wrong in their discretion opinions.
 #2. A NDM is objective and not in law enforcement. Police officers are in the
hunt for criminals, so they have a bias.
 #3. Warrant doesn’t just say it is okay – it also sets forth the terms of the
search (where are you searching and what are you looking for?).
 #4. Affidavit for a search creates a record. If the police search without a
warrant, there is a tendency to not know what the police knew before the
search and after. This way, if you have the warrant, there is a record of what
they knew before the search was conducted.
 Informants
o SPINELLI TEST (PART OF TOTALITY): Spinelli called for a two-prong test: An
informer’s information must (1) reveal the basis of knowledge of the information
provided – the particular means by which the informer came by the information given
in his report; and (2) it had to provide facts sufficiently establishing either the veracity
of the informant, or the reliability of the informant’s report.
 Basis of knowledge – How does an affidavit set forth this information?
 If the police officer knows the source (if the informant saw it, you can
just include that and you are set for this prong!);
 Self-verifying detail. There are certain kinds of detail that shows that
the person knows what they are talking about (this is not incredibly
reliable, because this kind of information is easily attainable through
observation).
 Veracity – It could mean either (1) that the person is generally a truth teller, or
(2) in the specific instance they are telling the truth.
 The affidavit will have to say why they think the person is telling the
truth. Someone who regularly works with the police will have that
mentioned on the affidavit (track record inclusion).
 How do you know? Track records; No reason to lie; Reason to tell the
truth; Statements against interest is taken as an admission
(incriminatory for the informant).
 You are entitled to corroborate the facts of each in order to prove the prong.
 IMPORTANT NOTE: Gates overruled this test. However, the two prongs
are part of the totality of circumstances test. Both had to be proved.
o TOTALITY OF CIRCUMSTANCES TEST: The task of the issuing magistrate is
simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the “veracity” and “basis
of knowledge” of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place.
 Illinois v. Gates was the vehicle for this new test. Informant tells the police
that the defendant is selling drugs in a complicated scheme involving flights
and drives down to Florida where the purchase the marijuana. A tipster

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detailing the entire operation with specifics sends a letter to the police. The
Court says this is a sufficient tip.
 The tip is self-verifying because they know such detail. Basis of knowledge is
satisfied. Veracity is pretty weak because we have no idea about the informant
who sent the letter. However, we have corroboration, which helps a great deal
because the actions described were pretty much spot on except for one small
detail.

 Probable Cause
o The 4th Amendment requires a showing of probable cause as justification for a search
warrant. Only the probability, and not a prime facie showing, of criminal activity is
the standard of probable cause. Affidavits of probable cause are tested by much less
rigorous standards than those governing the admissibility of evidence at trial.
o No clear definition – This is not “proof beyond a reasonable doubt.” It is also not a
“more likely than not” test. It is more than a hunch. It is more than “reasonable
suspicion.” The Court will refer to it as a “reasonable probability.”
o RULE OF OBJECTIVITY: As long as there is an objective probable cause for the
search and seizure, it does not matter if it is for something other than what a police
officer subjectively thought.
 Deveneck v. Alford was a case in which the cop wanted to charge defendant
with multiple infractions, but the prosecutor told him to only use one, which
later ended up not being legal in that state. However, because of the rule, it
was a lawful arrest. There was probable cause for one of the other charges,
even though there was no probable cause for the tape recording charge.
o PC for Arrest Warrant – The probable cause to believe that the crime was committed
and that the defendant/suspect did it.
o PC for Search Warrant – They need to show that something seizable (like evidence) is
in the location mentioned.

Validity of the Warrant

 Contents of Warrant: (1) Affidavit in support of the warrant application (sets forth the PC);
and (2) Administrative details.
 Time for Execution
o Arrest – Generally does not have a time period for execution because if you are
looking for a person, the evidence will always exist against them, so it really doesn’t
matter when you find the suspect.
o Search – The issue of staleness is the cause of this. This is because if you are
searching for something (a physical object), there is a time to retrieve it. For example,
if there are drugs somewhere or other evidence, they can move around and you won’t
be able to find it unless done in a timely fashion.
 Particularity – What Can Be Seized? (Warden v. Hayden)
o NOTE: This is a restriction on the scope of the search. It requires the police officer to
state the specific items sought in the search.
o #1. Specific Details In Application

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 RULE: The 4th Amendment requires the warrant application to contain a

description of the objects sought out by the government. The government can
only be looking for things they have probable cause to search for.
 Police Strategy: Warden allows police officers to write a search
warrant with many detailed items that they could be looking for (small
items, medium items, etc.), in order to allow them to search
everywhere in the location. It allows officers a way to cast a big net.
o #2. Items to be Searched For
 This is generally satisfied. For example, if you were looking for stolen
jewelry, you would want to list what kind of jewelry (bracelet, necklace, etc.),
the material, the size, the colors, etc. Pictures can be attached in the affidavit
in support of the warrant.
 The reasonableness will depend on the size of the object you are looking for.
For example, if you are looking for a plasma television, you cannot look in the
medicine cabinet.
 IT IS ALL ABOUT THE SIZE! SIZE TOTALLY MATTERS!
o #3. Location of Place to be Searched
 This must be described particularly. If it is a home, you need to give the
address. Evidence sometimes gives clues about the occupant of the home.
 THIRD PARTIES: You need to include with particularity if you look to
search the home of a third party. You would show a relationship and the
reasoning why the third party’s home is a place where evidence would be
found.

Warrant Execution
 Scope of Warrant
o If they go beyond this and discover something outside of the scope, it is an
unconstitutional warrant-less search.
o Example: if there is a warrant for cocaine, and they search a guest bedroom and they
find cocaine in the guest’s suitcase, is it reasonable?
 If there is probable cause and it is in the apartment, they can search it! They
do not have to find out whom it belongs to!
 “Knock and Announce”
o RULE: As per Wilson v. Arkansas, you must knock in order to give the person a
reasonable opportunity to get to the door before you kick it in. The Court held that the
“knock and enter” comes within the “reasonableness” requirement. Also…
 You CAN force entry after being refused admittance.
 You CAN force entry after 15-20 seconds pass without an answer at the door.
o Exceptions Due to Exigent Circumstances (Richards v. Wisconsin)
 Concern over destruction of evidence;
 Harm to officers;
 Fear that the suspect will flee.
o No-Knock Warrants
 RULE: When the police know in advance that they do not want to knock and
announce, they put evidence having to do with exigency in the affidavit and
ask the magistrate to waive the knock and announce requirement.

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o Consequences for Violation

 Hudson v. Michigan – What relief does a defendant get if the knock and
announce requirement is not met? The cops do not knock and announce, AND
they do not claim an exigent circumstance! In other words, there was no
reason given. Defendant argues that the evidence should be suppressed.
 RULE: NO SUPPRESSION. The Court did not suppress the evidence
because there was still probable cause. The defendant can make a civil suit,
but the evidence would not be suppressed.
 Remember, the police are allowed to search! The only thing the defendant got
deprived of was a window of time in which the defendant was allowed to let
them in, as opposed to forcing their way in. It has no connection to the
evidence at hand. The defendant doesn’t have the right to flush the evidence
while they are knocking and announcing.
 Anticipatory Warrant
o RULE: As per U.S. v. Grubbs, a neutral magistrate can sign off in advance that once
an action has occurred, the warrant takes effect and probable cause is established.
o This is controversial because now the police officers are deciding if the event has
happened, not the magistrate. You have someone who is in the heat of the moment
acting as the decider, not a neutral non-executive.
 “Sneak and Peak” Warrant
o Part of the Patriot Act. A neutral detached magistrate still signs off. This allows an
officer to sneak in, search around, and if they don’t find anything they leave.
o NOTE: They don’t have to announce that they are there. This is different, because
ordinarily they have to post that police were present if a house gets searched pursuant
to a warrant.

EXCEPTIONS TO THE RULE: WHEN NO PC OR NO WARRANT IS REQUIRED

Arrests
 RULE: Probable cause is always required for an arrest in two ways: (1) PC that the crime
was committed; and (2) PC that the person you are arresting is the one who committed it.
o NOTE: The arrest rule applies in three different scenarios. They are meant to protect
privacy rights guaranteed by the Constitution! They are not meant to protect the
person who is getting arrested!
 Scenario #1: Public Places (Watson)
o RULE: As long as probable cause exists, police do not need an arrest warrant. They
can make an arrest based on probable cause alone.
 Often, the arrest is the last piece in a criminal investigation, so all of the
evidence is usually in possession. Court says that they would be screwing up
police strategy if they made them get a warrant too early.
 Check rule on page 167 of the casebook.
 Scenario #2: Arrestee’s Home (Payton)
o ARREST WARRANT RULE: Even with probable cause, a police officer needs an
arrest warrant in order to make an arrest in the arrestee’s home, PLUS reasonable
suspicion to believe that the suspect is home.

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 Reasonable Suspicion: indications that the person is home: lights on, car in
driveway, etc.
o SEARCH WARRANT RULE: Search warrant for a person would have to establish
that he is seizable, and spell out the probable cause that he would be seizable at the
specific house a particular moment.
 Can the officer take evidence they find in a search incident to arrest? You
would look to suppress evidence you found as a result of the arrest because
they only had an arrest warrant, not a search warrant.
 Line Between Scenario #1 and #2 – Public Place and Home
o RULE: Jurisdictions differ for these cases that deal with people going on either side
of the threshold entrance to the home. Some courts allow trickery; others do not.
 Santana case – they spotted the arrestee in the threshold of her door. At that
moment, they chased her inside, claimed exigency, and arrested her. Where
does the line get drawn? The Court said she wasn’t in the privacy of her own
home, so the Watson rule applied.
 Other cases in which the defendant will be in the house, the officers have
probable cause but no warrant. The police will knock, he will open the door,
and they arrest him.
 Some jurisdictions say that you cannot trick someone if they start out in their
home. If this is the case, the Payton rule applies.
 Other jurisdictions look more technically, and they look to the threshold. As
long as the police don’t intrude upon it, they are able to make the arrest. These
are the jurisdictions in which the officers can get “cute.”
 Scenario #3: Third-Party Premises (Steagald)
o RULE: A search warrant and probable cause are required in order to search the home
of a third party for the suspect. The search warrant must establish that the suspect is at
the third party’s house.
o Two Warrants – You get the arrest warrant for the suspect, and a search warrant for
the premises you wish to enter. Both require probable cause (that the suspect is in the
third party home). Police will show the same information that they use for the arrest
warrant to apply for the search warrant for the third party home.
o NOTE: The Court is protecting the third-party’s privacy, not the arrestee’s. The third
party has a reasonable expectation of privacy, so a search warrant is required.
 Line Between Scenario #2 and #3 – Suspect’s Home and Third-Party Premises
o ISSUE: Who has a reasonable expectation of privacy in the home?
o Resident of third-party premises: Reasonable expectation of privacy; search warrant
applies as per Steagald.
o Overnight guest: As per Minn. v. Olson, an overnight guest has reasonable
expectation of privacy. This is the bottom of where they are willing to confer
reasonable expectation of privacy.
 You can insist on an arrest warrant, not a search warrant. This is because he
can argue, at most, that it is like his own home – he can’t get more protection
(again, this is the arrestee). As for the homeowner, if the police come with an
arrest warrant in hand.
o Roommate: If there is probable cause to arrest one, all you need is an arrest warrant.

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o Spouse: If you live with the arrestee and there is an arrest warrant, you are screwed!
If you are Mrs. Payton, your drugs are fair game if there is an arrest warrant.
o Public place: No reasonable expectation of privacy at all.
 Post-Arrest Protection – IF NO WARRANT!!!
o Probable cause determination should be “prompt.”
o Within 48 hours.
Stop and Frisk
 Terry v. Ohio set the standard for “stop and frisk” cases, in which the Court has taken a
middle ground position as opposed to a categorical position with regard to privacy rights.
Instead of stressing the warrant clause of the 4th Amendment (Warrant + PC), the Court goes
back to reasonableness! This is an easier standard for the government to satisfy.

 SUMMARY: Macro-Level Terry

o Justification for exception to Warrant + Probable Cause
o This is above the 4th Amendment threshold (i.e., not a zero), BUT not like full-blown
searches and seizures, underlying usual rule that reasonableness = Warrant +
Probable Cause.
o Instead of the typical rule, just look at reasonableness (balancing government interest
against intrusion to citizen).
o THIS IS AN EXCEPTION TO THE WARRANT REQUIREMENT.
o NOTE: The reason we “leave the box” here is because it is above the 4th
Amendment threshold. They still call it a search and seizure, but it doesn’t look like
the all out searches and seizures that they pictured when made the requirement for
Warrant + Probable Cause. They depart from this, and just look at reasonableness,
which they determine by balancing.
o Applications
 Penn v. Mimms – okay to order driver out
 MD v. Wilson – okay to order passengers out
 NY v. Class – okay to move papers to see VIN
 Michigan v. Summers – okay to order occupants of searched premises to stay
(and use reasonable force – Muehler v. Mena).

 SUMMARY: Micro-Level Terry

o Stop justified by reasonable suspicion
o Frisk justified by reasonable suspicion person is armed and presently dangerous
(government interest = safety only)
o NOTE: Difference between a frisk and an all-out search is significant. Once they go
out of the justification for the Terry exception, they get out of the protection here and
find themselves subject to more strict rules.

 IMPORTANT: There are two situations in which a fact pattern is compared to Terry, and
therefore the rules set forth below are applicable:
o (1) There is a stop and frisk – this is the normal way for the narrow test/rule.
o (2) Terry is only achieved if you leave the “warrant presumption.” The Court first has
to make some move to talk about reasonableness instead. This move is what makes it

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like Terry. It is the Court saying that it is a constitutional issue that needs to be
scrutinized, but it is so minimally intrusive that we will only look at the
reasonableness against the intrusion into the defendant’s 4th Amendment claims.
 NOTE: “MINIMALLY INTRUSIVE” IS THE KEY TO THIS OPTION!

 STOP AND FRISK RULES:

o STOP: Reasonable suspicion of crime (for the Stop).
 Courts scrutinize the “Stop” part more than the “Frisk” part, because the
minute the court thinks there is reasonable suspicion of criminal activity, then
it is not hard to come up with officer safety arguments (see below).
o FRISK: Reasonable suspicion that the person is armed and presently dangerous.

 Government Interests In Scrutinizing For Reasonableness:

o Frisk – Interest at stake is officer safety. The government has a legitimate concern for
the safety once the stop is made.
o Crime Prevention – This is minimally intrusive. This is not a full-blown search (it is
not like he is searching his home or car, this is just a pat down).

 INFORMANTS RULE:
o As per Adams v. Williams, it does not matter if the source of the reasonable suspicion
is an informant or if it is the police officers own instinct – Terry will still apply!

 Summary of Arguments in Terry

o The pro-police argument here is that this is police work and there should not be
intervention at this point. There is no arrest yet, so why bother? The other side says
that this is an interference of someone’s liberty by making them do things they
otherwise would not have been doing. This is a privacy interest as well – reaching
into a jacket and searching him. They should have probable cause or a warrant in
order to do that.

 Examples of Terry (2) Type of Case

o Penn. v. Mimms
 The officer approaches the car and sees bulges in the jackets of the men in the
car. He uses the bulge as justification. The officer asks them to get out of the
car. They get out of the car, and the officer discovers the gun. Mimms argues
that it should be suppressed because he should never have been asked to get
out of the car since it was a routine traffic stop. It is unconnected.
 TEST: Balance between the intrusion to the suspect (is it minimal?) and the
reasonableness of the intrusion by the police officer.
 The Court says it was reasonable for the officer to ask him to get out
of the car. Yes, it implicated his liberty and it is constitutionally
significant, but it was minimally intrusive. Thus, instead, they just
scrutinized it for reasonableness, and this is reasonable. They balance
the intrusion (getting out of the car) against what is gained by the
government.

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
RULE: It will always be reasonable to order a driver out of a car if the car is
lawfully stopped in the first place!!!
o Maryland v. Wilson (1997)
 Similar to Mimms, but with multiple passengers in the car.
 RULE: It is permissible to order the passengers out of the car if the car is
lawfully stopped in the first place.
o New York v. Class (1986)
 Officer stops a car and wants to see the VIN. He reaches into the car and
pushes around some papers and sees a gun in the car. The Court says this is
minimally intrusive and does not get the full analysis – they decide it is
reasonable.
 RULE: It is okay to look through a car and beneath papers in the car.
o Michigan v. Summers (1981)
 RULE: People must stay on the premises while a warrant is executed. The
rationale is that the people’s interest (you can’t leave) is smaller than the
government’s (the people might be suspects and flee). Also, they can be co-
conspirators who look to destroy evidence.

Stop vs. “Mere Encounter” – Mendenhall Test

 SUMMARY: There is a difference between a stop (Terry) and a “mere encounter”
(Mendnehall). A mere encounter does not require anything; it is simply a conversation.

 MENDENHALL TEST: Would a reasonable person feel free to leave?

o Factors
 Threatening presence of several officers, display of weapon, physical
touching, intimidating tone of voice, etc.
 The flip of this is that the lower key it is, the more a reasonable person
would feel free to leave.
 Factors in Royer:
 Kept ticket and identification; told him he was suspected of
transporting drugs; asking him to accompany them; didn’t tell him he
was free to leave; had his luggage.

 U.S. v. Mendenhall
o Facts: A DEA agent approaches a person walking through the concourse at an airport.
They ask for an ID and ticket, and the ticket is not in her name. They ask for her to
come to an office without saying anything. She consents to a search and they find
drugs. She sues for an unconstitutional search. Her conviction is upheld.
o RULE: It is permissible to approach a person and ask questions even if they do not
have reasonable suspicion!
o POLICE STRATEGY: If you do not have reasonable suspicion, you can be less
intrusive (make it seem like they are free to leave).

 INS v. Delgado

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o INS agents come into a factory in uniform, armed, with walkie-talkies. They post
themselves at the exits as well, while the others go through the factory asking people
about their citizenship (questioning illegality). The Court holds this is not a seizure,
because people should feel free to move around and not talk to the agents. The
Court’s rationale is that they were at work anyway, and it is not like they were going
to leave work. Thus, not a seizure – just an encounter.

 Bus Sweep Cases – Drayton/Bostick

o ISSUE: When there is a sweep of a bus, would a reasonable person feel free to
terminate an encounter?
o Facts: People are sitting on the bus, and the government was pretty much taking
advantage of this, because in order for people to leave they would have to get off the
bus and stand in the middle of nowhere. In Drayton, the defendant’s say that they
didn’t feel free to leave because the cops were walking down the aisle, with one at the
front of the bus. How else would they reach their destination if they didn’t stay?
o Court says that you literally might not have been free to leave, but nobody expected
you to physically walk away.
o DRAYTON TEST: You can take advantage of a captive audience as long as a
reasonable person would feel free to not engage with the officers.
o BOSTICK TEST: The officers must tell the passengers that they are free to leave. If
they do not tell them this, they will assume that the reasonable people cannot feel free
to leave.
o CONCLUSION: The Court says this is not a requirement. It can be a mere
encounter, not a seizure, even if the citizen is not expressly told about the liberty to
leave. Thus, no per se rule about this.

 When Did the Encounter Happen? – California v. Hodari D.

o RULE: If seizure is by show of authority, it does not occur until defendant actually
submits to the assertion of authority.
o This case revolves around a juvenile who refused to cooperate in the scope of the
Mendenhall test. The kid runs away from the scene when a patrol car comes up to
him and a bunch of others hanging out. The officers don’t yell or stop him – the kid
just bolts and starts running. The police eventually catch him, but in the interim, he
throws a rock of crack cocaine while running. It matters when they found the crack
because we are trying to determine whether they can use the crack or not in evidence.
It all matters on when they stop him. They have reasonable suspicion the moment he
throws the rock. The problem though, is determining when the stop happens.
o STRATEGY: In all these cases, look at how the level of suspicion and the level of
encounter go together. The government will push the seizure line as late as possible,
so that as much evidence can be included in it. The defense will argue the moment of
the seizure occurred very early, and that it was not just a stop, but a full blown arrest.
o HOLDING: Court says that “not feel free to leave” is a necessary but not sufficient
condition. He gives probable cause by disposing of the drugs.

INTERLUDE: Overview//Staying Within Confines of Terry

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 I. Scope of Stop
o Mendenhall tells us the difference between nothing and a seizure.
 All arrests are seizures, but not all seizures are arrests (some can be stops). If
it is not a stop it is an arrest.
o A. Time
 There is no bright-line rule here. You won’t find a case for what a reasonable
time for a Terry stop is. What is reasonable will depend on the circumstances.
 Example: What are they investigating? How many people involved?
What happened in the stop that requires investigation by police?
 The briefer the encounter, the more likely the government will be able to
prove it was lawful. The longer it takes, the more likely the defendant will be
able to argue that it was more than a stop, but an arrest.
 U.S. v. Sharpe (1985)
 Police suspect drugs from two cars driving in tandem. They stop one
of the cars and the second car keeps going. They catch up to it and find
marijuana in the second car. They go back to the first car, and at that
time it is 30-40 minutes.
 The Court says there was no unnecessary delay and the police were
diligent in this time. The fact that the second car kept driving is what
necessitated the police’s lengthy time. In order to know what was
going on with the first person they had to investigate the second car.
 United States v. Place (1983)
 They wanted to investigate without searching, so they sought to bring
a drug canine. It took 90 minutes to get the dog there.
 Here, the Court says 90 minutes is not justified under the
circumstances. It amounted to more than just a Terry stop.
o B. Movement
 Police need to be careful about moving people during a Terry stop. In
particular, if they stop someone and transfer to a station house, courts will
usually say it is an arrest. Conversely, if you are stopped in an airport or your
car is pulled over, it won’t have the same view.
 Dunaway v. New York (1979)
 They put the suspect in a patrol car and brought him to the station and
the Court held it was an arrest.
 Davis v. Mississippi (1969)
 The police rounded up and fingerprinted 25 black men suspected of
rape. This resembles part of the arrest process, and violated their
rights. It was essentially an arrest.
 COMPARE: If you are fingerprinted at the scene of the crime, it
might not be an arrest  there is NO MOVEMENT!
 Florida v. Royer
 They moved the suspect 40 feet, which they treated as an arrest.
 Acceptable Moves
 When there is a reason for the move, it can be permissible:

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o Safety (move to the side of the road).

o C. Scope of Investigation
 Easiest is a request for identification. Lots of Supreme Court cases uses this as
justification for Terry (without probable cause).
 Hiibel v. Sixth Judicial District Court of Nevada (2004)
 The issue is whether it is permissible for a state to criminalize the
refusal giving the identification when asked for it during a stop. The
Court holds that it is reasonable – they are permitted to criminalize this
refusal.
 It is okay to ask for identification during a stop.
 RULE: It is okay for the officers to ask questions for facts that gave rise to
the suspicion. The answers will either explain what was seen or elevate
suspicion.
 But can they get into questions that are outside the scope of the stop?
 If the reasonable suspicion is that someone ran a red light, can they ask
if there are drugs in the car (or what are you doing in the
neighborhood)?
 NOTHING CLEAR: The Supreme Court has failed to take a hard
stance on the issue. What really matters is if they unnecessarily delay
during the stop. If it is within reasonable time, it is fine.
o Problem with this is that unnecessary delay falls into the scope
of unnecessary questions! There is unnecessary delay if the
questions are out of line!
o D. See also Mendenhall Factors
 Go back and look at what the officer did the person.

 II. Scope of the Frisk

o A. One Permissible Objective
 The officer can only search for a weapon. The minute they search for anything
else, it is a search, not a frisk.
 SAFETY: This is for the purpose of officer safety. Stops are about
investigation; frisk is about protection.
o B. Can’t Go Beyond – Minnesota v. Dickerson (1993)
 Lawful stop that starts as a pat down, and then feels something in his pocket.
He admits he knew it was not a weapon. He thought it was crack and kept
exploring the object. He determined it was crack. The Court says that is not a
frisk, but a search.
 He gets slapped because he told the truth and admitted he knew it was
not a weapon. If he had not admitted this, he could have argued that
there was reasonable suspicion. This is a search for evidence without
probable cause.
 Instead, he should have said that he felt something hard, and thought it
could be a weapon so he investigated further.
 RULE: Search for evidence is not permitted in a frisk.
o C. Michigan v. Long (1983) – Extended Frisk

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
Traffic stop, officer gets out of the car and looks into the passenger part of the
car because he claims there might be a weapon.
 Court holds the “frisk” was reasonable because there was risk. They extend
the frisk to the reach of the person, because when the defendant gets back into
the car they could use whatever they had in the car against the officer.
 N.Y. TWIST: In Torres, the N.Y. Court of Appeals rejected Long. You do
not have automatic right to frisk the car, but they can frisk the person.
o D. Long’s Extension to Protective Sweeps
 Maryland v. Buie (1990)
 RULE: Reasonable for police officers if they are on the premises to do
a cursory protective sweep to make sure there are no threats.
 NOTE: This protective sweep applies only to people – they cannot be
checking medicine cabinets.

Reasonable Suspicion
 SUMMARY: What is reasonable suspicion?
o Source of Information
 Informants
 Profiles
 Collective Knowledge Doctrine
o Quantum of Suspicion (5 factors)
 #1. Fair possibility of criminal behavior (instead of fair probability required
for probable cause). More than a hunch…
 This makes it difficult to draw a rule for every case – there will always
be room for argument in each instance.
 FAVORABLE: You would rather be on the side of the government.
o Mendenhall
o Reasonable suspicion
 #2. Can be consistent with innocence.
 Is there enough, when taken in combination of innocent and guilty
facts, that it justifies picking that person? Does it narrow the world of
people before making the stop?
 #3. Can’t be overly broad.
 See St. Paul v. Uber.
 RULE: Must be enough so that you are not stopping everybody!
 #4. Relevance of Race
 #5. Flight from Police

 Informants
o RULE: There must be a predictive element as the basis for the information that
creates a reasonable suspicion.
o Alabama v. White – Anonymous tip tells police that someone will be leaving an
apartment in a wagon with a broken taillight, going to a particular destination with an

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attaché of cocaine. The officer watches the informant’s person and they corroborate a
lot of the description (though no attaché case). They stop her short of destination, and
they search her.
 Defense attorney can argue “no reasonable suspicion.” Is it a stop? Not a mere
encounter! The government must articulate reasonable suspicion. We do not
know how the informant knows what she purports to know.
 The Court has no trouble saying there is reasonable suspicion because the
quantum of suspicion is lower here. That means that the suspicion need not be
as great. What tips the scale here is that the informant knows where the
suspect is going. It is not like a full-blown arrest – it is just a stop!
o Florida v. J.L. – Anonymous tipster says there is a black male at a bus stop with a
plaid shirt and is carrying a gun. We do not know the basis of knowledge or the
reliability of the tipster. In terms of corroboration, there is a black male at the bus stop
with a plaid shirt. Is this enough?
 The Court says this is not enough corroboration. This is unlike White because
there is nothing corroborative in any meaningful way. The person could have
called from across the street, looking at the guy at the moment. That was not
possible in White – there is no prediction of the future – no predictive
behavior mentioned.

 Profiles
o Profiles are literally canned profiles of what something suspicious might seem like.
o RULE: It does not matter if an officer develops suspicion on his own, or if he gets
tipped off from some sort of training on what is “suspicious.”
o U.S. v. Sokolow – The defendant paid cash for his ticket, used a different name, went
to Miami, was nervous, and did not check bags. This qualified as suspicion for drug
trafficking. These are suspicious activities!

 Collective Knowledge Doctrine

o RULE: Police officers can rely on the knowledge of other officers if there is
reasonable suspicion by the first officer (who the second relies on).
o U.S. v. Hensley – Police officer put out a wire in another jurisdiction about a
particular suspect.

 HYPO: He runs, he’s caught, he gets away, he throws the dope, and he gets caught again.
o Stopped when getting chased? No
o Stopped when physically caught? Yes, because physical contact between the officer
and runner (Hodari D. – show of force or intimidation).
o Defendant will argue that you can’t get the dope he threw, because he only threw the
dope because they caught me and they shouldn’t be able to use anything after because
of reasonable suspicion.
o Government will argue that even though they didn’t have reasonable suspicion the
first time, he fled again and flight is not seizure. We were allowed to chase him, and
he threw the drugs during the chase and Hodari D. allows us to take him.

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 Quantum: Can’t Be Overly Broad

o RULE: The actions must be narrow enough so that the police are not stopping all!
o St. Paul v. Uber – Cop stops a car that he sees drive by two times in an area known
for prostitution. The car is from the suburbs and it is 2am.
 The Court says there is not reasonable suspicion because these facts are
innocent. Simply being on a public street does not constitute reasonable
suspicion just because there are prostitutes/drug dealers. It is not enough.
 Just because one of the facts might be innocent, it does not narrow the number
of cars it could be! If the car drove around 4 or 5 times and slowed down near
prostitute corners, then it would be something to investigate.

 Quantum: Relevance of Race

o RULE: While the suspect’s race cannot be the only factor supporting a stop, it can be
considered together with other suspicious factors. You cannot use race to justify the
stops though. Often officers will use race-neutral reasons to justify a stop, even
though it is the elephant in the room more often than not.
 PROBLEM: If they are able to use this as a guideline, they will only be
investigating a particular race for the crime.
 *** You could, in theory, have a case based on identical facts, with one
person white and the other not, and come out with one that is reasonable
suspicion, and one that is not. ***
o CONCLUSION: Because of all of this, courts often dodge race in Terry analyses.
o “MERE ENCOUNTER” NOTE: For 4th Amendment purposes, race does not even
have to be justified if it is just a “mere encounter.”

 Quantum: Flight From Police

o RULE: Unprovoked flight, by itself, is not enough for reasonable suspicion, but can
be a factor in the totality of the circumstances.
o Illinois v. Wardlow – The Court says that flight itself is not a per se rule one way or
another, but it goes into the mix. In this case, the area the suspect he was in (a high-
crime area), in addition to flight, proved to be enough.
o PRO-GOVERNMENT BIAS: Reconciling Mendenhall: When you take the premise
of Terry (lowering probable cause to reasonable suspicion), Hodari D. (pushing the
line to later), and Mendenhall (letting the police do whatever), and add Illinois, you
are highly favoring the government.

Searches Incident to Arrest

 SUMMARY: Search Incident to Arrest
o Why reasonable even though no warrant + probable cause? Interests at stake…
 Officer safety
 Destruction of evidence
o Trigger: lawful custodial arrest (not a ticket, like Knowles)
o Scope: Arrestee + Grab Area/Wingspan (including containers)
 Automatic/Bright-line rule (i.e., exception to both probable cause and warrant
requirements)

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 This goes beyond weapons because it is not just about officer safety – it is
also about evidence that could be destroyed!
 Grab Area: Passenger compartment (Belton; Thornton caveat)
 NOTE: In Terry, the person only has to be reasonably stopped. On top
of that, if they are lawfully stopped, there must also be reasonable
suspicion that they are armed and presently dangerous in order to
conduct the frisk. This is a formal doctrinal hurdle that must be
overcome – “why did you feel it was necessary to pat down his
jacket?” The standard might be low, but it is there.
 You do not see this in the search incident to arrest concept. Now, the
government interest is different because it is not just officer safety – it
is about evidence as well. So you can do a full-blown search and they
can just do it – no probable cause required.

 Chimel v. California
o Police went into his house – he was a suspect to coin theft. The wife lets the police
into the house. When the defendant gets there he does not give consent to search and
the police do it anyway. They search the back bedroom and find coins as well as other
evidence. This took 45-60 minutes.
o ISSUE: How big should the exception to the warrant + PC requirement be? When
you are taking someone into custodial circumstances it would be too rigid to always
require a search warrant based on probable clause.
o Holding: The majority wins by saying that the warrant requirement is important and
they should not depart from this. When we do, it should be as narrowly tailored as
possible and based on what drives it anyway (i.e., the two above factors). This is
against the dissenters who say that should be about reasonableness. The majority says
that we should only allow police to search areas where things can be grabbed, thus
creating the GRAB AREA!

 Knowles v. Iowa
o Police officer pulls over a person for speeding, but issues a citation instead of
arresting him. The state statute here said that the police officer’s decision about
whether to arrest or issue a citation did not affect his authority to conduct a search.
Iowa wanted it both ways essentially. The officer conducts a search incident to arrest.
o RULE: Search incident to arrest doctrine does not apply when it is only a citation.
o Rationale: The Court wants to be careful about drawing the exception to the warrant
requirement. The justification in the first place is that when they get arrested they
freak out and do desperate things. This does not happen necessarily when someone
gets a ticket – that is an everyday thing that does not take away your liberty, etc., so
they need to limit the trigger to lawful, custodial arrests.

 U.S. v. Robinson
o He is arrested for driving with a revoked license. The evidence required is that he was
driving and that the license was revoked. The officer has everything he needs to prove
beyond a reasonable doubt once he stops the car. Nonetheless, he pats down the guy
and feels an object in his pocket. It is a crumpled cigarette pack. He opens it and finds

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heroin. The defendant challenged because there was no concern for officer safety or
destruction of evidence.
o RULE: It is a bright-line rule that when a lawful custodial arrest occurs the police
officer is legally entitled to make a search incident to arrest.

 Atwater v. City of Lago Vista

o This case is about whether it is lawful to arrest someone for a lowly offense. She and
her kids did not have seatbelts on. It was a misdemeanor, punishable only by a fine.
The Court holds that the arrest is lawful, even though they are taking away her
liberty, because an arrest is reasonable if it is codified by the legislature.

 Virginia v. Moore
o Some states limit the ability of police to take someone into custody for misdemeanors
that do not have jail implications. Here, there were things that were codified as non-
arrest misdemeanors. You could not be arrested for it. If you were convicted you only
had to pay a fine. But, it was labeled a misdemeanor. The court here said that because
it was labeled such, it was the basis for a 4th Amendment search.
o RULE: It is reasonable to arrest for a misdemeanor or major crime in light of the 4th
Amendment even if the state law says otherwise.
o NOTE: I AM UTTERLY CONFUSED HERE!

 Grab Area for Cars Searches Incident to Arrest

o New York v. Belton – Officer pulls over a car. It smells like pot, he sees an envelope
that says “Supergold” on it. Then he removes the defendants, searches the passenger
compartment, finds a leather jacket and searches it and finds more drugs and a
weapon.
 PASSENGER COMPARTMENT RULE: The grab area includes the entire
passenger compartment.
 TRUNK RULE: This is not included in the grab area. The hatchback
question distinguishes between those that are open and closed. If you can
reach through, then it counts as the passenger compartment. If you cannot
penetrate it, they will treat it as a trunk.
o Thornton v. United States – Officer sees that the wrong plates are on the car. By the
time the officer reaches the car after being pulled over, the guy is out of the car. First
he does a consent search and finds drugs. Then he is allowed to do a search incident
to arrest that the defendant was in prior to the arrest and the officer’s presence.
 RULE: All that matters are that he had been an occupant of the car.

 Grab Area for Moving Arrest

o Washington v. Chrisman – Minor gets stopped for not having an ID on him. The
officer says he will go with him to the dorm room without his permission. He is
implicating reasonable expectations of privacy and did not have consent. Once inside
the officer sees marijuana. Officer argues it is a search incident to arrest. Keep in
mind he was arrested outside without a warrant for committing a crime in the
officer’s presence.

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o RULE: The entire series of events as the arrest – once a defendant is in custody, the
officer can stay at his elbow at all times. Defendant’s wingspan moves with him as he
walks around, thus making it possible for the officer to search those areas.

 Timing of Search Incident to Arrest

o RULE: The search incident to arrest must be roughly simultaneous to the arrest. If
the search incident to arrest occurs two days later, it will be difficult to prove. Thus,
the farther apart they are, the more likely the court will rule it was an unlawful search.
o SEARCH PRIOR TO ARREST: If the government is going to use evidence found
in the search incident to arrest and that event occurred before the arrest was made,
then they officer must have had probable cause for the arrest before the arrest.
o EXAM TIP! It will be up to lawyers to characterize what happened. People will
think that because the search preceded the formal arrest, they will not think about the
search incident to arrest doctrine. Just because the formal arrest follows, do not take
the search incident to arrest doctrine off the table. What matters is if probable cause
existed before the search incident to the arrest.
o U.S. v. Edwards – Arrest and put him in the jail cell. After they arrest him they found
out that a crow bar was used. At this point they wanted to see if there was paint on his
clothing. They went into the cell in the morning and seized his clothes.
 The Court says it is justified as a search incident to arrest because defendant
was in custody. It would’ve been lawful then, so there is a legitimate way to
do it where he is detained as well.

 Search Incident to Arrest vs. Terry

o Search incident to arrest is not Terry – do not confuse.
 Terry is not automatic – officer must show reasonable suspicion for armed and
presently dangerous.
 When they are allowed to frisk they can only look for weapons.
 Search incident to arrest the person must be arrested. This means this requires
probable cause to arrest, unlike Terry.
 Also, it is automatic, unlike Terry. They get to search Robinson
without having to prove anything.
 Do not be surprised if one fact pattern leads to you argue both. That is often
what these will look like (government will try both ways).
 Don’t mess up if we look to see the exceptions. How does it play out
for each? Triggers, interests are different for both.

 VIDEO CLIP HYPOTHETICAL

o Running Away: Arrestee sees police SUV come down the street. He starts to run.
The officers get out of the van and they chase him. At this point, there is no 4th
Amendment issue because there is no seizure (Hodari D.). He is allowed to chase the
arrestee. A reasonable person who can feel free to leave – it is not a seizure. Thus, the
whole time the chase happens it is fine. It is a mere encounter that does not require
probable cause.

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 The seizure in Hodari D. occurs when the kid is quartered at the end of the
alley. Same here: at this minute he gave in to the authority. At this moment
you have a seizure.
o Misdemeanors: Like in Illinois v. Wardlow, the fact that he ran is reasonable
suspicion on its own. However, here the car was not a patrol car. The defendant will
argue he ran because 3 white guys in an SUV were running after him. Nonetheless,
there is evidence that the cops see him swallowing drugs as he is running. Also he
acknowledges the cop by name so he knew him to be a cop. There was destruction of
property while he was running away (criminal mischief, public disorder, trespassing,
etc.). These are all reasons for probable cause for some substantive criminal offense
prior to catching up to him.
 Misdemeanors are committed along the way, and this becomes the basis of
doing a probable cause arrest, and then you get to do a search incident to
arrest.
o Stomach Punch: Once he is cornered in the alley, the cop punches him. The cop will
simply argue that he was resisting arrest and he needed to use reasonable force to
effectuate an arrest. He also wanted to debilitate him from destroying more evidence.
He can also argue either that he never punched him, or that he did for self defense.

Pre-textual Stop and Arrest

 RULE: It is fine to use other offenses as pretexts to justify police investigations.
 Whren v. United States
o Facts: It is a high-drug neighborhood, and police are undercover vice officers trying
to make drug cases. They see defendant’s car and notice the driver looking at
something in passenger’s lap, and they are at a stop sign for an unusual amount of
time. This is far from reasonable suspicion or probable cause. At this point, the cops
go over and the car pulls away without a signal. The cops catch up to the car and pull
it over. This is a stop. The officer goes to the car window and at that point they see
the drugs in the passenger’s hand for the first time.
o Justification for the seizure is the failure to use the turn signal – they use the traffic
violation, they do not use suspicion for drug activity. They use the traffic stop as a
pretext for the overall arrest.
 The minute the police officer sees the crack the guy is arrestable (this is
probable cause). However, this is not good enough. If the stop is not lawful,
the officer has no business for seeing what is in Whren’s hands. Thus, they
have to justify what happened before then.
 What they can do if they stop you…
 If they have reasonable suspicion, they can order you and passengers
out of the car.
 If they can articulate reason to believe you are armed they can frisk
you and your grab area (including the interior of your car and
containers).
 Based on a traffic misdemeanor (Virginia v. Moore and Atwater) they
can do a search incident to arrest.
 They can bring a drug-sniffing dog and can ask you for consent to
search the car.

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o NOTE: If this case went a different way, policing would have been severely limited
in their ability. This expands the scope of when a cop can use X to get to Y. They use
something smaller to get their hooks in the arrestee – it is an excuse for them to stop
the car. The Court says that officer motives are totally irrelevant. ALL THAT
MATTERS IS AN OBJECTIVE BASIS FOR THE ACTIONS. Pretext is allowed!

Exigency
 SUMMARY: This is evaluated on a case-by-case basis. If they left to get a warrant, people
could get away! “We could have gotten the warrant, we had probable cause, but because of
the exigent circumstances we could not spend the time to do so.”
 RULE: This is an exception to the warrant requirement, not the probable cause requirement.
Probable cause is still required, but in these circumstances a NGM is not necessary.
 TRIGGER: Exigency shown on the facts of the specific case.
o Concerns:
 Suspect escaping (e.g., hot pursuit)
 Let’s say someone is fleeing the scene of a robbery and goes into his
house. They can go into his house even though that implicates a
search! We have probable cause because he is arrestable! We would
normally need a warrant, but we dispense of that requirement because
we would not be able to retain him. He would be gone by the time they
got back with the warrant.
 In a Stegald situation, they don’t search the house and just knock on
the door. They want to see if another guy is in the house and they hear
someone telling the arrestee that cops are here and he should escape.
They can enter and prevent it from happening.
 Public/officer safety
 They will go into the house when they get a 911 call.
 Community caretaking or probable cause based on the phone call.
 Brigham City
 Destruction of evidence
 This is common in drug cases (easily consumed, flushed or destroyed).
 Illinois v. McArthur
o Limits
 Seriousness of offense?
 Welsh v. Wisconsin (1984)
o Defendant ran away from police and got into his house and
police chased inside. This followed a DUI. Government argued
“hot pursuit.” They argue that exigent circumstances arose
because they needed to get a blood sample.
o Court says you can’t rely on exigent circumstances because the
event was so minor.
 NOTE: What really matters is whether it is a crime or not.
 Creating exigency
 Police are not allowed to create exigency. See Illinois RULE. It was
their fault the exigent circumstances arose.

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 The defendant will argue that they had probable cause before they got
to the door, so they should have gotten a warrant before knocking.
 The government will argue 2 things:
o (1) We can knock on your door – this does not affect your
privacy, and this does not create exigency;
o (2) We did not have probable cause before knocking on the
door. We only had vague suspicions passed on by neighbors
anonymously.

 Public Safety
o RULE: What matters are objective factors, not subjective intent by officers.
o Brigham City v. Stuart – Melee in a house with a loud party and a big argument
inside. Officers went into house out of concern for public safety. Defendants argue
that they went in to make arrests, not public safety.

 Destruction of Evidence
o Illinois v. McArthur – Police were standing around while wife was moving out of her
home from abusive husband. On her way out she tells the police that he keeps his
dope under his couch. She whispers this and then they prevent him from going into
his home for 2 hours while they got a warrant and searched his home.
o The exigency is that if he got back into the house, he would have disposed of the
drugs because he saw her tell them. The Court says what the police did was entirely
reasonable. They did the search and they did not arrest. Could they have?
o EXCEPTION: If the police create the exigency and created the emergency that made
it impossible to get a warrant, the Court will strike the doctrine down!

Exception to Warrant Requirement (Not Exigency)

 Automobile Exception to Warrant Requirement – NEEDS CLARIFICATION!
o RULE: If there is probable cause for a readily mobile car, a warrant is not needed!
The car does not have to be in transit in order for it to be mobile. The fact that it is
moveable is enough!
 Probable cause + readily mobile car = searchable car.
 Exception driven by two factors…
 (1) One concern is about exigency – one turn of the key and car can
move. This is the mobility argument.
o MOBILITY: The car works. It can be readily mobile with the
turn of a key.
 (2) Reduced expectations of privacy – cars are not houses and are not
like things that get traditional 4th Amendment protection.
o Carroll v. U.S. – Bootlegging case that gave rise to the “Carroll Doctrine” for this
law. The Court uses the opportunity to carve out a rule, as opposed to relying on the
exigency exception. This is because these car stops happen enough that it can have its
own rule (not standard). This is the kind of rule that makes sense based on these facts.
o Chambers v. Maroney – Officers arrest a driver of a car, tow it to the police station
and sometime later they search the car. They try saying it is search incident to arrest –

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court says no because they waited too long. However, they held it was authorized
under the automobile exception. They would have had probable cause to search and
arrest the driver. Court’s reasoning is grounded because they could have searched it
on the side of the road, but detaining it and searching in a safer place like back at the
station is justifiable. The Court saw no constitutional difference between the two
location options.
o Coolidge v. New Hampshire – Search a car parked in defendant’s driveway. Two
days later they search it in the police impound lot. They try to rely on the exception,
but the Court (in plurality) says it is not okay because Carroll should not extend to
parked cars.
o California v. Carney – Motor home parked in city parking lot. Police got a tip that
they were using the motor home for a drug/sex transaction. They watch for a couple
of hours, and see a boy leaving. They talk to him and develop probable cause.
 Could they have relied on exigency? It is difficult. It is different if the guy
inside the motor home and knows that the police talked to kids. Or if the kid is
going to tell the guy. There is no indication it is going anywhere, so they
could get a warrant. However, they applied the automobile exception.
 The Court views this like a car because he was using it as a car at the time. If
he had it hooked up to power at the time it would be a different fact pattern.
He was essentially using it as a car, so the automobile exception applies.

 Containers in Cars
o RULE: Once the container goes into the car, there is probable cause for the car. The
Court wants to create the benefits of a bright-line rule. THE AUTOMOBILE
EXCEPTION EXTENDS TO ANY CONTAINER IN THE AUTOMOBILE THAT
COULD CONTAIN THE OBJECT SOUGHT.
o THIRD PARTY CONTAINERS: As long as the container the size of what they are
looking for they can search it. As long as it is in the car that is all that matters. It does
not matter whom it belongs to.
o California v. Acevedo – Comes to cop’s intention that someone sent pot through
FedEx. They let the recipient pick it up. They let him walk it back into the apartment.
Acevedo shows up and leaves the apartment with the FedEx package and puts it in
the trunk of his car. This is more like Sanders because the probable cause is from the
container, not the car. If that were the case, they would need a warrant (or no
automobile exception).

 Hypothetical
o PC to believe that there was a burglary and a television is stolen from a house and Jim
Smith is keeping the television in the car. They stop him rolling down the street in his
car. Where can they search?
 Anywhere the television might be! Trunk is okay.
o Instead, there is PC that he stole an iPod and it is in a briefcase that he brings with
him into a taxi. Where can they search?
 Anywhere in the taxi the iPod might be. The driver might say don’t look in
my trunk!

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Special Needs Searches

 SUMMARY: The typical way of policing is that some crime happens, it gets reported, and
then the police go out and get the bad guy. This is for the purpose of some crime that has
already happened. The reason they are targeting a person is because they think that person is
suspicious. Terry is meant to make sure you are not singling someone out unreasonably.
o The “Special Needs” exceptions are different and they run together. They are bound
together because they involve a different kind of policing. They do not do this to
“solve a crime,” but instead to do things like preventing drug use, or preventing train
accidents, etc. They say something different for the motive.
 RULE: Follow these steps in a CASE-BY-CASE way…
o #1: WHAT MAKES THIS DIFFERENT THAN ORDINARY CRIMINAL LAW?
 If this is different, it makes it inapplicable to the warrant/probable cause rule.
o #2: WHAT MAKES IT REASONABLE?
 Balance to determine who is right – the person or the government interest?

THE FOLLOWING CASES ARE EXAMPLES OF HOW TO USE THE BALANCING…

 Administrative Searches – Camera v. Municipal Court and Sea v. Seattle
o Entering property to look for violations, not crimes. The reasons for the searches had
nothing to do with criminal law. Fire fighting employee entered a house to look for
fire code violations. The petitioner said that it violated the 4th Amendment because
they were government actors in his home without a warrant.
o Held: Both the government’s interests and individual interests are different than in a
criminal case. Thus, not necessarily requiring probable cause. It might be reasonable
if you balance the interests that they should be able to inspect without probable cause.

 School Searches Student – New Jersey v. T.L.O.

o TLO gets caught smoking cigarettes in the bathroom but instead of admitting, she just
lies that she was not. The school, for the purpose of enforcing rules, searches her
purse and finds cigarettes and pot (she was a dealer). The case goes to court and she
moves to suppress that it was an illegal search.
o Policy:
 We don’t want them searching.
 She has reasonable expectations of privacy at school, but they are reduced
from an adult’s expectation in their home. She is in the custody of the school
when she is there.
 The very things that make it like criminal law are weighing.
o RULE: Students can be searched in school based on reasonable suspicion.
o NOTE: Reasonable suspicion will determine the status of the person, and then
depending on that status, they determine whether it is lawful. O’Connor is the parolee
case that is also in this category. In this case, the status is a student.
 Rationale: The government needs students obeying the schools rules. This
made it reasonable because they are upholding the school regulations.

 Drug-Testing Railroad Workers – Skinner v. Railway Labor Executives

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o Program at issue is suspicion-less drug testing through urine samples for all railroad
personnel right after a train accident. It is automatic! This is a search under Katz
because the results of the test can show personal information (other than the presence
of illegal narcotics). The expectation of privacy is also for the bodily fluids.
o Policy at stake: Safety of the railroads! It is not to find out who is doing drugs and to
bust them. This is different from ordinary criminal law. Outside the scope!
o Balancing
 Minimal discretion of the actors carrying out the drug-testing program. It is
not like they show up and pick the ones who look like they do drugs. That
would be like ordinary law enforcement. Instead, they have minimal
discretion – all the personnel had to be tested. No exceptions.
 Consequences of drug/alcohol use are high. Many people can be at risk if
those controlling the trains are abusing drugs or alcohol. Lots of public safety
risks. Documented problem that railroad employees abused drugs/alcohol.
 Minimally intrusive considering what is going on. The collection method
afforded the people privacy – it is not like they were peeing in the open. It was
like a doctor visit.
 Reduced expectations of privacy since they work in a quasi-public industry.
 Not a pretext – this is not a one-time thing because they are looking to catch
John Smith doing cocaine. This is not for ordinary law enforcement.

 Drug-Testing Customs Agents

o The Court held that drug-testing these employees was also reasonable. Individualized
suspicion was not involved. The government could not monitor them daily without
supervision.
o One of the issues in the case was the documented problem issue. The people
challenging the problem tried to say it was unnecessary problem of drug use with
agents. There was neither empirical data to show this, nor anecdotal evidence.
Nevertheless, Justice Kennedy said that we should not ask the government to wait
until there is a documented problem. Instead, the government interest in preventing
drug use is good enough.
o Rationale: The way the Court sees it, it is not about protecting something that
happened in the past, and instead makes it about the future. There is no drug problem
and we want to keep it that way. We are not trying to punish crimes – we are trying to
deter drug use by agents.

 Drug-Testing Student Athletes – Akton

o Search program for student athletes. Court upholds it in a precise way. They only talk
in a case-specific way! It is always about balancing.
o Here, it is important because you have athletes, not just students in general. They are
doing physical activities that can put you at risk if you combine it with drugs. Thus,
physical health for the abuser and the competition were the interests.
o Reduced expectations of privacy are in play because they shower together, locker
rooms, medical check ups for the team, etc.

 Drug-Testing Students with Extra-Curricular – Earls

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o ASK: What is the special need that makes it different from ordinary law
enforcement?
 The purpose is to maintain order in schools and keep a healthy environment
for education in public schools. This is not for law enforcement.
 This takes us out of the warrant/probable cause box.
o BALANCE: Individual interests versus the policy.
 Plaintiff tries to distinguish from Akton. All the factors in favor of Akton were
not present in this case. They argue that a person in a chess club has an
increased expectation of privacy – they are not suiting up and getting
physicals to be on the team.
 Some evidence of problems at school, though largely anecdotal.
o Reasonable! Court says that it does not matter – you are a minor who is entrusted to
the supervision of the school. Now, everything is the same with the two cases.
 Privacy interests were maintained.
 Tests were only looking for drugs, nothing else (pregnancy).
 No disclosure of the results to police.
o You are reigning in discretion, but you are searching more!

 Drug-Testing Candidates for Office – Chandler v. Miller

o This was struck down and it is arguably more important than the other jobs. The
Court says no drug testing because there is no immediate public safety concern.

 Drug-Testing Pregnant Women – Ferguson v. Charleston

o There was a program, involving drug testing of pregnant women. This is a public
hospital that does it! Public versus private is the key to making it a 4th Amendment
issue. The government says: “What could be more special than making sure a kid is
not on drugs in utero? The Court distinguishes between the purpose of the program
and how the program works. Any program can be justified in kinder and gentler terms
if you are looking to make it passable. Instead, look at how the program works!
o RULE: Look to how the program is administered and the intention of the program in
deciding if it is a special needs exception to the probable cause + warrant.
o Held: The way this program worked is that the police came in and trained hospital
personnel to collect evidence and do drug testing. They kept the evidence the same
way that cops would (train of custody) in case the mother was charged. They were
being trained the same way a cop would!
o BOTTOM LINE: Protocol looked exactly like ordinary law enforcement. It is not
the fact that the police are doing it, but it is the intention of the program and how it
works that makes this an issue.

Roadblocks – MUST GET CLARIFIED!

 SUMMARY: Roadblocks are viewed at a meta-Terry, because it is minimally intrusive. It
takes you out of the warrant/probable cause box. This is NOT a special needs search because
these roadblocks do not involve arrests or searches. We do not need a warrant/probable
cause. It is only a stop, not a seizure or anything like that. The level of intrusion to the driver
is minimal and it happens to everybody. This is built off of Terry and we do not need a
special needs analysis.

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 RULE: Two requirements must be satisfied for a valid roadblock: (1) The primary purpose
of the roadblock has to have a connection with the road; (2) The officers administering the
roadblock cannot have discretion on who to stop – it must be all or nothing, or a pre-
determined number of cars (i.e., every fifth).

 Michigan Department of State Police v. Sitz

o RULE: It was reasonable to do the roadblocks for everyone. The rationale is that
these are different because there is no discretion about whom to stop. Either they have
to stop everyone, or a mandate for a particular group (example – every fifth car). This
eliminates police officer discretion.

 Illinois v. Lidster
o This is an information roadblock set up to get information about a hit-and-run from a
week earlier. The rationale is that those who might have seen it could be on the same
road on that day.
o They were not trying to prosecute these people – they were trying to find a witness.

Community Caretaking/Inventories
 These two categories have to do with police having the right to search cars and property for
the safety of everyone included.
 COMMUNITY CARETAKING RULE: An officer is entitled to search the car/property of
another officer for the good of the cop/community if something potentially dangerous exists,
so long as it is not in a law enforcement capacity.
o Cady v. Dombrowski – Police officer is in a car accident and has to go to the hospital
in an ambulance. Another officer goes into the officer’s car to see if his gun is there
for the good of the cop/community. While in the car he finds bloody clothing that tied
him to another crime. There was no policy that told him to do this, he did it on his
own. The Court allowed it because of the rule above.

 INVENTORIES RULE: Police must inventory the property of a prisoner. It must be written
policy and police are not allowed to use their discretion.
o Rationales:
 Protecting the police against property claims by allowing for this to happen.
Otherwise people could say they had anything in their trunk.
 Protecting if there is something valuable in the car – you are protecting the
property owner from having property stolen by leaving it behind.
 Protecting the public/police from anything dangerous that might be in the car.

NOTE TO SELF – I THINK THIS IS THE END OF SPECIAL NEEDS SEARCHES

Border Searches
 STEP 1: Is the search made at the border or away from the border?
o At the border
 Not just literally at the line between two countries, but also what is the
functional equivalent of the border. An example is the airport (JFK is not the
border between the U.S. and England). This is the equivalent though.

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o Away from the border

 Almeda Sanchez takes place 25 miles away from the border. They randomly
chose cars to stop and search. The government tried to argue the border patrol
exception. “Doing it for purpose of protecting the border.” This argument
failed – they need probable cause!
 RULE: You need probable cause when away from the border.
 STEP 2: If the search is made at the border, was it routine or non-routine?
o ROUTINE RULE: Just about every routine here is inherently reasonable! It is
reasonable without a warrant/probable cause/suspicion. Two reasons:
 (1) There is inherent authority in the government to have discretion about
what comes into the country.
 (2) There is a diminished expectation of privacy. This falls into the “routine” –
you should expect that your car will be searched when, for example, you go to
Canada.
o ROUTINE PROPERTY: For property, there need not be reasonable suspicion. You
do not have privacy rights in your property. As long as they are not doing anything to
interfere with property rights. This must be reasonable though!
 This would not work if they took a chainsaw and sliced your car into 6-inch
strips.
 EXCEPTION: it is about whether they destroy your car. If it is reasonable, it
is okay, and if it is more than that they will need to justify!
 U.S. v. Flores-Montano – Customs agents disassemble the car’s gas tank at
the border. Court says this is not routine, so they must articulate reasonable
suspicion. The government says they will not tell why they did it. They
refused to put on record either because they don’t want to give away their
intelligence secrets, or they want the ruling that says they don’t have to tell
them! This is the real point – they just want carte blanche.
 Held: The Court holds that at the border, you do not need to articulate
reasonable suspicion whatsoever! Thus, the Court is saying there is
possibly a distinction between people and property when it comes to
the non-routine.
o NON-ROUTINE RULE: Must be justified by reasonable suspicion.
 Things like body cavity searches and strip searches.
 U.S. v. Montoya de Hernandez (1985) – Woman was at the border and was
suspected of swallowing drug balloons. They decide to detain her for 16
hours. They conduct a rectal exam when nothing happens at this point.
 The Court held that this was permissible because there was reasonable
suspicion that she was involved in drug smuggling.

Consent Searches
 SUMMARY: You’ll often see judges go straight to consent. Many judges will hang their hat
right on consent (they don't have to decide whether there was PC). The negative of this is that
it encourages the police to just ask for consent. It does not hurt for a cop to ask for it. You
can do it anyway if there is no consent and you have PC. It gives you an alternative argument
just in case! It is the easiest way to get evidence into a case. This way it is only for that

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defendant (you are the stupid guy who consented to a search when there were drugs in your
console).
o If instead, they decide the case on the automobile exception, it is decided in a more
global way. It is now about whether the government can search without a warrant. It
is a further reaching decision, as opposed to "this dumb defendant consented - he
should lose."
o RATIONALE: Why should they have to get a warrant for probable cause if the
defendant himself does not care?! It is just as reasonable to search someone who is
telling them to do so!
 BURDEN: They are trying to rely on an exception to the warrant requirement because they
do not have a warrant. They have to show the consent was valid and lawfully obtained.
 RULE: Voluntariness under the totality of circumstances. This is different from requiring
and knowing a voluntary and intelligent waiver.
o NOTE: Do NOT confuse this with waivers for 5th and 6th Amendment purposes.
o FACTORS TO CONSIDER:
 Lack of knowledge about right to refuse. This is fine because we are only
looking at voluntariness in the totality of the circumstances test.
 Custodial status. Are they under arrest?
 Time needs to be taken into account. The more that passes, the better
for defendant.
 Number of requests. If it is multiple, then the better for the defendant.
 Use of force/show of force by law enforcement. This includes a threatening
tone. How confrontational is the officer toward the defendant.
 Level of cooperation of defendant. If very cooperative, the Court will be
quicker to believe that defendant will be cooperative.
 The number of officers. The more there are, the more likely he will feel he is
being coerced.
 Whether defendant believes evidence will be found. If defendant thinks the
drugs are well hidden, he is more likely to give consent because he does not
think they’ll be found. If the evidence were right out there, then why would he
consent? The Court might think he was coerced.
 Personal characteristics of defendant. Age, education, knowledge of criminal
procedure.
 Threats. A clear distinction exists between true threats and empty threats. An
empty threat without probable cause is in favor of defendant. This could even
be used as proof of voluntariness!
 I can apply for a warrant if you don’t let me in. TRUE
 I can go get a warrant if you don’t let me in. EMPTY
 Lies. The kind of lie is about the reasons for the search – not like the empty
threat lie.
 If a cop says he wants to enter your home to look for a missing ring
when in reality he wants to search for drugs. This is a lie about the
reason for the search!

NOTE: MUST CLARIFY THE DIFFERENT STANDARDS BELOW. IS “REASONABLE

APPEARANCES” THE RULE FOR BOTH?

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 THIRD-PARTY CONSENT: Consent doesn’t have to come form the person that is the
target of the search. The Court allows for third-party consent (non from the person implicated
in the search, but from someone who has authority to give the consent).
 ISSUE: Whether the person has authority. This can be actual or apparent.
o ACTUAL AUTHORITY: The government can get consent to search from someone
with actual authority if the defendant refuses to do so.
 Spectrum of Relationships:
 Husband and wife: this is especially true with husband and wife.
 Roommates: you can consent to search of the common areas, but not
to the actual room of the roommate (provided they have different
rooms). This is shaped by social expectations!
 Present and expressing refusal.
 People who share the space assume the risk.
 Matlock – wife consents to search of defendant’s home after he (husband) gets
arrested in the front yard. She had shared authority over the property.
o APPARENT AUTHORITY QUESTION: Why did you think it was reasonable that
Person X had authority?
 This is the government’s backup position. Sometimes it comes up because the
person who gave consent then recants it.
 RULE: Reasonable appearance that the person has authority is necessary.
 Illinois v. Rodriguez – The ex-girlfriend tells the police that it is our
apartment. She offers to let the police in with her key for the purpose of them
arresting him. In truth, she had moved out weeks earlier and had the key
without his consent. She has no authority to give consent.
 Government says they reasonably believed that she did have authority,
and everything looked right. Why should this be enough to justify a
search?
 They got consent from a trespasser! But if the cops were to be required
to check into every background, it would be crazy. All they can rely on
is reasonable appearances.
 The officer’s reasonable reliance from what appeared to be someone with
authority makes it reasonable! This is not about waiver.

Plain View
 SUMMARY: The police are legally in a place when they discover evidence that is not listed
under the particularity requirement of the 4th Amendment. The issue becomes whether the
item was in plain view of the officer so that discovery of it does not violate the defendant’s
privacy rights.
o RATIONALE: It is unreasonable to make the cops go to the courthouse and get a
warrant for something that is right in front of them.
 If you open a dresser drawer looking for rings, you see the gun – that is plain
view! That is okay.
 If they open a small box on top of the dresser and they find something then
that is not okay! It is outside the lawful authority of the warrant.
 Do not mistake this with the particularity requirement.

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o NOTE: THIS ONLY AUTHORIZES SEIZURES, NOT SEARCHES!

 Searches implicate privacy – cops going somewhere that has expectation of
privacy.
 THIS DOCTRINE NEVER JUSTIFIES A SEARCH! It only comes up if the
police are lawfully present anyway.

 PLAIN VIEW RULES:

o LAWFUL VANTAGE POINT: Must see the thing from lawful vantage point.
 It can only be used for a seizure, not a search.
 Example: In the course of executing a warrant, the cops could find
something in plain view, and they can seize it.
 Example: They can be on premises under Payton. They have an arrest
warrant for him, entitling them to search where he might be, and they
find evidence. They can seize this evidence.
 Example: They could have gotten consent to search for drugs, and in
the course of doing so, they find a gun. They can seize it without
having to get a warrant.
 Example: Exigency gets them into the house, and they see something
in plain view.
o PHYSICAL ACCESS: Police must have physical access to the thing.
 You cannot crawl through windows into a home, for example.
o APPARENT SEIZABILITY: The seizability of the thing has to be readily apparent
or already established. In other words, police cannot use plain view to explore or
search throughout the house. They cannot explore it further to establish PC. It must be
apparent.
 Hypo: Police have an arrest warrant entering the house for defendant. They
see a pile of clothing, the contents of which match the description of a
defendant in a crime that happened earlier in the day. They seize this evidence
and seek to use it against the defendant.
 Picking up the clothing is a search!
 Hicks v. Arizona – makes clear how the plain view doctrine is to be followed.
 Police had authority because someone decided to shoot a gun in their
apartment and the bullet goes through the floor. Police have exigent
circumstances. They are in the apartment with authority. He finds a
stereo, explores it, and calls in the serial number to see if it is stolen.
o You cannot explore it! Calling it in is exploring it. He had no
justification to pick it up and look at the bottom.
o Instead, he could have tried to get PC without picking it up by
calling it in and seeing if anything like it had been stolen. He
could have asked for consent to search it.
o GOVERNMENT ACTOR: You must find a state actor at some point in the case.
 Example: People who did security checks at airports.

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 HYPO: Cops are in an apartment arresting someone for domestic violence. They do a
protective sweep. They find him – he is the roommate. No warrant, but PC to arrest a
defendant. Can defendant be arrested if he is a roommate?
o He is normally arrestable when he walks out the front door because of privacy
expectations. However, based on exigency, the police got into the front door and the
protective sweep got them into the bathroom where he is. If cocaine is cut up in the
bathroom then that can be seized. The dude’s privacy interest has already been
satisfied. He chose to live with the domestic violence people. Now his bathroom has
become “the Dunkin Donuts parking lot.” The police are justified in being there.

Exclusionary Rule
 PURPOSE: DETERRENCE: It deters police misconduct! It is a deterrent to individual
police officers from violating the constitution. They know if they search the person
ILLEGALLY they won’t be able to use the evidence, so this causes them to know they
should do it the right way. Any suppression beyond that is too high of a cost. It is a
cost/benefit rationale.
 RULE: Once the court has determined that 4th Amendment rights are violated, defendant
gets suppression of the illegally seized evidence and all derivative evidence. This is all
evidence that they would not have found but for the 4th Amendment violation.
o Hypo: They find a bloody knife and a diary, which includes a confession that says, “I
buried the body in a public park.” They go dig up the body in the public park. Case
goes to trial; defendant moves to suppress. Unless there is an exception to the
exclusionary rule, it will be allowed.
o Violation – searched his home without probable cause. Once this is established, the
illegally seized evidence is suppressed as well as the derivative evidence.
 Illegally seized evidence – diary and bloody knife.
 Derivative evidence – the body gets suppressed too, unless the government
can point to an exception to the exclusionary rule.
o Steps…
 First you do the substantive 4th Amendment analysis.
 If there is a violation, you turn to remedy  suppression.
o Illegally seized evidence and derivative evidence.
o Standing Issue
 Defendants own 4th Amendment rights need to be violated.
 EXCLUSIONARY RULE EXCEPTIONS
o Attenuation: Whether the evidence is the fruit of the poisonous tree.
 The government here argues that this is not the fruit of the poisonous tree
because there are too many links in the chain before we reach it.
o Independent Source: We got there somewhere else. There was an independent
source for the information.
 A tipster called the police and said someone buried a body in the public park.
Government would argue they got there from an independent source, not the
diary. It is not the fruit of a poisonous tree.
o Inevitable Discovery: Not that there was a past source. Instead, if we hadn’t violated
the constitutional right, we would have found it anyway.

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 Just as they find the body at the park, a call comes into 911 saying that there is
a body buried. They would have inevitably found it regardless!

 Main Case – Mapp v. Ohio

o Facts: Police wanted to search defendant’s house to search for a bombing suspect
they thought was hiding there. Defendant refused consent and called her lawyer.
Police come back 3 hours later, still without a warrant. They force entry into the
house, damaging the door. She says again to go away. They claim/lie to her that they
have a warrant. They pretend it is a warrant. The evidence in the case is obscene
materials/books. This is all they found in the apartment.
 Defendant argues that is shocks the conscience. The only 4th Amendment
argument made was in an amicus brief in a footnote. They say that Wolfe was
wrongly decided, and that the mere fact should justify suppression.
o HOLDING: 4th Amendment applies to the states, including the exclusionary rule.
Suppression is the right thing to do.
 There has been a trend in the other direction of suppression. This goes hand-
in-hand with the deterrence/integrity arguments. Deterrence is the only thing
they really harp on now.
 If it is wrong to use the evidence, it should not be used. The Court should not
permit it – it is all about deterrence.

 Standing Issue
o ISSUE: Did the person who was searched have a reasonable expectation of privacy in
the thing that was searched?
o RULE: The defendant must point to a violation against him in order to get a remedy.
You must look case-by-case to determine if there was a reasonable expectation of
privacy. It makes Katz personable!
o Rapiss v. Illinois – Defendant is a passenger in a car that gets searched and yields
evidence to a robbery. He was not an owner, and he challenges the search.
 Did he have an expectation of privacy in the thing that was searched? It goes
back to Katz. If he did not have reasonable expectation of privacy, it was not a
search of him. It has to be his own interest at stake and his own privacy. If he
did not have this interest implicated, then why should he get a remedy? Why
should he get a windfall?

 Simmons Compromise – Simmons v. U.S. NEED EXPLANATION

o Facts: The car the defendant was driving was searched illegally with a trunk full of
cocaine. If the defendant says that he had a reasonable expectation of privacy, he
can’t necessarily say that he was just getting a ride to church, for example. That
would indicate that he doesn’t have an expectation of privacy because he is not
regularly in the car.
 Predicament: If the defendant testifies in the motion to suppress (establishing
reasonable expectation of privacy), he will testify that he occasionally drives
the car without the owner’s presence and that he could do whatever he wanted
with the car. If he wins the argument and the court says you still are screwed
and they deny the motion to suppress.

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o COMPROMISE RULE: The Simmons compromise is that it cannot use the

defendant’s testimony in the motion to suppress in building their case in an attempt to
establish reasonable expectation of privacy. If however, he testifies, it can be used to
impeach his credibility.
o CHOOSE: The reality is that he has to decide between the motion to suppress and
testifying at trial. That would bring in all the incriminating evidence to the trial from
the motion to suppress.

 Reasonable Expectation of Privacy Scale

o Low End
 Trespasser
 Not legitimately on premises
 A few hours – packaging cocaine in the house.
 Carter
 Social guest/Dinner guest – socially recognized function

o Middle
 Overnight guest
 Olson
o High End
 Owner of house
 Steagald
o Justice’s Interpretations
 Scalia/Thomas: Olsen is the floor/basement for reasonable expectation of
privacy. Everyone else loses because it is not his or her houses. They are just
guests.
 Kennedy: Most, if not all social guests have reasonable expectations of
privacy. But Carter is different because he is not a social guest, he is there for
drug trade.
 Ginsberg/Stevens/Souter/: Non-trespassers is the floor. Even Carter has
reasonable expectations of privacy.
 Breyer: Carter has standing or reasonable expectation of privacy, but he
thinks that peeking through the blinds is not a search and is public access.

 How to Approach…
o Step 1: Argue that it is your reasonable expectation of privacy
 Use the scale to help you.
o Step 2: Say whether there was an illegal search
 This is up for the government to establish (either they had a warrant, or that an
exception applied to the warrant requirement).
 If they cannot show justification, that triggers the fruit of search argument,
unless there is an exception.

Attenuation – NEED EXPLANATION

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 SUMMARY: When the government argues attenuation, they are essentially arguing that the
evidence is not really derivative of the constitutional violation. The causal chain has been
broken. The link between the violation and the evidence at issue is so attenuated that at some
point it no longer makes sense that the violation was not the cause of the issue. This is similar
to proximate cause in torts, trying to find a wedge in the chain of but-for causation, etc.
o This is the argument in defense of the Exclusionary Rule.
 RULE: Attenuation means that but-for causation is not enough. The government can come in
and point to something else that breaks the chain.
o It is generally true in an attenuation situation that the government will be able to
argue that witness’ desire to testify will trump it.
o It is up to the government to establish attenuation by preponderance.
o Factors to Consider…
 Whether defendant heard Miranda warning
 Time – proximity between arrest without probable cause and confession
 Presence of intervening circumstances
 Days in which was left to his own free will.
 Length of causal chain. More steps between 4th Amendment violation
and the confession, the more likely it is that something has intervened
to break off causation.
 Flagrancy of 4th Amendment violation
 How bad was it? If they were beating the hell out of someone, it is tough to
say that it was a voluntary confession.

ATTENUATION CASES TO HIGHLIGHT THE MEANING…

 Brown v. Illinois
o Arrest Brown without probable cause. He moves to dismiss saying he would not have
confessed if he weren’t already arrested. The government tries to argue that they read
his Miranda rights, and that should prevent the Constitutional implications from
coming into play. They say they told him he has the right to not confess, etc.
o Court rejects this argument, which Burke feels makes sense. The problem is that
Miranda is intended to make sure the defendant’s confession is voluntary in a
situation in which they are lawfully in custody. It says nothing to make us confident
that the police have undone their 4th Amendment obligation. It is about 5th
Amendment protections, and we are dealing with the 4th.

 Rawlings
o Make him stay put for 45 minutes while the cops went and got a warrant. He seeks to
suppress statements he made during this allegedly illegal seizure. The court denies
this request.
o The statements are not suppressed because of evidence of free will. The defendant
claims that if it were up to him he would have left the premises.
o The case is different from Brown because they weren’t paying any attention to this
guy. They were grilling the defendant in Brown after they illegally arrested him.
Here, they tell him to stay put, then looked around the house, then after they found

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stuff, he started talking. He wasn’t even arrested at this point. They weren’t asking
questions – he popped it out of his own mouth, and they argue that it is free will.

 Hudson v. Michigan
o Police violate “knock and announce,” and the defendant argues that the evidence
seized once inside should be suppressed.
o “Knock and announce” protects against unnecessary destruction of property because
it allows a homeowner to answer the door. It protects against alarm so the residents
have notice. It protects against violence so the residents don’t think they are under
attack.
o IMPORTANT: Hudson loses because a violation of this still does not negate the fact
that the police have a warrant. They are allowed to search the home! Thus, they can’t
argue that the evidence should be suppressed because they were allowed to search the
home! The interests at stake have no connection to the remedy sought. If he wants his
door fixed, that is fine. But he cannot argue that they ought not have found the
evidence. They would have found it anyway because they had the warrant.
 THERE WAS NO CAUSAL CONNECTION!

 N.Y. v. Harris
o Similar facts to Hudson. There is no connection between the interests implicated and
the confession. His confession results from depravation of liberty, which is lawful
because they had probable cause (they did not in Brown).
 As a defendant, you want to argue that the confession happened because of the
search of the house. It is as if to say, “They found the drugs, so I confessed.”
Then you go back and say that it was an illegal search, so the fruit of the
poisonous tree should also suppress the confession.
 YOU MUST BE CAREFUL IN DEFINING THE WRONGFULNESS OF
THE GOVERNMENT’S CONDUCT. THAT DETERMINES WHERE
YOU DRAW THE LINE OF THE POISONOUS TREE ARGUMENT.

Independent Source Doctrine (Exception to Exclusionary Rule)

 ARGUMENT: This limits the scope of the poisonous tree, because it allows the government
to argue that it is the fruit of some other poisonous tree. The government argues that they had
a lawful basis for the evidence, and there is no causal connection between the violation and
arrest. There is something in the but-for causation that breaks the chain.
 RULE: In order to determine if the exclusionary rule should be discarded, the courts will
redact the questionable parts of its basis for evidence and determine if there is still probable
cause. If so, then it is fine, and the independent source will prevent it from being considered a
violation.
o Murray v. U.S. – Government gets tip, and they start watching a warehouse because
of it. They see two guys leave with a tractor and turn it over to other people. They
stop the cars and find marijuana in the cars. This gave them probable cause to search
the warehouse. However, they have no warrant, so they do it illegally. They find more
marijuana. They then leave and get a warrant. They make no mention in the warrant
application of having gone into the warehouse for an illegal search. They execute the
warrant, find the marijuana, and defendants move to suppress.

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 It is essential here that they already had probable cause before they looked in
the warehouse. Otherwise, it would change everything.
 The source must be independent! But for the illegal search there would not be
probable cause. You must point to an independent and lawless basis.

Inevitable Discovery (Exception to Exclusionary Rule)

 SUMMARY: Premised on independent source. Instead of the government saying that there
is an independent source for the search, but the government is saying it is speculated that
inevitably there would have been an independent source.
o WE WOULD HAVE GOTTEN THERE ANYWAY.
o Nix v. Williams – They extract a confession in violation of the right to counsel. They
know he is a religious nut. They took advantage of that and start saying thing along
these lines to provoke him into a confession. Finally he cracks and he says they will
take him to the body. The confession is suppressed. The issue is whether the body is
the fruit of a poisonous tree.
o The Court holds inevitable discovery. The content of his confession is what takes
them there. By a preponderance of the evidence, the government would have
inevitably found the body anyway. They were going in the right direction – it would
have happened regardless of his confession. So, they won the case and the evidence
was admitted.

Additional Exceptions to Exclusionary Rule

 Procedural Exceptions
o Exclusionary rule does not apply to non-criminal proceedings. Evidence can be used
in all civil cases. Cops are not motivated to mess with evidence in a civil case. Cops
are out to make criminal cases, not civil. They are only deterred as long as the
government can’t use it in criminal cases.
o Habeas Corpas actions – the argument cannot be invoked in a proceeding like this.
The logic is that officers don’t think about habeas, they think about the initial
conviction only.
o Non-trial portions of a criminal case. Grand jury, probation/parole violation, bail
hearings, defendant cannot invoke the exclusionary rule.

 Impeachment
o Evidence can come in solely to impeach credibility. This can come in to impeach the
defendant as a witness, but not other defense witnesses.
 Strategically, the defendant usually chooses not to take the stand at the end of
the day. Otherwise, it is too easy to open the door on direct or on cross.
o RULE: Illegally seized evidence may not be used to impeach a defendant’s witness.
o RULE: Illegally obtained evidence can be used to impeach the defendant's testimony
no matter when it is elicited as long as the questions put to defendant on cross “are
plainly within the scope” of the direct.

 Good Faith Exception

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o RULE: Good faith exception to the exclusionary rule only if a reasonable police
officer could believe in good faith that there is probable cause. The officer could not
have acted negligently – it must be a legitimate belief. Reasonable reliance on some
other party is required (legislature, court, court clerk).
o SUMMARY: This doctrine is saying that the officer did everything he was supposed
to do – there was probable cause and he got a warrant. The only problem is that for
some reason, someone else screwed up. Nonetheless, he relied on the warrant and
found evidence, etc. Since he acted in good faith the Court is not going to punish the
officer by suppressing the evidence. Remember that the goal of the exclusionary rule
is to deter bad faith police work. Since that is not an issue here, no suppression!
o ATTACK ON EXCLUSIONARY RULE: What you also see is a broader attack on
the exclusionary rule, generally. The Court deconstitutionalizes the 4th Amendment’s
rule from the Amendment in general. The Court rejects the view that the exclusionary
rule is part of the 4th Amendment. Using evidence is not a 4th Amendment problem,
so it should not be clumped with it.
o Arizona v. Evans – Traffic stop and they check the system for a warrant. There was an
entry in the system that said there was a warrant out for him, when in reality there
was not. They arrested the person based on the evidence that did not exist.
 It was the court clerk’s fault that made the mistake. Therefore, no deterrence,
and no suppression of evidence because of it. Exception applies.

5TH AMENDMENT

Privilege Against Self-Incrimination

 MIRANDA TESTIMONIAL PRIVILEGE: Prohibits anyone in a criminal case from being
a witness against himself. If it is testimonial only it implicates the privilege.
 RULE: You are only a witness against yourself when you give testimonial evidence that
might incriminate. Thus, physical testing does not lead to a privilege (BAL test for drunk
driving; hand writing analysis; line up at the police station). MIND VS. BODY!
o Unlike the 4th Amendment, it acts as a prohibitory rule on its own.
o This speaks only to criminal cases, not civil. However, the Court has interpreted this
more broadly to have implications beyond that.
 SUMMARY: Scope of privilege for testimonial matters…
o (1) He cannot be compelled to do it;
o (2) He cannot be punished if he refuses to do it;
 Can’t be held in contempt;
 Can’t be punished indirectly (he didn’t testify so you can infer he is guilty –
not allowed to say that!);
 Prosecutors cannot argue that they are guilty because they did not testify.
o (3) Cannot take away immunity. Use and derivative use of immunity. They do not
need to confer. They don’t need to accept immunity – it is forced upon them.
 RULE: Even if they say they do not want to testify, the prosecutor can force
them as long as immunity is offered. If they still refuse, they can be help in
contempt.

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 Was Defendant Compelled?

o Hiibel v. Sixth Judicial – Issue is whether a state statute is constitutional that says that
police can request identification when stopped – do they have to? Defendant tried to
argue he didn’t have to tell the officer anything.
o Court said this is not part of the privilege against self-incrimination.

 Adverse Comments by Prosecution

o RULE: An adverse comment by a prosecutor about a defendant’s choice not to
testify is an invocation of the privilege and could lead to mistrial.
o NOTE: It is the defendant’s option to not have the instruction because they feel it
draws attention to the silence.

 Losing the Privilege of Self-Incrimination: IMMUNITY!

o IMMUNITY: The prosecutor can force one of two defendants to testify against the
other by granting immunity! He might testify, but it will no longer be against himself
because he is no longer being tried. Thus, the prosecutor can override the privilege by
invoking immunity.
o RULE: Even if they say they do not want to testify, the prosecutor can force them as
long as immunity is offered. If they still refuse, they can be help in contempt. It is
forced upon them!
o Two kinds of immunity are offered…
 Use/derivative use immunity – this is very limited. It says they won’t use their
statement against them, and they won’t use anything they get as a result of
that statement (fruit of poisonous tree to an extent).
 NOTE: According to the Court, this is all the government has to give
in order to waive the privilege. They are not required to give
transactional immunity.
 Transactional immunity – this is what the defendant wants. It is a binding
promise that the defendant will never be charged for the transaction that led to
the criminal offense.

Due Process Cases//Attacking Confessions

 SUMMARY: The confession, to be suppressed on due process grounds, has to be (1)
involuntary, and (2) the product of government conduct.
o TOTALITY OF CIRCUMSTANCES FACTORS/RULE
 Physical force or threats thereof (Brown, Arizona v. Fulmonante);
 Implied threats also do the trick.
 NOTE: This weighs very heavily!
 Psychological pressure (Spano);
 Individual characteristics of defendant like lack of education, background;
 Promises of leniency in exchange for statement;
 “I’ll put in a good word for you with the prosecutor…”

 Spano v. N.Y.

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o He had a lawyer and had been indicted. The three concurring justices wanted to use
this, as opposed to due process to get a bright line rule and use a confession.
o Confession held inadmissible because of due process violation. It was a violation!
Contributing factors: All on their own in interrogation room; no lawyer; long period
of time in custody with hours of questioning; tired, powerless, isolated (all
psychological).

 Deception by Police
o Happens frequently to say that the police found evidence against the defendant.
Another option is separating two defendants and saying that the other one already
confessed or admitting to certain portions of the crime.
o RULE: There is no prohibition in lying to the defendants and it is one of the factors
in the totality of the circumstances.
 This, by itself, will not be enough to tip the scale in the totality factors.

Miranda Rights
 GOAL OF MIRANDA: The Court is trying to level the playing field by taking lawyers and
putting them in the police station and give the defendant an advocate. This will balance the
intimidation techniques used by the police. However, it didn’t really change the world so
much except that cops had to carry cards around and recite the warnings. There was not a
reduction in confessions.
 Miranda Impact
o #1. It is not the same as due process.
 Made clear that a confession could be compelled without being involuntary
for due process purposes. (See main RULE above).
 Makes clear that a confession could be held in violation even if it might pass
muster under the voluntariness test.
 It could violate a rule without violating a standard.
o #2. Warnings
 If defendant is subject to custodial interrogation there has to be Miranda
warnings.
 There is a presumption that if he is subject to interrogation and not told his
rights, it is a rebuttable presumption that any confession is compelled.
Compelled statements violate the privilege.
o #3. Right to Counsel
 Warnings tell the defendant you have the right to a lawyer that never existed
before. Thus, they are creating a right to counsel.
 This is a 5th Amendment right to counsel, not 6th.
 6th Amendment is for the purpose of protecting people at a critical
phase of the trial.
 5th Amendment is for pre-indictment. This is not for trials. It is for the
purpose of helping the defendant decide whether to speak.
o NOTE: Once they waive this right (voluntary only), everything looks the same!

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 RULE: The product of custodial interrogation cannot be rebutted and is presumed as

compelled unless the police have given defendant a warning and respected the rights
contained within this warning for the purpose of exercising protection against self-
incrimination.
o 5th Amendment self-incrimination doctrine is detached from voluntariness doctrine.

 SUMMARY: Is there a violation? Depends on three factors:

o #1. Custodial Interrogation – trigger!
o #2. Warning – simply means warning was read!
o #3. Waiver – will be discussed below!

Custodial Interrogation
 RULE: There can be no custodial interrogation (CI) unless defendant received Miranda
warnings and waives 5th Amendment rights.
o Components for the trigger for Miranda rights:
 #1. Custody
 NOTE: Anything that is an arrest for 4th Amendment purposes will be
custody for Miranda purposes.
 #2. Interrogation
 Must be the police to the defendant, not another person.
 RULE: Express questioning or its functional equivalent  any
words/conduct that officer should know is reasonably likely to elicit an
incriminating response. (Innis)

 Public Safety Exceptions to Interrogation

o Booking
 PA v. Muniz – DUI case, they had read him Miranda and asked additional
questions that were basic, just for the purpose of booking the person. Court
held that interrogation for booking is not custodial interrogation.
o Undercover Investigations
 Illinois v. Perkins – Defendant was in prison and the government put an
undercover cop into the prison to pretend to be his cellmate and to get him
talk about the crime for which he stood accused. The Court says he loses the
argument that he should have been read Miranda rights because the defendant
believes the guy is his cellmate and not a police officer.
 Note – no coercion so no due process violation.
o NOTE: This exists because of the intimidating nature of being interrogated by an
officer. Miranda is used to level the playing field for the person being interrogated.
This is on the assumption that the playing field is off. In this case, the playing field is
level – yeah, he’s talking to a cop but he does not know that. He thinks he is talking
to a buddy and he does not need a lawyer. There is nothing inherently coercive about
this situation.

Waiver
 STANDARD: Was defendant’s waiver voluntary, knowing and intelligent?

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o It always comes down to this standard! This is the issue in all of these cases when
waiver is in question.
 BURDEN: It is the government’s burden to prove waiver.
 Implied/Express Waiver
o RULE: It does not need to be express – it can be implied. It need not be signed
(though that is the best way). It can be implied from the circumstances.
o Example: Defendant was read his warnings and then was asked if he understood
them, to which he replied in the affirmative. He was then asked a question and
answered it – this was held to be a waiver. There was nothing more than that.

 Knowing and Intelligent

o RULE: As long as the defendant knows the rights contained within the warning, then
that is enough to make the waiving of these rights “knowing.”
o PROVING: The government can prove that the defendant knew the rights contained
in the warning by having the police officer testify that he read the warning to the
defendant.
o Connecticut v. Barrett – The defendant said he would talk but would not write
anything. His argument is that this suggested that he mistakenly thought that unless it
was in writing it could not be used against him.
 The Court said it was still a valid waiver even though he did not understand
the full consequences of his decision (to waive).

 Voluntary
o RULE: Much like due process – totality of the circumstances factors.

 If Defendant Invokes Rights

o SUMMARY: Once a defendant does not start answering questions immediately and
expresses an interest in those rights he was read, it becomes more difficult to infer
that the defendant was willing to go along with the interrogation.
o TWO DIFFERENT RIGHTS: (1) right to remain silent; and (2) right to a lawyer.
The Court distinguishes which right the defendant is invoking.
o Cooling Off Permitted
 Lets say you are the detective and the defendant says he will not talk, do you
hand him a waiver form and ask him to sign it? Can you just ignore the fact
that he requested not to talk to you? How do you show voluntariness in this
situation? You walk away and let him cool off. Give him a break from the
pressures of custodial interrogation, and then revisit the issue.
o Invocation of Right to Silence
 RULE: Police must “scrupulously honor” right to silence. Defendant can still
waive after cooling off. (Mosley)
 The question then becomes: “Was there a significant cooling off
period?” In Mosley, a different cop came in two hours later, re-read the
Miranda rights, and questioned him about a different crime. However,
there are plenty of cases in which it was the same crime.

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 RULE: To scrupulously honor the right to silence does not require a

permanent cessation of questioning.
o Invocation of Right to Attorney
 He says that he wants a lawyer. For whatever reason, the defendant expressed
his decision that he cannot be the one to decide on his own and he needs
someone to help him to preserve the privilege of self-incrimination. This is
exactly what Miranda is for! He said that he needs a lawyer!
 NOTE: This is not like the right to remain silent, in which you can
honor what they ask for by giving the option of cooling off. The only
way to satisfy the defendant’s request here is to get the lawyer!
 EDWARDS RULE: No subsequent waiver unless:
 Defendant gets attorney; OR,
 Defendant initiates the conversation.
o This is the only exception! He must be the one to initiate. The
Court treats his initiation as: “Maybe I don’t need that lawyer
after all.” This undoes the Edwards protection.
 NOTE: You cannot anticipatorily plead Edwards. To invoke it, the
defendant must be facing the pressures that are attendant to custodial
interrogation.
 Issue 1: Whether the defendant has invoked his right to counsel.
 RULE: An ambiguous request (“should I have a lawyer?”) does not
trigger the protection. (Davis)
o “Would you like a lawyer? Uh, yeah, I’d like that.” This is not
ambiguous, just not eloquent.
 RULE: It is NOT offense-specific. (Robertson)
o Defendant was arrested, said he wanted a lawyer
unambiguously. 3 days later they go to him and talk to him
about a different crime and read him the warnings again. Court
says that it is not offense-specific. Once the defendant says he
wants a lawyer, it applies whether they are asking him about
the offense they arrested him for or anything else.
 NOTE: 6th Amendment right to counsel IS offense-specific. Do not
confuse the two issues.
 Issue 2: Whether the defendant has eradicated Edwards’s protection by
initiating conversation.

Result of Violation
 SUMMARY: Result of Violation – if police engage in CI without a warning or waiver (and
no exigency), statement is suppressed from prosecution’s case in chief. BUT --
o Statement (pre-Miranda silence) can be used to impeach defendant (Harris and
Doyle/Jenkins/Fletcher).
o Fruits of statement can be used (Tucker, Elstad).

 Impeachment – N.Y. v. Harris

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o RULE: Statements made without Miranda rights being read can be used to impeach a
witness or defendant. This weakens Miranda’s effect.
o Defendant sold heroin to undercover officer. Gives a statement to the officer.
Defendant takes the witness stand and says on direct that he did not sell what he
thought was heroin to the officer. He thought it was baking soda. His intention was to
sell someone bum heroin and take his money. In most jurisdictions the penalty is less
for fraud than for drug dealing. Prosecutor says that he admitted to the officer that it
was heroin. Defense goes nuts because he had made that statement without having
been read Miranda rights.

 Post-Miranda Silence
o RULE: Post-Miranda silence cannot be used at trial to impeach. Pre-Miranda silence
can be used to impeach.
o OFFICER STRATEGY: Do not Mirandize or talk to someone (avoid interrogation).
 Avoid interrogation and Mirandizing!
 In this silence, if the person starts to speak, then you can use this against
them! On the other hand, if they remain silent and she claims “self defense” at
the precinct, they can say to her “why didn’t you say anything in the car ride
over?”

 Fruits of the Poisonous Tree – U.S. v. Patane

o RULE: Fruits of the statement can be used.
o NOTE: Empirical assumption is that police will not follow Miranda if they could not
use the fruits that come from it. It is an incentive test – remember!
o Defendant is in custody, is being interrogated. If he is not Mirandized, clearly his
statement gets suppressed. “Yeah, I killed the taxi driver and I’ll show you where the
gun is.” This gets suppressed, but what about the gun? That is the fruit of the
poisonous tree.
 The Court does not apply the fruit of the poisonous tree doctrine to Miranda.
It is true that but-for the confession they would not have the gun.

6TH AMENDMENT

 SUMMARY: The 6th Amendment sets forth the rights of a defendant when he is charged
with a crime.
o #1. Have adversarial proceedings commenced?
 If no, there is no 6th Amendment.
 If yes, move on.
o #2. Is there deliberate elicitation?
 Deliberate, but not listening post.
 If no, Innis defense of interrogation.
 Includes informants, undercover cops.
o #3. Did the defendant knowingly, voluntarily and intelligently waive the right to
counsel?

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 If defendant does not invoke, we look for knowing, voluntary, intelligent

waiver.
 But see, not Warren v. Burbine.
 If invoked, then the only way around it is if the defendant initiates (like
Edwards in the 5th Amendment context).

Confessions
 Offense Specificity Differences
o RULE: 6th Amendment is OFFENSE-SPECIFIC!
 In 6th Amendment cases, it is offense-specific. This is like this because it is
triggered by a formal charge. So once you get the charge it automatically
starts.
o RULE: 5th Amendment protects you from custodial interrogation of any other
charges.
 Miranda it is not offense-specific. It is a general barrier.

 Commencement of Formal Proceedings

o RULE: 6th Amendment must have attached, which requires the commencement of
formal proceedings (indictment, felony charges through grand jury, preliminary
hearing, arraignment). The formal judicial part of a case has actually commenced.
 Prior to this, there is only a 5th Amendment right, which is only there for the
purpose of preventing self-incrimination. This is triggered by different
circumstances – it is not indictment, but custodial interrogation.
 INFORMANTS/UNDERCOVERS ARE INCLUDED!
o Compare 5th (Innis): Words or conduct that is reasonably likely to invoke an
incriminating response. NO UNDERCOVER OR C.I.’S.
o Why different? The Court wants defendants to be more protected from questions if
you are invoking the 6th Amendment because it is on stronger constitutional grounds.
The Court does not make it up like they did with the 5th and then tie it to something
else. Also, the 6th only attaches if formal proceedings have started. Once this
happens, it is a defining moment in which there is no denying that the defendant is
now a party. There is a role the lawyer must play in this.

 Informants and Deliberate Elicitation

o U.S. v. Henry – Government paid an FBI informant and put him in the jail cell with
the defendant who had been indicted and was awaiting trial. The Court held this was
deliberate elicitation.
o The Court talks about how the government set it up so the informant had an incentive
to get the incriminating information. He was paid on a fee that only kicked in if he got
the information. The government intentionally created a situation that would likely
lead to elicitation.

 Listening Posts
o RULE: Listening posts do not constitute deliberate elicitation.

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o Kuhlamann v. Wilson – It is okay to send someone in who is purely a passive listener.

They cannot push at all. We learn from Maine v. Moulton that the informant cannot
be asking the questions. Moulton permits a listening post – a completely passive
person. They cannot ask follow-up questions or any question for that matter.

 Waiver
o MICHIGAN V. JACKSON – He has already made clear his request for an attorney
and he did not initiate this conversation with the police. Therefore, it is not a proper
confession and cannot be used. You cannot got to him outside the presence of counsel
and question him. Once he invokes that he wants counsel at a critical stage of the
proceeding, then that cannot be removed. He wants the protection because he is not
comfortable going at it alone at this point.
o RULE: Once you are arraigned (or other procedural action), the 6th Amendment
attaches. The request of a lawyer at arraignment is an indication of 6th Amendment
rights.
 Same logic applies as Edwards for the 5th Amendment.

 Texas v. Cobb
o ISSUE: What is a formal charge?
o Court uses a very limited and narrow test when the defendant invokes right to counsel
in this context. The Court borrows a test from the double jeopardy context.
o Facts: Someone broke into a house and the baby and the mother were missing
afterward. Defendant is suspected and is taken into custody. He confesses at first
before indictment to just the burglary. He says he does not know about the people and
where they are. He is indicted only for the burglary. The police also suspect him for
the kidnapping. He requests counsel for the burglary charge and is released on bail.
While out on bail, he tells his dad what he really did (he murders the baby and
mother). The father calls the police and tells him what he knows. The police arrest
him, Mirandize him, and he waives/confesses to the murders.
o Holding: The Court does not look to the facts. Instead, they look at the statutory
charges at issue. They rely on the Blockburger Test for double jeopardy to answer it.
o BLOCKBURGER TEST: Defendant can be convicted of multiple offenses from one
factual transaction as long as each statutory offense requires proof of at least one
element that the other does not.
 TIP: This is like a Venn diagram. There can be some overlap in the middle,
but there must be unique elements in the outside circles of each offense.
o NOTE: This applies to how broad is a defendant’s protection before being asked for
a waiver. Edwards/Jackson is only for the burglary. When they arrested him for the
murder and questioned him, we are at the top of the waiver chart.
 When he invoked the burglary, it was only for 6th Amendment.
 When he invoked on murder, he was supposed to say he wanted a lawyer, and
it would be non-offense specific. Unless he invokes on his own, it’ll be very
narrow.
o NOTE: Blockburger punches a big hole in Jackson. It is so technically narrow that
any charge not in the indictment is fair game if it does not pass the Blockburger Test.

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This does not mean you can’t question him, it just means he has this huge protection.
You need to go through the steps.
o THIS DETERMINES WHAT IS A DIFFERENT OFFENSE.
o SCOTUS RATIONALE: The desire to reverse Jackson is the goal here by the
judges. They do not like Jackson and think it is unnecessary. They want waiver made
easier. Let the defendant waive his lawyer for deliberate elicitation purposes so long
as it is a knowing, voluntary, intelligent waiver. Remember, Jackson requires a right
to counsel at the onset of a formal proceeding.

 REVIEW OF CONFESSIONS:
o Due process – involuntary as the product of government coercion. If yes, you have a
violation. If no, there is no violation.
 If it is a violation, it is a rich remedy. No fruits of poisonous tree; suppression
of confession.
o Miranda claim – must be the product of custodial interrogation in order to have a
colorful Miranda violation. If not, there is no problem. If no warnings, there is a
Miranda violation. If there are warnings, there must be a waiver. Go through the
waiver analysis at this point (cooling off, Edwards, etc.).
o 6th Amendment Right to Counsel – no deliberate elicitation after formal proceedings
have begun.
 Includes undercover officers, informants.
o NOTE: Edwards protection goes away at a certain point. This is within the Miranda
protection. It goes away when you are not in custody anymore. There is no SC case
on point, but many lower courts have held this. The protection cannot last forever. It
prevents defendants from waiving whenever.
 The trigger is custodial interrogation, so when the custody ends, so does the
Edwards protection  again, put this with Miranda. This is non-offense
specific.

Eyewitness Identification Proceedings

 SUMMARY: 6th Amendment Right to Counsel for Eyewitness Identification
o Attaches when formal proceedings have occurred
 NOTE: In-person lineup is a formal proceeding!
 Critical stage, defendant has right to counsel.
o Remedy
 Out of Court identification – automatically inadmissible.
 In-court identification (Wade Hearing) – kind of like a fruits of poisonous tree
analysis. Determine where the recollection comes from.
 Weigh factors to determine reliability of the witness.
 STANDARD: Clear and convincing evidence.
o Wade is Rare
 Just do the lineup before the formal proceedings have begun!

 Why would the Court get involved?

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o Pretty rare that the Court would come in and guide a component of investigations.
This is normally left for juries to figure out.
o This is still under 6th Amendment right to counsel. Police stopped doing these things
after indictment. Instead, they do it before indictment or any other formal proceeding
so there is no violation of the right to counsel. Now they know to get a lawyer for the
defendant if they have already been indicted.
o LINEUPS: The lineup is a one-time thing that cannot be undone. The real action is at
the lineup, not pointing to him at trial. Thus, the critical stage happens at the lineup.
The usual sequence is that the person who is identified at the lineup becomes the
defendant. Then, at trial the witness is asked to point out the person.

 Strategy for Attorney

o Bad Lineup  Either fix it at the time, or let it go on and take it to the jury.
 A good defense strategy could be to let it stay messed up. This allows you to
argue due process violations and show the jury that the deck was stacked.
 Fixing it and making it reliable can lead to a positive identification.

 U.S. v. Wade – CONTROLLING CASE FOR IDENTIFICATIONS

o Defendant had been arrested and arraigned for bank robbery. FBI had arranged for a
lineup on television. Bank employees would identify who they thought was the
robber. Both tellers identified the defendant. At the time he had been put in the
lineup, formal proceedings had clearly commenced (he was arraigned), and thus he
enjoyed a 6th Amendment right to counsel.
o LINEUP “CRITICAL STAGE” RULE: Lineup is a critical stage of the proceeding
and the defendant has a right to have his lawyer there.
o AT-TRIAL ID RULE: In the question of remedy, there is a presumption that the at-
trial identification is not allowed, unless the government can show by clear and
convincing evidence that when the victim points to the defendant at the table that it
comes from somewhere other than the lineup that the attorney was not there for. This
is only in the event that the attorney was not present at the initial lineup!
 The government screwed up by not having the attorney at the lineup, so the
government must show that the witness is really able to show this. Use the
following factors:
 Opportunity to observe defendant;
 Discrepancies between victim’s description and defendant himself;
 Pictures of defendant prior to lineup;
 Prior identification of other suspects;
 Time between offense and lineup;
 If this is a violation, it becomes a constitutional issue for the trial court, not
just for the jury.
 NOTE: You have a Wade hearing to weigh these factors!

 Gilbert v. California – COMPANION TO WADE

o California had a hearsay exception for out-of-court identification. Whether this
identification could come into evidence is the issue here.

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o RULE: Out-of-court identification is automatically suppressed. This is per se

exclusionary rule. The in-court identification is still done by an independent-source
analysis described above in Wade.
o The Court thinks that attorneys are the answer to this (police doing something screwy
during the lineup), then the role of having a lawyer there is to ensure that there will be
no foul-play by the police. It is a deterrent against anything biased by the police.

 U.S. v. Ashe – PHOTOGRAPH EXCEPTION TO WADE

o Unlike in-person identifications, a photographic array is easily replicated at trial.
There are not the same kinds of replication concerns because you can just show the
jurors that, for example, the witness was given 5 pictures and 4 of them were blonds,
and 1 was a black guy.
o RULE: Photograph identifications do not come within the lineup protection of Wade.

 Suggestiveness and Reliability

o SUMMARY: There are situations in which out-of-court identification of the
defendant will be permissible. For example, in the case of a medical emergency
(Stovall). The argument for suppression is always that the situation was unnecessarily
suggestive. However, if the witness making identification shows reliability, then that
will outweigh the suggestiveness of the situation. In other words, it is a balancing test
between the suggestiveness (which is unfair to the defendant and violates due
process) with the reliability of the witness (which, if proven, would eliminate any
unfairness because it would show that the suggestiveness did not matter in the end).
 STEP 1: Was the identification unnecessarily suggestive?
 STEP 2: Did the eyewitness display a sense of reliability that overcomes the
suggestiveness? If so, the evidence is admissible.
o NOTE: We are worried about due process, not right to counsel.
o RULE: If the identification is the product of an independent source (witness’
recollection, for example), then the fact that it is unnecessarily suggestive is irrelevant
because it is overcome by reliability of the eyewitness.
o Neil v. Viggers – Police use an unnecessary “show up.” They just took the one guy or
one girl and ask if it is the person. The police use the excuse that they could not find
enough people to be decoys in the lineup.
 Holding: The identification of the defendant was still admissible because it
was not the product of the suggestiveness of the procedure.
 Reliability: The victim’s memory had proven to be the product of her own
recollection, and not the result of this poor procedure (even though it was
unnecessarily suggestive). There was an independent source. She gave a
detailed description of the person, facts to indicate it was reliable.
 This is just like the factors in Wade. For a due process argument, it applies to
both.
 NOTE: There is no per se rule of exclusion.
o Simmons v. U.S. – They use 3 people (defendant is the tall one and 2 short guys). The
witness said he was wearing a particular jacket and he wore that in the lineup. The
witness didn’t identify him. The cops were pissed, so they pulled him and put him in

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front of her as a 1-person. She still couldn’t. Then, they put him in a second lineup,
and he is the only person in both lineups. Finally she identifies him.
 Holding: Court holds that this is simply too much because her reliability is
completely damaged. The identification is not permissible!

 Stovall v. Deno
o Homicide in which husband is killed and wife survives badly injured. In hospital,
they bring the suspect to her room (alone, no lineup). This is 36 hours after the attack.
She had described the suspect; they found this guy. She IDs the guy. He moves to
suppress because it was a due process violation. It would be fundamentally unfair to
let the jury hear about this identification.
o Holding: Court allows the identification into evidence. On one hand, they
acknowledge that there is a constitutional part to this (due process prohibits
unnecessary suggestions). Certainly this is suggestive. However, informality is
permitted when necessary, and that is the case here. It was unclear whether she would
make it, and time was of the issue. If she had died during the time in which a lineup
could have been set up, it would have been awful. Court allowed the in-court ID and
the hospital ID into evidence.
o RULE: Informal out-of-court identification is permissible when it is an emergency.

Scope of 6th Amendment Right to Counsel

 RULE: If incarceration is actually imposed for at least 1 day (including probation and
suspended sentences), then there is a right to counsel under the 6th Amendment.
o If the judge does not give someone a lawyer, he could only be sentenced to a fine. If
the judge were to put the guy in jail if convicted, it would be a 6th Amendment
violation.
o Prosecutors will file these as either misdemeanors or violations, in which they declare
that they are not pressing for jail time. They make this decision up front to give up the
ability for a jail sentence. The repercussion of this is that the judge does not need to
give the defendant a lawyer.

 The Sentence is the Key

o Scott v. Illinois – Crime was punishable by jail, but he only received a fine. He didn’t
have counsel. This was held to be okay, because he didn’t end up going to jail, just
got the fine. Thus, it has to be imposed in order for the protection to come in.
o RULE: Even if the crime is punishable by jail, a lawyer is not required unless a jail
sentence is actually handed down.

 Probation/Suspended Sentence
o RULE: If you are given probation or a suspended sentence, then you have the right to
an attorney. At this point they are being sentenced to jail essentially.

 Right to Counsel on Appeal

o Little complicated because it talks about trials, not appeals. The Court’s jurisprudence
here relies on due process and equal protection instead of the 6th Amendment.

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o Griffin v. Illinois – In this jurisdiction, a defendant could not file an appeal unless he
provided the appellate court a transcript of the trial. The Court reached an equal
protection argument to strike this down. This closes the courthouse doors to the
indigent. You need money to afford a transcript, so it violates equal protection.
o RULE: If a jurisdiction provides a level of appeal as a matter of right, they must
provide counsel as a matter of right. (Douglas v. California). This only applies if the
appeal is a matter of right. Supreme Court does not have to give counsel, for example.

Effectiveness of Counsel
 SUMMARY: The defendant must be protected from having an awful lawyer. There are
minimal rights to efficacy of counsel. It is not just about physical presence – they are
required to be effective in some minimal way (they don't need to be incredible, just
competent). This is framed around the right to fair trial.

 RULE: As per Strickland v. Washington, there is a two part rule: (1) Performance must be
objectively reasonable; and (2) Prejudice, the “reasonable probability” of a different result.
o Courts often jump to the second prong. This is most common in habeas corpus
proceedings because in most appeals, if some procedural element is absent from the
record (“he never interviewed this witness who would have testified on my account”)
then there is no basis for appeal. However, in habeas corpus that does not happen.
o The government can recast deficiency of representation as strategic choices or having
to prioritize work. Most of these claims fall short of the threshold.
o NOTE: Strategic choices, regardless of if they work, are usually not going to work in
these claims for the defendant. The attorney is given deference.

 Performance Prong
o How the lawyer fails…
 Ignorant of the law – you cannot properly defend a client if you do not know
the law. You cannot claim that you were doing something strategically if you
do not know it!
 Failure to investigate – lawyers are expected to look for facts (particularly in
the sentencing phase of a capital case).
o Clients’ actions excuse the lawyer…
 If the lawyer is relying on the defendant’s version of the story, the lawyer will
not be held responsible for the results of this belief.
 If the defendant fails to inform the lawyer of past convictions and the lawyer
does not investigate on his own, the lawyer is fine.

 Prejudice Prong
o Depends on the weight of the evidence.
o Cronic – There might be situations where structurally the situation is so flawed that
the defendant won’t be required to demonstrate prejudice – per se prejudice. Bottom
line – they can imagine a case where this could happen.
 Time the lawyer was given to prepare;
 Complexity of case;
 Experience of lawyer;

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 Gravity of charge;
 Accessibility of evidence.
o Conflict of interest.

Self-Representation
 Foretta v. California
o The Court purports to create a right in itself, not just the right to counsel. Foretta was
charged with grand theft and he wanted to conduct his own trial. The court instead
appoints a public defender and he gets convicted at trial.
o Holding: The Court holds that the 6th Amendment protects the right to have counsel
at trial and the right to represent one’s self.
o RULE: You are entitled to waive the right to counsel to represent yourself.

 What if the court denies the request to self-represent?

o Someone who is deprived a Foretta right, they get better relief than someone who
wanted a lawyer and gets a bad one (Strickland). This is kind of nutty, because the
person who is asking for a lawyer can get someone awful, whereas the guy who
doesn’t want the lawyer could get a good one.
o RULE: You are entitled to per se reversal if you are denied a request to self-
represent.
o NOTE: It is per se for self-representation. You need to show prejudice for
ineffectiveness.

 Revoking Self-representation
o RULE: The right to self-representation can be taken away if the defendant is abusing
the right or if they are incompetent in its role.

 Even when a defendant proceeds with counsel, some of the decisions still belong to the
defendant.
o Typically the lawyer shapes strategy and decides what theories to present. This
includes presentation of evidence, jury selection, motions to file, and witnesses.
o Defendant gets final control over whether to exercise rights. This applies to pleading
guilty, using a jury trial (instead of a bench), whether to testify (HUGE point of
contention), whether to appeal.

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