Criminal Procedure Case Outline

Published on May 2016 | Categories: Documents | Downloads: 30 | Comments: 0 | Views: 392
of 40
Download PDF   Embed   Report

Cases categorically outlined, tailored to Saltzburg

Comments

Content

I.

INTRODUCTION
a. A Criminal Case
i. U.S. v. L.O. Ward 1980: Civil penalty, no Fifth Amendment
problem. Hazardous dumping
ii. Allen v. Illinois 1986: Sexual offender commitment proceedings
designated civil by statute. Designation matters.
iii. Kansas v. Hendricks 1997: Even if permanent commitment after
jailing, can still be civil if measure isn’t punitive, and is
designated by statute
iv. Smith v. Doe 2003: Sex offender registration is civil.
b. Incorporation
i. Barron v. Baltimore 1833: BoR applies only to Federal
ii. Hurtado v. California 1884: Right to be indicted by grand jury
does not apply to the states.
iii. Twining v. New Jersey 1908: Privilege against self-incrimination
not binding on states
iv. Palko v. Connecticut 1937: Implicit in the concept of ordered
liberty. Is it absolutely impossible to have a fair trial without
this right?
v. Duncan v. Louisiana 1968: Selective Incorporation: 14th
amendment protects rights fundamental in the context of
criminal processes maintained by the American States.
vi. McDonald v. City of Chicago 2010: Right to bear arms fully
applicable to the States. Fundamental to our scheme of
ordered liberty and system of justice?
vii. Three Options
1. Total (Whole BoR applies to States)
2. Selective (Prevailing test): Fundamental to AngloAmerican scheme of justice
3. None (Barron)
c. Retroactivity
i. Griffith v. Kentucky 1987 (Harlan): Retroactivity for cases on
direct review.
ii. Teague v. Lane 1989: Don’t apply retroactively to cases on
collateral review (habeas) unless new rule makes crime no
longer a crime or the new rule is fundamental to a system of
ordered liberty.
1. Note: Griffith and Teague decisions were the Harlan
dissent in Desist.
iii. Collins v. Youngblood 1990: Teague not applied sua sponte
iv. Yates v. Aiken 1988: Applying settled precedent not a “new”
rule, and thus is completely retroactive
v. Butler v. McKellar 1990: If all “reasonable” minds would have
viewed the “new” rule as following precedent, not actually new
vi. Johnson v. Texas 1993: Rejecting habeas reasoning can later
help reject on merits
vii. Williams v. Taylor 2000: Habeas review only if State violated
“clearly established” law. AEDPA codifies Teague. State
application examined as law was when applied.

II.

viii. Davis v. U.S. 2011: Good faith application of old rule before new
rule can bar remedy, because no deterrence.
ix. Danforth v. Minnesota 2008: States can allow more retroactivity
x. Lockhart v. Fretwell 1993: Detrimental changes in law apply
retroactively to habeas petitioners. Essentially states benefit but
defendants don’t.
xi. Policy Problems
1. Reliance: LEO need to be able to reasonably rely
2. Overburden: Trial courts would be slammed if every
decision was retroactive
SEARCH AND SEIZURE/ FOURTH AMENDMENT
a. Fourth Amendment: People have right from unreasonable search and
seizure. Warrants must be based on probable cause and be specific to
place to be searched and persons or things to be seized. Warrant
clause predominates (Presumed unreasonable if no warrant).
b. U.S. v. Verdugo-Urquidez 1990: 4th Amendment protects people in the
U.S. from the tyranny of the U.S. govt. Need to be connected enough
(Mexican citizen in Mexico not enough).
c. Katz v. U.S. 1967: FBI bugged phone booth, strong probability of illicit
activities, surveyed only Katz’ conversations. Government violated his
expectation of privacy
i. 4th Amendment protects people and not places
ii. Two-Pronged Test (Harlan Concurrence)
1. Subjective manifestation of privacy expectation
2. Societally reasonable expectation
iii. Trespass Analysis
d. U.S. v. Jones 2012: Expired warrant, tracking device on car.
Occupation of private property for purpose of obtaining information.
i. Physical Intrusion was a search. (Trespass analysis still valid).
ii. Sotomayor: Wants 3rd Party Disclosure doctrine, because of vast
relinquishing of private information daily during mundane tasks
e. Florida v. Jardines 2013: Narcotics dog on porch sniffed around
indicating narcotics in house
i. “Open fields” not protected. But curtilage (immediately
surrounding/adjacent area to house) protected by 4 th
Amendment.
ii. Physical intrusion onto curtilage.
f. Kentucky v. King: Knock and talks allowed, as anyone could do it. But
no dog. Intention irrelevant.
g. U.S. v. Place: No privacy interest in illegal activity.
h. Texas v. Brown 1983: Search and seizure are two separate protected
things, and need not be concurrent
i. Soldal v. Cook County 1992: Seizing with no search (towing trailer)
covered by 4th.
j. Subjective Manifestation
i. Smith v. Ohio 1990: Reaching for bag thrown on hood of car
manifests intention of privacy. Not abandonment.
k. Open Fields
i. Hester v. U.S. 1924: Open fields not constitutionally protected.

ii. Oliver v. U.S. 1984: Footpath around gate into marijuana field.
Not protected.
1. Only areas around home protected
2. No social interest in privacy in open fields
3. Beyond curtilage not protected
iii. U.S. v. Dunn 1987: Four Factors of curtilage
1. Proximity to home
2. Within an enclosure surrounding the home?
3. Nature of the uses to which the area is put
4. Steps taken by resident to prevent observation by
passers-by
5. NOTE: Visual inspection from outside curtilage not a
search
l. Access by Members of the Public
i. Consensual Electronic Surveillance
1. U.S. v. White: One who commits a crime assumes the
risk that their companion may report to police (or be
bugged in this case).
ii. Financial Records
1. U.S. v. Miller 1976: Depositor allows records to be
accessible to bank, so no reasonable expectation of
privacy.
iii. Pen Registers
1. Smith v. Maryland 1979: Pen register on phone not a
search, because phone company can see numbers.
2. Note: Phone provider must give consent, or court must
issue order.
iv. Trash
1. California v. Greenwood 1988: No expectation of privacy
in trash if sufficiently exposed to public. Empirical test,
as most people don’t look through trash but legally can.
v. Public Areas
1. Homeless expectation of privacy to effects (Connecticut v.
Mooney C)
2. Peering in gap of bathroom stall not search (U.S. v. White
C)
vi. Aerial Surveillance
1. California v. Ciraolo 1986: Public vantage point not a
search.
2. Dow Chemical Co. v. U.S. 1986: Aerial photographs by EPA
allowed.
3. Ordinary Overflights Florida v. Riley 1989: Empirical
test, hovering helicopter ok (Note concurrence wants
normative test).
vii. Manipulation of Bags in Public Transit
1. Bond v. U.S. 2000: Excessive manipulation of bag in public
transit is search. Normative test.
2. NOTE: Both normative and empirical used by Supreme
Court, with no real explanation of why which when.

m. Investigation That Can Only Reveal Illegal Activity
i. Canine Sniffs
1. U.S. v. Place 1983: Dog can only detect illegal contraband.
Sniff of closed suitcase not a search. CANNOT detain
luggage before sniff.
ii. Dog-Sniff of a Car During a Routine Traffic Stop
1. Illinois v. Caballes 2005: Lawfully seized for traffic
violation, dog-sniff ok, BUT can’t extend stop
iii. Chemical Testing for Drugs
1. U.S. v. Jacobsen 1984: Since test only positive or negative
for cocaine, no privacy interest. Destruction of powder is
seizure, but since a small amount and was probably
contraband, this is reasonable.
a. Reopening package after FedEx employee opened
and informed DEA ok, because employee not
covered by 4th
n. Kyllo v. U.S. 2001: Thermal imager can detect infrared radiation and
determine heat differences
i. This is a search. Can’t use sense-enhancing technology not in
general public use
ii. Normative Test (Bright line rule)
o. Electronic Tracking
i. After Jones: Can’t trespass on person or property, and can’t be
so “prolonged” of tracking that would be unreasonable to public.
ii. Knotts 1983: Beeper in chloroform as per consent of selling
company. Could have visually followed, so no search.
iii. Karo 1984: No expectation of privacy for tracking information
from DEA can of ether. Foreign object in can did not dispossess.
NOTE: CANNOT track in a home.
p. Other Searches and Seizures
i. Private Activity
1. Burdeau v. McDowell 1921: Private party conducting
searches not protected under 4th Amendment
2. Skinner v. Railway Labor Executives Ass’n 1989: Federal
regulation mandating testing, even if by private, is
covered by 4th
ii. Govt. Investigation After Private and Legal Searches
1. Walter v. U.S. 1980: Partial invasion (mis-delivered
package) does not authorize total invasion (seeing
contents). Plain view still ok.
2. Illinois v. Andreas 1983: Resealing properly searched item
does not reinstate expectation of privacy
iii. Foreign Officials: Need not comply with 4th if searched in their
country (Behety C) BUT if search too extreme as to shock
judicial conscience, OR U.S. participation makes it a joint
venture, 4th applies (Barona C).
iv. Jails
1. Hudson v. Palmer 1984: No privacy expectation in prison
cell as to effects

III.

v. Public Schools and Public Employees
1. New Jersey v. T.L.O. 1985: Some privacy expectation in
items taken to school. Search must be reasonable.
2. O’Connor v. Ortega 1987: Some expectation of privacy at
work, particularly in desk and file cabinets. Need
reasonable suspicion to search. Work product gets no
protection
WARRANT CLAUSE
a. Probable Cause
i. Johnson v. U.S. 1948: Informer told of opium smoking in hotel
room. Officers smelled it burning from hallway.
1. With no exception, no amount of evidence breaks warrant
requirement, because need neutral magistrate to stand
between police and people
ii. Want searches to be justified and not arbitrary. Furthermore,
want to prevent excessive governmental intrusions.
iii. Aguilar-Spinelli 1969: Tracked movement for 5 days. Parked in
same spot, and entered same building. Two phone numbers in
house. Known to be a bookmaker. Harlan two-prong test for
probable cause when there is an informant.
1. Reliability/credibility of the informant
a. Officers and law abiding citizens presumed reliable
b. Criminal/ex-criminal presumed reliable if good track
record of reliable information, OR make
declarations against their interests
2. Establishing “underlying circumstances” sufficient to
enable magistrate to independently judge validity of
informant’s information
a. Direct statements of personal knowledge
b. Wealth of detail
3. NOTE: Prongs are independent.
4. Draper: Corroboration by police of information can
remedy less than convincing prongs
5. Nathanson: Police statement can’t just be conclusory
6. Geordinello: Need more than just saying informant is
reliable
iv. Illinois v. Gates 1983: Anonymous letter led to marijuana in
Gates’ car
1. Totality of the circumstances to determine fair
probability. LESS STRINGENT than Aguilar-Spinelli
2. Factors (Morales C):
a. Nature of information
b. Opportunity for police to see or hear the matter
c. Veracity and basis of knowledge of informant
d. Independent corroboration
3. Corroboration examples
a. Peyko C: Lending color to an activity can lead to
probable cause

b. Wilhelm C: Accurate description of marijuana and
directions to home not enough, anyone could do
that
v. Massachusetts v. Upton 1984: Officer confirmed tipsters identity,
who spoke of first hand viewing of contraband. Enough detail
and motive.
vi. Patterson C: Confession by co-participant enough for probable
cause.
vii. U.S. v. Prandy-Binett (D.C.): Block duct taped in bag, looked like
1 kilo of drugs.
1. Common sense determination to decide on fair
probability
2. Note: Gates standard is less than probable cause.
b. Warrants and Arrests
i. Probable cause to arrest determined by whether there is a fair
probability to believe that the person arrested has committed
a crime
ii. Mistaken arrest ok if probable cause
iii. Maryland v. Pringle 2003: Reasonable to think passengers and
driver may be engaged in common enterprise. All 3 men could
have had dominion and control over cocaine. Totality of
circumstances, not bright line.
iv. Florida v. Harris 2013: Probable cause not looked in
hindsight. Dog sniff probable cause determined based on dog’s
training and certification records. Defendant can rebut this.
v. Devenpeck v. Alford 2004: Subjective intent irrelevant if there is
probable cause based on known facts. Can arrest for wrong
crime even. Impersonating police officer.
vi. Collective Knowledge Whitely v. Warden 1971: Police officers
entitled to assume officers requesting aid in execution of
arrest warrant offered the magistrate the information requisite.
vii. Staleness of Information: No arbitrary time limit on staleness.
Still totality of circumstances.
c. Search/Seizure Warrants
i. First Amendment Concerns New York v. P.J. Video 1986:
Probable cause standard is the same for presumptively
protected information.
ii. Warden v. Hayden 1967: Must be some nexus between items to
be seized and criminal behavior, but no distinction between
fruits of crime and “mere evidence”.
iii. Zurcher v. Stanford Daily 1978: Probable cause that Stanford
Daily photographer took pictures of demonstrators who attacked
a group of police officers
1. Critical element is reasonable cause to believe that the
specific “things” to be search for and seized are located
on the property to which entry is sought. Probable
cause is enough regardless of the character of the
person.

2. Nothing special about 3rd party premises.
iv. Describing the Place to Be Searched
1. Functions of the Particularity Requirement:
Establishes probable cause prior to search. Also prevents
unfettered search power based on blank check warrant.
2. Reasonable Particularity
a. Maryland v. Garrison 1987: Officers reasonably
thought they were searching only one apartment,
so warrant still valid even though it was two.
b. U.S. v. Johnson C: Can search multiple dwellings if
(1) probable cause to search each unit or (2)
targets of the investigation have access to entire
structure
c. Need sufficient particularity to enable executing
officer to locate and identify premises with
reasonable effort, without reasonable probability of
mistake.
3. Wrong Address Lyons C: Sufficiently directs, valid even
if address wrong.
4. Breadth of Place to be Searched: Garage, shed,
curtilage, locked bedroom (even of non-suspect (Kyles C)),
visitor’s property if it could contain item being search for
(Gonzalez C), any item that could hold item being search
for at all.
v. Describing Things to Be Seized
1. Andresen v. Maryland 1976: Catch-all phrases are not
unconstitutional per se, but they must be particular
enough to not make warrant overbroad.
2. Searches of Computers
a. No real restrictions on files (Guest v. Leis C)
b. Officers should move from most obvious to least
obvious files (will probably still search all) (U.S. v.
Richards C)
3. Reasonableness Particularity
a. Need not be elaborately detailed, only reasonably
specific.
4. Severability
a. Overbroad catch-all does not taint evidence seized
that was particularly described (can sever) (U.S. v.
Brown C)
vi. Reasonableness Limitations on Warranted Searches
1. Winston v. Lee 1985: Medical risks in operation can make
search unreasonable. Lodged bullet.
vii. FRCrimPro 41(e)(2)(A): Particularity, executed w/in 14 days,
during the day unless there is good cause authorization
otherwise (6 am to 10 pm).
d. Executing the Warrant
i. Knock and Announce

IV.

1. Wilson v. Arkansas 1995: Not a rigid constitutional
requirement. Reasonableness test. Things like: hot
pursuit, risk of destruction of evidence, and safety of
officers can override knock and announce.
2. Can break open premises if admittance refused.
3. If door open, no need to knock and announce since no
“breaking” (Mendoza C)
4. Richards v. Wisconsin 1997: To justify “no-knock” must
have reasonable suspicion that knocking and
announcing their presence, under the particular
circumstances, would be dangerous or futile, or that
it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of
evidence.
5. U.S. v. Banks 2003: Can get no knock warrant with
advance showing. Also, can break down, with test of how
long before officer could reasonably infer exigent
circumstances would occur.
6. U.S. v. Ramirez 1998: Limited destruction to prevent
violent activity ok. Broke window to stop man thinking he
was being burgled from shooting gun into ceiling.
7. Hudson v. Michigan 2006: Violation of knock and
announce does not justify exclusion.
e. The Screening Magistrate
i. Neutral and Detached
1. Coolidge v. New Hampshire 1971: Executive officer, head
of law enforcement, not neutral and detached magistrate
2. Connally v. Georgia 1977: Magistrate paid fee is issued
warrant, paid nothing if denial, not neutral and detached
3. U.S. v. Decker C: CANNOT be rubber stamp without
reading (difficult to prove)
ii. Lgeal Training
1. Shadwick v. City of Tampa 1972: Clerks can qualify as
neutral and detached magistrates despite lack of legal
training. Only extends to breaches of municipal
ordinances
a. Neutral and detached
b. Competent to look at facts in the affidavit and
determine fair probability
EXCEPTIONS TO THE WARRANT CLAUSE
a. Arrests in Public and in the Home
i. Standards for Warrantless Arrests §120.1 Arrest Without
a Warrant
1. Can arrest for:
a. Felony
b. Misdemeanor, and officer has reasonable cause to
believe person will not be apprehended unless

ii.

iii.

iv.

v.

vi.

immediately arrest OR may cause injury to self,
others, or property
c. OR Misdemeanor committed in the officer’s
presence
2. Must still have probable cause.
Arrest Versus Summons
1. Gustafson v. Florida 1973: Persuasive claim that maybe
should be no custodial arrest for minor traffic violation
(NOT LAW)
2. Atwater v. City of Lago Vista 2001: Too difficult to
distinguish offenses that justify custodial arrest. Decision
to arrest or issue summons is at officer’s discretion.
Arrests in Public
1. U.S. v. Watson 1976: Warrantless arrests not
presumptively unconstitutional. Need no proof of exigent
circumstances. See §120.1 Arrest Without a Warrant
Excessive Force
1. Tennessee v. Garner 1985: Deadly force not allowed to
prevent escape unless necessary to prevent escape and
officer has probable cause to believe that suspect poses
significant threat of death or serious injury to officer or
others.
2. Graham v. Connor 1989: All excessive force claims
governed by 4th. Weigh severity of crime with amount of
force and immediate threat and resisting or evasion
3. High Speed Chase Scott v. Harris 2007: Officer ramming
fleeing car. Balance risk of harming suspect against risk to
public safety.
4. Plumhoff v. Rickart 2014: Deadly force allowed by
shooting into car. Stopped once flight ended, so ok.
Protections Against Erroneous Warrantless Arrests
1. Gerstein v. Pugh 1975: Prompt post-arrest assessment of
probable cause entitled to one arrested without warrant.
2. County of Riverside v. McLaughlin 1991: Up to 48 hours is
prompt, and burden on suspect to show unreasonable.
After 48 hours, burden on gov’t to show bona fide
emergency or other extraordinary circumstances.
3. Note: Exclusion only when no probable cause or evidence
wouldn’t have been gotten without unreasonably long
detention
Arrests in the Home
1. Payton v. New York 1980: Threshold of protection over
home may not reasonably be crossed without warrant or
exigent circumstances.
2. Doorway arrests public if door opened voluntarily, in
home if ordered to open door.
3. Steagald v. U.S. 1981: Absent exigent circumstances,
search warrant must be obtained to look for a suspect in

vii.

b. Stop
i.

ii.

iii.

iv.
v.
vi.
vii.

the home of a third party. Suspect has no higher privacy
expectation in other’s home.
4. Minnesota v. Olson 1990: Warrant required to arrest
overnight guest in third party’s home
5. Minnesota v. Carter 1998: Simply being a guest on
premises does not require a warrant as per Olson.
Material Witness
1. Stein v. New York 1953: Can arrest material witness under
certain circumstances.
2. Hurtado v. U.S. 1973: No constitutional right to monetary
compensation for time spent in confinement as a material
witness.
3. Ashcroft v. Al-Kidd 2011: Objective test to decide if
reasons to believe necessary to detain material witness
are sufficient.
and Frisk
Terry v. Ohio 1968: Men seemed to be casing store. Officer
stopped and frisked.
1. Can stop if there is reasonable suspicion that criminal
activity is afoot.
2. Can frisk outer clothing if there is reasonable suspicion
that the suspect is armed and dangerous. ONLY
justification is for officer and others protection.
3. No good faith exception. Officer may draw on experiences
Adams v. Williams 1972: Informant’s tip can be enough for a
forcible stop, if reliable to the police officer.
1. Must be articulable suspicion. Even a probable innocent
explanation does not erase reasonable suspicion.
Something less than 50%.
Pennsylvania v. Mimms 1977: Frisked after stopping for traffic
summons. Automatic right under Terry to order suspect out of
vehicle upon legal stop. Need reasonable suspicion of traffic
offense.
Maryland v. Wilson 1997: Mimms applies to all passengers.
Bright line rule.
Arizona v. Johnson 2009: Must have reasonable suspicion to frisk
passengers and drivers, not automatic.
New York v. Class 1986: Officer can reach into car to move
papers to view VIN number. Can only do so if not plainly visible
from outside vehicle.
Detention of Occupants of a Residence During Legal Law
Enforcement Activity
1. Michigan v. Summers 1981: Even leaving occupants can
be held in home during execution of warrant. Prevent
flight ad destruction.
2. Muehler v. Mena 2005: Officer authority to detain
incidental to search. Handcuffs can be acceptable under

circumstances. Length of detention is an interest to be
balanced.
3. LA County v. Rettele 2007: Can even be shortly held at
gunpoint to secure the room.
4. Bailey v. U.S. 2013: Summers doesn’t extend to being
held far from premises. Cannot be detained beyond
“immediate vicinity”.
viii. The Line Between “Stop” and “Encounter”
1. “Free to Leave” Test U.S. v. Mendenhall 1980: Drug
dealer suspect in Detroit Airport. Asked her to airport to
question, asked to search bag, and found drugs.
a. Police can encounter people and not seize if person
feels they are free to leave. Factors: Presence of
several officers, display of weapon, physical
contact, use of language and tone indicating
compliance is compelled.
b. Cannot use coercive tactics
c. Objective reasonable person test
2. Florida v. Royer 1983: Officers thought Royer matched
drug courier profile. Asked him to come to room. Seized
his bags without consent. Royer unlocked bag and
consented to it being searched.
a. Royer did not feel free to leave. No probably cause
before suitcase opened. Seizing of his id and
luggage kept him there, and he did not know he
could not consent.
3. Ordering driver to turn off engine is seizure.
4. INS v. Delgado 1984: INS officers did not seize workers
when they conducted factory surveys in search of illegal
aliens
a. Even with guards at doors, activity continued
normally and no one was constrained. No seizure.
b. For an encounter, no suspicion is required
c. Failure to cooperate cannot be treated as
suspicious conduct to justify a Terry stop
5. U.S. v. Cardoza C: One way street called over to unmarked
car to ask some questions.
a. Conduct must objectively communicate that the
officer is exercising his or her official authority to
restrain the individual’s liberty of movement for a
seizure. So not here.
6. Bus Sweeps
a. U.S. v. Drayton 2002: Officers not required to tell
Drayton that he could terminate the encounter.
b. Bostick: Proper test on bus is whether a
reasonable person would feel free to decline the
officers’ request or otherwise terminate the
encounter.

ix. State of Mind Required for a Stop
1. Brower v. County of Inyo 1989: Seizure when there is a
government termination of freedom of movement through
means intentionally applied. E.g. roadblock here.
2. Brendlin v. California 2007: When officer stops a car
intentionally, Brower stop has occurred with regards to
everyone in the car.
x. Submission
1. California v. Hodari D. 1991: Youths scattered at sight of
police, and Hodari chucked cocaine.
a. “Dropsie” case
b. Physical display of authority is always a seizure.
c. Non-physical display of authority not a seizure
until the suspect yields. So not seized until
tackled.
xi. Reasonable Suspicion
1. Brignoni-Ponce 1975: Court must examine source to
determine if information is sufficiently suspicious to
justify a stop
2. Anonymous Tips
a. Alabama v. White 1990: Anonymous tip significantly
corroborated by police officer.
i. Reasonable suspicion less stringent than
probable cause. Quantity and quality of
information need be less.
b. Florida v. J.L. 2000: Anonymous tip that person
carrying gun without more, enough? No
i. Anonymous tips can be reliable if they
forecast future movement.
ii. No firearms exception. MAYBE bomb tip
exception
iii. Factors (Chavez C): True anonymity,
contemporaneous first-hand knowledge,
detailed information, stated motivation,
corroboration
c. Navarette v. California 2014: 911 call about
reckless driver.
i. Driving reported was sufficiently dangerous
to merit an investigative stop without waiting
to observe more reckless driving.
ii. Relevant that 911 systems make
identification of callers easier.
iii. Scalia dissent concerned about too big of an
allowance. Thinks there should be more
detail, or corroboration first.
d. Domestic Violence: Domestic violence stops
allowed without corroboration (Hicks C don’t want
to delay emergencies)

3.

4.

5.

6.

7.

e. Anonymity: Face to face with officer not really
anonymous (Heard C). Distinguishing
characteristics can make it not anonymous (Brown
C).
Quantum of Suspicion
a. U.S. v. Cortez 1981: Looking for fair possibility
under the totality of the circumstances.
Particularized objective basis for suspecting the
particular person stopped of criminal activity.
b. Note of Comparison: Reasonable suspicion less
than probable cause. Could be thought of as
“possible cause”. E.g. 1 in 40 not enough for
probable cause, but enough to search 40 rooms
under reasonable suspicion. 1 in 600 would have
neither. (Winsor C).
c. Assessment of Probabilities
i. U.S. v. Arvizu 2002: Experience and
specialized training of officers (border patrol
e.g.) is a factor to consider.
Reasonable Suspicion of a Completed Crime
a. U.S. v. Hensley 1985: Another officer can make a
stop if one officer has reasonable suspicion to stop
the defendant and asked for assistance (collective
knowledge).
Use of Profiles: NO legal significance in presence or
absence of particular characteristics of a profile (Berry C).
a. U.S. v. Sokolow 1989: BUT matching characteristics
can be factors, and if weighed together make
reasonable suspicion, profile can be ok.
b. Overbroad Profile Factors: Things like a “source
state” of drugs not enough to stop a car with said
plates. Can’t be only factor. (Beck C).
Reasonable Suspicion and Flight from the Police
a. Illinois v. Wardlow 2000: Fled upon seeing caravan
of police vehicle converge on heavy narcotics area
of Chicago.
i. High crime area alone not enough, but is a
relevant factor.
ii. Unprovoked flight not necessarily
indicative of wrongdoing, but is suggestive of
such.
iii. Commonsense judgments and inference
about human behavior.
Race
a. City of St. Paul v. Uber 1990: Vehicle spotted twice
in area with high prostitution.
i. No resident needs a reason to be driving on a
public street.

b. Weaver: Race can be A factor, but cannot be
the ONLY factor
c. Ramos 2010: Race not dispositive or always
relevant. But IF relevant, can be A factor.
d. Floyd v. The City of New York SDNY 2013: 80% of
stops in NYC blacks or Hispanics.
i. Stop and Frisk with no reasonable suspicion
are unconstitutional. Policy not allowed.
e. Ligon v. City of New York: Stopping entering and
exiting partly private building with no other action
is unconstitutional, as not founded on reasonable
suspicion of trespass.
f. Four prevailing views
i. Racial profiling is irrational/inefficient.
ii. Racial profiling is rational and it works.
(Weaver)
iii. Racial profiling is rational/works but is unAmerican and immoral. (Kennedy)
iv. Racial profiling should be used for terrorism,
but not ordinary crimes. (Turley and Taylor)
c. Terry Searches and Detentions
i. Limited Searches for Police Protection Under Terry
1. Minnesota v. Dickerson 1993: Cannot pat down further
after determining there is no weapon. Purpose can only
be protection.
2. Suspicion Required to Support the Right to Frisk
a. E.g. High crime area, suspect acting nervous,
backing away, stumbling, etc. (Rideau C)
3. Frisking Based on the Type of Crime for Which the
Person is Suspected: More assumable right to frisk
suspect of violent crime. Nonviolent (e.g. tax offense) not
enough to assume frisk alone.
4. Michigan v. Long 1983: Erratic driving, swerved into ditch.
Protective search of passenger compartment found
marijuana.
a. Can search the grab area.
5. Ybarra v. Illinois 1979: Person’s mere presence in a bar
when police arrived to execute search warrant not enough
to provide reasonable belief that he posed a risk of harm
to the officers without further sufficient facts.
6. Maryland v. Buie 1990: Quick and limited search of
premises for other person, incident to an arrest
and conducted to protect the safety of police
officers or others.
a. Buie Sweep
b. Can only be cursory in reasonable hiding places.
CANNOT be done to prevent destruction of
evidence.

ii.

iii.

iv.
v.

c. Can occur when there is no arrest if officers have
reason to believe person in the area can obtain
access to a weapon and use it (Gould C).
The Line Between Stop and Arrest
1. Florida v. Royer: Officers can move people a short
distance for a brief moment for their safety.
Otherwise, probable cause required to force
movement in order to further investigation (e.g.
small room to search luggage)
2. Hicks C: With reasonable suspicion, transporting a suspect
a short distance for identification purposes by witnesses is
permissible under Terry.
3. Officer may verify information from suspect by
communicating with others, conducting preliminary
investigations (e.g. vehicle registration check), and can
detain on reasonable suspicion to conduct canine sniff.
4. Hiibel v. 6th Judicial D.Ct. of Nevada 2004: The principles of
Terry permit a state to require a suspect disclose his
name in the course of a Terry stop.
5. Terry stop cannot be a fishing expedition (Santiago C)
6. If in course of stop to investigate crime A, officers obtain
reasonable suspicion to investigate crime B, can extend
detention (Erwin C).
7. Ohio v. Robinette 1996: No bright line requirement to tell
someone they are free to go before asking a question or
obtaining consent to search.
8. Dunaway v. New York 1979: Detention for custodial
interrogation so intruding on 4th interests, that they
trigger safeguards against illegal arrest.
9. Davis v. Mississippi 1969: Fingerprinting may be able to
comply with 4th, if some degree of cause, since it is not
too intrusive.
10.
Hayes v. Florida 1985: Forcing someone to
stationhouse for fingerprinting is arrest. Maybe ok in the
field if brief.
Time Limits on Terry Stops
1. U.S. v. Sharpe 1985: Investigative stop of car driving twice
legal limit and of truck that almost hit police.
a. It is appropriate to examine whether the police
diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to
detain the defendant.
b. No set time limit for Terry stops.
Show of Force: Handcuffs and gun use ok where reasonable
suspicion to believe that they are necessary to protect officer
from harm during course of stop. (Allen C).
Detention of Property Under Terry

1. U.S. v. Van Leeuwen 1970: Some detentions of property
could occur upon reasonable suspicion, as long as privacy
interest of contents maintained, and short detention
during a diligent investigation.
2. U.S. v. Place 1983: 2 hours too long per se to wait for dog
sniff. BUT 80 minutes has been found ok because there
was enough diligence.
vi. Limited Searches for Evidence by Law Enforcement
Officers Under Terry
1. Arizona v. Hicks 1987: Overturned turntable for serial
number, and discovered it was stolen
a. Even a cursory and minimally intrusive search
requires probable cause. A search is a search.
vii. Probationers and Parolees
1. U.S. v. Knights 2001: No more than reasonable
suspicion required to search a probationer’s home.
a. Must balance needs of state with privacy interests.
2. Samson v. California 2006: Substantial state interest in
searching parolee, that diminishing privacy expectation
was constitutional. Searches just can’t be arbitrary and
capricious.
d. Search Incident to Arrest
i. Spatial Limitations
1. Chimel v. California 1969: Officers waited in Chimel’s
house to arrest him for burglary.
a. Can search GRAB AREA of arrestee with no
suspicion at all, incident to arrest.
b. For officer safety and prevention of
destruction of evidence
2. Timing: At time of search, not arrest (Arizona v. Gant)
3. Washington v. Chrisman 1982: Can be invoked for any
custodial arrest and can cover post-arrest movements
(e.g. right to monitor arrested person’s movements).
4. Vale v. Louisiana 1970: Probable cause to believe Vale
engaged in a drug transaction outside his house
a. Can maybe search home quickly to prevent
destruction, but cannot do in depth search with no
exigent circumstances.
ii. Temporal Limitations
1. Rawlings v. Kentucky 1980: Formal arrest quickly after
search, it is unimportant which came first
2. Smith v. Ohio 1990: BUT search cannot create probable
cause for arrest
3. Chambers v. Maroney 1970: Once suspect in custody,
search made in another place without a warrant not
incident to arrest.
4. U.S. v. Chadwick 1977: Cannot search footlocker at police
station 90 minutes after arrest

iii.

iv.

v.

e. Plain
i.

ii.
iii.
iv.

5. U.S. v. Edwards 1974: Searches and seizures that could
be legally made on the spot at the time of arrest may
legally be conducted later when the accused arrives at
the place of detention.
Searches of the Person and Containers on the Person
1. U.S. v. Robinson 1973: Reason to believe operation car
after revocation of permit. Patted him down, found
crumpled cigarette container, opened, heroin pills.
a. Searching suspect and his containers is reasonable
under 4th Amendment incident to custodial arrest.
2. Riley v. California 2014: Cell phone searched twice, two
hours apart.
a. Mobile wiping is not arrestee’s action. Could be
exigent circumstances, but not generally. Cannot
search phone data incident to arrest.
Custodial Arrests for Minor Offenses
1. Atwater v. City of Lago Vista 2001: Soccer mom
a. Probable cause to believe a minor criminal offense
committed in his presence, may arrest. Too hard to
draw any other line.
The Belton Rule New York v. Belton 1981: Grab area of a car is
the passenger compartment.
1. Officers can automatically search it incident to arrest,
and can open any container found there within.
2. Thornton v. U.S. 2004: Belton applies whenever the
person arrested was a “recent occupant” of the car to
be searched.
View and Plain Touch
Arizona v. Gant 2009: Narrows Belton. Search may only be
when arrestee is unsecured and within reaching distance of
the passenger compartment at time of the search.
1. Also, can search incident to lawful arrest in vehicle when
it is reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle. (NOTE less
that probable cause, maybe equivalent to reasonable
suspicion of Terry).
Knowles v. Iowa 1998: Arrest-power rule limited to actual
custodial arrest.
Virginia v. Moore 2008: Even if arrest not valid under state law,
search incident to arrest allowed. States cannot change validity
under Constitution.
Pretextual Stops and Arrests
1. Whren v. U.S. 1996: Made stop for minor traffic violation.
Police subjective intent irrelevant.
2. Mistakes of fact ok (e.g. sees no front license plate but it
is mounted super low Flores-Sandoval C), but mistakes of
law not ok (Chanthasouxat C).

v. Horton v. California 1990: Probable cause to search petitioner’s
home for proceeds of robbery and weapons used. Warrant only
for proceeds. Two requirements for plain view
1. Item seized must have an incriminating character that
is immediately apparent
2. Officer must lawfully be located in the place where she
can see the object, and her right of access to the object
must also be lawful
vi. Arizona v. Hicks 1987: Must be readily apparent probable
cause.
vii. Minnesota v. Dickerson 1993: Must have known AS SOON AS
they felt the object that it was contraband to be allowed to seize
it.
f. Automobiles
i. Carroll Doctrine Carroll v. U.S. 1925: Mobility of vehicle can
allow search of car without a warrant. Probable cause, movable
car, suspect on alert, and vehicle may permanently disappear.
1. Note: There must be probable cause apart from that
allowing the arrest.
ii. Chambers v. Maroney 1970: If could search car then, or
temporarily seize it, can do the latter and search later at the
station house.
iii. Coolidge v. New Hampshire 1971: No exigency to search two
days after arrest and multiple times over next few months. (Only
time found unconstitutional)
iv. Cardwell v. Lewis 1974: Parking lot or highway, doesn’t matter.
v. Texas v. White 1975: Car towed to station house can be
searched. Warrantless search that is justified does not vanish
when car has been immobilized.
vi. California v. Carney 1985: Mobility is a principal basis of
automobile exception. ALSO lesser expectation of privacy with
an automobile compared to a home or office
1. No distinction for motor home just because it could be a
home as well.
vii. Chadwick: Could seize footlocker but not search it.
viii. Arkansas v. Sanders 1979: Police saw suitcase placed into trunk.
Could seize but not search.
ix. U.S. v. Ross 1982: Probable cause to search entire car ->
probable cause to search containers (brown paper bag)
x. California v. Acevedo 1991: OVERRULES SANDERS. Police may
search and automobile and containers within it where they
have probable cause to believe contraband or evidence is
contained in the car.
xi. U.S. v. Johns 1985: Within reason, can search container later and
at a different place if it could have been searched during car
search.
xii. Wyoming v. Houghton 1999: Reduced expectation of privacy
applies to passengers to, and can search their effects if probable

cause to believe contraband in the car. Because of possible
enterprise between passengers and driver, bright line rule
g. Exigent Circumstances
i. Immediate action reasonably necessary to prevent flight,
safeguard police or public, or protect against loss of
evidence. Fact specific, no bright lines, still need probable
cause.
ii. Hot Pursuit
1. Warden v. Hayden 1967: Chasing suspect into home, can
search for weapons and the suspect in the home.
2. Welsh v. Wisconsin 1984: If not aware of pursuit, cannot
use this doctrine.
3. U.S. v. Santana 1976: Short pursuit is ok. Point is to
prevent someone halting arrest initiated in public place.
iii. Police and Public Safety
1. Brigham City v. Stuart 2006: Loud party brawl.
a. Officers can enter home without warrant to render
emergency assistance to injured occupant or to
protect occupant from imminent injury. Subjective
intent irrelevant.
2. Michigan v. Fisher 2009: Bloody windows and man
screaming, sufficient public safety concern.
3. 911 Calls: Assault and murder allow for warrantless entry
unless clearly unjustified. Static insufficient. Dropped calls
may be sufficient.
iv. The Risk of Destruction of Evidence
1. Dorman factors: Gravity or violent nature of the offense,
whether suspect is “reasonably believed to be armed”,
clear showing of probable cause, strong reason to believe
suspect is in the premises, likelihood that suspect will
escape if not swiftly apprehended, peaceful circumstances
of the entry
2. Vale v. Louisiana 1970: Fact-based. Matters if there was
no “process of destruction” or reason to believe that
anyone was in the house.
3. Mincey v. Arizona 1978: No per se exception of exigency
for homicide.
4. Welsh v. Wisconsin 1984: Not allowed to arrest in home
for DUI. Minor offenses and in home arrest, exigent
circumstances will be rare.
5. Missouri v. McNeely 2013: No per se rule allowing
warrantless seizure of blood in drunk-driving case. Must
be case-by-case.
6. Schmerber v. California 1966: Loss of evidence COULD
allow blood test of DUI arrestee.
v. Impermissibly Created Exigency
1. Kentucky v. King 2011: Controlled crack buy, and followed
seller to apartment.

a. So long as police did not violate or threaten
conduct that violates 4th, warrantless entry is
allowed to prevent destruction of evidence.
b. Rejects officer created emergency doctrine.
Remember Whren.
c. Would be too hard to do reasonable foreseeability.
vi. Seizing Premises in the Absence of Exigent
Circumstances
1. Murray v. U.S. 1988: Permissible to seize for reasonable
period of time while diligent efforts are being made to
obtain a warrant.
vii. Prohibiting Entry While a Warrant Is Being Obtained
1. Illinois v. McArthur 2001: Probable cause to believe
contraband inside and good reason to fear destruction,
can prohibit entry for limited time. Reasonable effort to
reconcile law enforcement needs with demands of
personal privacy.
h. Special Needs
i. Safety Inspections of Homes
1. Camara v. Municipal Court 1967: Warrant required, but
can be issued upon a finding that a search is in
compliance with a reasonable administrative scheme
2. See v. City of Seattle 1967: Camara applies to commercial
structures too.
3. Griffin v. Wisconsin 1987: If needs to be issued by a court,
still need probable cause. If standard is less than probable
cause, need no warrant, only reasonable suspicion.
ii. Administrative Searches of Businesses
1. Donovan v. Lone Steer, Inc. 1984: Fire inspector can
inspect area open to public. Not search. No privacy
expectation
2. New York v. Burger 1987: Colonnade-Biswell doctrine: If
pervasively regulated business accepts that business
records and such will be suspect to effective inspection.
Factors:
a. Substantial government interest that informs the
regulatory scheme pursuant to which the inspection
is made
b. Warrantless inspection necessary to further the
regulatory scheme
c. Statute’s inspection program must provide a
constitutionally adequate substitute for a
warrant.
i. Must advise owner that search is pursuant to
law with properly defined scope and limit of
the discretion of inspecting officers.
ii. Owner must be aware via sufficiently
comprehensive statute, that the property will

be subject to periodic inspections for specific
purposes.
d. Generally for businesses: Need warrant, but only
reasonable, not probable cause.
iii. Individual Searches for Special Needs
1. New Jersey v. T.L.O. 1985: Reasonable suspicion to search
student bag for cigarettes upon balancing of state interest
with student privacy interest.
2. Safford Unified School District v. Redding 2009: Strip
search is too far.
iv. Suspicionless Searches of Persons on the Basis of
“Special Needs”
1. Skinner v. Railway Labor Executives 1989: Balancing
test. Strong deterrence against drug use while operating
trains, little privacy concern. Record of drug problem with
RR employees.
2. National Treasury Employees v. Von Raab 1989: Drug
interdiction employees and those carrying firearms could
be drug tested for safety reasons.
3. Schoolchildren
a. Vernonia 1995: Upheld suspicionless drug testing of
student athletes. Little expectation of privacy
(showering).
b. Earls 2002: Upheld suspicionless drug-testing of all
students engaged in extracurricular activities. State
responsible for maintaining discipline, health, and
safety. Minimal intrusion, and drugs pressing
problem in schools.
4. Politicians Chandler v. Miller 1997: No “special need” to
drug test political candidates. High privacy interest, and
no record of drug use. Need a proffered interest or real
need for the test.
5. Ferguson v. City of Charleston 2001: Can’t test pregnant
mother. Can’t allow for test if central and
indispensable feature of the policy is law
enforcement.
6. Airports, Subways, Public Buildings, etc.
a. Magnetometers in airports: Safety based, high state
interest
b. After 9/11 more intrusive ok. Good faith purpose.
c. Preventing terrorists is a special need.
d. Can search for the scope of safety. Reading or
going further not allowed (McCarty C).
7. Safety-Based Strip Searches of Detainees Without
Reasonable Suspicion
a. Florence v. Board of Chosen Freeholders 2012: No
touch strip search. Need ability to detect and deter
outside contraband. Narrowly applies when

detainee will be introduced to general jail
population and be in contact with other detainees.
8. Special Needs Search of Text Messages of a Public
Employee
a. City of Ontario v. Quon 2010: Unintrusive search to
determine if message limit was high enough. Little
privacy expectation of messages on work pager.
9. Roadblocks, Checkpoints, Etc. Without Suspicion
a. Delaware v. Prouse 1979: Cannot stop automobile
and detain driver to check license and registration
without reasonable suspicion
b. U.S. v. Martinez-Fuerte 1976: Permanent
checkpoints are fine. Not surprising, limited
intrusion. Terry reasonableness test shows high
state interest.
c. Michigan v. Sitz 1990: DUI checkpoint. Terry
balancing. High interest in safety, only a little
discretion, everyone stopped, ok. Cars can see
they’ll be stopped.
d. City of Indianapolis v. Edmond 2000: If primary
purpose is law enforcement, can’t do it. Need
exigent circumstances.
e. Illinois v. Lidster 2004: Information seeking is a
special need. Warrant clause predominates if
primary purpose is ordinary criminal law
enforcement.
v. DNA Testing
1. Maryland v. King 2013: Legitimate government interest in
safe and accurate processing and identifying. Tiny
individual interest, minimally intrusive, low expectation of
privacy once in police custody.
a. Dissent: No matter how invasive, suspicionless
searches never allowed for ordinary crime-solving.
vi. Inventory Searches
1. Not based on probable cause, unrelated to criminal
investigation. Caretaking rather than investigative.
2. Cady v. Dombroski 1973: Community caretaking
function of inventory searches.
3. South Dakota v. Opperman 1976: Must be standard
police procedure, if warrantless and suspicionless. If so,
allowed. State interests: protect owner’s property, protect
police against claims of lost or stolen property, and
protect police and public from potential danger.
4. Illinois v. Lafayette 1983: Inventory search of shoulder
bag at station ok. Less embarrassing at station. May not
hold up if not to be incarcerated.
5. Colorado v. Bertine 1987: So long as police discretion
exercised according to standard criteria and on the

basis of something other than suspicion of criminal
activity, fine. CANNOT be arbitrary.
6. Florida v. Wells 1990: No policy on closed containers, and
no standard procedures, cannot open for inventory
search.
7. Note: If no inventory purpose, cannot do it (e.g. cannot
impound car from locked garage, cannot vacuum a car to
“inventory” fibers, etc.)
vii. Border Searches
1. Two big state interests: Protect the borders, and
regulate goods going in and out of the U.S.
2. Warrantless, Suspicionless Search of International
Mail
a. U.S. v. Ransey 1977: Routine border searches are
reasonable even without probable cause or
reasonable suspicion. Need no suspicion at all.
Minimal intrusion, low expectation of privacy, and
BIG state interest.
i. Everyone is subject, so no arbitrariness risk.
3. U.S. v. Flores-Montano 2004: What does “routine” mean?
Balancing test. Case-by-case determination. Taking
apart gas tank was reasonable and “routine”. Cavity
search is not. Strip search is not. Turning on computer is.
Dog sniff is. Drilling small hole in car is.
4. Can search ship cabin, even if it is a “home”, because it
could transport contraband (Alfaro Moncada C).
5. U.S. v. Montoya de Hernandez 1985: Beyond routine, must
have reasonable suspicion that traveler is smuggling
contraband (e.g. in alimentary cavity). If so, can keep
person seized for a not unreasonable time. If suspect
creates delay, not unreasonably long (e.g. refusing to
poop).
6. Routine: NO SUSPICION REQUIRED
7. Non-Routine: REASONABLE SUSPICION REQUIRED
(Terry test).
8. Searches Away from the Border
a. Almeida-Sanchez 1973: Roving border patrol
subject to standard police restrictions
b. U.S. v. Ortiz 1975: Need probable cause at internal
checkpoints, because don’t want abuse of
discretion
c. If airport or port of call is not actually at border,
border search standards still apply.
i. Consent (Most common)
i. Voluntariness
1. Schneckloth v. Bustamonte 1973: Search based on valid
consent is reasonable even in the absence of a warrant
or any articulable suspicion.

a. Voluntariness determined under totality of
circumstances
2. U.S. v. Watson 1976: Absence of consent warnings or of
proof that suspect could withhold consent was not
controlling where defendant had been arrested and was in
custody, but consent was given on a public street and not
in the confines of a police station.
3. Bumper v. North Carolina 1968: Burden of proof of
voluntary consent on the government.
4. U.S. v. Mendenhall 1980: If no threat or coercion, consent
can be voluntary. Helpful if told can decline.
5. Gonzalez-Basulto factors: Voluntariness of defendant’s
custodial status, presence of coercive police procedures,
extent and level of the defendant’s cooperation with the
police, defendant’s awareness of his right to refuse
consent, defendant’s education and intelligence,
defendant’s belief that no evidence will be found
6. Threats of Action if Consent Refused: Empty threat
can render consent involuntary. Threat to get warrant
does not necessarily (U.S. v. Duran C)
7. Ohio v. Robinette 1996: Need not be told free to leave.
ii. Third Party Consent
1. U.S. v. Matlock 1974: Third party with actual authority
can give valid consent
2. Illinois v. Rodriguez 1990: Reasonableness standard
applies if there is apparent authority. Note, cannot have
“ignorance is bliss
3. Stoner v. California 1964: Cannot be unrealistic apparent
authority. Cannot be mistaken about law.
4. Georgia v. Randolph 2006: A physically present cooccupant’s stated refusal to permit entry prevails,
rendering the warrantless search unreasonable and
invalid as to him.
5. Fernandez v. California 2014: Objectively reasonable to
remove abuser from the apartment. Thus later consent
from wife in his absence valid. Objection cannot last
forever, and removal was not pretext.
6. Note: Objecting to arrest is not objecting to search.
iii. Scope of Consent
1. Florida v. Jimeno 1991: Objective reasonableness
determines scope of consent. E.g. consent to search car
reasonably included consent to search paper bag lying on
floor.
2. Note: Ambiguity is construed against the citizen. BUT
excessive searches overcome this (Turner C child porn
computer search), and cannot generally destroy or render
something useless (Strickland C).
iv. Withdrawing Consent

V.

1. Cannot be revoked retroactively after the officer has
found incriminating information.
2. Revocation immediately before officer searches
something cannot be proof of something incriminating.
Else the right of revocation would be useless.
v. Credibility: Officers usually considered more credible. Testilying
problem
THE EXCLUSIONARY RULE
a. NOTE: Fourth Amendment SILENT on what should happen in violation
b. Weeks v. U.S. 1914: Exclusion is to only effective means of protecting
4th. Evidence obtained in violation must be excluded to keep value of
4th. Only applies to federal officers for evidence to be admitted into
federal courts.
c. Wolf v. Colorado 1949: 4th incorporated. States have to follow 4th, but
do not have to follow exclusionary (NOT GOOD LAW)
d. Mapp v. Ohio 1961: Applies “only effective means” to states under 14 th.
Other remedies worthless. Exclusion deters police misconduct.
e. Four Supports (And Amar rebuttals)
i. Judicial Integrity (Lack of true evidence frees criminals,
decreasing integrity).
ii. Prevents gov’t profiting from wrong (By letting criminals profit
from gov’t wrong).
iii. Not costly, only excluding that which should never have been
found (Not true, can exclude that which could have been
obtained)
iv. Necessary to deter police misconduct (Deterrence comes by way
of benefit to criminal defendants. Criminals are the wrong kinds
of enforcers)
f. Alternatives
i. Civil Damages?
1. Problems: Immunity, lack of sympathy for wrongdoer,
hard to establish damages, hard to collect judgments,
lawyers don’t want these cases
2. Hudson v. Michigan 2006: Violation of knock and
announce does not justify exclusion. Can have remedy of
damages and attorney’s fees under §1983
ii. Fortified Civil Damages? (HYPOTHETICAL)
1. Gov’t should be liable
2. Damage multipliers and punitive damages
3. Small claims get attorney’s fees and class action
consolidation
4. Liberalized procedural limitation
5. Administrative channels established to streamline the
process
iii. Criminal Prosecution of Offending Officer
1. Never get convicted
2. Don’t want over-deterrence
3. Prosecutors won’t press charges often
iv. Police Rulemaking and Other Administrative Solutions

1. Education, training, and discipline has increased since
Mapp
2. Vacation time cuts, pay docking.
3. Too much deterrence?
v. Sentence Reductions?
g. Limitations on Exclusion
i. “Good Faith” – Reasonable reliance on the decisions of
Magistrates and others
1. U.S. v. Leon 1984: Cost benefit analysis. Good faith
exception if officer obtains warrant. Four exceptions to
this exception
a. Magistrate misled by affidavit
b. Magistrate wholly abandons her judicial role
c. Affidavit so lacking in indicia of probable cause that
reliance on it would be unreasonable
d. Warrant so facially deficient that executing officer
cannot assume it to be valid
2. Sheppard 1984: Error by Magistrate. Both officer and
magistrate believed the warrant issued sufficient. Not
excluded
3. Reasonable Reliance on Unreasonable Warrants
a. Anderson v. Creighton 1987: Can reasonably act
unreasonably. Good faith only doesn’t apply where
no reasonable argument can be made that the
warrant is valid.
4. Warrants Clearly Lacking in Probable Cause
a. Where reasonable minds could differ (Leon)
about whether Gates has been satisfied, good faith
exception still can apply.
5. Warrant Lacking Particularity
a. Good faith applies to search pursuant to overbroad
or unparticularized warrant if reasonable minds
could differ. (Leon)
6. Untrue or Omitted Statements in Warrant
Application
a. Exclusion occurs if officer puts material information
in the application for a warrant (Leon)
i. Material he knew was false
ii. Material he would have known was false
except for his reckless disregard of the truth
ii. Good Faith and Warrantless Searches
1. Illinois v. Krull 1987: Can reasonably rely on legislative
act, unless officer should have known statute was
unconstitutional.
2. Arizona v. Evans 1995: Can reasonably rely on clerks error
(e.g. quashed warrant still in system), since no deterrent
for exclusion.
3. Herring v. U.S. 2009: Exclusion is a last resort

a. Conduct must be so objectively culpable as to
require exclusion
b. Could be reckless where systematic errors are
demonstrated.
c. BUT negligence does not warrant exclusion
4. Davis v. U.S. 2011: Exclusion does not apply if officers
reasonably applying the law as it existed at the time of
their conduct.
h. Establishing Violation of a Personal Fourth Amendment Right
i. Rakas v. Illinois 1978: Passenger in car standings? Katz test.
(NOTE: Traditionally did “legitimately on premises”, but strike
that down here. Also, possession offense ALWAYS has standing)
1. Two-Pronged test:
a. Must do something to demonstrate that you
expect privacy (factual determination)
b. Was the expectation reasonable?
ii. U.S. v. Salvucci 1980: Abolished Jones automatic standing. Only
defendant whose Fourth Amendment rights were violated can
challenged warrant.
iii. Rawlings v. Kentucky 1980: Ownership of property does not
necessarily confer standing. Object in another’s purse, can only
object to seizure (which is moot if contraband), but not of the
search.
iv. U.S. v. Payner 1980: Evidence can be admitted against
defendant that was stolen from a third party’s briefcase.
v. Minnesota v. Carter 1998: Persons temporarily on premises for
commercial transaction have no 4th right at stake in search of
premises.
vi. Carter C: Have keys and permission to use car, and do use it,
can claim privacy even if not own.
vii. Disassociation: Lose standing on disassociation. E.g. putting
title, insurance, and everything of car in another’s name. E.g.
denying ownership of a bag
viii. U.S. v. Padilla 1993: No automatic right to challenge a search or
seizure simply because one is a member of a conspiracy that
owns a property
i. Causation and Attenuation
i. Ker-Frisbie Doctrine: Body of person not subject to exclusion.
Illegal arrest of someone does not deprive court of jurisdiction.
ii. Brown v. Illinis 1975: Fruits of Poisonous Tree doctrine. If
something breaks the chain of causation (in this case
Mirandizing), then evidence admissible.
1. Burden of showing admissibility on the prosecution.
2. Totality of the Circumstances
a. Factors include: Miranda warnings, temporal
proximity of arrest and confession, presence of
intervening circumstances, purpose and flagrancy
of official misconduct

iii. Wong Sun: Is evidence to which instant objection is made come
by at the exploitation of illegality or by means sufficiently
distinguishable to be purged of the primary taint.
iv. Taylor v. Alabama 1982: No probable cause for arrest, put in a
line up, and told fingerprints matched those at robbery scene.
Time and repeated warnings with waiver not enough for
attenuation.
v. Kaupp v. Texas 2003: Knowing no probable cause, illegal arrest
at 3 a.m., lied about implication by accomplice. No attenuation.
vi. Rawlings 1980: Improperly detained in house while warrant
gotten. No flagrant misconduct. Confession was spontaneous
reaction to legal finding of evidence with warrant. Ok.
vii. New York v. Harris 1990: Payton violation (in home arrest with no
warrant) did not cause confession, when there was probable
cause to arrest, so no exclusion.
viii. Hudson v. Michigan 2006: Violation of knock-and-announce not
enough to cause exclusion. Too much deterrence.
ix. Note: Voluntary consent CAN break the chain IF it passes under
totality of circumstances
x. U.S. v. Ceccolini 1978: Witness decision to testify is normally
enough to break any causal connection between illegality and
testimony.
j. Independent Source
i. Murray v. U.S. 1988: If lawful search based on independent
source of information from illegal search, no exclusion. Want to
put police in same position through exclusion, not worse
position.
1. Officer must only have a plausible explanation for why
the original search was made without a warrant.
ii. Segura v. U.S. 1984: Entering premises illegally does not gain
exclusion of evidence obtained through legal search warrant
based on information wholly unconnected with the initial entry.
k. Inevitable Discovery
i. Nix v. Williams 1984: No “good faith” requirement. There is
enough uncertainty that evidence would ever have been found
legally to deter conduct.
1. Preponderance needed to be shown that challenged
evidence would have inevitably been discovered
ii. Andrade C: Inevitable discovery through inventory search that
would be part of standard procedure can prevent exclusion.
iii. Note: “We could have obtained a warrant” is not enough.
Probable cause does not make discovery inevitable.
iv. Focus on what officers would have done, not what they could
have done.
l. Use Outside the Criminal Trial Context
i. U.S. v. Calandra 1974: No exclusion in grand jury
proceedings. Exclusion at trial is enough.

VI.

ii. U.S. v. Janis 1976: Civil tax litigation, no exclusion. Little
deterrent effect.
iii. INS v. Lopez-Mendoza 1984: Exclusion consequences high,
because person is committing a criminal offense at the time of
the proceeding for civil deportation. Outweighs deterrence, no
exclusion.
iv. Stone v. Powell 1976: Exclusion does not apply in admitting
evidence from 4th issues at state trial in habeas corpus
proceedings. Little deterrence, high exclusion cost.
v. PA Board of Probation and Parole v. Scott 1998: Exclusionary rule
not applicable in parole revocation proceedings.
vi. Sentencing Proceedings: Most lower could find exclusion
inapplicable.
m. Use of Illegally Obtained Evidence for Impeachment
i. Walder v. U.S. 1954: If door opened on direct examination, can
use to impeach (cannot use exclusion as license for perjury).
ii. U.S. v. Havens 1980: Can be used to impeach defendant’s
testimony on Cross-Examination. Dissent: Wtf, this allows
prosecutors to get in illegal evidence with own questions…
iii. James v. Illinois 1990: Impeachment exception does not extend
to witnesses testimony. Perjury prosecution is enough
deterrence, don’t need excluded evidence.
SELF INCRIMINATION AND CONFESSIONS
a. Three Aspects: Compulsion, testimonial evidence against self,
and incriminating
b. Scope
i. Counselman v. Hitchcock 1892: Privilege in any proceeding if
testimony may later by used in a criminal proceeding against
that person
ii. U.S. v. L.O. Ward 1980: Legislation declaring proceeding “civil”,
especially with no incarceration, likely to be upheld
iii. Allen v. Illinois 1986: Detention for “treatment” as sex offender,
can be civil
iv. U.S. v. Balsys 1998: Concern with foreign prosecution beyond
scope of Self-Incrimination Clause
v. Chavez v. Martinez 2003: No relief if never admitted in a criminal
case
c. What is Complusion?
i. Use of contempt power is compulsion
ii. Lefkowitz v. Turley 1973: Threat of state imposed sanction is
compulsion if significant penalty for invoking the privilege.
Waiver under substantial economic threat not voluntary
iii. Spevack v. Klein 1967: Threat of disbarment is compulsion
iv. Ohio Adult Parole Authority v. Woodward 1998: Clemency
procedure does not compel self-incrimination
v. McKune v. Lile 2002: Refusing benefit isn’t coercion, but
enacting penalty is. Not allowing prison privileges is refusing a
benefit

vi. Griffin Rule Griffin v. California 1965: Cannot make adverse
comment to jury on defendant’s election not to testify. This
would be punishment for invocation.
1. Mitchell v. U.S. 1999: Cannot have adverse inference for
silence at sentencing proceeding
2. Baxter v. Palmigiano 1976: CAN have adverse inference
for silence in civil case
3. White v. Woodall 2014: Not entitled to a no-adverseinference instruction about silence at a penalty hearing of
a capital trial.
vii. Brogan v. U.S. 1998: No “exculpatory no” doctrine. Should have
remained silent. Can be charged with false statement
d. To Whom Does the Privilege Belong?
i. Fisher v. U.S. 1976: Personal principal. About incriminating self
through testimony.
ii. Bellis v. U.S. 1974: Collective Entities do not have a privilege
against self-incrimination. Only sole proprietorship MIGHT be
protected.
e. What Is Protected?
i. Schmerber v. California 1966: Only testimonial evidence is
privileged. Physical evidence (blood, being in line-up), voice
samples, etc. are not testimonial.
ii. PA v. Muniz 1990: Line between testimonial and non-testimonial
is determined by whether the witness faces the “cruel trilemma”
in disclosure: self-accusation, perjury, or contempt.
1. Speaking in slurred voice is physical evidence
2. Asking sixth birthday is testimonial evidence
iii. Doe v. U.S. 1988: To be testimonial, must be express or
implied assertion of fact that can be true or false.
iv. Estelle v. Smith 1981: Defendant interviewed by govt.
psychiatrist must be warned that what he says can be used
against him
v. South Dakota v. Neville 1983: If allowed to be compelled,
refusal can be used for negative inference.
vi. Documents and the Like
1. Boyd v. U.S. 1886: Cannot subpoena books and papers
with private information. Can get from 3rd party under
Fisher.
2. Fisher v. U.S. 1976: Can be compelled to produce
documents even if would incriminate self. Must not be
preparation.
a. Act of Production privilege if producing alone
tells govt. something incriminating. Totality of
circumstances.
b. U.S. v. Doe 1984: Can be invoked if act of
production of documents involves “testimonial
self-incrimination”.
3. Admission of existence is rarely incriminating.

4. Controlling documents is usually not incriminating, unless
it is.
5. Admission of authenticity MAY be incriminating.
6. U.S. v. Hubbell 2000: Providing trail for govt. can be
incriminating.
7. Braswell v. U.S. 1988: Corporate documents held by a
representative, if not in personal capacity, can be
compelled even if incriminating.
8. Baltimore v. Bouknight 1990: Accepting care of child
subject to the custodial order’s conditions accepts the
consequent obligations of production. Must produce child.
9. Shapiro v. U.S. 1948: Compelled production of customary
business records, required to be kept by legislation, does
not implicate 5th.
a. Marchetti v. U.S. 1968: Cannot be compelled to pay
a tax that would always incriminate unlawful
activities (e.g. illegal gambling tax).
b. Haynes v. U.S. 1968: Records not customarily
kept, cannot be compelled.
10.
CA v. Byers 1971: Hit and run statute (compelled
reporting) valid under required records exception.
f. Procedural Aspects
i. Hoffman v. U.S. 1951: Risk determined by whether it is
perfectly clear from a careful consideration of all
circumstances in the case, that the witness is mistaken, and that
the answers cannot possibly have such tendency to
incriminate. Claim usually sustained in trial as result.
ii. Hiibel v. 6th District Court of Nevada 2004: Name is testimonial,
but providing it is such insignificant information, it will not be
incriminating barring VERY unique circumstances. No privilege.
iii. Ohio v. Reiner 2001: Even if denying guilt, can have fear of selfincrimination, and privilege allowed.
iv. Immunity
1. Kastigar v. U.S. 1972: “Use-fruits” immunity under §6002
is sufficient. Can be compelled, but then can’t be used
in criminal proceeding.
a. Burden on government to prove testimony was
not used. “Wall of Silence” can help.
2. New Jersey v. Portash 1979: Immunized testimony cannot
be used for impeachment
3. U.S. v. Apfelbaum 1980: CAN be used for perjury, false
statement, or obstruction of justice charge (separate
claim)
4. PA v. Conboy 1983: Right of witness at deposition in civil
case to claim privilege even though he had previously
been granted immunity in related criminal procedure.

5. Transactional Immunity: Can’t be prosecuted for ANY
of the transactions involved in the information. No
punishment for truth.
6. Derivative Immunity (Use-fruits): Can be prosecuted for
transactions, but testimony cannot be used AT ALL.
v. Invoking the Privilege
1. Garner v. U.S. 1976: Answered questions on tax return,
lost privilege
2. Minnesota v. Murphy 1984: Must explicitly invoke. No
privilege when answered question of probation officer
concerning crimes not yet charged for.
3. Salinas v. Texas 2013: Silence while not in custody can be
used later without 5th violation
g. Waiver of the Privilege
i. Generally, taking stand waives privilege to information in scope
of direct examination, and reasonably related questions on
cross.
ii. Mitchell v. U.S. 1999: Witness pleading guilty does not waive
right to silence at sentencing.
iii. Buchanan v. Kentucky 1987: No 5th violation in the use of a
psychiatric evaluation of the defendant to rebut a psychiatric
defense.
iv. Kansas v. Cheever 2013: Evidence from court-ordered
examination allowed to rebut defendant’s presentation of expert
testimony to support a voluntary intoxication defense.
h. Confessions and Due Process
i. 5th and 14th exclude involuntary confessions.
ii. Brown v. Mississippi 1936: Involuntary confession (brutal beating
and whipping) violates due process. Factors include:
1. Personal Characteristics of accused (age, education,
mental deficiencies, etc.) (Payne)
2. Action of the Police: Deprivation (Payne), mistreatment,
psychological pressures (Watts v. Indiana), rewards and
inducements (Hopt)
3. Warnings
4. Totality of the Circumstances
iii. Spano v. New York 1959: Young, foreign, uneducated,
emotionally unstable, inexperienced in criminal justice, leading
questions, questioned incessantly when refusing to answer on
advice of attorney, use of his friend to extract confession.
Deemed involuntary.
iv. Deception and False Promises by Police: Can use
misleading tactics (Green v. Scully C).
v. False Documentary Evidence: Involuntary confession.
Different from verbal falsities.
vi. False Promise of lenience, not allowed, because it removes
informed choice.

vii. Arizona v. Fulminante 1991: Confession made by prisoner to
informant involuntary when made to ward off threat of physical
violence. Coerced.
viii. Colorado v. Connelly 1986: Due process focus is primarily on
police misconduct.
i. Fifth Amendment Limitations on Confessions
i. Miranda v. Arizona 1966: Right to remain silent, any
statement can be used as evidence, right to an attorney, if
indigent an attorney will be provided. Must be told of these
rights.
1. Custodial interrogation is inherently coercive
2. Miranda rules are educating
3. If known to have ample funds, need not give indigency
warning
4. Miranda leaves open possibility that other effective
safeguards may suffice.
5. Exclusion for both inculpatory and exculpatory
statements.
6. Don’t need to get lawyer, must just cease questioning.
7. No person excluded, no matter how much evidence of
knowledge of rights.
8. Eventual confession does not prove valid waiver.
9. High burden of proof on government to show waiver.
10.
Prophylactic rule
ii. Withrow v. Williams 1993: Miranda claims allowed on habeas
review.
iii. Miranda Compromise: No non-waivable right to an attorney.
Can question until invocation of right with no attorney present.
j. Miranda Exceptions
i. Harris v. New York 1971: Can use Miranda defective statement to
impeach, because Miranda not constitutional guarantee (still
valid after Dickerson). Don’t want to license perjury. Costbenefit analysis
ii. Oregon v. Hass 1975: Not respecting right to attorney can be
used to impeach.
iii. Mincey v. Arizona 1978: Cannot be admitted to impeach if
involuntary.
iv. Doyle v. Ohio 1976: Cannot impeach with prior silence, because
of Due Process.
v. Jenkins v. Anderson 1980: Pre-arrest silence can be used to
impeach, since not induced by govt. action (e.g. took two weeks
to turn self in).
vi. Fletcher v. Weir 1982: Post arrest, pre Miranda silence can be
used to impeach.
vii. Admitting Fruits of a Miranda Violation
1. Michigan v. Tucker 1974: Cost-benefit analysis. Miranda is
procedural safeguard, not Constitutional right, so if
testimony leads to witnesses, can then use witness’s
testimony. (Still valid after Dickerson).

2. Oregon v. Elstad 1985: Second confession not tainted by
defective first confession, since Miranda not
constitutionally required. Second excluded if first
involuntary. (Still valid after Dickerson).
3. Missouri v. Seibert 2004: Kennedy concurrence followed.
Police used two step process of eliciting confession, then
warning, then getting confession again. Can’t do this.
Miranda warnings effective unless:
a. Officers were in bad faith in not giving warnings
before first confession
b. AND no curative measures were taken between.
4. Bobby v. Dixon 2011: Seibert does not apply where
unwarned statement and Mirandized statement are about
different crimes.
5. U.S. v. Patane 2004: Arrested for harassing ex. BRIGHT
LINE RULE: Physical fruit from a Miranda violation is
not excluded.
viii. Emergency Exception
1. New York v. Quarles 1984: Thought gun might be nearby
upon arrest. Afraid for public safety. Overriding
consideration of public safety can justify failure to
warn. Necessity based exception (still valid after
Dickerson).
a. Does not apply in person’s home.
b. Questions must be addressed to the public safety
risk
c. Asking about guns or sharp objects before frisk
allowed for officer safety (from getting poked e.g.)
k. What Is Custody? Deprivation of freedom of action in a significant
way (Miranda)
i. Orozco v. Texas 1969: Arrest is custody
ii. Beckwith v. U.S. 1976: Sitting at table discussing tax documents,
not custody
iii. Stansbury v. California 1994: Objective test to determine
custody.
iv. J.D.B. v. North Carolina 2011: Child’s age can inform Miranda
custody analysis. Children feel found to submit to police.
v. Prisoners
1. Mathis v. U.S. 1968: No per se rule. If freedom of
movement further diminished, in custody.
2. Howes v. Fields 2012: Factors: No “shock of arrest”,
unlikely to be lured into speaking for prompt release,
know officers probably lack authority to affect duration.
vi. Oregon v. Mathiason 1977: Questioning at police station not
necessarily custody. Going voluntarily, being informed not under
arrest, leaving without hindrance -> not in custody.
vii. Minnesota v. Murphy 1984: Even though probation meetings
required, not necessarily in custody

viii. Berkemer v. McCarty 1984: Terry stops not custodial. Brief,
limited questions, no obligation to respond.
ix. Brown Factors: Suspect informed that questioning voluntary,
unrestrained freedom of movement, who initiated, use of strong
arm tactics, whether the atmosphere was police dominated,
whether arrested at end of questioning
x. Griffin Factors: Language used to summon individual, extent
defendant is confronted with evidence of guilt, physical
surroundings, duration of detention, degree of pressure applied
to detain the individual
l. What Is Interrogation?
i. Rhode Island v. Innis 1980: No idea that his conscience would
make him confess when talking about guns and handicapped
children. Miranda comes into play when a person is subjected to
express questioning or the functional equivalent of
interrogation.
1. Words or actions that officers should know are
reasonably likely to elicit an incriminating response.
2. Focus is on the perceptions of the suspect, rather than
officer intent.
ii. Arizona v. Mauro 1987: No interrogation when suspect confessed
to wife in presence of a police officer who recorded the
statements, when suspect knew he was being recorded.
iii. Edwards v. Arizona 1981: Interrogated when officers played a
recorded statement of his associate that implicated him in the
crime.
iv. Directed statements more likely to elicit incriminating response.
Soto C.
v. Pennsylvania v. Muniz 1990: Officers can ask custody related
questions without Miranda warning. Note: Would not apply if
designed to elicit incriminating response. Booking Question
Exception.
1. Asking suspect’s name is always a booking exception.
Carmona C.
vi. Illinois v. Perkins 1990: Boastful statements in prison not
covered. No Miranda concern if the suspect does not know they
are talking with a police officer. Undercover acceptable.
vii. Berkemer v. McCarty 1984: No distinction between felonies and
misdemeanors for Miranda purposes.
viii. How Complete Must Warnings Be?
1. California v. Prysock 1981: Some flexibility so long as
suspect gets gist of the warnings. Need to give sufficient
information and not be misrepresentative.
2. Duckworth v. Eagan 1989: If language accurately
describes procedure and apprises the defendant of his
rights, that is enough.

ix. Florida v. Powell 2010: If it was reasonably conveyed to
suspect that he could have an attorney present throughout
questioning, then ok.
x. Foreigners Conducted Abroad: Often regarding terrorism. No
affirmative obligation to urge local officials to comply with U.S.
Constitution standards. But sometimes applies on foreign soil.
m. Dickerson
i. Dickerson v. U.S. 2000: Miranda announced a constitutional
rule, because that is what the justices thought they were doing.
1. Because the Court has been applying the standard to
States, Court intended to announce constitutional rule.
2. Stare decisis, should not overrule Miranda.
3. Scalia goes “apeshit”, court severely violating separation
of powers.
4. All exceptions still apply.
n. Waiver of Miranda Rights: Must be voluntarily, knowingly, and
intelligently waived.
i. North Carolina v. Butler 1979: Need not be express statement of
waiver. Just need sufficient evidence to show that suspect
understood his rights and voluntarily waived them
ii. Moran v. Burbine 1986: Two factors for Miranda waiver:
1. Must be voluntary in the sense that it was the product of a
free and deliberate choice.
2. Also, must have been made with full awareness of nature
of the right and consequences of waiver.
iii. Tague v. Louisiana 1980: Confessing after reading rights alone
not waiver. Can be waiver if Burbine factors met.
iv. Colorado v. Connelly 1986: Coercive police activity prerequisite
to involuntary. CAN be involuntary even with waiver, if too
coercive.
v. Connecticut v. Barrett 1987: Agreeing to make oral but not
written statement is sufficient waiver. Note: Would not have
been valid if suspect thought oral statements could not have
been admitted at trial.
vi. Information Needed for an Intelligent Waiver
1. Colorado v. Springs 1987: No need for warnings to be tied
to scope of interrogation
2. Oregon v. Elstad 1985: Need not tell suspect that previous
confession is inadmissible
3. Moran v. Burbine 1986: Don’t have to tell suspect that
attorney is trying to contact him if valid waiver of right to
counsel. No right to counsel until invoked. Police state of
mind is irrelevant. Miranda compromise.
vii. Waiver After Invocation
1. Michigan v. Mosley 1975: Must scrupulously honor the
invocation of right to allow for later effective waiver. Fact
based.

a. Generally need “cooling off” period. Cannot use
persuasive tactics.
2. Berghuis v. Thompkins 2010: Cannot invoke right to
silence by saying nothing. Must be unequivocal
invocation. If waiver ultimately gotten, can question
after warnings before waiver.
o. Counsel: Miranda and Sixth Amendment
i. Invocation of Rights
1. Edwards v. Arizona 1981: Cannot further interrogate
without counsel unless accused initiates further
communication.
2. Oregon v. Bradshaw 1983: Two-Step Analysis
a. Bright-line prophylactic safeguard of the suspectinitiation requirement
b. Totality of the circumstances test of knowing
and voluntary waiver.
c. Note: Generally courts hold ambiguity in favor of
finding suspect initiation
3. Davis v. U.S. 1994: Suspect must clearly and
unequivocally invoke right to counsel. “Maybe I should
talk to a lawyer” not enough.
4. Smith v. Illinois 1984: Where nothing about request for
counsel or circumstances would render it ambiguous,
questioning must immediately cease.
5. Arizona v. Roberson 1988: Invocation under Edwards NOT
offense specific. Must stop interrogation of any
crime.
6. Minnick v. Mississippi 1990: Edwards protection
continues after suspect has consulted with an
attorney. Good bright-line rule to prevent badgering and
coercion.
7. Maryland v. Shatzer 2010: Extended period of release
from custody dissolves Edwards protection. Two years,
seven months long enough here.
8. McNeil v. Wisconsin 1991: Before formal charges, right to
counsel is Miranda right. At arraignment and on, 6th
Amendment.
ii. Sixth Amendment
1. Massiah Rule 1964: Adverse party, in advance of
litigation, may only be contact through her lawyer after
formal charges. Couldn’t bug friend. 6th Amendment
guarantee against this elicitation.
2. Escobedo v. Illinois 1964: Sixth Amendment protections
when investigation has become so focused as to make a
suspect the “accused”
3. Brewer v. Williams 1977: Massiah Rule governs after
formal charges. “Christian burial speech”. Officer intent
is a factor. Was trying to elicit.

VII.

4. U.S. v. Gouveia 1984: 6th Amendment attaches at
formal charges.
5. Fellers v. U.S. 2004: 6th violated if arresting officers
deliberately and designedly set out to elicit information
from the suspect.
iii. Undercover Officers and State Agents
1. U.S. v. Henry 1980: Any conduct likely to elicit
incriminating information is deemed deliberate.
Jailhouse plant can be state actor, and thus violate
6th.
2. Kuhlmann v. Wilson 1986: Just listening with no conduct to
elicit information is not a violation. Listening post is fine.
3. If not government agent, no violation
iv. Continuing Investigations
1. Maine v. Moulton 1985: State should have known that
talking about killing witnesses would turn to talk of the
robbery, and thus violation of 6th.
v. Waiver of Sixth Amendment Protections
1. Brewer v. Williams: Must show more than election to
speak after receiving warnings and waiving.
2. Berghuis v. Thompkins: Relaxed standards. Must be
unequivocal invocation at first.
3. Patterson v. Illinois 1988: Need not be separately
informed of Sixth Amendment right to counsel.
Miranda warnings sufficient.
vi. Two Differences Between Miranda and 6th
1. Waiver under Miranda even if suspect not told lawyer was
trying to reach him. Under 6th, police must tell defendant.
2. Undercover allowed under Miranda. Not allowed under 6th
(Henry)
vii. Waiving 6th After Invoking
1. Michigan v. Jackson 1986: OVERRULED. Had said
Edwards rule for 6th Amendment, and suspect must
initiate.
2. Montejo v. Louisiana 2009: Overruled Michigan v. Jackson.
Little deterrence here. Jackson too greatly makes invalid
voluntary confession after knowing attempts to waive
rights.
a. Under 6th, officers can approach after
arraignment and get a knowing and voluntary
waiver to counsel even without suspect
initiation.
viii. 6th Amendment Exclusionary Rule
1. Kansas v. Ventris 2009: Impeachment exception to 6th
Amendment exclusion. Still exclusion from case-in-chief
IDENTIFICATION
a. Problems with eyewitnesses: Confidence grows stronger as result of
repeated exposure to a suspect, one person’s identification can

VIII.

influence another person’s identification, people are overconfident in
their memories, stress probably decreases person’s perception ability
b. U.S. v. Wade 1967: Counsel must be at all critical pretrial stages
after arraignment (including lineup). Right to effective counsel.
i. Need an independent basis to make prior identification not
impermissibly tainted. Totality of circumstances.
c. Gilbert v. California 1967: Per se rule of exclusion as to such
testimony. Only effective sanction to ensure respect of constitutional
right to counsel at critical lineup.
d. Kirby v. Illinois: No extension to pre-indictment lineup, because 6 th
hasn’t attached yet
e. U.S. v. Ash 1973: No right to counsel at photographic
identification.
f. Due Process Limitations
i. Stovall v. Denno 1967: Due Process fundamental fairness
approach to assess identification procedures not governed by
Wade-Gilbert. Totality of circumstances.
ii. Neil v. Biggers 1972: If unnecessarily suggestive identification
procedure, need to be upheld as reliable by independent source.
Biggers factors:
1. Opportunity to view, witness attention, prior description
accuracy, any prior mistaken identifications, certainty of
the witness at the time of identification
iii. Simmons v. U.S. 1968: Need to protect against identification so
impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable identification.
iv. Foster v. California 1968: Only time Due Process violation found
for impermissibly suggestive police procedure. 6 inch height
difference, unique jacket worn, twice could not identify, and only
identified after Foster was only person in common between two
lineups.
v. Manson v. Brathwaite 1977: Three interests under totality of
circumstances to weigh for due process violation:
1. Reliability, the “linchpin” of the circumstances
a. Factors: Opportunity to view criminal during crime,
degree of attention, accuracy of prior description,
level of certainty, time between crime and
confrontation
2. Deterrence of police misconduct
3. Administration of Justice
DISCRETION
a. Police, prosecutors, magistrates, grand juries, judges, correctional
agents, parole and pardon authorities, all have lots of discretion.
b. There is no such thing as a full enforcement policy (generally). Too
hard to manage.
i. Don’t want over-criminalization
ii. BUT don’t want to appear soft on crime

IX.

iii. Speeding Enforcement Example vs. Mandatory Arrest for
Domestic Abuse
c. Police Screening
d. Prosecutor Power (Most impactful)
i. Plea bargaining is huge
ii. Nature of charges (Standard 3-3.9 in Charging Discretion)
iii. Decision not to prosecute
HISTORY OF RIGHT TO COUNSEL
a. Purpose and Scope: 6th attaches for criminal prosecution
b. Powell v. Alabama 1932: Suspects require guiding hand of counsel at
every step in the proceedings
c. Johnson v. Zerbst 1938: Counsel required in all federal criminal
proceedings unless waived
d. Betts v. Brady 1942: Case-by-case analysis in state cases to determine
if applies
e. Hudson v. North Carolina 1960: Defendant needed lawyer because of
prejudice of co-defendant’s plea bargain.
f. Chewning v. Cunningham 1962: Difficult legal question requires
counsel
g. Hamilton v. Alabama 1961: Unqualified right to counsel in state capital
cases
h. Gideon v. Wainwright 1963: Right to counsel under 6th is
fundamental right essential to fair trials, and thus applies to
the States. Overrules Betts v. Brady.

Sponsor Documents

Or use your account on DocShare.tips

Hide

Forgot your password?

Or register your new account on DocShare.tips

Hide

Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in

Close