Criminal Procedure Outline- Professor Connell

Fall 2010

 4th Amendment and Exclusionary Rule

o Text: “The right of the people to be secure in their persons, houses, papers, and effects,
against (1) unreasonable searches and seizures, shall not be violated, and(2) no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”
o Conduct must be government, NOT private
 Weeks v. United States (1914)
 Evidence seized in violation of 4th amendment will be excluded.
 Wolf v. Colorado (1949)
 The test for whether the 4th amendment is incorporated is whether it is
dealing with a “fundamental right”
o The prohibition of unreasonable searches and seizures does apply to
the states BUT the exclusionary rule (federalism issue) is not within
the 4th amendment so that it would apply to the states.
 Mapp v. Ohio (1961)
 Exclusionary rule is applied to state case
 Must have a government actor

 What is a Search?
o Katz v. United States (1967)
 A listening device placed outside of a telephone booth does constitute a search for 4th
amendment purposes.
 4th amendment protects people, not places
 Searches outside the judicial process are per se unreasonable
 RULE: Need not be a physical intrusion in order to constitute a search.
 (1) Subjective expectation of privacy
 (2) The expectation is 1 society accepts as objectively reasonable
 When someone seeks to preserve something as private, even in an area
accessible to the public it may be constitutionally protected.
o What a person knowingly exposes to the public, even in his own
home or office, is NOT subject to 4th amendment protection.
 Harlan Concurrence: (New Rule)
 An actual (subjective) expectation of privacy and,
 The expectation must be one that the society be prepared to recognize as
“reasonable”

o United States v. White

 Electronically recorded conversations don’t implicate privacy expectations and are
not searches for purposes of the 4th amendment.
 One who conveys information to a 3rd party, even in an apparently private
communication, cannot reasonably rely on that person maintaining his
confidentiality. (Misplaced loyalty is not cause for protection with 4 th
amendment)
o Contrast to Katz: Gov’t intruded, unwelcome
o No expectation of privacy in any conversation with 3rd party
 o Smith v. Maryland (Known exposure)
 Installation of a pen register was not a “search” within the meaning of the 4 th
Amendment.
 Majority: Not a search b/c the information was sent to the phone company, and
therefore there was no legitimate expectation of privacy.
 CA v. Greenwood:
 Putting trash out is seen as exposed to the public generally and therefore
there is no reasonable expectation of privacy. (intent to abandon)

 Open Fields & Curtilage (Physical Setting)

o Open-field Doctrine: Open fields do not provide the setting for those intimate activities that
the 4th amendment is intended to shelter from governmental interference or surveillance.
o Curtilage: Area which extends the intimate activity associated with the ‘sanctity of a man’s
home and the privacies of life’
 Does not in itself bar all police observation- if police in public place, lawfully,
observation even into curtilage is not a violation of 4 th amendment
 4 Factors:
 Proximity to home, of the area claimed to be curtilage
 Whether the area is included within an enclosure surrounding the home
 Nature of the uses to which the area is put
 Steps taken by resident to protect from observation.
o Area Surveillance/Technology Advances (Traditionally protected area may by lost)
 Where a device merely enhances sensory perception and facilitates surveillance that
otherwise would be possible without enhancement, 4th amendment is NOT implicated
 California v. Ciraolo:
 “The test for legitimacy is not whether the individual chooses to conceal
asserted ‘private’ activity, but instead whether the government’s intrusion
infringes upon the personal and societal values protected by the 4 th
amendment.”
 Naked eye observation flyover is not a search b/c the expectation was
unreasonable. (legally navigable airspace)
 Floriday v. Riley
 Observation from 400 ft above greenhouse does not equal a search for 4 th
amendment purposes.
 Routine nature of air travel rendered privacy expectation unjustified
 Dow Chemical v. US
 Use of aerial camera does not implicate 4th amendment
 Area at issue was somewhere between curtilage and open fields, commercial
property does not have the same amount of protection as personal property.
 Kyllo v. United States
 Thermal imaging constituted a search b/c
o Sense-enhancing technology
o Regarding the interior of the home
o Otherwise couldn’t be obtained without intrusion
o Item is not in general use
 Bright line test @ the entrance to the house- visual
observation is not a search
o Privacy Expectations (look to location)
 Bond v. United States
  Officer’s physical manipulation of a passenger’s baggage is violative of 4 th
amendment proscription against unreasonable searches.
 Tactile observation is in contrast to visual
o Katz test was applied: Society is prepared to recognize that a bus
passenger has a reasonable expectation of privacy with a carry-on
bag.
o One would expect touch, but not to EXTENT of agent’s touch…
exceeded reasonable expectation = search
 US v. Place
 Dog sniffing dog in public airport does not implicate 4th amendment

 What is a seizure?
o Of a person: An officer by means of physical force or show of authority has in some way
restrained the liberty of a citizen.
o Objects: Must be a meaningful interference with a possessory interest
 Nothing meaningful about picking up an item and putting it immediately back down.
o Installation of a beeper is not a prohibited search and seizure at least with respect to tracking
the beeper; however, where tracking a beeper into private property, a search has occurred
under Kyllo rationale.
 PC- measure of justification for searches, seizures and arrests
 Probable Cause to Arrest
o Definition:
 When the facts and circumstances within the officers’ knowledge and of which they
have reasonably trustworthy information are sufficient in themselves to warrant a
man of reasonable caution in the belief that an offense has been or is being
committed by the person to be arrested.
 Determining whether PC is present requires fact sensitive analysis.
o Spinelli-Aguilar Test for probable cause supplied by confidential informants:
 Basis of Knowledge- Direct personal perception, or hearsay, underlying
circumstances (self-verifying detail) possible police corroboration (Illinois)
 Veracity- 2 ideas: “Credibility” AKA past performance, and “Reliability AKA
admissions against penal interest
 Aguilar: No facts or circumstances were given, conclusions are NOT
sufficient
 Spinelli: No PC with only conclusory statement
o Illinois v. Gates (Rejects A-S test alone)
 Uses totality of the circumstances test
 Both prongs need not be met, there is a “sliding scale”
 Police using their own corroboration combined with anonymous tip creates PC where
it didn’t exist by virtue of the tip alone.
 PC:
 Only need to show a FAIR PROBABILITY that illegal behavior occurred
 You do not have to eliminate all possible instances of good behavior

 Exceptions to Warrant Rule

o Maryland v. Pringle
 Stop & arrest of 3 person vehicle was held to be reasonable b/c there was PC to arrest
all 3 b/c of a reasonable inference could be made that any or all had knowledge of
and control over the cocain.
 o Us v. Cortez
 TOC is used for stop: Must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity.
o US v. Grubbs- Anticipatory Warrant- conditioned upon an event
 “Because the probable cause requirement looks to whether evidence will be found
when the search is conducted, all warrants are in a sense, anticipatory.”
o Payton v. New York
 An arrest warrant founded on PC implicitly carries with it the limited authority to
enter a dwelling in which the suspect lives when there is reason to believe the suspect
is within (RULE)
 How does an arrest warrant (to protect unreasonable seizure) manage to
protect the privacy interest (search)
 Absent exigent circumstances, police may never enter a home during the daytime to
arrest for a dangerous felony unless they have first obtained a warrant.
 Franks v. Delaware:
o D burden to prove statements were knowingly not truthful.
o If the D can make an argument (substantial showing) that affiant
knew the information was false, you simply strike those paragraphs
and reconsider whether PC existed without the false statements.
(Don’t eliminate the entire idea of PC due to some failing within it)

 Exigent Circumstances
o Examples of exigencies
 Hot pursuit of felon
 Danger to 3rd persons or police
 Evidence to be destroyed
 Escape of suspect
o Warden v. Hayden
 Hot pursuit of a criminal is almost always an exigency
 Others:
 Imminent destruction of evidence
 Need to prevent a suspect’s escape
 Risk of danger to the police
o Must weigh through cost/benefit (Welsh v. Wisconsin)
 There must be “immediate and continuous pursuit” from the
scene
 Mere Evidence: Prior to this decision PO could only seize evidence if they were
contraband, fruits, instrumentality. NOT mere evidence (I.e. clothes)


 Search Warrants
o PC: That quantity of facts and circumstances within the PO’s knowledge that would warrant
a reasonable person to conclude that the specific items related to criminal activity will be
found at the particular place.
o Lo-Ji Sales v. New York
 Open-ended warrant is similar to open writs in early history.
 Normally required to knock and announce, exceptions:
o Destruction of evidence
o Safety of the officers
  Search warrant found to not have satisfied 4th amendment b/c he was not
detached magistrate
o Richards v. Wisconsin
 SCOTUS rejects idea of blanket exception of knock and announce for drug cases.
 Problems with:
 Overgeneralization
 Reasons for creating 1 exception can be applied to others
o US v. Banks
 Reasonableness is the measure for knock-and-announce inquiry.
 Interval of 15-20 seconds from the officers’ knock and announcement of
search warrant until their forced entry was reasonable given the possibility of
destruction of the narcotics evidence.
 Generally police must knock and announce
 Exceptions:
o Knock would put PO in danger
o If danger that knock would result in destruction of evidence
 “No-knock” warrants can be issued if necessary
o Illinois v. McArthur
 Temporary restriction to prevent D from entering home was reasonable b/c there was
PC to search the home, the restriction was limited to two hours, and police had good
reason to believe he would destroy evidence (factors in reasonableness)
 4th amendment allows temporary seizure

 Plain-View Doctrine
o Elements:
 Police officer must be in a place he is lawfully allowed to be when he sees the item to
be seized
 PO must have a right to physical access to seize the item
 The object has to be ‘immediately apparent’ as contraband or items used in a crime.
 Example: Cop sees pot plants from street inside house, in order to seize
under plain view, must lawfully be able to be in the house (arrest warrant,
search warrant, exigency)

 Searches Incident to an Arrest

o Must be: substantially contemporaneous with it, and confined to the immediate vicinity of the
arrest.
o Chimel v. California
 There is justification for a search of the arrestee’s person and the area ‘within his
immediate control’ - construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence- however, there is no
comparable justification for routinely searching any room other than that in which an
arrest occurs.
 Court rules: “Grabbing distance” as the measuring stick
o Rationale: look for weapons, & prevent access to evidence
(destruction)
o U.S. v Robinson (broadened exception)
 A search incident to arrest requires no additional justification beyond the officer’s
probable cause to arrest
  Lawful arrest allows for search regardless of what the crime shall be (nature
of the crime doesn’t matter)
 Expanded to allow for seizure and opening of containers (cigarette pack)
 2 distinct propositions:
 A search may be made of the person (arrestee) by virtue of the lawful arrest
 A search may be made of the area w/in the control of the arrestee
o N.Y. v. Belton
 When an officer has made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile. (Extends to closed container within the car)
 Thornton: D walking away from a car @ the time of stop; Belton applies to
occupants AND recent occupants of vehicles where those people were
arrested
o Where there is an arrest of an individual next to a vehicle, as long as
the person can be deemed “in control” of car at time of arrest, Belton
applies.
o Arizona v. Gant (Same issue as Belton, different court)
 Search was held unreasonable b/c the arrestee had been secured and could not access
the interior of the vehicle.
 A search incident to a
 lawful arrest can be effected only when either
 (1) the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search, or
 (2) it is “reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle”
 Searches of Cars
o Carroll v. U.S.
 Automobile exception: No warrant needed when police have PC to believe
contraband (or other evidence of criminal activity) being transported in automobiles
 Rationale: reduced expectation of privacy in vehicle, in public, warrant is
impractical b/c of mobility
o Chambers v. Maroney
 The police have a choice, conduct a search immediately or detain the vehicle while
they obtain a search warrant- as far as the constitution is concerned, there is no
difference between the courses of action
 = reduced expectation of privacy in an automobile
 B/C PO had PC to believe the car contained evidence of a recent robbery, and thus
could have lawfully searched it on the road it was constitutionally permissible to
conduct the delayed search as well.
o California v. Carney (mobile home)
 Shifts Carroll- RV case
 Application of vehicle exception doesn’t turn on the use of the vehicle.
  Where a vehicle is found on a hwy OR is readily capable of such use and
found in a stationary place NOT regularly used for residential purposes-
temporary or otherwise- justification for vehicle exception comes into play
o (1) the vehicle can be moved as easily as turning a key
o (2) There is a reduced expectation of privacy stemming from its use
as a licensed motor vehicle subject to a range of police regulation
inapplicable to a fixed dwelling
 Searches of Containers in Automobiles
o US v. Chadwick
 The warrantless search of double-locked luggage just placed in the trunk of a parked
vehicle is a violation of 4th amendment and NOT justified under the automobile
exception.
 While luggage is moveable like an automobile, it does not have the lesser
expectation of privacy associated with an automobile.
o US v. Ross (combine with Acevedo) (Scope of search)
 If police have the ability to conduct a warrantless search based on PC of an area, it
extends to everything in that area, even separate closed containers.
 Warrant to search vehicle support a search of every part of the vehicle which
might contain objects of the search.
o i.e. PC to believe a van is transporting illegal aliens will not allow for
search of glove compartment
 The scope of the warrantless search is defined by the object of the search AND
placed in which there is PC to believe it may be found.
o California v. Acevedo (Scope of Search)
 Chadwick/Saunders essentially overruled
 Carroll is now interpreted as providing one rule to govern all automobile
searches.
 The police may search an automobile and the containers w/in it where they
have PC to believe contraband or evidence is contained.
 Doesn’t matter the nature of the PC, if there is PC to believe there are drugs in the car
or container, you can search the container (you can always search containers)
 Police may search an automobile and any containers within it when they have PC to
believe contraband or evidence of crime is present anywhere inside.
 The only remaining limit on scope of search derives from the size and shape
of the items sought. (may only search where such items may be hidden)
 Seizures of Automobiles and Their Occupants
o Whren v. United States
 Probable cause is the standard for all traffic stops
 Subjective standards have no place in 4th amendment analysis (the reasoning behind
the stop itself was normal traffic stop; subjective intentions of PO play no role in
ordinary PC analysis)
 Ulterior motives do not invalidate police conduct otherwise justified on the
basis of PC
  They can only detain you as long as is reasonable for the type of traffic stop taking
place.
o Atwater v. City of Lago Vista
 PC to believe Δ committed a crime (not wearing seatbelt) authorizes but does not
require police to make custodial arrest without balancing costs/benefits or necessity.
 As long as cop sees misdemeanor he’s capable of arresting on it

 Plain View (And Touch) Doctrines

o Horton v. California
 Although inadvertence is a characteristic of most legitimate ‘plain view’ seizures, it
is NOT a necessary condition
 Requirements:
 (1) Lawful vantage point
 (2) Immediately apparent incriminating character
 (3) Lawful right of access
o (4) Inadvertence (NOT required)
o Arizona v. Hicks (serial # on stereo equipment)
 PC is required to invoke the ‘plain-view’ doctrine
 Seizure = a meaningful interference with the property interest of another
 “Immediately apparent” Req:
 The police have to have PC to believe is it contraband or evidence of a crime
o This search fails on this prong b/c it is not apparent that the stereo
equipment is contraband or from a crime.

 Consent
o Burden on State to show by preponderance of evidence, exception to warrant and PC
o Schneckloth v. Bustamonte
 Consent to a search must be freely and voluntarily given
 Need NOT know that you could decline, it is a factor but not the deciding
one.
 How do you determine voluntary?
 Is the consent the product of an essentially free and unconstrained choice by
its maker…is it the product of will and volition of person or of coercion
 This is a question of fact to be determined by the TOC
o Factors:
 How cops elicit consent
 Examine individual consenting
 Warning by the police? Not dispositive
o Georgia v. Randolph
 Where co-tenants disagree to consent, the court favored the non-consent of the
present co-tenant.
 Evaluated the “reasonableness” in light of social expectations
o Bumper v. NC
  Lies about having a warrant make consent coerced,
o Illinois v. Rodriguez
 If a warrantless search is reasonable, but made in error, its not a 4 th amendment
violation
 Actual authority vs. Apparent Authority
 Test: Where the facts and surrounding circumstances known to the officer
warrant a man of reasonable caution to conclude that the consenting party
had authority over the premises, consent is valid even if actual authority is
absent.
o 3rd party consent cases rest on assumption of the risk theory

 Seizures- Stops
o Terry v. Ohio
 Court finds: Arrests require probable cause
 Terry stops require a lesser justification: reasonable suspicion
o Quantity and quality less than PC
o Must look to see what type of seizure there has been
 3 Tiers of Police/Citizen Interaction
 (1) Mere communication- NOT a seizure
 (2) Terry Stops (middle seizure)- justification is reasonable suspicion
 (3) Arrest- Need PC
o Can factor in the degree of the crime and the type of justification
o Dunaway v. New York
 If a subject of a stop is brought to the station house and detained for questioning,
reasonable suspicion will no longer suffice; PC must be shown.
 Converts a traffic stop into a detention requiring further justification
o Florida v. Royer (line drawn between stop and more substantial intrusion)

 De facto arrest occurs where police stop ∆ in concourse, take him 40 feet away in an
office and question/obtain consent to search in office
 The movement to the office where the questioning took place moves this out
of Terry.
 An investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.
 Together with duration, courts weigh the degree of intrusion and the amount
of force used on the subject in determining whether a stop has crossed the
boundary and become the equivalent of an arrest (No Bright Line Test)
o US v. Mendenhall- what is a stop or seizure of a person?
 Objective test- in view of all the circumstances, reasonable person would have
believed they were not free to leave.
 Factors:
 (1) threatening presence of several Pos
 (2) display of a weapons
 (3)some physical touching of the person detained
  (4) use of language or tone indicating that compliance with the officer’s
request might be compelled
o US v. Drayton
 Court found no seizure for questioning on bus b/c there was no brandishing of
weapons, the aisle was free, and there was no threatening manner.
 The arrest of one does not mean that everyone around him has been seized by the
police.
 Unawareness on part of Δ of right to refuse search is NOT dispositive.
o California v. Hodari
 Pursuit does not equal seizure, not seized until they have put hands on you or that
you complied with their show of authority.
 Throwing down cocaine before either type of seizure prevented 4 th
amendment from being applicable.

 What is Reasonable Suspicion?

o U.S. v Sokolow
 Considerably less than proof by a preponderance of the evidence but considerably
more than an inchoate and unparticularized suspicion or hunch.
o Alabama v. White
 Corroborating details of anonymous tip created the reasonable suspicion, the tip itself
was inadequate to justify police action, the corroboration established sufficient
indicia of reliability.
 Future behavior predication shows a particular familiarity
 When an informant is shown to be right about some things, so the reasoning
goes, that increases the probability that she is right about the other facts
asserted.
o Use TOC to determine whether reasonable suspicion was present
(Terry)
o Florida v. J.L.
 Absent some indication of credibility an anonymous tip will NOT support a Terry
stop.
 In this case, it was required that a tip be reliable in its assertion of illegality
AS WELL AS its tendency to identify a determinate person.
o There was no predictive behavior, therefore it lacks credibility.
o Illinois Wardlow-
 Flight alone is not sufficient for RS.
 Unprovoked flight alone is not sufficient BUT is a factor to be considered.
(indicates guilty conscious)
 Need flight plus one other factor to form RS to stop and investigation.
o RS = TOC, case by case
 Here: Flight + area known for heavy narcotics trafficking
may = RS
o FL v. Bostick (Confronted on bus to search bags)
  Test: “Would a reasonable person feel free to decline officer’s request or otherwise
terminate encounter?”
 In order to determine whether a particular encounter constitutes a seizure, a
court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person was no free to decline the officer’s requests
or otherwise terminate the encounter.
o Hiibel v. Sixth Judicial Circuit
 A demand for identification from the subject is now deemed proper, as a “request for
identity has an immediate relation to the purpose, rationale, and practical demands of
a Terry stop.

 Must have RS to stop and demand ID
 Expansion of Terry
o Maryland v. Buie
 Expands 4th amendment to permit a protective sweep of a home in which an arrest is
being made.
 Where the officers posses a “reasonable belief based on specific and articulable facts
that an area to be swept harbors an individual posing a danger to those at the arrest
scene,” the officers may engage in a limited search for such individual.
 Sweep may extend ONLY:
o Cursory inspection of those spaces where a person may hide
o Last only as long as is required to resolve the suspicion.
o Michigan v. Long- search of a car
 Swerving car created justified reason to search the passenger compartment as well as
frisking the driver b/c there were facts that would “warrant reasonable officers in
believing that the suspect is dangerous and the suspect may gain immediate control of
weapons.:
 To search cab for weapons police must have:
 RS that suspect is dangerous AND may gain immediate control of weapons
 Only those areas in which a weapon may be hidden/placed may be searched.
o After you find contraband under plain view, trunk could be searched
under Acevedo (expands Terry scope
 NOTE: Preservation of evidence is NOT a concern in Terry
stop.
o US v. Place (stopped at public airport)
 90 min seizure was too long for Terry purposes and RS

 Reasonableness in a “Special Needs” Context (Non-criminal)
o Safford Unified School District v. Redding
 4th amendment violation when 13 y/o was subjected to a search of bra and underpants
by school officials acting on RS that she brought prescription and OTC drugs to
school
  TLO concern: limit a school search to a reasonable scope requires the support of
reasonable suspicion of danger.
 Border Searches
o United States v. Ramsey
 Searches made at the border, pursuant to the long-standing right of the sovereign to
protect itself by stopping and examining persons and property crossing into this
country, are reasonable simply by virtue of the fact that they occur at the border.
 These searches need not be supported by PC or any level of suspicion that is
required for other seizures.
o United States v. Flores-Montano
o United States v. Brignoni-Ponce
 With roving border patrols, agents need RS of the criminal activity to detain the car
occupants briefly.
 th
4 Amendment- Seizures
o Suspicionless Searches: Highway Roadblocks
o Michigan Department of State Police v. Sitz- Constitutionality of DUI checkpoints
 4th amendment seizure DOES occur when stopped at roadblock- ask if it’s
reasonable?
 Gov’t states it is reasonable for traffic safety.
 Brief intrusion, prevent DUI, discretion of officers limited.
 Must be: special needs beyond the need of enforcement of the criminal law
o City of Indianapolis v. Edmond- narcotics interdiction checkpoint
 Primary purpose was ultimately indistinguishable from the general interest in crime
control.
 It was only to detect evidence of criminal wrongdoing.
 Purpose is often relevant- this program is distinguishable from Sitz b/c they
are not primarily concerned about drivers under influence of drugs, but
finding drugs in car.
o Justice Thomas: All stops without individualized suspicion are
unconstitutional.
 th
Standing (4 amendment)
o Jones v. United States
 “legitimately on the premises” standard has been replaced by Katz (expectation of
privacy analysis)
o Rakas v. Illinois
 Test for Standing: Whether person attempting to suppress evidence has a reasonable
expectation of privacy in the place or thing to be searched.
 “A person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a 3 rd person’s premises or
property has not had any of his 4th Amendment rights infringed.”
 Need to show a legitimate expectation of privacy
o Minnesota v. Olson
 An overnight guest has standing to contest a warrantless search
  That the guest has a host who has ultimate control of the house is not
inconsistent with the guest having a legitimate expectation of privacy. The
houseguest is there with the permission of his host, who is willing to share
his house and his privacy with his guest.
o Minnesota v. Carter
 The 4th amendment protection is not extended to casual visitors in the home of a 3 rd
party.
 In order to prove violation of 4th amendment, a Δ must demonstrate that he personally
has an expectation of privacy in the place searched. And that his expectation is
reasonable.
 Were only in the home for a matter of hours, and was used for a commercial
transaction (lesser privacy expectation than residential)
o Rawlings v. KY
 Test enunciated in Rakas whether the P had a reasonable expectation of privacy in
the area searched- is the exclusive test for determining whether a Δ may successfully
challenge a search.
o US v. Payner (stole brief case and took pics of documents within the case)
 No Standing b/c he had no reasonable expectation of privacy in another’s briefcase
 When Exclusionary Rule Doesn’t Apply
o U.S. Leon
 Objective, reasonable reliance on a facially valid warrant does not justify exclusion
of the evidence obtained.
o Massachusetts v. Sheppard
 Objectively reasonable acts will not suppress evidence obtained under an invalid
warrant.
 Fruit of the Poisonous Tree
o Silverthorne Lumbar v. US
 Evidence obtained as ancillary products of an unconstitutional search and seizure is
inadmissible
 (1) What is the constitutional violation? (tree)
 (2) What evidence does the government seek to introduce? (fruit)
 (3) Does the evidence derive from the violation?
o If yes, do any facts indicate that the poison from the fruit has
dissipated (attenuation)?
o Exceptions
 Independent Source Doctrine
 (1) Evidence initially discovered via illegal search but subsequently acquired
through an independent and lawful source (untainted warrant) is admissible.
o (1) Discovered through lawful police activity
o (2) Initially discovered unlawfully but later obtained lawfully in a
manner independent of original discovery. (Murray v. US)
 (2) Warrant cannot be a derivative product of the illegality; must be
independent source of information.
 o Evidence is not obtained as a direct result of illegality.
 Inevitable Discovery Rule
 (1) Illegally obtained evidence may be admissible if P can establish that the
information “ultimately or inevitably would have been discovered by lawful
means” (Nix v. Williams)
o Deterrence rational is not implicated
o State should not be put in a worse position than if no illegality had
transpired (6th amendment implications)
 Evidence is discovered through a situation which would inevitably occur.
 Attenuated Connection (dissipation of taint)
 (1) Evidence may be admissible if its connection with illegal police activity
is so attenuated that it is purged of taint (Wong Sun v. US)
o Factors:
 Time between police action and product
 Voluntariness
 Δ in custody
 Miranda warnings
 (2) TOC analysis
o Temporal Proximity
 Longer the time btw 4th amendment violation and
acquisition of evidence = more likely purged
o Intervening Events
 More factors that intervene violation and seizure
 Act of free will
 Miranda warnings cannot independently convert an
illegal confession into free will (Brown v. IL)
 Determined by a TOC
 Discovery of a live witness than inanimate object
will be more likely to find requisite free will (US v.
Ceccolini)
o Witness’s exercise of free will in deciding to
testify is a significant intervening act that
breaks chain of causation.
 Payton violation
o Flagrancy of Violation
 Flagrant v. unintentional (takes longer to dissipate if
intentional)
o Nature of Derivative Evidence
 Evidence’s nature is more susceptible to dissipation of the
taint (verbal, more admissible than physical)
 th
Voluntariness and the 5 Amendment
o Fifth Amendment privilege against self-incrimination requires law enforcement officials to
advise a suspect interrogated while in custody of his rights to remain silent and obtain an
attorney (Miranda v. Arizona)
 Confession must be voluntary; cannot be coerced
 Coerced confessions are inherently unreliable
 Involuntary confessions are a violation of 14th amendment DP
o Brown v. MS
 A D’s confession extracted by physical violence is a violation, and cannot be
admitted.
o Spano v. NY
 Will being overborne = violation
o Ashcraft v. TN (36 hr interrogation is inherently coercive)
o Layra v. Denro
o Crooker
o Bram v. United States (Federal Case)
 It must truly be the product of free will and not a product of any form of police
conversion.
 May not be “extracted by any sort of threats or violence, nor obtained by any
direct or implied promises, however slight”
o Escobedo v. Illinois
 Denial of request to speak to lawyer made a subsequent confession inadmissible.
 Court found violation of 6th amendment right to counsel, this was strictly
applied where the investigation had already focused on the suspect, and
where he requests counsel prior to interrogation.
o Miranda v. Arizona
 Custodial interrogations are coercive by nature, without proper safeguards, process in
custody interrogation contains inherently compelling pressures which work to
undermine the individuals will to resist and compel him to speak against his will. (5 th
amendment privilege)
 2 prongs must be satisfied before Miranda applies
 D must be in custody
o Custody = deprivation of freedom of action in any significant way
 D must be interrogated
o Custodial interrogation = questioning initiated by
 Warnings:
 (1) Right to remain silent: must be clear and unequivocal
 (2) Warning/explanation that anything said will be against D (consequence of
waiving right)
 (3) Right to have counsel present @ interrogation (implicit in 5 th amendment)
 (4) If D can’t afford counsel, one will be appointed.
 For a waiver of these rights to be good, it must be made voluntarily, knowingly and
intelligently.
  These protective devices are employed to dispel the compulsion inherent in custodial
surroundings
 Need to have both custody and interrogation
 Coercion and Waiver
o Illinois v. Perkins
 Miranda is not implicated where conversation is between undercover officer and D.
 Coercion is determined from the perspective of the suspect
 If he had been indicted or charged with the crime the 6 th amendment would have kept
this out b/c it was deliberately elicited by the undercover police officer.
 Miranda will only be applicable when the suspect is aware they are being
interrogated by POs, BUT
o NOT for purposes of the 6th amendment right to counsel.
o Oregon v. Mathiason
 Suspect voluntarily comes into police station, but court found NO custody b/c he
could leave.
 In determining if there is custody for purposes of Miranda the court will look to an
objective test:
 Was there a formal arrest OR restrain on freedom of movement of the degree
associated with a formal arrest.
o Berkemer v. McCarty
 Questioning on street was not a “police dominated environment”, no formal arrest,
more analogous to Terry stops.
 Does not matter what police intends, only matters what is articulated or
communicated to D; inquiry is how a reasonable man in D’s situation would have
understood situation.
 Implications of 4th amendment issues: seized for traffic stop
o What is the test for custody?
 Formal arrest or its functional equivalent
 Custody must be determined on how a reasonable person in the suspect’s situation
would perceive his circumstances
 Interrogation
o Rhode Island v. Innis
 What is interrogation?
 Express questioning OR
 Any words or actions on the part of the police (or equivalent) that the police
should know are reasonably likely to elicit an incriminating response from
the suspect. (perceptions of the suspect part)
o May depend on what the PO know of the suspect or particular
susceptibilities of suspect
 Functional equivalent of interrogation encompasses passive acts as well as active
questioning
o PA v. Muniz
  Taking personal information from the suspect, such as name, age, and DOB does not
constitute interrogation but is merely incident to the booking process.
 Waiver
o North Carolina v. Butler
 The question of waiver must be determined on “the particular facts and
circumstances surrounding that case, including the background, experience, and
conduct of the accused.
 The waiver must be voluntary, knowing, and intelligent relinquishment of the
Miranda rights.
 Voluntary: will not overborne by the state
 Knowledge: “must have ‘full awareness’ of the consequences of abandoning
the Miranda rights, but need not have awareness of the full consequences.
 “defendants silence, coupled with an understanding of his rights and a course of
conduct indicating waiver” may suffice
o Colorado v. Spring
 Δ was arrested about 1 charge and signed waiver, and later was interrogated about
unsolved 2nd crime.
 A waiver of Miranda is to interrogation in general and not to interrogation about a
particular crime. (Miranda is NOT “crime-specific”.
 The information withheld by the police might go to the “wisdom” of the
waiver but not to its “essentially voluntary and knowing nature.”
o Moran v. Burbine (somewhat contested among States)
 Δ raises both 5th and 6th amendment claims
 6th Amendment- No critical stage
 5th Amendment-
o Events occurring outside presence of Δ and entirely unknown to him
can have no bearing on Δ’s capacity to waive
o No requirement for police to supply Δ with a flow of info to help him
calibrate his self-interest
o **Withholding of information by police only relevant if its affects
Δ’s ability or deprives him of knowledge essential to understand
the nature of his rights.
o Edwards v. Arizona (interrogated again after assertion of right)
 Once the right to counsel is asserted, interrogation cannot continue until counsel has
been made available to him; unless the accused himself initiates the further
communication.
 *If you want to introduce a statement from a suspect who had initially invoked his
right to counsel it must be demonstrated:
 (1) counsel was made available to him OR
 (2) Suspect himself initiated AND
 (3) that a knowing, intelligent, and voluntary waiver subsequently occurred
 5 amendment vs. 6th amendment
th
  6th amendment right to counsel: arises ONLY at critical stage, if you request
attorney you CAN be questioned about a different crime, it’s per charge
 5th amendment right to counsel: arises in custody, if you are being
interrogated about 1 crime they can NOT interrogate you about another crime
if you requested an attorney.
o Michigan v. Mosley (invoked right to remain silent and subsequently questioned 2 hours
later on unrelated crime)
 Significant gap in time + rereading rights + different topic = admissible
 The admissibility of statements obtained after the person in custody has decided to
remain silent depend under Miranda on whether his right to cut off questioning was
scrupulously honored.
 Nothing in Miranda creates a per se proscription of indefinite duration upon
any further questioning by any PO on any subject.
 Difference Between Edwards & Mosley
 Mosley: Invoked a right of silence that Miranda created as a prophylactic
rule to protect the 5th amendment privilege.
o Factors in this case:
 2 hours later
 Re-reading rights
 Subject of interrogation is different
 If you alter these factors the court may find the
person’s will was overborne.
 Edwards: Invoked the Miranda right to counsel designed to protect the right
to silence designed to protect the privilege.
o (Prophylaxis to protect a prophylaxis)
o
o Minnick v. Mississippi
 Right to counsel does not end after consultation; it is a right to have counsel present
during interrogation. (Even if crime is different and a large amount of time as
passed.)
o Oregon v. Bradshaw
 After asking for counsel, even if the accused initiates the conversation the
prosecution still has the burden of proving the subsequent interrogation occurred
pursuant to a waiver of the 5th amendment right to have counsel present during the
interrogation.
 If there is no violation of the Edwards rule, the next inquiry is to ask if there was a
valid waiver.
 Test:
o (1) the communication with the PO can be viewed as a waiver if:
 Whether the communication opened up a generalized
discussion about the crime
o (2) Look at the communication by the Δ
  Is it opening up a generalized discussion of the crime? If so
= waiver
o Davis v. US
 Suspect must unambiguously request counsel…if police do not know whether Δ
requested counsel, there is no requirement of clarifying questions.
 “Maybe I should talk to a lawyer” was not deemed a request for counsel.
 Coercion and Waiver
o Arizona v. Fulminante (confidential informant in prison elicited confession)
 Issue of coerced confession
 As long as there is coercion, it does not matter whether or not it is the police doing
the coercion.
 Harmless Error Rule: Even if there is a constitutional violation it doesn’t matter
because the remainder of the evidence is so strong that any reasonable jury would’ve
convicted Δ anyway
 New:
o Harmless error doctrine should be applied in coerced confessions…
two kinds of harmless error
 Trial Error- happens during the course of a legitimate trial
(coerced confessions)
 Structural Error- judge, lawyer issues, undermines essential
framework of fair trial.
 Majority find that this case is not harmless error b/c without the admission of the
prison confession, nobody would believe other confession.
o Co v. Connelly
 Issue of whether admission was voluntary if due to a psychiatric condition
 Court rules: NOT involuntary for 5th amendment purposes
o In absence of government coercion, statement admissible
o Internal disorder is irrelevant for 5th amendment purposes
 Government burden in proving waiver is only preponderance
o If PO should perceive someone as insane or drunk they should not
assume they are getting a legitimate waiver.
 Dissent: would expand rule to include psychiatric conditions
o Michigan v. Tucker
 Miranda rights were procedural safeguards and NOT rights protected by the
Constitution.
 Applied Miranda retroactively.
 Fruit of the poisonous tree doctrine doesn’t apply to Miranda
o NY v. Quarles
 Concern for public safety is paramount to adherence to the literal language of the
prophylactic rules enunciated in Miranda
 Public safety exception does not apply to involuntary or coerced statements
 Must be an obvious danger to public safety
  Applicability of the exception does not depend upon the actual motivation of the
police, but rather on the objective facts of the case.
 Inevitable discovery argument could also be made
o Oregon v. Elstad
 Fruits doctrine inapplicable to Miranda
 The Miranda remedy sweeps more broadly than the 5th Amendment protection
against compelled self-incrimination and that Miranda represents a “prophylactic
rule” and not a constitutional right.
o Dickerson v. US
 Miranda is Constitutionally based rationale
 Court applied Miranda to states, so it is therefore Consitutional
 Stare Decisis: Miranda has been used for 40 years, so ingrained in system
 Problem: fact that court applied to states does not necessarily make it
Constitutional
o Missouri v. Seibert (1st confession then Miranda read)
 Court sees this situation as ONE entire interrogation, by not reading Miranda it
confuses the Δ and undermines the voluntariness of Δ’s statement
 Elstad and Seibert recognize the difference between the interests protected by the 4 th
amendment and those protected by the 5th amendment with respect to Fruits Doctrine.
 Patane:
o No fruit of the poisonous tree doctrine from Tucker, Elstad, Patane,
Seibert.
o Physical fruits were obtained as a result of statements obtained in
violation of Miranda
 Miranda protects against use of a self incriminatory
statement at a criminal trial. Non-testimonial physical
evidence does not implicate that protection.
 6th Amendment
o 2 Elements for Claim
 (1) Critical stage of proceedings (as early as initial presentment Brewer)
 (2) Deliberate Elicitation (Henry & Wilson) by government official
 Requires affirmative act
o Massiah v. United States
 6th Amendment to the Constitution prohibits government from eliciting statements
from the Δ about themselves after the point that the 6 th amendment right to counsel
attaches.
 “Deliberately elicited” statements from Δ to be used against him without
counsel
o Requirements:
 (1) Deliberate Elicitation- need some affirmative action by
government that prompts that statement, can’t be totally
passive in nature, in order to waive 6th amendment right they
 would have to know that the person they were talking to was
a government agent.
 (2) After indictment in the absence of the lawyer/critical
stage
o Elements:
 Deliberately elicited
 After the indictment
 Without the counsel present
 4th Amendment Implication: “false friend” from White
 5th Amendment Implication: voluntariness of statement
 Massiah v. Miranda
 Miranda= custody + interrogation (charging status irrelevant)
 Massiah = Formally charged + deliberate elicitation (custodial status
irrelevant
o US v. Henry
 CI to get information from Δ was held to constitute “deliberate elicitation”
 “Even if the agent’s statement that he not intend that Nichols would take
affirmative steps to secure incriminating information is accepted, he must
have known that such propinquity likely would lead to that result”
 Court rejected a narrow meaning of deliberately elicited
o “Deliberate elicitation” = “deliberately put an agent (or equivalent)
in a situation where it is likely that he will hear incriminating
statements”
o Kuhlman v. Wilson
 Where an informant only listens the 6th amendment is not implicated.
 Δ must demonstrate the PO took some action beyond their listening designed
to elicit incriminating remarks
o Brewer v. Williams (Christian burial speech case)
 Detectives deliberately set out to elicit info.
 Waiver standard
 Strict standard
 Courts presume no waiver
 Dissent: Waiver present here, men usually do what they intend, conversation not
coercive, police asked Δ not to respond.
o Michigan v. Jackson
 5th and 6th amendment Issues
 5th: Under Edwards, after invoking right to counsel, no further interrogation
unless Δ initiates (relates to ANY interrogation, does not have to be related)
 6th: post critical stage
 Court says that AFTER critical stage where Δ asked for a lawyer, police CANNOT
seek to get a waiver
  Police could, here, seek to get 5th amendment waiver for questioning on unrelated
charge because Δ’s invocation during arraignment was for 6 th amendment purposes
only.
o Patterson v. Illinois (never asked for lawyer)
 Δ arrested for fight, couple of days later, Δ indicted for murder and when he was told
this by police, makes incriminating statements, police interrupted Δ, read Miranda, Δ
signed waiver, Δ confessed again
 Δ had passed critical stage and was entitled to 6thAmendment counsel
 Δ at no time sought to exercise his right to have counsel & no existing
att/client relationship was present
o Usually, timing is the inquiry, not whether Δ invoked 6th Amendment
rights
o Here, no request for lawyer, no appt of lawyer, no prior relationship
with lawyer, and warnings read
 This is a narrow 6th amendment exception
o The key inquiry: Was the accused, who waived his 6 th amendment
rights during post-indictment questioning, made sufficiently aware of
his right to have counsel present during the questioning, and of the
possible consequences of a decision to forgo the aid of counsel?
 Dissent: 6th Amendment right triggered purely by time, no
request necessary to invoke the 6th amendment
o Maine v. Moulton
 Same info as Massiah except info obtained by informant related to a separate charge
 6th amendment applies to interrogation after critical stage relating to pending charges
(there was no charge for the crime he was later suspected of
 6th amendment applies to interrogation after critical stage relating to pending
charges
 No 6th amendment protection for prospective charges
o Montejo v. Louisiana
 People who are and are not represented by counsel are treated the same, police can
come to either one, read Miranda and seek a waiver of both rights.
 Both groups must invoke the Miranda right to counsel before police are
forbidden from seeking Miranda waivers
 If the 6th amendment attaches, government agents can come to him and read
him Miranda warnings and can get a 5th and 6th amendment waiver
o McNeil v. Wisconsin
 D arrested for X, read Miranda, declines to speak, arraigned, questioned about crime
Y, read Miranda, confesses
 Court:
 6th amendment is offense specific
 D’s appearance with counsel cuts off questioning as to crime X
o Texas v. Cobb
 What is offense specific?
  The test for “same offense” in 6th amendment context is the same as in the 5th
amendment double jeopardy clause:
o Def: ONLY when the elements of one offense are necessarily
included on the elements of the other offense (Blockburger rule)
o Kansas v. Ventris
 Issue: Can incriminating statements elicited in violation of the 6 th amendment be
admitted for purposes of impeachment of the conflicting statements?
 Court:
 It is admissible for purposes of impeachment, it comes down to when the
violation occurs. Did it occur at the time it was elicited or when brought into
trial?
o If it is deemed to be violated only at the time of trial, then you have
to keep the statement out to protect 6th amendment
o You use cost-benefit analysis if the violation took place at the earlier
time period (moment elicited).