CRIMCON ESSAY RULE STATEMENTS + ANALYSIS

[ FOURTH AMENDMENT ]
Search→ A search can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of
privacy.
Seizure→ A seizure can be defined as the exercise of control by the government over a person or thing.
Reasonableness→ What is reasonable under the Fourth Amendment depends on the circumstances. For example, certain searches and
seizures are considered to be reasonable only if the government has first obtained a warrant authorizing the action, while other searches
and seizures are reasonable without a warrant.
I. ARRESTS AND OTHER DETENTIONS
A. Governmental detentions of persons, including arrests, certainly constitute seizures of the person, so they must be reasonable to
comply with the Fourth Amendment. Whether a seizure of the person is reasonable depends on the scope of the seizure (e.g., is
it an arrest or merely an investigatory stop?) and the strength of the suspicion prompting the seizure (e.g., an arrest requires
probable cause, while an investigatory detention can be based on reasonable suspicion).
1. WHAT CONSTITUTES A SEIZURE OF THE PERSON?
a) A seizure occurs only when, under the totality of the circumstances, a reasonable person would feel that he was not free
to decline the officer’s requests or otherwise terminate the encounter. Florida v. Bostick. P Police pursuit of a suspect is
not a seizure in and of itself. To constitute a seizure, the Fourth Amendment requires a physical application of force by
the officer or a submission to the officer’s show of force. It is not enough that the officer merely ordered the person to
stop. California v. Hodari D.
2. ARRESTS
a) Probable Cause. An arrest must be based on probable cause. Probable cause to arrest is present when, at the time of
arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a
reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is
authorized by law. IL v. Gates. Probable cause is based on the totality of the circumstances. FL v. Harris.
(1) MISTAKEN OFFENSE→ An arrest is not invalid merely because the grounds stated for the arrest at the time
it was made are erroneous, as long as the officers had other grounds on which there was probable cause for
the arrest. Devenpeck v. Alford
b) Warrant Generally Not Required. In contrast to the rule for searches, police generally need not obtain a warrant
before arresting a person in a public place, even if they have time to get a warrant. Watson
(1) FELONY→ A police officer may arrest a person without a warrant when she has probable cause to believe
that a felony has been committed and that the person before her committed it.
(2) MISDEMEANOR→ An officer may make a warrantless arrest for a misdemeanor committed in her presence.
A crime is committed in the officer’s “presence” if she is aware of it through any of her senses.
(a) Note: The police may make a warrantless misdemeanor arrest even if the crime for which the arrest is made
cannot be punished by incarceration. Atwater v. Lago Vista
(3) EXCEPTION—HOME ARRESTS REQUIRE WARRANT. The police must have an arrest warrant to effect a
non-emergency arrest of an individual in her own home. The officers executing the warrant may enter the
suspect’s home only if there is reason to believe the suspect is within it. Payton v. New York. All warrantless
searches of homes are presumed unreasonable. The burden is on the government to demonstrate sufficient exigent
circumstances to overcome this presumption. Welsh v. WI
(a) Homes of Third Parties. Absent exigent circumstances, the police executing an arrest warrant may not search
for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for
the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search
warrant for the home, the arrest is still valid, but evidence of any crime found in the home cannot be used
against the owner of the home since it is the fruit of an unconstitutional search. However, the arrestee will not
be able to have such evidence suppressed unless he can establish a legitimate expectation of privacy in the
home.
c) Effect of Invalid Arrest. An unlawful arrest, by itself, has no impact on a subsequent criminal prosecu- tion. Thus, if
the police improperly arrest a person (e.g., at his home without a warrant), they may detain him if they have probable
cause to do so. New York v. Harris. Evidence that is a fruit of the unlawful arrest may not be used against the defendant
at trial because of the exclusionary rule.
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3. OTHER DETENTIONS
a) Investigatory Detentions (Stop and Frisk). Police have the authority to briefly detain a person for investigative
purposes even if they lack probable cause to arrest. To make such a stop, police must have a reasonable suspicion
supported by articulable facts of criminal activity or involvement in a completed crime. Terry v. Ohio
(1) Note: If the police also have reasonable suspicion to believe that the detainee is armed and dangerous, they may
also conduct a frisk (a limited search) to ensure that the detainee has no weapons.
(a) Court has not specifically defined “reasonable suspicion.” It requires something more than a vague suspicion,
but full probable cause is not required. Whether the standard is met is judged under the totality of the
circumstances. United States v. Sokolow
(2) SOURCE OF SUSPICION→ Reasonable suspicion does not have to be grounded in a police officer’s law
enforcement training or experience; it can derive from the officer’s common sense and outside experiences.
Kansas v. Glover
(a) Informant’s Tips→ Where the source of suspicion of criminal activity is an informant’s tip, the tip must be
accompanied by indicia of reliability, including predictive information, sufficient to make the officer’s
suspicion reasonable. Alabama v. White; Florida v. JL
(3) DURATION AND SCOPE→ While investigatory stops generally are brief, they are not subject to a specific
time limit. For a stop to be valid, the police must act in a diligent and reasonable manner in confirming or
dispelling their suspicions. United States v. Sharpe.
(a) Identification May Be Required→ As long as the police have the reasonable suspicion required to make a
Terry stop, they may require the detained person to identify himself (state his name), and the detainee
may be arrested for failure to comply with such a requirement. Hiibel v. Sixth Judicial District Court. In
dicta, the Court suggested that it would recognize an exception to this rule under the Fifth Amendment right
against self-incrimination if by merely giving his name, the detainee may incriminate himself, but noted that
such a case would be rare.
(4) DEVELOPMENT OF PROBABLE CAUSE→ If during an investigatory detention, the officer develops
probable cause, the detention becomes an arrest, and the officer can proceed on that basis. He can, for
example, conduct a full search incident to that arrest.
(5) WHAT CONSTITUTES A STOP→ If an officer merely approaches a person but does not detain her, no
arrest or investigatory detention occurs. Not even reasonable suspicion is necessary in such cases. A seizure or
stop occurs only if a reasonable person would believe she is not free to decline an officer’s requests or
otherwise terminate the encounter.
(6) PROPERTY SEIZURES BASED ON REASONABLE SUSPICION→ Police may briefly seize items upon
reasonable suspicion that they are or contain contraband or evidence, but such seizures must be limited.
United States v. Place
b) Automobile Stops. Stopping a car is a seizure for Fourth Amendment purposes. Thus, generally, police officers may
not stop a car unless they have at least reasonable suspi- cion to believe that a law has been violated. However, in
certain cases where special law enforcement needs are involved, the Court allows police officers to set up roadblocks
to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such
roadblocks must:
(1) Stop cars on the basis of some neutral, articulable standard (e.g., every car or every third car); and
(2) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
Indianapolis v. Edmond
(a) Because of the gravity of the drunk driving problem and the magnitude of the states’ interest in getting drunk
drivers off the roads, police may set up road- blocks to check th
(b) Because of the difficulty of discerning whether an automobile is transport- ing illegal aliens, police may set up
roadblocks near the border to stop every car to check the citizenship of its occupants. United States v.
Martinez-Fuerte
(c) The police may not set up roadblocks to check cars for illegal drugs. The nature of such a checkpoint is to
detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety. If suspicionless
stops were allowed under these circumstances, all suspicionless seizures would be justified. Indianapolis v.
Edmond
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 (3) POLICE OFFICER’S MISTAKE OF LAW→ A police officer’s mistake of law that gives rise to reasonable
suspicion does not invalidate a seizure as long as the mistake was reasonable. Heien v. North Carolina
(4) SEIZURE OF OCCUPANTS→ An automobile stop constitutes a seizure not only of the automobile’s driver,
but also any passengers as well. Rationale: Such a stop curtails the travel of the passengers as well the driver,
and a reasonable passenger in a stopped vehicle would not feel free to leave the scene without police
permission. Brendlin v. California
(5) DISTINGUISH—INFORMATIONAL ROADBLOCKS→ If the police set up a roadblock for purposes
other than to seek incriminating information about the drivers stopped, the roadblock likely will be
constitutional. Illinois v. Lidster
(6) POLICE MAY ORDER OCCUPANTS OUT→ Provided that a police officer has lawfully stopped a vehicle,
in the interest of officer safety, the officer may order the occupants (that is, the vehicle’s driver and
passengers) to get out. Moreover, if the officer reasonably believes that the detainee is armed and dangerous,
she may conduct a frisk of the detainee. She may also search the passenger compartment of the vehicle to
look for weapons, even after the driver and other occupants have been ordered out of the vehicle. Thornton v.
United States
(7) PRETEXTUAL STOPS→ If an officer has probable cause to believe that a traffic law has been violated, the
officer may stop the suspect’s automobile, even if the officer’s ulterior motive is to investigate a crime for
which the officer lacks sufficient cause to make a stop.
(a) Whren v. United States→ police in a high drug crime area stopped D’s automobile after observing D wait
a long time at an intersection, abruptly turn without signaling, and speed off at an unreasonable speed
(b) As long as the police do not extend the valid stop beyond the time necessary to issue a ticket and conduct
ordinary inquiries incident to such a stop, it does not violate the Fourth Amendment to allow a narcotics
detection dog to sniff the car. Illinois v. Caballes
c) Detention to Obtain a Warrant. If the police have probable cause to believe that a suspect has hidden drugs in his
house, they may, for a reasonable time, prohibit him from going into the house unaccompanied so that they can prevent
him from destroying the drugs while they obtain a search warrant. Illinois v. McArthur
d) Occupants of Premises Being Searched May Be Detained. Pursuant to the execution of a valid warrant to search for
contraband, the police may detain occupants of the premises while a proper search is conducted. Michigan v. Summers
e) Station House Detention. Police officers must have full probable cause for arrest to bring a suspect to the station
against the suspect’s will for questioning Dunaway v. New York, or for fingerprinting Hayes v. Florida
II. EVIDENTIARY SEARCH AND SEIZURE. Like arrests, evidentiary searches and seizures must be reasonable to be valid under
the Fourth Amendment. Reasonableness here usually means that the police must have obtained a warrant before conducting the
search, but there are circumstances where a warrant is not required.
A. PHYSICAL INTRUSION INTO CONSTITUTIONALLY PROTECTED AREA OR VIOLATION OF REASONABLE
EXPECTATION OF PRIVACY. There are two ways in which searches and seizures can implicate an individual’s Fourth
Amendment rights: (1) search or seizure by a government agent of a constitutionally protected area in which the individual had
a reasonable expectation of privacy; or (2) physical intrusion by the government into a constitutionally protected area to obtain
information.
1. The government’s installation of a GPS tracking device on a vehicle, and the use of the device to monitor the vehicle’s
movements, constituted a physical intrusion into a constitutionally protected area (trespass to vehicle) and, as such, was a
search governed by the Fourth Amendment. United States v. Jones
a) Standing→ It is not enough merely that someone has an expectation of privacy in the place searched or the item
seized. The Supreme Court has imposed a standing requirement so that a person can complain about an
evidentiary search or seizure only if it violates his own reasonable expectations of privacy. Rakas v. Illinois.
Whether a person has a reasonable expectation of privacy generally is based on the totality of the circumstances,
considering factors such as ownership of the place searched and location of the item seized. Rawlings v. Kentucky. The
Court has held that a person has a reasonable expectation of privacy any time:
- She owned or had a right to possession of the place searched;
- The place searched was in fact her home, whether or not she owned or had a right to possession of it; or
- She was an overnight guest of the owner of the place searched. Minnesota v. Olson

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 (1) SEARCH OF THIRD PARTY PREMISES→ Standing does not exist merely because a person will be harmed
by introduction of evidence seized during an illegal search of a third person’s property. Minnesota v. Carter
2. THINGS HELD OUT TO THE PUBLIC
a) Generally- No Expectation of Privacy→ A person does not have a reasonable expectation of privacy in objects
held out to the public, such the smell of one’s luggage or car (e.g., drug sniffs by narcotics dogs) United States v.
Place, Illinois v. Caballes; account records held by the bank, United States v. Miller. However, one does have a
reasonable expectation of privacy in one’s cell-site location information (personal location information derived from
cell phone usage data) which is stored in the hands of third parties. Carpenter v. United States
(1) Dog Sniffs at Traffic Stops→ As long as police officers have lawfully stopped a car and do not extend the stop
beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the
car does not implicate the Fourth Amendment. Illinois v. Caballes. However, police officers may not extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to complete a dog sniff. The key question
is not whether the dog sniff occurs before the police issue the ticket, but rather whether the dog sniff adds time to
the stop.
(a) Rodriguez v. United States, it was a violation of the Fourth Amendment when a police officer issued the
defendant a warning ticket, thereby completing the traffic stop, and then detained the defendant for seven to
eight minutes to conduct a dog sniff
(b) Note: During a routine traffic stop, a dog “alert” to the presence of drugs can form the basis for probable
cause to justify a search of the automobile. Florida v. Harris
(2) Dog Sniffs at Entry to Home→ Although the entry to a home is within the curtilage protected by the Fourth
Amendment against unreasonable searches, a police officer may approach a home in hopes of speaking to its
occupants—just like a private citizen, such as a neighbor or a delivery person. However, the scope of the
license is limited. Police officers may not exceed the license by having a drug dog sniff around the entry or
other areas within the curtilage. Such a physical intrusion into a constitutionally protected area constitutes a
“search” within the meaning of the Fourth Amendment, and therefore requires a valid warrant or warrant
exception. Florida v. Jardines
b) Open Fields Doctrine→ Under the “open fields” doctrine, areas outside the “curti- lage” (dwelling house and
outbuildings) are subject to police entry and search—these areas are “held out to the public” and are unprotected by the
Fourth Amendment. (The Court will consider the building’s proximity to the dwelling, whether it is within the same
enclosure—such as a fence— that surrounds the house, whether the building is used for activities of the home, and the
steps taken by the resident to protect the building from the view of passersby.) Oliver v. United States. Even a building
such as a barn may be considered to be outside the curtilage and therefore outside the protection of the Fourth
Amendment. United States v. Dunn. In addition, the Fourth Amendment does not prohibit the warrantless search and
seizure of garbage left for collection outside the curtilage of a home. California v. Greenwood
c) Fly-Overs→ The police may, within the Fourth Amendment, fly over a field or yard to observe with the naked eye
things therein. California v. Ciraolo. Even a low (400 feet) fly-over by a helicopter to view inside a partially covered
greenhouse is permissible. Florida v. Riley. The police may also take aerial photographs of a particular site. Dow
Chemical Co. v. United States.
(1) TECHNOLOGICALLY ENHANCED SEARCHES OF HOMES→ The Supreme Court has held that
because of the strong expectation of privacy within one’s home, obtaining by sense enhancing technology
any information regarding the interior of a home that could not other- wise have been obtained without
physical intrusion constitutes a search, at least where the technology in question is not in general public use.
Kyllo v. United States
d) Automobiles→ The police may not covertly and trespassorily place a GPS tracking device on a person’s
automobile without a warrant. United States v. Jones
B. SEARCHES CONDUCTED PURSUANT TO A WARRANT. To be reasonable under the Fourth Amendment, most
searches by criminal law enforcement officers must be pursuant to a warrant. The warrant requirement serves as a check against
unfettered police discretion by requiring police to apply to a neutral magistrate for permission to conduct a search. A search
conducted without a warrant will be invalid (and evidence discovered during the search must be excluded from evidence) unless
it is within one of the six categories of permissible warrantless searches.

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1. Requirements of a Warrant→ To be valid, a warrant must:
- Be issued by a neutral and detached magistrate;
- Be based on probable cause established from facts submitted to the magistrate by a government agent upon oath
or affirmation; and
- Particularly describe the place to be searched and the items to be seized.
2. Showing of Probable Cause→ A warrant will be issued only if there is probable cause to believe that seizable evidence
will be found on the premises or person to be searched. Carroll v. United States. The officers requesting the warrant must
submit to the magistrate an affidavit containing sufficient facts and circumstances to enable the magistrate to make an
independent evaluation of probable cause.
a) May be Anticipatory. It is sufficient that there is reason to believe that seizable evidence will be found on the
premises to be searched at a future date when the warrant will be executed; there need not be reason to believe that
there is seizable material on the premises at the time the warrant is issued. United States v. Grubbs
b) Use of Informers—Totality of Circumstances Test. If the officers’ affidavit of probable cause is based on
information obtained from informers, its sufficiency is determined by the totality of the circumstances. Illinois v.
Gates. The affidavit need not contain any particular fact about the informer, as long as it includes enough information
to allow the magistrate to make a common sense evaluation of probable cause
(1) RELIABILITY, CREDIBILITY, AND BASIS OF KNOWLEDGE→ Formerly, the affidavit had to include
information regarding the reliability and credibility of the informer (e.g., she has given information five
times in the past and it has been accurate) and her basis for the knowledge (e.g., she purchased cocaine from
the house to be searched). These are still relevant factors, but are no longer prerequisites.
(2) GOING “BEHIND THE FACE” OF THE AFFIDAVIT→ When a defendant attacks the validity of a search
warrant, the Fourth Amendment permits her to contest the validity of some of the assertions in the affidavit
upon which the warrant was issued. The defendant may go “behind the face” of the affidavit.
(a) Three Requirements to Invalidate Search Warrant: A search warrant issued on the basis of an affidavit that, on
its face, is sufficient to establish probable cause will be invalid if the defendant establishes ALL THREE of
the following: Franks v. Delaware
(i) A false statement was included in the affidavit by the affiant (that is, the police officer applying for
the warrant);
(ii) The affiant intentionally or recklessly included that false statement (that is, the officer either knew it
was false or included it knowing that there was a substantial risk that it was false); and
(iii) The false statement was material to the finding of probable cause (that is, without the false
statement, the remainder of the affidavit could not support a finding of probable cause). Thus, the
mere fact that an affiant intentionally included a false state- ment in the affidavit apparently will not
automatically render the warrant invalid under Fourth Amendment standards.
(b) Evidence May Be Admissible Even Though Warrant Not Supported by Probable Cause → A finding that the
warrant was invalid because it was not supported by probable cause will not entitle a defendant to
exclude the evidence obtained under the warrant. Evidence obtained by police in reasonable reliance on
a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not
supported by probable cause. United States v. Leon
3. Warrant Must Be Precise on Its Face→ The warrant must describe with reasonable precision the place to be searched
and the items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.
Groh v. Ramirez
4. Search of Third-Party Premises Permissible→ The Fourth Amendment does not bar searches of premises belonging
to persons not suspected of crime, as long as there is probable cause to believe evidence of someone’s guilt (or
something else subject to seizure) will be found. Thus, a warrant can be issued for the search of the offices of a newspaper
if there is probable cause to believe evidence of someone’s guilt of an offense will be found. Zurcher v. Stanford Daily
5. Neutral and Detached Magistrate Requirement→ The magistrate who issues the warrant must be neutral and
detached from the often competitive business of law enforcement.
a) The state attorney general is not neutral and detached. Coolidge v. New Hampshire
b) A magistrate who participates in the search to determine its scope is not neutral and detached. Lo-Ji Sales, Inc. v. New
York

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6. Execution of a Warrant
a) Must Be Executed by the Police→ Only the police (and not private citizens) may execute a warrant. Moreover,
when executing a warrant in a home, the police may not be accompanied by a member of the media or any other
third party unless the third party is there to aid in executing the warrant.
b) Execution Without Unreasonable Delay→ The warrant should be executed without unreasonable delay because
probable cause may disappear.
c) Announcement Requirement→ Generally, an officer executing a search warrant must knock and announce her
authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter
the place to be searched.
(1) SUFFICIENCY OF DELAY→ If the officers executing a warrant have a reasonable fear that evidence, such
as cocaine, will be destroyed after they announce themselves, a limited 15-20 second delay before using force
to enter the house is reasonable. United States v. Banks
(2) “NO KNOCK” ENTRY POSSIBLE→ No announcement need be made if the officer has reasonable
suspicion, based on facts, that knocking and announcing would be dangerous or futile or that it would
inhibit the investigation, e.g., because it would lead to the destruction of evidence. Richards v. Wisconsin.
Whether a “no knock” entry is justified must be made on a case-by-case basis; a blanket exception for warrants
involving drug investigations is impermissible. Richards v. Wisconsin
(a) Note: The fact that property damage will result from a “no knock” entry does not require a different standard
—reasonable suspicion is sufficient. United States v. Ramirez
(3) REMEDY→ The Supreme Court has held that the exclusionary rule will not be applied to cases where
officers violate the knock and announce rule. Hudson v. Michigan
d) Scope of Search→ The scope of the search is limited to what is reasonably necessary to discover the items described
in the warrant.
e) Seizure of Unspecified Property→ When executing a warrant, the police generally may seize any contraband or
fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
f) Search of Persons Found on the Premises→ A search warrant does not authorize the police to search persons
found on the premises who are not named in the warrant. Ybarra v. Illinois. If the police have probable cause to arrest a
person discovered on the premises to be searched, however, they may search her incident to the arrest. Of course, if a
police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat
down for weapons.
g) Detention of the Occupants→ A warrant to search for contraband implicitly carries with it the limited authority to
detain occupants of the premises while the search is being conducted. Michigan v. Summers. However, such detentions
are limited to persons in the immediate vicinity of the premises when the warrant is being executed. It does not give
officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was
executed. Bailey v. United States
7. Exceptions to Warrant Requirement→ There are six exceptions to the warrant requirement; that is, six circumstances
where a warrantless search by law enforcement officers is reasonable and therefore is valid under the Fourth Amendment.
To be valid, a warrantless search must meet all the requirements of at least one exception.
a) Search Incident to a Lawful Arrest→ The police may conduct a warrantless search incident to an arrest as long as it
was made on probable cause. Virginia v. Moore
(1) CONSTITUTIONAL ARREST REQUIREMENT→ If an arrest violates the Constitution, then any search incident
to that arrest also will violate the Constitution.
(2) ANY ARREST SUFFICIENT→ The police may conduct a search incident to arrest whenever they arrest a
person, and this is true even if the arrest is invalid under state law, as long as the arrest was constitutionally
valid (e.g., reasonable and based on probable cause). Although the rationale for the search is to protect the
arresting officer and to preserve evidence, the police need not actually fear for their safety or believe that they
will find evidence of a crime as long as the suspect is placed under arrest. United States v. Robinson

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 (a) Issuance of Traffic Citation—Insufficient Basis→ For traffic violations, if the suspect is not arrested, there
can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or
issuing a citation. Knowles v. Iowa.
(i) Rationale: When a citation is issued, there is less of a threat to the officer’s safety than there is during
an arrest, and the only evidence that needs to be preserved in such a case (e.g., evidence of the
suspect’s speeding or other illegal conduct) has already been found.
(3) GEOGRAPHIC SCOPE→ Incident to a constitutional arrest, the police may search the person and areas into
which he might reach to obtain weapons or destroy evidence (his “grab area”). Chimel v. California. The
arrestee’s wingspan follows him as he moves. Thus, if the arrestee is allowed to enter his home, police may follow
and search areas within the arrestee’s wingspan in the home. The police may also make a protective sweep of the
area beyond the defendant’s wingspan if they believe accomplices may be present. Maryland v. Buie
(a) Automobiles→ After arresting the occupant of an automobile, the police may search the interior of the
auto incident to the arrest if at the time of the search:
(i) The arrestee is unsecured and still may gain access to the interior of the vehicle; or
(ii) The police reasonably believe that evidence of the offense for which the person was arrested may
be found in the vehicle.
(a) Arizona v. Gant overturned a practice permitting a search incident to arrest of the entire interior
of an auto whenever the person arrested had recently been in the auto. This practice was based
on a broad interpretation of an earlier case, New York v. Belton
(4) TECHNOLOGICAL SEARCHES→ In assessing whether a search incident to arrest involving things that
did not exist when the Fourth Amendment was adopted (e.g., cell phones, blood alcohol tests), the court will
balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree
to which the search is needed to promote legitimate governmental interests. Birchfield v. North Dakota
(a) DUI Arrest Justifies Breath (Not Blood) Test. Contemporaneous with an arrest for intoxicated driving, police
officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not
administer a warrantless blood test. Rationale: Breath tests are minimally intrusive (that is, they require an
arrestee simply to blow into a tube) and leave no biological sample of the defendant. Blood alcohol tests are
significantly more intrusive (e.g., require piercing of the skin) and leave the government with a biological
sample of the arrestee that can be mined later to extract information about the defendant beyond blood alcohol
level). Because both tests are available, the less-intrusive test is sufficient to preserve evidence of an arrestee’s
intoxicated driving absent a warrant granted upon a showing of why the more intrusive test is needed.
Birchfield v. North Dakota
(i) Violations of Implied Consent Law May be Punished Civilly but not Criminally→ As a corollary
to the search rule above, while a state may impose civil penalties (such as loss of a driver’s license)
under an implied consent law (that is, a law providing that by driving on roads within the state,
a driver impliedly consents to submit to a blood test if stopped for driving while intoxicated), it
is not reasonable under the Fourth Amendment to impose a criminal penalty for refusing to
submit to a blood test under an implied consent law. Birchfield v. North Dakota
(b) Physical Attributes of Cell Phone May be Searched But Not Data→ Upon arresting a person, police officers
have a strong interest in assuring that the arrestee does not have dangerous materials. Thus, officers may
inspect the physical attributes of a cell phone. However, they may not, without a warrant, search digital
information on a cell phone seized from the arrestee. Such a search implicates greater individual privacy
interests than a brief physical search, and a search of the data would not further the goal of the search
incident to arrest exception, since data stored on a cell phone cannot itself be used as a weapon to harm
an arresting officer or to effectuate the arrestee’s escape. Riley v. California
(5) MUST BE CONTEMPORANEOUS WITH ARREST. A search incident to an arrest must be contemporaneous in
time and place with the arrest.
(a) Automobiles→ At least with regard to searches of automobiles, the term “contemporaneous” does not
necessarily mean “simultaneous.” Thus, for example, if the police have reason to believe that an

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 automobile from which a person was arrested contains evidence of the crime for which the arrest was
made, they may search the interior of the automobile incident to arrest after the arrestee has been removed
from the automobile and placed in a squad car; and this is so even if the arrestee was already outside of the
automobile at the time he was arrested, as long as he was a recent occupant of the automobile. Thornton v.
United States
(6) SEARCH INCIDENT TO INCARCERATION OR IMPOUNDMENT. The police may search an arrestee’s
personal belongings before incarcerating him after a valid arrest. Illinois v. Lafayette
(a) DNA Tests→ When officers make an arrest supported by probable cause to hold for a serious offense and
they bring the suspect to the police station to be detained in custody, taking and analyzing a cheek swab
of the arrestee’s DNA is a legitimate police booking procedure that is a reasonable search under the
Fourth Amendment. Maryland v. King
b) “Automobile” Exception→ If the police have probable cause to believe that a vehicle such as an automo- bile
contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant.
Carroll v. United States
(1) Rationale: Automobiles and similar vehicles are mobile and so will not likely be available for search by the time
an officer returns with a warrant. Moreover, the Supreme Court has declared that people have a lesser expectation
of privacy in their vehicles than in their homes. However, if a vehicle is parked within the curtilage (e.g., the
driveway) of one’s home, the police may not search the vehicle without a warrant. Collins v. Virginia
(2) SCOPE OF SEARCH→ If the police have full probable cause to search a vehicle, they can search the entire
vehicle (including the trunk) and all containers within the vehicle that might contain the object for which
they are searching. Thus, if the police have probable cause to believe that drugs are within the vehicle, they
can search almost any container, but if they have probable cause to believe that an illegal alien is hiding inside
the vehicle, they must limit their search to areas where a person could hide.
(a) Passenger’s Belongings→ The search is not limited to the driver’s belongings and may extend to packages
belonging to a passenger. Wyoming v. Houghton. search of passenger’s purse upheld where officer noticed
driver had syringe in his pocket] Rationale: Like a driver, a passenger has a reduced expectation of privacy in
a vehicle.
(b) Limited Probable Cause– Containers in Vehicle→ If the police only have probable cause to search a
container (recently) placed in a vehicle, they may search that container, but the search may not extend to
other parts of the car. California v. Acevedo
(3) MOTOR HOMES→ The automobile exception extends to any vehicle that has the attributes of mobility and
a lesser expectation of privacy similar to a car. For example, the Supreme Court has held that it extends to
motor homes if they are not at a fixed site. California v. Carney
(4) CONTEMPORANEOUSNESS NOT REQUIRED. If the police are justified in making a warrantless search of a
vehicle under this exception at the time of stopping, they may tow the vehicle to the station and search it later.
Chambers v. Maroney
c) Plain View→ The police may make a warrantless seizure when they:
(1) Are legitimately on the premises;
(2) Discover evidence, fruits or instrumentalities of crime, or contraband;
(3) See such evidence in plain view; and
(4) Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or
a fruit or instrumentality of crime.
(a) Coolidge v. New Hampshire, Arizona v. Hicks
d) Consent→ The police may conduct a valid warrantless search if they have a voluntary consent to do so.
Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a
voluntary consent. Schneckloth v. Bustamonte
(1) Example: After Deputy stopped Defendant for speeding, gave him a verbal warning, and returned his license,
Deputy asked Defendant if he was carrying any drugs in the car. Defendant answered “no” and consented to a
search of his car, which uncovered drugs. Defendant argued that his consent was invalid because he had not been
told that he was free to go after his license was returned. The Supreme Court, applying the principles of

8
 Schneckloth, found that no such warning was necessary. Voluntariness is to be determined from all of the
circumstances, and knowledge of the right to refuse consent is just one factor to be considered in determining
voluntariness. Ohio v. Robinette
(2) AUTHORITY TO CONSENT→ Any person with an apparent equal right to use or occupy the property
may consent to a search, and any evidence found may be used against the other owners or occupants. United
States v. Matlock. The search is valid even if it turns out that the person consenting to the search did not actually
have such right, as long as the police reasonably believed that the person had authority to consent. Illinois v.
Rodriguez
(a) Limitation– Where Party is Present and Objects→ The police may not act on consent from an occupant if a
co-occupant is present and objects to the search and the search is directed against the co-occupant.
Georgia v. Randolph. If a co-occupant has objected to a search and is removed for a reason unrelated to the
refusal (e.g., a lawful arrest), the police may act on consent of the occupant, even if the removed co-occupant
had refused consent. Fernandez v. California
(3) SCOPE OF SEARCH→ The scope of the search is limited by the scope of the consent. However, consent
extends to all areas to which a reasonable person under the circumstances would believe it extends.
e) Stop and Frisk.
(1) STANDARDS→ A police officer may stop a person without probable cause for arrest if she has an articulable
and reasonable suspicion of criminal activity. In such circumstances, if the officer also reasonably believes that
the person may be armed and presently dangerous, she may conduct a protective frisk. Terry v. Ohio
(2) SCOPE OF INTRUSION
(a) Pat Down of Outer Clothing→ The scope of the frisk is generally limited to a patdown of the outer
clothing for concealed instruments of assault. Terry v. Ohio. However, an officer may reach directly into an
area of the suspect’s clothing, such as his belt, without a preliminary frisk, when she has specific information
that a weapon is hidden there, even if the information comes from an informant’s tip lacking sufficient
reliability to support a warrant.
(b) Automobiles→ If a vehicle has been properly stopped, a police officer may order the driver out of the
vehicle even without a suspicion of criminal activity. If the officer then reasonably believes that the driver
or any passenger may be armed and dangerous, she may conduct a frisk of the suspected person.
Moreover, the officer may search the passenger compartment of the vehicle, even if the officer has not
arrested the occupant and has ordered the occupant out of the vehicle, provided the search is limited to
those areas in which a weapon may be placed or hidden and the officer possesses a reason- able belief that
the occupant is dangerous. Michigan v. Long
(c) ID May Be Required→ As long as the police have the reasonable suspicion required to make a Terry stop,
they may require the detained person to identify himself (that is, state his name), and the detainee may be
arrested for failure to comply with such a requirement except, perhaps, where the detainee may make a
self-incrimination claim. Hiibel v. Sixth Judicial District Court
(d) Time Limit→ There is no rigid time limit for the length of an investigative stop. The Court will consider
the purpose of the stop, the reasonableness of the time in effectuating the purpose, and the reasonableness
of the means of investigation to determine whether a stop was too long. United States v. Sharpe
(3) ADMISSIBILITY OF EVIDENCE→ If a police officer conducts a pat down within the bounds of Terry, the
officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on
its “plain feel,” is a weapon or contraband. Terry v. Ohio; Minnesota v. Dickerson. Excluding evidence cocaine
that officer found during valid pat down because officer had to manipulate package to discern that it likely was
drugs Properly seized items are admissible as evidence against the suspect.
f) Hot Pursuit, Exigent Circumstances, Evanescent Evidence and Other Emergencies
(1) HOT PURSUIT→ Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure.
The scope of the search may be as broad as may reasonably be necessary to prevent the suspect from resisting
or escaping. Warden v. Hayden. When the police have probable cause and attempt to make a warrantless arrest in
a “public place,” they may pursue the suspect into private dwellings.
9
 (2) EXIGENT CIRCUMSTANCES– DESTRUCTION OF EVIDENCE→ Police officers may enter a home
without a warrant to prevent the destruc- tion of evidence, even if the exigency arose because police officers
knocked on the door and asked for entry, as long as the officers have reason to believe that evidence is being
destroyed and the officers did not create the exigency through an actual or threatened Fourth Amendment
violation. Kentucky v. King
(3) BLOOD ALCOHOL TESTING→ The natural dissipation of alcohol in the bloodstream does not
automatically constitute a sufficient exigency to justify a warrantless blood alcohol content (“BAC”) test. As
in the case of any evanescent evidence, a determination of whether a warrantless BAC test is reason- able
depends on the totality of the circumstances. In particular, where police officers can reasonably obtain a
warrant before a blood sample is drawn without significantly undermining the efficacy of the search, the
Fourth Amendment requires that they do so. In general, establishing probable cause is relatively simple in
drunk driving cases, and warrants can often be obtained expeditiously by telephone, e-mail, or video
conferencing. Thus, warrantless BAC testing often will be found unreasonable. Missouri v. McNeely
(a) However, when a person suspected of drunk driving is unconscious and therefore unable to perform a breath
test, police officers may almost always order a warrantless blood test to measure the person’s BAC without
violating the Fourth Amendment. Mitchell v. Wisconsin
(4) EMERGENCY AID EXCEPTION→ Emergencies that threaten health or safety if not immediately acted
upon will justify a warrantless search. This includes situations where the police see someone injured or
threatened with injury. Brigham City v. Stuart. Whether an emergency exists is determined objectively, from the
officer’s point of view. Michigan v. Fisher
(a) The need to search a murder scene, without more, does not justify a warrantless search. Mincey v. Arizona
8. Administrative Inspections and Searches
a) Warrant Required for Searches of Private Residences and Businesses→ Inspectors must have a warrant for
searches of private residences and commercial buildings. Camara v. Municipal Court. However, the same standard
of probable cause as is required for other searches is not required for a valid administrative inspection warrant. A
showing of a general and neutral enforcement plan will justify issuance of the warrant, which is designed to guard
against selective enforcement.
(1) HIGHLY REGULATED INDUSTRIES→ A warrant is not required for searches of businesses in highly
regulated industries, because of the urgent public interest and the theory that the business has impliedly
consented to warrantless searches by entering into a highly regulated industry. New York v. Burger
b) Inventory Searches→ The police may search an arrestee’s personal belongings in order to inventory them before
incarcerating the arrestee. Illinois v. Lafayette. Similarly, the police may search an entire vehicle—including closed
containers within the vehicle—that has been impounded, as long as the search is part of an established department
routine. Moreover, jail officials need not have reasonable suspicion that a person arrested for a minor offense possesses
a concealed weapon or contraband to subject him to a strip search before admitting him to the general prison
population. Deference must be given to the officials unless there is substantial evidence indicating that their response to
a situation is exaggerated. The risks that an unsearched prisoner poses are great—from diseases to weapons to gang
affiliations. Therefore, suspicionless strip searches are not an exaggerated response. Florence v. Board of Chosen
Freeholders
c) Public School Searches→ A warrant or probable cause is not required for searches conducted by public school
officials; only reasonable grounds for the search are necessary. This exception is justified due to the nature of the
school environment. New Jersey v. T.L.O. The Court has also upheld a school district rule that required students
participating in any extracurricular activity to submit to random urinalysis drug testing monitored by an adult of the
same sex. Board of Education v. Earls
(1) REASONABLENESS STANDARD→ A school search will be held to be reasonable only if:
(a) It offers a moderate chance of finding evidence of wrongdoing;
(b) The measures adopted to carry out the search are reasonably related to the objectives of the search; and
(c) The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction.
(i) New Jersey v. T.L.O.; Safford Unified School District #1 v. Redding

10
 d) Parolees→ The Supreme Court has upheld warrantless searches of a parolee and his home—even without
reasonable suspicion—where a state statute provided that as a condition of parole, a parolee agreed that he would
submit to searches by a parole officer or police officer at any time, with or without a search warrant or probable
cause. The Court held that such warrantless searches are reasonable under the Fourth Amendment because a
parolee has a diminished expectation of privacy under such a statute and the government has a heightened need
to search parolees because they are less likely than the general population to be law-abiding. Samson v. California
e) Drug Testing→ Although government-required drug testing constitutes a search, the Supreme Court has upheld
such testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs”
beyond the general interest of law enforcement.
(1) Special needs do not justify a warrantless and nonconsensual urinalysis test to determine whether a pregnant
woman has been using cocaine, where the main purpose of the testing is to generate evidence that may be used by
law enforcement personnel to coerce women into drug programs. Ferguson v. Charleston
(2) The government may not require candidates for state offices to certify that they have taken a drug test within 30
days prior to qualifying for nomination or election—there is no special need for such testing. Chandler v. Miller
9. Foreign Searches and Border Searches
a) Searches at Border or Functional Equivalent→ There is a diminished expectation of privacy at the border and its
functional equivalents due to competing interests of national sovereignty. Searches there do not require a
warrant, probable cause, or reasonable suspicion. A functional equivalent of the border might be a point near the
border where several routes all leading to the border merge.
b) Fixed Checkpoints→ Border officials may stop an automobile at a fixed checkpoint inside the border for
questioning of the occupants even without a reasonable suspicion that the automobile contains illegal aliens.
United States v. Martinez-Fuerte. Officials may disassemble stopped vehicles at such checkpoints, even without
reasonable suspicion. United States v. Flores-Montano.
(1) However, the Supreme Court has suggested that nonroutine, personal searches at the border (e.g., strip searches or
body cavity searches) may require probable cause.
c) Opening International Mail→ Permissible border searches include the opening of international mail, which postal
regulations authorize when postal authorities have reasonable cause to suspect that the mail contains contraband,
although the regulations prohibit the authorities from reading any correspondence inside. United States v. Ramsey
d) Detentions→ If the officials have a “reasonable suspicion” that a traveler is smuggling contra- band in her stomach,
they may detain her for a time reasonable under the circumstances. Rationale: Stopping such smuggling is
important, yet very difficult; stomach smuggling gives no external signs that would enable officials to meet a
“probable cause” standard in order to conduct a search. United States v. Montoya de Hernandez
10. Wiretapping and Eavesdropping→ Wiretapping and any other form of electronic surveillance that violates a
reasonable expectation of privacy constitute a search under the Fourth Amendment. Katz v. United States
a) Fourth Amendment Requirements→ In Berger v. New York, the Supreme Court indicated that for a valid warrant
authorizing a wiretap to be issued, the following requirements must be met:
(1) A showing of probable cause to believe that a specific crime has been or is being committed must be made;
(2) The suspected persons whose conversations are to be overheard must be named;
(3) The warrant must describe with particularity the conversations that can be overheard;
(4) The wiretap must be limited to a short period of time (although extensions may be obtained upon an adequate
showing);
(5) Provisions must be made for the termination of the wiretap when the desired information has been obtained; and
(6) A return must be made to the court, showing what conversations have been intercepted.
b) Exceptions
(1) “Unreliable Ear” → A speaker assumes the risk that the person to whom she is talking is unreli- able. If the
person turns out to be an informer wired for sound or taping the conversation, the speaker has no basis in the
Fourth Amendment to object to the transmitting or recording of the conversation as a warrantless search.
United States v. White

11
 (2) “Uninvited Ear” → A speaker has no Fourth Amendment claim if she makes no attempt to keep the
conversation private. Katz v. United States
c) Judicial Approval Required for Domestic Security Surveillance→ A neutral and detached magistrate must make
the determination that a warrant should issue authorizing electronic surveillance, including internal security
surveillance of domestic organizations. The President may not authorize such surveillance without prior judicial
approval. United States v. United States District Court
d) Federal Statute→ Title III of the Omnibus Crime Control and Safe Streets Act regulates intercep- tion of private
“wire, oral or electronic communications.” [18 U.S.C. §§2510-2520] All electronic communication surveillance
(e.g., phone taps, bugs, etc.) must comply with the requirements of this federal statute, which exhibits a legislative
decision to require more than the constitutional minimum in this especially sensitive area.
e) Pen Registers→ A pen register records only the numbers dialed from a certain phone. The Fourth Amendment
does not require prior judicial approval for installation and use of pen registers. Smith v. Maryland. Neither does
Title III govern pen registers, because Title III applies only when the contents of electronic communications are
intercepted.
(1) However, by statute [18 U.S.C. §§3121], police must obtain a court order finding pen register information to be
relevant to an ongoing criminal investigation before utilizing a pen register. Note, however, that information
obtained in violation of the statute would not necessarily be excluded from evidence in a criminal trial; the statute
merely provides a criminal penalty.
C. METHODS OF OBTAINING EVIDENCE THAT SHOCK THE CONSCIENCE→ Due process of law requires that state
criminal prosecutions be conducted in a manner that does not offend the “sense of justice” inherent in due process.
Evidence obtained in a manner offending that sense is inadmissible, even if it does not run afoul of one of the specific
prohibitions against particular types of misconduct.
1. Searches of the Body→ Intrusions into the human body implicate a person’s most deep-rooted expectations of
privacy. Thus, Fourth Amendment requirements apply. Ultimately, the “reasonableness” of searches into the body
depends on weighing society’s need for the evidence against the magnitude of the intrusion on the individual (including the
threat to health, safety, and dignity issues).
a) Blood Tests→ Taking a blood sample (e.g., from a person suspected of drunk driving) by commonplace medical
procedures “involves virtually no risk, trauma, or pain” and is thus a reasonable intrusion. Schmerber v. California

[ CONFESSIONS ]
I. GENERALLY. The admissibility of a defendant’s confession or incriminating admission involves analysis under the Fourth, Fifth,
Sixth, and Fourteenth Amendments. We have already discussed Fourth Amendment search and seizure limitations. The Fifth
Amendment gives defendants rights against testimonial self-incrimination. The Sixth Amendment gives defendants rights regarding
the assistance of counsel. The Fourteenth Amendment protects against involuntary confessions.
II. FOURTEENTH AMENDMENT– VOLUNTARINESS. For confessions to be admissible, the Due Process Clause of the
Fourteenth Amendment requires that they be voluntary. Voluntariness is assessed by looking at the totality of the circumstances,
including the suspect’s age, education, and mental and physical condition, along with the setting, duration, and manner of police
interrogation. Spano v. New York
A. A confession will be involuntary where it was obtained by physically beating the defendant. Brown v. Mississippi
B. MUST BE OFFICIAL COMPULSON→ Only official compulsion will render a confession involuntary for purposes of the
Fourteenth Amendment. A confession is not involuntary merely because it is the product of mental disease that prevents
the confession from being of the defen- dant’s free will. Colorado v. Connelly
C. HARMLESS ERROR TEST APPLIES→ A conviction will not necessarily be overturned if an involuntary confession
was erroneously admitted into evidence. The harmless error test applies, and the conviction will not be overturned if the
government can show that there was other overwhelming evidence of guilt. Arizona v. Fulminante
D. CAN “APPEAL” TO JURY→ A finding of voluntariness by the trial court does not preclude the defendant from
introducing evidence to the jury of the circumstances of the confession in order to cast doubt on its credibility. Crane v.
Kentucky

12
III. SIXTH AMENDMENT RIGHT TO COUNSEL APPROACH. The Sixth Amendment provides that in all criminal prosecutions,
the defendant has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system
without competent help. It applies at all critical stages of a criminal prosecution after formal proceedings have begun. Rothgery v.
Gillespie. The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining
a waiver of the defendant’s right to have counsel present. Since Miranda, the Sixth Amendment right has been limited to cases
where adversary judicial proceedings have begun (e.g., formal charges have been filed). Massiah v. United States. Thus, the right
does not apply in precharge custodial interrogations
A. The Sixth Amendment right to counsel is violated when an undisclosed, paid govern- ment informant is placed in the
defendant’s cell, after the defendant has been indicted, and deliberately elicits statements from the defendant regarding the
crime for which the defendant was indicted. United States v. Henry. However, it is not a violation merely to place an informant
in a defendant’s cell—the informant must take some action, beyond mere listening, designed deliberately to elicit incriminating
remarks. Kuhlmann v. Wilson
B. STAGES AT WHICH APPLICABLE→The defendant has a Sixth Amendment right to be represented by privately
retained counsel, or to have counsel appointed for him by the state if he is indigent, at the following stages:
1. Post-indictment interrogation Massiah v. United States;
2. Preliminary hearings to determine probable cause to prosecute Coleman v. Alabama
3. Arraignment Hamilton v. Alabama;
4. Post-charge lineups Moore v. Illinois;
5. Guilty plea and sentencing;
6. Felony trials Gideon v. Wainwright;
7. Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed. Scott v. Illinois;
8. Appeals as a matter of right Douglas v. California; and
9. Appeals of guilty pleas and pleas of nolo contendere Halbert v. Michigan.
a) Note: There also is a Fifth Amendment right to counsel at all custodial police interro- gations
C. STAGES AT WHICH NOT APPLICABLE→ The defendant does not have a constitutional right to be represented by
counsel at the following stages:
1. Blood sampling Schmerber v. California;
2. Taking of handwriting or voice exemplars Gilbert v. California;
3. Pre-charge or investigative lineups Kirby v. Illinois;
4. Photo identifications United States v. Ash;
5. Preliminary hearings to determine probable cause to detain Gerstein v. Pugh;
6. Brief recesses during the defendant’s testimony at trial Perry v. Leeke;
7. Discretionary appeals Ross v. Moffitt
8. Parole and probation revocation proceedings Gagnon v. Scarpelli; and
9. Post-conviction proceeding (e.g., habeas corpus) Pennsylvania v. Finley
D. OFFENSE SPECIFIC→ The Sixth Amendment right to counsel is “offense specific.” Thus, if a defendant makes a Sixth
Amendment request for counsel for one charge, he must make another request if he is subsequently charged with a
separate, unrelated crime if he desires counsel for the second charge. Similarly, even though a defendant’s Sixth
Amendment right to counsel has attached regarding one charge, he may be questioned without counsel concerning an
unrelated charge. Illinois v. Perkins
1. Test for “Different Offenses”→ The test for determining whether offenses are different under the Sixth
Amendment is the Blockburger test. Under the test, two crimes are considered different offenses if each requires proof
of an additional element that the other crime does not require. Texas v. Cobb
E. WAIVER→ The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary.
Moreover, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been
requested by the defendant but rather was appointed by the court. Montejo v. Louisiana
F. REMEDY→ If the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of
the conviction, even without any showing of specific unfairness in the proceedings. Gideon v. Wainwright. Similarly,
erroneous disqualification of privately retained counsel results in automatic reversal. United States v. Gonzalez-Lopez.
However, at nontrial proceedings (such as a post-indictment lineup), the harmless error rule applies to deprivations of counsel.
United States v. Wade

13
 G. IMPEACHMENT→ A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not
admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony. Kansas v.
Ventris. This rule is similar to the rule that applies to Miranda violations.
IV. FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION–MIRANDA. The Fifth
Amendment, applicable to the states through the Fourteenth Amendment, provides that no person “shall be compelled to be a
witness against himself . . . .” This has been interpreted to mean that a person shall not be compelled to give self-incriminating
testimony.
A. WARNINGS→ In Miranda v. Arizona, the Fifth Amendment privilege against compelled self-incrimination became the basis
for ruling upon the admissibility of a confession. The Miranda warnings and a valid waiver are prerequisites to the admissibility
of any statement made by the accused during custodial interrogation. A person in custody must, prior to interrogation, be clearly
informed that:
1. He has the right to remain silent;
2. Anything he says can be used against him in court;
3. He has the right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be appointed for him if he so desires.
a) Note: The Supreme Court has held that the holding of Miranda was based on the requirements of the Fifth
Amendment as made applicable to the states through the Fourteenth Amendment, and therefore Congress cannot
eliminate the Miranda requirements by statute. [Dickerson v. United States—invalidating a statute that purportedly
eliminated Miranda’s requirements that persons in custody and being interrogated be informed of the right to
remain silent and the right to counsel]
5. Need Not Be Verbatim→ Miranda requires that all suspects be informed of their rights without considering any
prior awareness of those rights. The warnings need not be given verbatim, as long as the substance of the warning
is there. [Duckworth v. Eagan—upholding warning that included statement, “We [the police] have no way of giving you
a lawyer, but one will be appointed for you, if you wish, if and when you go to court”] The failure to advise a suspect of
his right to appointed counsel may be found to be harmless error. Michigan v. Tucker; California v. Prysock
6. Rewarning Not Needed After Break→ There is generally no need to repeat the warnings merely because of a break
in the interrogation, unless the time lapse has been so long that a failure to do so would seem like an attempt to take
advantage of the suspect’s ignorance of his rights.
B. WHEN REQUIRED→ Anyone in police custody and accused of a crime, no matter how minor a crime, must be given
Miranda warnings prior to interrogation by the police. Berkemer v. McCarty
1. Governmental Conduct→ Miranda generally applies only to interrogation by the publicly paid police. It does not
apply where interrogation is by an informant who the defendant does not know is working for the police. Illinois v.
Perkins.
a) Rationale: The warnings are intended to offset the coercive nature of police-dominated interrogation, and if the
defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.
b) State-Ordered Psychiatric Exam→ The Fifth Amendment privilege against self-incrimination forbids
admission of evidence based on a psychiatric interview of a defendant who was not warned of his right to
remain silent.
c) Limits on Miranda→ Miranda suggested that every encounter between police and citizens was inherently
coercive. Hence, interrogation would result in compelled testimony for Fifth Amendment purposes.
However, the Supreme Court has been narrowing the scope of Miranda’s application.
(1) MEETING WITH PROBATION OFFICER→ Admission of rape and murder by a probationer to
his probation officer was not compelled or involuntary, despite the probationer’s obligation to
periodically report and be “truthful in all matters.” Minnesota v. Murphy
(2) UNCHARGED WITNESS AT GRAND JURY HEARING→ The Miranda requirements do not
apply to a witness testifying before a grand jury, even if the witness is under the compulsion of a
subpoena. Such a witness who has not been charged or indicted does not have the right to have
counsel present during the questioning, but he may consult with an attorney outside the grand jury

14
 room. A witness who gives false testimony before a grand jury may be convicted of perjury even
though he was not given the Miranda warnings.
2. Custody Requirement→ Determining whether custody exists is a two-step process: The first step (sometimes called
the “freedom of movement test”) requires the court to determine whether a reasonable person under the
circumstances would feel that he was free to terminate the interrogation and leave. All of the circumstances
surrounding the interrogation must be considered. If an individual’s freedom of movement was curtailed in this way, the
next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (i.e., the more
constrained the suspect feels), the more likely the Court will consider it to be custody. If the detention is voluntary, it
does not constitute custody. Berkemer v. McCarty; Oregon v. Mathiason. If the detention is long and is involuntary, it
will likely be held to constitute custody. Mathis v. United States
a) Example: D is in custody when he is awakened in his own room in the middle of the night by four officers
surrounding his bed, who then begin to question him. Orozco v. Texas
b) Test Is Objective→ The initial determination of whether a person is in custody depends on the objective
circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers
or the person being interrogated. Thus, a court would consider things like the location of the questioning
(e.g., suspect’s home, workplace, or school; crime scene; police car; police station); whether police officers
had their guns drawn; the length of the questioning; the suspect’s apparent youth; whether the suspect was
told he could not leave; etc.
c) Traffic Stops Generally Not Custodial→ Although a routine traffic stop curtails a motorist’s freedom of
movement, such a stop is presumptively temporary and brief, and the motorist knows that he typically will
soon be on his way; therefore, the motorist should not feel unduly coerced. Thus, Miranda warnings
normally need not be given during a traffic stop.
(1) Officer stopped Defendant for weaving in and out of traffic. When the officer noticed Defendant had
trouble standing, he performed a field sobriety test, which Defendant failed. Without giving Miranda
warnings, Officer then asked Defendant if he had been drinking, and Defendant admitted to recent
drinking and drug use. The admission is admissible. Berkemer v. McCarty
d) Incarcerated Suspects→ The fact that a suspect is incarcerated does not automatically mean that any
interrogation of the suspect is custodial. The test still is whether the person’s freedom of action is limited in a
significant way. Howes v. Fields
3. Interrogation Requirement→ “Interrogation” refers not only to express questioning, but also to any words or
actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response
from the suspect. Rhode Island v. Innis. However, Miranda does not apply to spontaneous statements not made in
response to interrogation, although officers must give the warnings before any follow-up questioning. Neither does
Miranda apply to routine booking questions (e.g., name, address, age, etc.), even when the booking process is being taped
and may be used as evidence. Pennsylvania v. Muniz
a) Allowing a suspect’s wife to talk to the suspect in the presence of an officer who is taping the conversation with
the spouses’ knowledge does not constitute interrogation. Arizona v. Mauro
C. RIGHT TO WAIVE RIGHTS OR TERMINATE INTERROGATION→ After receiving Miranda warnings, a detainee
has several options: do nothing, waive his Miranda rights, assert the right to remain silent, or assert the right to consult
with an attorney.
1. Do Nothing→ If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver
Fare v. Michael, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult
with an attorney. Therefore, the police may continue to question the detainee. Berghuis v. Thompkins
2. Waive Rights→ The detainee may waive his rights under Miranda. To be valid, the government must show by a
preponderance of the evidence that the waiver was knowing and voluntary. The Court will look at the totality of
the circumstances in deter- mining whether this standard was met. But it appears that if the government can show
that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.
[Berghuis v. Thompkins— suspect scarcely said anything after receiving Miranda warnings, but was held to have
15
 voluntarily waived his right to remain silent when he responded “yes” to an incriminating question posed three hours into
his interrogation]
a) Police Deception of Detainee’s Lawyer→ If the Miranda warnings are given, a voluntary confession will be
admissible even if the police lie to the detainee’s lawyer about their intent to question the detainee or fail to
inform the detainee that his lawyer is attempting to see him, as long as adversary judicial proceedings have
not commenced. Moran v. Burbine
3. Right to Remain Silent → At any time prior to or during interrogation, the detainee may indicate that he wishes to
remain silent. Such an indication must be explicit, unambiguous, and unequivocal (e.g., the detainee’s failure to
answer does not constitute an invoca- tion of the right to remain silent). Berghuis v. Thompkins. If the detainee so
indicates, all questioning related to the particular crime must stop.
a) Police May Resume Questioning If They “Scrupulously Honor” Request→ The police may reinitiate
questioning after the detainee has invoked the right to remain silent, as long as they “scrupulously honor” the
detainee’s request. This means, at the very least, that the police may not badger the detainee into talking and
must wait a significant time before reinitiating questioning.
(1) In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning where:
(1) the police immediately ceased questioning upon the detainee’s request and did not resume questioning
for several hours; (2) the detainee was rewarned of his rights; and (3) questioning was limited to a crime
that was not the subject of the earlier questioning. Michigan v. Mosley
4. Right to Counsel→ At any time prior to or during interrogation, the detainee may also invoke a Miranda (i.e., Fifth
Amendment) right to counsel. If the detainee invokes this right, all questioning must cease until the detainee is
provided with an attorney or initiates further questioning himself. Edwards v. Arizona
a) Police May Not Resume Question About Any Crime→ Once the detainee invokes his right to counsel under
Miranda, all questioning must cease; the police may not even question the detainee about a totally unrelated
crime, as they can where the detainee merely invokes the right to remain silent. Arizona v. Roberson.
(1) Rationale: The right to counsel under Miranda is a prophylactic right designed by the Court to prevent the
police from badgering a detainee into talking without the aid of counsel, and this purpose can be
accomplished only if all questioning ceases. McNeil v. Wisconsin
b) Request Must Be Unambiguous and Specific→ A Fifth Amendment request for counsel can be invoked only
by an unambiguous request for counsel in dealing with the custodial interrogation. McNeil v. Wisconsin,
supra; Davis v. United States. The request must be sufficiently clear that a reasonable police officer in the same
situation would understand the statement to be a request for counsel.
c) Ambiguities Relevant Only If Part of Request→ Once the detainee has expressed an unequivocal desire to
receive counsel, no subsequent questions or responses may be used to cast doubt on the request and all
questioning of the detainee must cease. Where the request is ambiguous, police may ask clarifying questions,
but are not required to do so; rather, they may continue to interrogate the detainee until an unambiguous
request is received. Davis v. United States
d) Counsel Must Be Present at Interrogation→ Mere consultation with counsel prior to questioning does not
satisfy the right to counsel—the police cannot resume questioning the detainee in the absence of counsel.
Minnick v. Mississippi. Of course, counsel need not be present if the detainee waives the right to counsel by
initiating the exchange.
e) Duration of Prohibition→ The prohibition against questioning a detainee after he requests an attorney lasts
the entire time that the detainee is in custody for inter- rogation purposes, plus 14 more days after the
detainee returns to his normal life. After that point, the detainee can be questioned regarding the same matter
upon receiving a fresh set of Miranda warnings. Maryland v. Shatzer—while in prison, detainee was questioned
about alleged sexual abuse, invoked his right to counsel, and was released back into the general prison population
(his normal life); police could reinitiate questioning after 14 days without first providing counsel
f) Statements Obtained in Violation May Be Used to Impeach→ As indicated above, if the detainee requests
counsel, all questioning must cease unless counsel is present or the detainee initiates a resumption of

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 questioning. If the police initiate further questioning, the detainee’s statements cannot be used by the
prosecution in its case in chief, but they can be used to impeach the detainee’s trial testimony, as long as the
court finds that the detainee voluntarily and intelligently waived his right to counsel. Michigan v. Harvey
D. EFFECT OF VIOLATION→ Generally, evidence obtained in violation of Miranda is inadmissible at trial.
1. Use of Confession for Impeachment→ A confession obtained in violation of the defendant’s Miranda rights, but
other- wise voluntary, may be used to impeach the defendant’s testimony if he takes the stand at trial, even though
such a confession is inadmissible in the state’s case in chief as evidence of guilt. Harris v. New York; Oregon v. Hass.
However, a truly involuntary confession is inadmissible for any purpose. Mincey v. Arizona
a) Silence→ The prosecutor may not use the defendant’s silence after receiving Miranda warnings to counter the
defendant’s insanity defense.
b) May Be Harmless Error→ A single question by the prosecutor about the defendant’s silence may constitute
harmless error when followed by an objection sustained by the judge and an instruction to jurors to disregard
the question.
2. Warnings After Questioning and Confession→ If the police obtain a confession from a detainee without giving him
Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the
subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was
intentional (i.e., the facts make it seem like the police used this as a scheme to get around the Miranda
requirements). Missouri v. Seibert. However, a subsequent valid confession may be admissible if the original unwarned
questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent. Oregon v. Elstad
3. Nontestimonial Fruits of an Unwarned Confession→ If the police fail to give Miranda warnings and during
interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be
suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be
suppressed. United States v. Patane
E. PUBLIC SAFETY EXCEPTION TO MIRANDA→ If police interrogation is reasonably prompted by concern for public
safety, responses to the questions may be used in court, even though the suspect is in custody and Miranda warnings are
not given. New York v. Quarles—suspect was handcuffed and asked where he had hidden his gun; the arrest and questioning
were virtually contemporaneous, and the police were reasonably concerned that the gun might be found and cause injury to an
innocent person

[ PRETRIAL IDENTIFICATION ]
I. GENERALLY. The purpose of all the rules concerning pretrial identification is to ensure that when the witness identifies the person
at trial, she is identifying the person who committed the crime and not merely the person whom she has previously seen at the police
station.
II. SUBSTANTIVE BASES FOR ATTACK
A. SIXTH AMENDMENT RIGHT TO COUNSEL
1. When Right Exists→ A suspect has a right to the presence of an attorney at any post-charge lineup or
showup. Moore v. Illinois; United States v. Wade. At a lineup, the witness is asked to pick the perpetrator of the
crime from a group of persons, while a showup is a one-to-one confrontation between the witness and the suspect
for the purpose of identification.
2. Role of Counsel at a Lineup→ The right is simply to have an attorney present during the lineup so that the
lawyer can observe any suggestive aspects of the lineup and bring them out on cross-examination of the
witness. There is no right to have the lawyer help set up the lineup, to demand changes in the way it is
conducted, etc.
3. Photo Identification→ The accused does not have the right to counsel at photo identifications. United States
v. Ash. However, as in the case of lineups, the accused may have a due process claim regarding the photo
identification.
4. Physical Evidence→ The accused does not have the right to counsel when the police take physical evidence
such as handwriting examples or fingerprints from her.

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 B. DUE PROCESS STANDARD→ A defendant can attack an identification as denying due process when the identifica-
tion is unnecessarily suggestive and there is a substantial likelihood of misidenti- fication. It is clear that both parts of
this standard must be met for the defendant to win, and that to meet this difficult test, the identification must be
shown to have been extremely suggestive.
1. Examples:
a) A showup at a hospital did not deny the defendant due process when such a procedure was necessary due
to the need of an immediate identification, the inability of the identifying victim to come to the police
station, and the possibility that the victim might die. Stovall v. Denno
b) A photo identification with only six snapshots did not violate due process where the procedure was
necessary because perpetrators of a serious felony (robbery) were at large, and the police had to
determine if they were on the right track, and the Court found little danger of misidentification. Simmons
v. United States
c) No substantial likelihood of misidentification was found in the showing of a single photograph to a police
officer two days after the crime. Manson v. Brathwaite
d) A fundamentally unfair procedure, such as when the perpetrator of the crime is known to be black and the
suspect is the only black person in the lineup, would violate the due process standard.
III. THE REMEDY→ The remedy for an unconstitutional identification is exclusion of the in-court identification (unless it has an
independent source).
A. INDEPENDENT SOURCE→ A witness may make an in-court identification despite the existence of an
unconstitutional pretrial identification if the in-court identification has an independent source. The factors a court
will weigh in determining an independent source include the opportunity of the witness to observe the criminal at
the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Neil
v. Biggers; Manson v. Brathwaite
B. HEARING→ The admissibility of identification evidence should be determined at a suppression hearing in the
absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of
proof as to the presence of counsel or a waiver by the accused, or as to an independent source for the in-court
identification, while the defendant must prove an alleged due process violation.
IV. NO RIGHT TO LINEUP→ The defendant is not entitled to any particular kind of identification procedure. The defendant
may not demand a lineup.
V. NO SELF INCRIMINATION ISSUE→ Because a lineup does not involve compulsion to give evidence “testimonial” in
nature, a suspect has no basis in the Fifth Amendment privilege against compelled self-incrimi- nation to refuse to participate
in one. United States v. Wade

[ EXCLUSIONARY RULE ]
I. GENERALLY. The exclusionary rule is a judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence
obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights.
A. RATIONALE→ The main purpose of the exclusionary rule is to deter the government (primarily the police) from
violating a person’s constitutional rights: If the government cannot use evidence obtained in violation of a person’s rights,
it will be less likely to act in contravention of those rights. The rule also serves as one remedy for deprivation of
constitutional rights (other remedies include civil suits, injunctions, etc.).
B. SCOPE OF THE RULE
1. Fruit of the Poisonous Tree→ Generally, not only must illegally obtained evidence be excluded, but also all evidence
obtained or derived from exploitation of that evidence. The courts deem such evidence the tainted fruit of the
poisonous tree. Wong Sun v. United States
a) Limitations: Fruits Derived from Miranda Violations→ The fruits derived from statements obtained in violation
of Miranda may be admissible despite the exclusionary rule.
2. Exception- Balancing Test→ In recent cases, the Court has emphasized that in deciding whether to apply the
exclusionary rule, lower courts must balance the rule’s purpose (i.e., deterrence of police misconduct) against its costs
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 (i.e., the exclusion of probative evidence). Therefore, exclusion of tainted evidence, including fruit of the poisonous
tree, is not automatic; whether exclusion is warranted in a given case depends on “the culpability of the police and the
potential of the exclusion to deter wrongful police conduct.” Herring v. United States
a) Independent Source→ Evidence is admissible if the prosecution can show that it was obtained from a source
independent of the original illegality.
(1) Example: Police illegally search a warehouse and discover marijuana, but do not seize it. The police later
return to the warehouse with a valid warrant based on information totally unrelated to the illegal search. If
police seize the marijuana pursuant to the warrant, the marijuana is admissible. Murray v. United States
b) Attenuation– Intervening Act or Circumstance→ If the connection between unconstitutional police conduct and
the evidence is remote or has been interrupted by some intervening circum- stance, so that the causal link
between the police misconduct and the evidence is broken, the evidence will not be suppressed. In such a case,
suppression would not serve the purpose of deterring future misconduct and so the evidence is admissible under
the “attenuation exception” to the exclusionary rule. The court will consider: Brown v. Illinois; Utah v. Strieff
(1) The temporal proximity between the unconstitutional conduct and the discovery of the evidence (the closer
the temporal proximity, the less likely the exception applies);
(2) The presence of intervening circumstances; and
(3) Most importantly, the purpose and flagrancy of the official misconduct.
(4) INTERVENING ACT OF FREE WILL→ An intervening act of free will by the defendant will break
the causal chain between the evidence and the original illegality and thus remove the taint. Wong Sun v.
United States
c) Inevitable Discovery→ If the prosecution can show that the police would have discovered the evidence whether
or not they had acted unconstitutionally, the evidence will be admissible. Nix v. Williams
d) Out-of-Court Identification→ Unduly suggestive out-of-court identifications that create a substantial likelihood
of misidentification can violate the Due Process Clause of the Fourteenth Amendment. Whether an identification
procedure is unduly suggestive is judged on a case-by-case basis under the totality of the circumstances.
However, the Court will not consider applying the exclu- sionary rule unless the unnecessarily suggestive
circumstances were arranged by the police. If the police do not arrange the circumstances, applying the
exclusionary rule would do nothing to deter police misconduct. Perry v. New Hampshire
II. LIMITATIONS ON THE RULE
A. INAPPLICABLE TO VIOLATIONS OF STATE LAW→ The exclusionary rule does not apply to mere violations of state
law. See Virginia v. Moore
B. INAPPLICABLE IN PAROLE REVOCATION HEARINGS→ The exclusionary rule does not apply in parole revocation
proceedings. Pennsylvania v. Scott
C. GOOD FAITH EXCEPTIONS→ The exclusionary rule does not apply when the police arrest or search someone
erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.
United States v. Leon; Herring v. United States. Rationale: One of the main purposes of the exclusionary rule is to deter
improper police conduct, and this purpose cannot be served where police are acting in good faith.
1. Exceptions to Good Faith Reliance on Search Warrant→ The Supreme Court has suggested four exceptions to the
good faith defense for reliance on a defective search warrant. A police officer cannot rely on a defective search
warrant in good faith if:
a) The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied
on it;
b) The warrant is defective on its face (e.g., it fails to state with particularity the place to be searched or the things to be
seized);
c) The police officer or government official obtaining the warrant lied to or misled the magistrate; or
d) The magistrate has “wholly abandoned his judicial role.”
D. USE OF EXCLUDED EVIDENCE FOR IMPEACHMENT→ Some illegally obtained evidence that is inadmissible in the
state’s case in chief may nevertheless be used to impeach the defendant’s credibility if he takes the stand at trial.

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 1. Voluntary Confessions in Violation of Miranda→ An otherwise voluntary confession taken in violation of the
Miranda v. Arizona requirements are admissible at trial for impeachment purposes. Harris v. New York; Oregon v.
Hass. However, a truly involuntary confession is not admissible for any purpose. Mincey v. Arizona
2. Fruit of Illegal Searches→ The prosecution may use evidence obtained from an illegal search that is inadmissible in its
direct case to impeach the defendant’s statements made in response to proper cross-examination reasonably suggested
by the defendant’s direct examination United States v. Havens
E. KNOCK AND ANNOUNCE RULE VIOLATIONS→ Exclusion is not an available remedy for violations of the knock and
announce rule pertaining to the execution of a warrant. Rationale: The exclusionary remedy is too attenuated from the
purposes of the knock and announce rule of protecting human life and limb, property, privacy, and dignity. Moreover,
the cost of excluding relevant evidence because of claims that the knock and announce rule was violated is too high when
compared to the deterrence benefit that will be gained. Finally, there are other deterrents to prevent officers from
violating the rule, such as civil suits and internal police disciplinary sanctions. Hudson v. Michigan
III. HARMLESS ERROR TEST→ A conviction will not necessarily be overturned merely because improperly obtained evidence
was admitted at trial; the harmless error test applies, so a conviction can be upheld if the conviction would have resulted
despite the improper evidence. On appeal, the government bears the burden of showing beyond a reasonable doubt that the
admission was harmless.
IV. ENFORCING THE EXCLUSIONARY RULE→ The defendant is entitled to have the admissibility of evidence or a
confession decided as a matter of law by a judge out of the hearing of the jury. Jackson v. Denno
A. DEFENDANT’S RIGHT TO TESTIFY→ The defendant has the right to testify at the suppression hearing without his
testi- mony being admitted against him at trial on the issue of guilt. Simmons v. United States

[ RIGHT TO COUNSEL ]
I. GENERALLY→ A defendant has a right to counsel under the Fifth and Sixth Amendments. The Fifth Amendment right
applies at all custodial interrogations. The Sixth Amendment right applies at all critical stages of a prosecution after formal
proceedings have begun, including trial. This includes the right of a defendant who does not require appointed counsel to
choose who will represent him. Luis v. United States—government may not freeze assets of a defendant (to assure payment of
penalties or retribution) unrelated to the crime charged, if this prevents the defendant from hiring counsel of choice to defend her
II. REMEDY→ Recall that if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic
reversal of the conviction, even without any showing of specific unfairness in the proceedings. Similarly, erroneous
disqualification of privately retained counsel results in automatic reversal. However, at nontrial proceedings (such as a post-
indictment lineup), the harmless error rule applies to deprivations of counsel.
III. WAIVER OF RIGHT TO COUNSEL AT TRIAL AND RIGHT TO DEFEND ONESELF→ A defendant has a right to
represent himself at trial as long as his waiver is knowing and intelligent Faretta v. California and he is competent to proceed
pro se Indiana v. Edwards. The Court has held that a waiver will be held to be voluntary and intelligent if the trial court finds—after
carefully scrutinizing the waiver—that the defendant has a rational and factual understanding of the proceeding against him. The
Court has not established the standard for determining whether the defendant is mentally competent. It has been noted that a
defendant may be mentally competent to stand trial and yet incompetent to represent himself, based on the trial judge’s consideration
of the defendant’s emotional and psychological state.
A. Note: On appeal, a defendant has no right to represent himself. Martinez v. Court of Appeal
IV. INDIGENCE AND RECOUPMENT OF COST→ As indicated above, if the defendant is indigent, the state will provide an
attorney. Indigence involves the present financial inability to hire counsel, but none of the right to counsel cases defines
indigence precisely. In any case, judges generally are reluctant to refuse to appoint counsel because of the risk of reversal
should the defendant be determined indigent. The state generally provides counsel in close cases of indigence, but it may then
seek reimbursement from those convicted defendants who later become able to pay.
V. EFFECTIVE ASSISTANCE OF COUNSEL→ The Sixth Amendment right to counsel includes the right to effective counsel.
The ineffective assistance claim is the most commonly raised constitutional claim. With this claim, the defendant seeks to
secure not malpractice damages, but rather a reversal of his conviction and a new trial.

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 A. EFFECTIVE ASSISTANCE PRESUMED→ Effective assistance of counsel is presumed unless the adversarial process is so
undermined by counsel’s conduct that the trial cannot be relied upon to have produced a just result. Strickland v.
Washington
B. RIGHT EXTENDS TO FIRST APPEAL→ Effective assistance of counsel is also guaranteed on a first appeal as of right.
Evitts v. Lucey
C. CIRCUMSTANCES CONSTITUTING INEFFECTIVE ASSISTANCE→ An ineffective assistance claimant must show:
1. Deficient performance by counsel; and that
2. But for such deficiency, the result of the proceeding would have been different (e.g., defendant would not have been
convicted or his sentence would have been shorter).
a) Strickland v. Washington. Typically, such a claim can be made out only by specifying particular errors of trial
counsel, and cannot be based on mere inexperience, lack of time to prepare, gravity of the charges, complexity of
defenses, or accessibility of witnesses to counsel. United States v. Cronic
b) Note: The Sixth Amendment safeguards a defendant’s autonomy to decide whether to assert innocence in the guilt
phase of a capital trial. Thus, when counsel admits his client’s guilt in the face of the defendant’s clearly
articulated desire to maintain his innocence in this context, a new trial must be granted without any need to first to
show prejudice. McCoy v. Louisiana
3. Plea Bargaining Cases→ The Sixth Amendment requires effective assistance at all critical stages of a prosecution.
Because the plea stage is a critical stage, Strickland applies to plea bargain cases as well as cases that go to trial. In a
plea bargain case, the defendant must show deficient performance and a reasonable possibility that the outcome of
the plea process would have been different with competent advice. An attorney’s failure to notify a defendant of a
plea offer can constitute deficient performance if the defendant can show that had the plea agreement been
communicated he likely would have accepted, and the plea likely would have been entered without the
prosecutor’s canceling it. Missouri v. Frye. Moreover, deficiencies in counsel at this stage are not obviated by the fact
that the defendant subsequently has a fair trial (after turning down a plea offer). Lafler v. Cooper
D. CIRCUMSTANCES NOT CONSTITUTING INEFFECTIVE ASSISTANCE→ Circumstances not constituting
ineffective assistance include:
1. Trial Tactics→ Courts will not grant relief for any acts or omissions by counsel that they view as trial tactics.
a) It was not ineffective assistance in a capital murder trial to fail to obtain a client’s affirmative consent to the
strategy of going to trial and not challeng- ing guilt (rather than pleading guilty) in hopes of having more
credibility at sentencing. Florida v. Nixon
b) It was not ineffective assistance when appointed counsel for an indigent defendant refused to argue nonfrivolous
issues that the attorney had decided, in the exercise of her judgment, not to present. [Jones v. Barnes
c) It was not ineffective assistance when an attorney failed to present miti- gating evidence or make a closing
argument at a capital sentencing proceeding when counsel asserted that mitigating evidence had just been
presented at trial, the defendant’s mother and other character witnesses would not have been effective and might
have revealed harmful information, and a closing argument would have allowed rebuttal by a very persuasive lead
prosecutor. Bell v. Cone
2. Failure to Raise Constitutional Claim that Is Later Invalidated→ The failure of a defendant’s counsel to raise a
federal constitutional claim that was the law at the time of the proceeding but that was later overruled does not
prejudice the defendant within the meaning of the Sixth Amendment and does not constitute ineffective
assistance of counsel.
VI. CONFLICTS OF INTEREST→ Joint representation (that is, a single attorney representing co-defendants) is not per se
invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses
to appoint separate counsel, the defendant is entitled to automatic reversal. Holloway v. Arkansas If the defendant does not object
to joint representation in a timely manner, to obtain reversal the defendant must show that the attorney actively represented
conflicting interests and thereby prejudiced the defendant. Burger v. Kemp
A. CONFLICT WITH ATTORNEY IS RARELY GROUND FOR RELIEF→ A defendant can rarely obtain relief by
claiming a conflict of interest between himself and counsel. Conflicts between a defendant and his attorney are best
analyzed as claims of ineffective assistance of counsel. To be successful, the defendant must demonstrate that the conflict
with his attorney was so severe that the attorney could not effectively investigate or present the defendant’s claims.
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 B. NO RIGHT TO JOINT REPRESENTATION→ While a defendant ordinarily has the right to counsel of her own
choosing, a defendant has no right to be jointly represented with her co-defendants. Trial courts have the authority to
limit joint representation to avoid potential and actual conflicts of interest. Even when all of the defendants waive any
claim to conflicts of interest, the trial court can still prohibit the joint representation. Wheat v. United States
VII. RIGHT TO SUPPORT SERVICES FOR DEFENSE→ Where a defendant has made a preliminary showing that he is likely to
be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense. Where a state
presents evidence that the defendant is likely to be dangerous in the future, the defendant is entitled to psychiatric examination
and testimony in the sentencing proceeding. Ake v. Oklahoma
VIII. SEIZURE OF FUNDS CONSTITUTIONAL→ The right to counsel does not forbid the seizure—under the federal drug
forfeiture statute [21 U.S.C. §853]—of drug money and property obtained with drug money, even when such money and
property were going to be used by the defendant to pay his attorney of choice. Caplin & Drysdale, Chartered v. United States

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