CRIMPRO EXAM OUTLINE

Introduction to Federal-State Relations in Criminal Procedure – Incorporation

Doctrine
- 3 Views of Incorporation Doctrine
o Fundamental Fairness
 Only necessary to have fundamental fairness in a criminal trial.
 Only rights considered to be fundamental should be
incorporated into 14th.
 Frankfurter, Harlan, Cardozo
o Total Incorporation
 14th incorporates entire bill of rights
 Black
 The B of R (1st 8 Amend.) were totally incorporated in the
14th Amend. Apply to states just as to Fed. Govt. Purely
textual reading of Const.
o Case by Case Incorporation
 Just what it says; very subjective.
 White
o Duncan v. Louisiana  Selective Incorporation
 Facts: Duncan convicted of simple battery. Sought jury trial,
but refused due to State law. Challenged the State Constitution
under 6th Am.
 Rule: Apply all aspects of 6th Am to State (right to jury trial
secured by 6th and 14th).
Exclusionary Rule – if search violated 4th Amend., then remedy is to exclude any
evidence gathered as a result of that violation.
- The exclusionary rule is not compelled from 4th Amendment itself
o Excl. Rule is only effective means of protecting 4th Amend. Rights
o Judicial integrity requires courts not to sanction illegal searches by
admitting fruits of illegality into evidence
- Weeks: created it for federal officials but not state
- Wolf: Frankfurter refused to extend it to states
o Rule: Although the 4th Amendment does apply to the states, it does
not require the exclusion of evidence obtained in violation of the
amendment.
- Mapp v. Ohio: applied it to states (4th requires it), overruled Wolf - Facts:
D’s home was forcibly searched without a search warrant. D seeks to have the
evidence seized therein suppressed under the 4th Amendment’s exclusionary
rule. Rule: The exclusionary rule applies equally to both state and federal
governments (as in the instant case, to prosecutions in state court)
o There is an issue of Federalism in Mapp
 Many states didn’t have exclusionary rule when Mapp was
decided

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 
States had to follow Mapp and exclude evidence if
discovery of it was unlawful
 They had to decide if decision of Mapp would be
applied retroactively. Not applied retroactively
o Consequences – Costs/Benefits of Mapp
 Fair amount of perjury by police officers – denying they
illegally seized and searched
 Law enforcement was professionalized – training on what
Constitution required. They were educated
 You get a cynical public with regards to the courts – bad guys
get off on a technicality.
 Typically drugs, firearms, stolen property charges – not
murder, rape, etc.

Chapter 2 – The 4th Amendment

- “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
- “The People” as a Limiting Term
o US v. Verdugo-Urquidez  Mexican alien arrested for selling drugs
in US. Transported to US jail, US officials went into his house in
Mexico w/out warrant to search for evidence. Rule: 4th Amend.
doesn’t protect non-resident of illegal search.”The people” means
belonging to the national community
- Requirements for 4th Amend. Protections - What Is A Search? What Is A
Seizure?
o 4th A protects against unreasonable “search and seizures” so if a govt
activity is neither of these, it is not regulated by the 4th A and does not
have to be reasonable
o If unsure if the activity is one of these, err on side of citizen so that
requirement is reasonable.
o The Reasonable Expectation Test
o Katz v. US  Fed agents suspected Katz of gambling over phone.
They attached listening device to phone in public phone booth. Katz
convicted based on phone recordings. Rule: 4th Amend. protects
people, not places. Warrant required before wiretap.
 1. The individual must have exhibited an actual subjective
expectation of privacy
 2. The expectation he exhibited must be one that society is
prepared to recognize as reasonable.
- Katz said there is reasonable expectation of privacy for phone conversation,
not as to seeing what he is doing
- What if officer is a few feet away? – Katz should not expect privacy in that
situation.

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 o Public phone booth is not total isolation – people might be able to hear
a few feet away
o Citizen is assuming the risk

 Examples of places where a person has a reasonable expectation of privacy are

person's residence and public places which have been specifically provided by
businesses or the public sector to ensure privacy, such as public restrooms,
private portions of jailhouses, or a phone booth. In general, one cannot have an
expectation of privacy in public places, with the exceptions mentioned above. A
well-known example is denial of privacy for garbage left for collection in a public
place.

C.) Applications of the Katz Principle

“Subjective Manifestation”
 The “subjective manifestation” in the two pronged test means that the person
expects privacy. This also means that they must take affirmative steps to protect
their privacy interests
o Thus, if someone abandons their property, no 4th A protection.
 You can also abandon something if you deny ownership of it when
police question you if it’s yours.
“Open Fields”
- Oliver v. United States Police officer ignored no trespassing signs and
crossed fences and observed marijuana which was not otherwise visible.
Rule: No legitimate expectation of privacy in open fields.
o Even if landowner takes significant steps (multiple fences) to protect his
land, cops still can trespass.
o Fences and no trespassing signs generally may create this subjective
manifestation of privacy, BUT there is not an expectation that society is
willing to accept as legit because there is no expectation of privacy in an
open field.
o One exception is if the cops bug your field, you would have an expectation
of privacy if you had, for example, a phone convo there and didn’t see
anyone around.
“Curtilage” (enclosed area of land around a dwelling) Protected by 4th Amend.
- United States v. Dunn 4 factors determine whether land curtilage:
o The proximity of the land to the home
o Whether the area is included within enclosures surrounding the house
o The nature of the use to which the area is put
o The steps taken by the resident to protect the land in question from
observation.
“Access by Members of the Public”
 Consensual Electronic Surveillance
o US v. White  Govt. informer carrying radio transmitter engaged D in
conversation that was overheard by agent. Rule: If you let someone in
your house, undercover cop or not, you subject yourself to the risk of them
hearing your criminal conversations
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  Financial Records –
o California Bankers Assn. v. Schultz  Rule: Bank records (deposits,
accounts, etc.) are not subject to 4th A protections since there is no
reasonable expectation of privacy. The reasoning is that you make this
info available to a bank, so do don’t expect its privacy since you made it
available to someone else.
 Pen Registers
o Smith v. Maryland  installed at phone companies; record the phone
numbers that certain people call from their home phones. Not a search
under the 4th A. Can use them, but only when 1.) Phone co. gives consent
or 2.) Court order is obtained (which only takes a govt official to say it
might obtain important info).
 Electronic Pagers
o US V Meriwether  Rule: You don’t have a reasonable expectation of
privacy when you transmit your number to another person via pager, so
cops can get it and its not a search. However, a search does exist where
police search the memory of the pager for stored numbers – this is
different than just writing them down as they arrive on the pager.
 Trash
o California v. Greenwood  Rule: trash is not a “search” and not
protected by 4th Amend. Public has access to it, no expectation of privacy
 Not about abandonment – he was required by the city to put his
trash on the curb.
 Abandonment is about voluntary relinquishment of
property – trash wasn’t this
 Public Areas – Most times not 4th Amend. protection in public areas and wont be
a search.
o Connecticut v. Mooney  Court has held, though, that homeless peoples
shelters and duffel bag, though on public property, does have a reasonable
expectation of privacy and would be a search.
 Arial Survalence –
o California v. Ciraolo  4th Amend. not violated by aerial observation of
backyard from 1,000 ft. w/out warrant
 Legal, not considered searches since public planes could also see
what is below, prob owners don’t have a reasonable expectation of
privacy. Applies to helicopters as well. Reasoning is that any
member of the public could do the same. Dissent says that that
shouldn’t be the standard (could) but is it commonplace for the
public to do so.
“Investigation That Can Only Reveal Illegal Activity”
 An investigation is not a search if it can only reveal an illegal activity.
 Dog Sniffs –
o US v. Place  canine sniff of closed luggage for drugs was not a search.
It doesn’t require opening of luggage, less intrusive than typical search.
Was found to be unreasonable seizure, however, because luggage was
detained for 90 min.

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  Limited in the manner in which its conducted and the things it can
discover, so no search.
 However, even if a dog alerts to a bag, cops cannot open it because
of that. Dogs can be wrong (all money has drugs on it). Can use
this info to get a warrant, but its not a warrant in itself.
 Dogs can sniff people in trains, busses, etc. Cannot sniff outside of
people’s houses.
o Illinois v. Caballes  D stopped for speeding. One officer processed
ticket, another took dog around car, he had no reason to believe there were
drugs. Dog alerted trunk, officers searched trunk and found drugs,
arrested D. Rule: Dogs are allowed to sniff peoples cars during routine
traffic stops even if no suspicion of drugs
 Dissent – use of dog changed nature of stop & dogs are fallible
 Chemical Testing for Drugs –
o US v. Jacobsen  Fed agent obtained package from FedEx and used
chemical to test it. Rule: Search upheld for chemical test that merely
discloses whether substance is cocaine doesn’t compromise interest in
privacy. Plus the test could only determine illegal activity, nothing
else.
 Getting DNA info probably is search
o Skinner v. Railway Labor Executives Ass’n  Rule: Not upheld for
urine testing. In contrast, urine testing is a search because its more
intrusive and can reveal any number of info about a person on top of if
they are taking drugs.

“Use of Technology to Enhance Inspection”

 As in Katz, visual inspection isn’t always a search (aerial flights), but what if its
aided by sophisticated technology?
 Thermal Detection Devices
o Kyllo v. US  Kyllo arrested for growing marijuana after police used
thermal imaging device to view inside of his house. Rule: use of
a thermal imaging device from a public vantage point to monitor the
radiation of heat from a person's home was a "search" within the
meaning of the Fourth Amendment, and thus required a warrant.
 Reasoning: it goes through walls rather than seeing outside of
walls so you can see private things from the inside, the thermal
devices are not of normal public use, and they can detect both legal
and illegal things not just illegal contraband.
 Court reverts back to saying there are Constitutionally protected
areas – house is protected
 Beepers –
o United States v. Knotts  can use beepers to track people who are
suspected of criminal activity (placing the beepers inside of contraband to
track movements). However, can’t use them to gather information about a
person’s home from inside it.

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  Other Sensory Enhancement Devices – Use of flashlight to look in car: no
search, Cops using telescope to see into people’s houses: search.
o United States v. TabordaAgents invaded person’s reasonable
expectation of privacy when they used a telescope to see activities from
across the street.
o US v. Mankani  Fed agent overheard conversations of room next door
through existing hole in wall. Court ruled agent had legal right to be
there, no expectation of privacy.
o Dow Chemical v. US Govt. officials flew over Dow’s property, used
camera to take pictures of space between buildings. Court ruled Dow had
no privacy interest to area between buildings. No search for use of
camera.

“Public Schools and Public Employees”

 New Jersey v. TLO Students have a reasonable expectation of privacy at
school in terms of their belongings and school cannot search their things without
cause just because they are in a school.
 O’Connor v. Ortega  Offices and desks of public employees at public buildings
are protected by 4th A requirements.

Re-Cap on Katz Limitations

 Katz has been interpreted to LIMIT 4th Amend. protections since it has a
“reasonable expectation of privacy” test. Thus, police activity that looks like a
search might not actually be one for 4th Amend. purposes.

Obtaining a Search Warrant: Constitutional Prerequisites

A.) Demonstrating Probable Cause

 4th Amend. mandates need for probable cause to obtain a warrant

1.) Source of Info on which Probable Cause is Based

 Spinelli v. United States FBI stated they have “been informed by a
“confidential reliable informant” that D was gambling. D convicted of
traveling in interstate commerce with the intention of conducting illegal
gambling activities. D appealed, challenging the search warrant obtained
by the FBI to obtain evidence. Rule: Shows mistrust of informants.
Established 2 prong test to finding probable cause to issue a search
warrant when given information by informant – Aguilar-Spinelli Test:
o Reliability or veracity of the informant – informant must be
credible
 Who is the source of the information and is the source
reliable?
o Basis of Knowledge - how did person providing information
acquire it
 What are the bases and details of the sources knowledge?
 Draper case – detail of info establishes reliability

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2.) Rejection of the Two Ponged Test
 Illinois v. Gates - Police in Ill received an anonymous letter on May 3
indicating that Sue and Lance Gates were selling drugs out of their home.
The sender of letter unknown. Based on the letter, the police observed
actions to corroborate letter and a magistrate issued a W to search the
Gates home and car where marijuana was found. Rule: ‘Veracity’ and
‘Knowledge’ “are better understood as relevant considerations in the
Totality of Circumstances analysis that traditionally has guided p/c
determinations. Two prong test too rigid
o So here, in Illinois, the court abandons the two pronged test and
adopts a “totality of the circumstances” test.
o Still need to look at the same factors, but they are not the only ones
to look at
o Why would writer want to remain anonymous?
 They want to stay protected
 They wanted to keep information private
 They have very legitimate reasons to keep anonymity

- Standards of Proof - level of proof required in a legal action to discharge the

burden of proof, that is to convince the court that a given proposition is true.
o Beyond Reasonable Doubt – high probability, not absolute certainty,
but moral certainty. (Criminal trials)
 A second explanation will create reasonable doubt
o Preponderance of evidence – more likely than not. Just above 50%
probability. (Civil Trials)
- Standards for detentions, searches, warrants
o Probable Cause – there has to be probable cause that there is evidence
of crime in the particular place being searched. (Higher Standard)
 Probable Cause to Search – determined by whether there is fair
probability that area or object searched contains evidence of a
crime.
 Probable Cause to Arrest - determined by whether there is fair
probability to believe that person arrested has committed a
crime.
o Reasonable Suspicion - requires specific, articulable, and
individualized suspicion that crime is afoot. A mere guess or "hunch"
is not enough to constitute reasonable suspicion. (Lower Standard)
 no level of suspicion required: a consensual encounter between
officer and citizen
reasonable suspicion required: a stop initiated by the officer that
would cause a reasonable person to feel not free to leave
probable cause required: arrest.
 A search must be justified by PC or RS in its inception, and not
after the fact.

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  The scope of a permissible search is defined and
justified in its inception.
o Gov interest vs. intrusiveness: the object of the
search matters (Tylenol vs. heroin)

3.) The Citizen Informant

 Courts have distinguished between paid / anonymous informers and
ordinary citizens who identify themselves and report a crime.
 This is because of the possible suspect motives of the paid and anonymous
informants.
 In contrast, citizen informers are assumed reliable because they are
presumed to be motivated by a concern for society and their own safety.
No corroboration is required for their statements.

4.) Accomplices
 When a criminal confesses and identifies their accomplice, that id by the
co-participant is sufficient to establish probable cause – no corroboration
is required.

5.) Quantity of Information Required for PC

Probable Cause to Arrest - determined by whether there is fair probability to
believe that person arrested has committed a crime.
o PC requirement applies to arrests as well as searches.
o May have both, or may have one but not the other, depends on the
circs.
 US v. Valez - undercover officers involved in a drug deal. The suspect left
scene and another officer tracked him. Arrested man that matched
description of the drug dealers. Man ended up being different, but still
had drugs. Court ruled officer had sufficient probable cause to arrest
because of the circumstances – he matched description and was in vicinity.
Dissent – description was too general
o Mistaken Arrests - PC to arrest or search based on fair
probability, not accuracy – can exist even if police make mistake
 US v. Kithcart - officer responded to robbery radio transmission of two
black males in a black sports car. Arrested Kithcart. Court ruled that facts
at time of arrest were insufficient to justify arrest.
Probailities with Multiple Suspects
 Maryland v. Pringle - A police officer stopped a car for speeding, searched the
car, and seized money from the glove compartment and cocaine from behind the
back-seat armrest. The officer arrested the car's three occupants after they denied
ownership of the drugs and money. Held: "a reasonable officer could
conclude that there was probable cause to believe that Pringle committed
the crime of possession of cocaine."

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The Tension Between the Resonableness and the Warrant Clauses

A.) The Importance of the Warrant Clause Generally

 Searches and seizures conducted without a warrant are presumed unreasonable.

B.) The Reason For the Warrant Requirement

 Reasons for Warrant
o You want to have the facts on the record
o Magistrate is independent from police
o Accountability of police officer
o Provides legitimacy
o Particularity requirement of 4th Amend. – limits scope of particular items
to be found in particular places for particular reasons
 Johnson v. US - informant told police they smelled opium at hotel. Police came
to a room, knocked on door, identified themselves and the person let them in.
Police said person should consider themselves under arrest because they were
going to search the room. Held: search unreasonable because it was done w/out
warrant and warrant could have been obtained.

The Exclusionary Rule in Detail: Procedures, Scope, and Problems

11.) “Good Faith” – Reasonable Reliance on the Decisions of Magistrates and

Others Without a Stake in the Criminal Investigations and Prosecutions
o United States v. Leon - Facts: Police conducted a search using a warrant
they believed in good-faith to be based on sufficient probable cause, but
which was later found to be lacking in that regard. Rule: Good Faith
Exception to the Warrant Requirement. The 4th Am does not require
the exclusion of evidence seized pursuant to a facially valid warrant where
the police have acted in good faith.
o Evidence seized on the basis of a mistakenly issued search warrant could
be introduced at trial.
o GFE – meant to deter police wrongdoing

12.) The Good Faith Exception and Warrantless Searches

Good Faith Where the Officer is at Fault?
o The SC has not addressed the Q of whether the good faith exception
applies to warrantless searches, where an officer is not relying on an
intermediary but his own mistaken judgment.
o Courts have held that mistakes by intermediaries (magistrates and
legislators) cannot be deterred by the exclusionary rule, BUT have
presumed that mistakes by cops (who are in competitive enterprise of
fighting crime) can by deterred by the rule.

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 o Ex. Cops stops car he thinks has drugs and radios in license plate.
Dispatch mishears a letter on plate and tells cop it’s a different car than the
guy is actually driving (cops mistake, obvi). Based on this cop serches and
finds drugs. Court allows this in because although cop messed up, he
relied on the statement by the dispatcher in good faith.
o So Leon is pretty much limited to where someone other than the cop has
made the mistaken determination that resulted in the 4th A violation.

V. To Apply or Not Apply the Warrant Clause

A.) Arrests in Public and in the Home

Arrests in public – permitting public arrests in the absence of a warrant
 United States v. Watson - Facts: Informant told Federal Postal inspector that
Watson sold him stolen credit cards, and will do so again. Postal officer could
have gotten warrant, but didn’t – arrested Watson, under authority of 18 USC
§3061 (allows postal inspectors to arrest without a warrant provided they have p/c
to do so). Rule: Warrantless arrests based on probable cause do not violate the 4th
amendment. An officer with probable cause to make a felony arrest is not
required, under the 4th Am, to obtain an arrest warrant.
 Use of Excessive Force in Arrest must be Reasonable
o Scott v. Harris - Police officer rammed his car into Harris’ car in a high
speed chase. Harris crashed and was rendered a quadriplegic. He sued
Scott for violating 4th Amend. using excessive force – unreasonable
seizure. Scott said he has qualified immunity as govt. official doing his
job, he made motion for summary judgment. Court ruled no violation of
4th Amend. , innocent bystanders were at greater risk. Reasonable test
was passed by officer.
 Tennessee v. Garner – Cop shoots fleeing suspect in head,
not reasonable
 Hypo: What if a third party was injured in the same
circumstances? Another car comes along or an innocent
bystander. Is the officer liable?
 For 4th Amend. rights, there is no liability
Arrests in the Home
 Absent exigent circumstances, police must have a Warrant to arrest or a
Warrant to search before they are justified in entering the home of an
individual.
o Payton v. New York - “The Payton Rule”  Officers went into Payton’s
apt. w/out warrant to arrest him. Found gun and used it to indict him for
murder. Rule: Court held exception to warrant requirement for public
arrests did not extend to arrests in home. Home deserved special
protection.
 Is this case a search or a seizure? Why does court say an arrest
warrant is required?

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  Search warrant isn’t practical if you don’t know where
suspect is
 Search warrants go stale, arrest warrants don’t
 Search warrants are limited if you are searching for people
 Hypo: police get probable cause to arrest A, fingerprints on bag.
They get a warrant to arrest. They learn A is at B’s house. Police
go there and they look for A. They find drugs in the house in plain
view. C is sitting at table. They don’t find A. B & C are charged
with possession of drugs. C & D move to suppress evidence. Who
wins?
 If in home of 3rd party, you need a search warrant, they
only had arrest warrant
 If you live with someone, then you have lesser expectation
of privacy
 They could look at Minnesota v. Carter – just because they
are on premises, doesn’t mean there is expectation of
privacy
 Search Warrant  PC to believe that a criminal might be found at a certain
place
 Arrest Warrant  allows cops to arrest a criminal whenever they see him
o Big difference, just cause have arrest warrant doesn’t mean can enter
home unless reasonably believes criminal is home.
 Reason to Believe Suspect is at Home
o Payton leaves it to the officers to determine whether there is reason to
believe the suspect is within the home.
o This “reason to believe” standard is less than PC
 Is Arrest at Home or in Public? – commons of hallway
o US v. Holland – Officers can wait outside a persons home till they come out
to arrest them without a warrant since hes now in public. Rule: “home”
does not extend to common hallway of apt.
 Homeless People
o Courts are split on whether you ever need a warrant to arrest a homeless
person since they are on public prop, because some courts say they have
prop rights even on public prop.
 Hotels and Motels
o Same rights as a home as long as the person is lawfully in the room (paid
for the rental / wasn’t kicked out, etc).
o Same applies for a tent, even on public property.
 Arrest in Home of Third Party
o Steaglad v. US - Facts: Police entered Steagald’s home to find Lyons, for
whom they had an arrest warrant. Lyons not there, but found drugs in
plain view – resulting in Steagald’s conviction. Rule: Absent exigent
circumstances, an arrest warrant does not authorize entry into a 3rd

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 party’s home, even on reasonable belief that the suspect is there. Police
must obtain a search warrant to search the premises for the suspect.
 Rights of Overnight Guest
o Minnesota v. Olson  an arrest warrant is required under Payton to
arrest a person who is an overnight guest in the home of a third party.

 Temporary Visitors
o Minnesota v. Carter  Temporary visitors, who have less of a
connection to the premises than do overnight guests, don’t have a
reasonable expectation of privacy sufficient to trigger 4th A rights.
 Multiple Residences
o Person may rent an apt, stay with a girlfriend, stay with family, etc. If cops
have reason to believe that a certain location is a person’s residence, cops
can search it with a warrant. This applies to multiple locations, so if cops
have PC that all three of those locations are suspect’s residence, they can
search all of them

Exigent Circumstances – Exception to Warrant Requirement

 Exigent Circumstances Generally
o Excuses officer from having to obtain search/arrest warrant because there
was a risk of flight, to prevent harm to police or public, or to protect
against loss of evidence
o Warden v. Hayden  cops follow suspect into home and enter home w/o
warrant to search for him and contraband. OK.
 Hot Pursuit – No warrant needed in the middle of a chase
 Welsh v. Wisconsin - Suspect must know they are being
pursued
 Must be in close amount of time
 Seriousness of offense taken into account
 Police/Public Safety – no warrant needed if harm to public exists
 Mincey v. Arizona - Warrantless search can be done to quickly
see if there are other victims or killer there, otherwise, warrant is
needed
 Brigham City v. Stuart  Officers came to party and observed
assault taking place. Rule: Exigency exists in needing to assist
persons who are injured or threatened with injury.
o Cops’ subjective motives are irrelevant into determining
such a case.  different for suspects (Katz test).
 Risk of Destruction of Evidence – if evidence will be destroyed in
time it takes to obtain warrant, then no warrant needed
 Illinois v. McArthur - Officers w/probable cause,
prevented man from entering his home while they obtained
search warrant for marijuana in his home Rule: No
violation of 4th Amend where temporary restraints
were needed to preserve evidence – less intrusive than
police entry into home.

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 o HYPO: There is a bank robbery, film shows it,
tellers identify who it is. They go to X’s residence
two hours after, they don’t find him, but in dresser
drawer they find gun and diamond from robbery. Is
it ok to do this?
 Hot pursuit normally excuses arrest warrant
 There is no hot pursuit in this case – time is
an issue
 Does suspect know he is being pursued
 If he just robbed bank, he should know he is
being pursued

Stop and Frisk

- Stop and Frisk Established – Police recognize they don’t have probable cause to
act, but want to stop person for questioning to determine whether crime is about
to occur. Standard of proof less demanding than probable cause is needed to stop
a crime before it happen
o Terry v. Ohio - Three men, Terry and Chilton were peering at a store window
for 10-12 min. Officer McFadden suspected a stickup and asked them for their
names. Officer stopped and frisked them and found a guns in pocket. Rule:
Must have a reasonable suspicion that a crime is going to be
committed - Where an officer observes conduct that, in light of
experience and all other circumstances, would lead to an objectively
reasonable belief that a suspect is armed and dangerous, the officer may
conduct a frisk limited in scope to searching for weapons.
 Gov’t: “stop and frisk” needed to prevent crime – if not, crime may
go rampant
 Individual: No different than a search and seizure. Liberty in
jeopardy.
 Reasonable suspicion means that based on the facts, a reasonable
person might conclude there is probability of criminal behavior
such that limited search is appropriate
 Less than probable cause
 Seizure was when officer restrained men when they tried to walk
away
 Legitimacy of seizing the person
 The search was the frisk
 Observation by officer wasn’t search
 Approaching and asking for names was not a search or a
seizure

 Critique of Terry
o Reasonable standard gives too much discretion to the cops, has eroded
the 4th A.
o It extended police powers and diminished individual freedom.

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 o Disproportionately affected blacks, minorities, and other disfavored
groups. Allowed cops to stop them for arbitrary reasons.
o Others say that using a reasonableness standard was a good idea in that it
kept the probable cause standard meaningful in other areas because using
it in stop and frisk situations would water down the meaning of it.

 Terry Rule Extended to Traffic Stops

o Pennsylvania v. Mimms  cops stopped guy driving with expired plates.
Saw bulge in jacket, patted him down and found gun. Guy tried to
suppress gun at trial but court said no. Rule: Created a bright line rule and
extended Terry rule to traffic stops. When a cop lawfully stops a vehicle,
they have an automatic right under Terry to order the driver out of
the car.
 (1) officer justified in stopping Mimms for traffic violation
 (2) officer had cause to frisk Mimms based on noticed bulge.
Officer justified in asking Mimms to step out – reduce likelihood
of assault and reduce injury from passing traffic.
 Dissent – order to get out of car could aggravate danger and no
nexus between traffic violation and order to get out of car
 Maryland v. Wilson - Office stopped speeding car and order both driver and
passenger out of car. Cocaine of passenger fell out. Rule: the bright line rule in
Mimms applies to passengers as well. Same issues in Mimms present here.
 Arizona v. Johnson - Officer stopped car for suspended registration, noticed
police scanner in pocket of back seat passenger. Noticed gang related clothing.
Asked him to step out of car separately to question about gang activity. She
patted him down and noticed gun in hip, placed him in handcuffs. Rule: Search
is permissible under Terry doctrine as long as officer has reasonable belief
that passenger is armed and dangerous
When Doe Seizure Occur?
 Free to Leave Test
o US v. Mendenhall –Mendenhall was suspected of drug possession and
asked by officers to go to airport DEA office.
 Seizure if reasonable person doesn’t feel free to leave
 If office doesn’t have factual basis that someone committed
a crime, they don’t have probable cause to arrest
 Asking someone routine questions on the street is
Mendenhall stop
 Applying Free to Leave Test
o Florida v. Royer –Drug officers suspected Royer of transporting drugs.
They confronted him, asked him if they could look in his luggage. He did
what they said and drugs were found. Rule: Different from Mendenhall –
ticket and ID and luggage were taken and not given back, officers didn’t
advise suspect that he could decline to be searched. This was all opposite
of what happened in Mendenhall.
 State has to show consent for search was freely given

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  Bus Sweeps w/o Reasonable Suspicion
o United States v. Drayton - Police conducted search for drugs on bus.
Respondents consented to search of bag and person. Drugs were found.
Rule: No violation of 4th Amend. by approaching people and asking
them questions. Consent voluntary and respondents not seized
o Brendlin v. California –Rule: A person is seized by the police and thus protected
under 4th A when by means of physical force or show of authority terminates or restricts
ones movements.
o Suspect Who Does Not Submit
o California v. Hodari - Kid sees cops and runs, cops chase after him. While
running he throws crack rock on ground and is arrested. Moves to
suppress crack claiming that the cop chasing him was a seizure under the
4th A thus it was a violation. Rule: A seizure must have a physical
component to it. Simply running away does not constitute a seizure of
one's liberty.
 Hodari seized when tackle occurred – was he seized before that?
 He wasn’t seized until he was physically touched
o He threw item off on his own – it is in plain view –
like trash while running away
o If it were seizure during pursuit, drugs would have
been fruit of poisonous tree
o When Does Submission Occur?
o United States v. Lender - D’s gun fell out of his pants while he was running.
He was arrested on gun charges. Court ruled no seizure because the gun
fell into plain view.
o Summary of Seizure Cases
o Seems like travel is a considerable problem. Cops can stop someone and
ask permission to look in his luggage even if the traveler doesn’t appear or
act suspicious. This is true of land, air, or sea.
o If approached the innocent traveler should not be alarmed but should tell
the officer he doesn’t wish to talk to them.
Grounds for a Stop: Reasonable Suspicion
 Source of Information - Can reasonable suspicion be based on a tip from an
anonymous informant?
o Alabama v. White  Police received anonymous tip that D would be
driving to a motel w/drugs. They followed her and the info tipster gave
was correct. They found drugs. Court ruled that tip was sufficiently
corroborated by police investigation. Caller’s ability to predict White’s
future behavior was important. Rule: Anonymous informant’s tip that
was “significantly corroborated” by a cop’s investigation provided
reasonable suspicion for a stop.
 Court used Gates “totality of circumstances test” for PC and used
it to apply to RS.

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  The tip alone wasn’t enough because the reliability of the source is
unknown – ability of informant to predict the future taken into
account
 To determine whether or not an officer has reasonable suspicion to
detain someone
 How reliable was source of information
 What indication does officer have as to how source
acquired information
 Same analysis as Gates case

Search Incident to Arrest: The Arrest Power Rule

Spatial Limitations
 Search of Area Within Immediate Control of Suspect
o Chimel v. California - Local police officers went to Chimel's home with a
warrant authorizing his arrest for burglary. Upon serving him with the
arrest warrant, the officers conducted a comprehensive search of Chimel's
residence. The search uncovered a number of items that were later used to
convict Chimel. Held unreasonable. Rule: Searches "incident to arrest"
are limited to the area within the immediate control of the suspect.
 While police could reasonably search and seize evidence on or
around the arrestee's person, they were prohibited from rummaging
through the entire house without a search warrant.
 US v. Lucas – if police went back after arrest to search house, it
would not be ok. They found gun in cabinet that was accessible to
Lucas and the two other people in his kitchen
 US v. Currence – Court upheld search of bike handlebars
(cocaine found therin). It was within immediate control of
suspect because he was on the bike.
 Davis v. Robbs – Court upheld the seizure of a rifle that had
been in close proximity to arrestee at time of arrest. Dissent
said that exigency is for time of search, not arrest. Suspect was
handcuffed and in car when rifle was seized, it was not in his
immediate control at that time.
o Protective Sweep After an Arrest - With reasonable suspicion, officers
are permitted to conduct a search of the house looking for dangerous
people

Temporal Limitations
o Removal From the Arrest Scene
o Chambers v. Maroney  Car towed to police lot and searched 90 min
later. Rule: there is no justification of search of car at a later time and
in a different location. This is not justifiable as a search incident to an
arrest
o US v. Edwards  guy arrested for breaking into post office and jailed
around midnight. Cops in the morning take his clothes (search) for

16
 analysis. Rule: OK because the search at time of arrest couldn’t have
been conducted properly (dark out, etc) so reasonable to subject him to
search once he gets to the prison. Not separated from clothes like he
would be with car.
 When arrested and taken in to custody, no expectation of privacy

Searches of the Person Incident to Arrest

 United States v. Robinson- During a pat-down incident to Robinson’s arrest for
driving while his license was revoked, the officer removed a cigarette pack from
Robinson’s pocket, opened it, and found heroin. Rule: The SC creates a bright-
line rule allowing the search of a person incident to arrest. Any lawful custodial
arrest justifies a full search of the arrestee’s person
o The arrest itself creates an automatic right to search .
o Dissent – for this type of crime, there is no safety risk with a cigarette
pack
 This is giving a lot of discretion to officers
 Breaking connection between search and justification for search
 No Chimel reasons for the search
o What is rational court gives for saying search is automatic?
 Gives officer clear understanding of what they can do
 Gives judge a clear line
 Not a significant intrusion of privacy, once you’ve already been
arrested
 Intrusion, compared to arrest itself, is kind of minor
Custodial Arrests for Minor Offenses – 4th Amend. Permits it
o Atwater v. City of Lago Vista - Petitioner driving car with 2 minors not in
seatbelts. Officer approached her, and told her she is going to jail. When
petitioner could not supply ID required, officer handcuffed woman and
drover her to the station, where she was booked. Rule: 4th Am permits
custodial arrest even where conviction could not result in jail time and
where there is no compelling need for immediate detention.
 Dissent – Bright line rule can cause discretion to be used to abuse
and harass people. Fine would cost less than booking process
 Hedgepeth v. Washington Metro – Girl arrested for eating fry on
Metro. Ruled ok under 4th Amend.
 If state law allows arrest for driving w/o license, then arrest is
not unreasonable under 4th Amend.

Arrest Power Rule Applied to Automobiles

 New York v. Belton - Officer stopped speeding car. Noticed marijuana envelop
on floor or car. Searched all 4 people who were in car. Searched back of car,
where passengers sits. Found leather jacket and unzipped pocket –found cocaine

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 Rule: an officer may, after making a lawful arrest of an occupant of a car,
search the passenger compartment of the car incident to arrest.
o Extended Chimel to vehicles. Gives us a bright line rule for search
incident to arrest in cars.
o In all cases you can search the passenger compartment of the car because
it is within reach of arrestee
o Bright-Line Rules: (1) Passenger compartment is always w/in arrestee’s
grab area (2) Containers in arrestee’s grab area can be opened
automatically

Problems After Belton: The Arrestee’s Relationship to the Car

 Thornton v. United States - Officer ran license plates, found out they belonged to
a different car, followed car into parking lot and approached suspect after he got
out of car. Officer patted down suspect and found drugs. He then searched the
car and found a gun. Rule: Belton rule governs even if no contact is made
until after person arrested has left the vehicle.
o Extended Belton to situations where the cop makes contact with the suspect
after the suspect has exited his vehicle.
o Dissent - arrestee is handcuffed and sitting in patrol car before the search of the
car is conducted.
 There was no way for there to be a danger or risk of loss of evidence by
him being in car

Limitations on Arrest Power After the Arrest of a Recent Occupant

 Arizona v. Gant - Gant arrested for driving with suspended license, handcuffed,
and locked into back of police car. Officer then searched his car and discovered
cocaine in the pocket of a jacket on the backseat. Rule: Police may search car
incident to arrest only if arrestee is w/in reaching distance of the passenger
compartment at time of search
o US Supreme Court affirmed Arizona Courts ruling to suppress the
evidence
 J. Stevens says that they are not overruling Belton – Belton had
been interpreted wrongly
 Distinguishable from Belton because he Gant was already secured
in police car
o Must have reason to believe that evidence of violation will be found
within car
Automobiles and Other Movable Objects
The Carroll Doctrine
 Carroll v. US - Ds driving from Detroit to Grand Rapids, they were pulled over
and had car searched by officers. They were found to be transporting whiskey,
which was illegal due to prohibition. Officers previous experience with Ds led
them to suspect that they would be transporting liquor.

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 o “Automobile exception”  exception to the warrant requirement. Police
may search an automobile without a warrant so long as they have
probable cause to believe it contains evidence of criminal activity.

Carroll Compared to Search Incident to Arrest

 Under automobile exception, cop still must have PC to believe that evidence will
be found in the area of the car that she searches.
 Contrast to search incident to arrest where cop only needs PC to arrest (for any
crime no matter how minor).

The Progeny of Carroll

 Chambers v. Maroney - The offenders were in custody, the vehicle was already
impounded and legally seized; therefore, the search could have waited until the proper
warrants were obtained. 
 Motor Homes
o Automobile exception applies to motor homes.
o California v. Carney - Warrant exception for car searches because of
mobility and because expectation of privacy is significantly less than that
of home. Motor home is a home, not a vehicle and warrant exception
doesn’t apply in most cases. Factors to look at include location, whether it
is licensed, utilities, etc.
 Two reasons for car exception:
 Mobility of the cars (they can leave quickly)
 Diminished expectation of privacy in cars (the auto
exception is based primarily on this*)
 Why diminished expectation of privacy? b/c how extensively
regulated cars and traffic laws are.
 Don’t always need exigent circs to search.
o HYPO- What if Carney were on a cruise ship and were selling drugs?
 Like the hotel cases – if you stay overnight in a place you have a
residential privacy interest that is more akin to a home
 Automobile exception applies to airplanes as well.

Movable Containers – In and Out of Cars

 United States v. Chadwick - Police saw person getting off a train with big bag.
As soon as placed in trunk, arrested and seized item from trunk. Rule: Warrant
needed to search luggage. More privacy in luggage and person effects than in
automobiles, therefore could seize luggage, but cannot open it.
 California v. Acevedo - Extended the automobile exception to cover situations
where cops have PC to believe a package in a car has evidence, they can search
package w/o warrant.

Pretextual Stops and Arrests

Whren v. US - Rule: An officer’s motive for making a stop does not invalidate his
objectively justifiable conduct. Thus, a traffic stop is permissible as long as an officer

19
has p/c to believe a traffic violation has occurred, even if the officer’s subjective reason
for making the stop is that he suspects other illegal behavior.

Plain View and Plain Touch Seizures

 Horton v. California - Officer affidavit established p/c to search defendant’s
home for the proceeds of a robbery and for weapons used in that robbery – but
magistrate only issued warrant for proceeds. Proceeds not found, but guns were –
which were seized. Rule: Search was ok because officers had warrant to
search where they were searching. As long as officers confine their search, in
area and duration, to the terms of the warrant or a valid exception to the warrant
requirement, they may seize contraband or evidence they discover which is not
listed in the warrant
o Searching for TV in desk drawer wouldn’t be ok
o HYPO: Suspects steal TVs and officers get warrant to search for TV and
also want to look for drugs. Officers open closet door and find drugs, but
don’t find flat screen TVs. P moves to suppress the drug evidence in
court. What outcome?
 They have a right to be there, so the plain view doctrine applied.
 They had a warrant to view what they were viewing

Moblie Containers in the Car

 Arkansas v. Sanders – warrant was required to search a suitcase that had been
placed in trunk of taxi. Probable cause to search suitcase, but not to search
anywhere in the taxi.

Consent Searches
 Voluntary Consent – Search based on consent is reasonable even in the absence
of a warrant or any suspicion
o Schneckloth v. Bustamonte - Officer pulled over car due to broken light.
Driver could not produce a license. Officer asked man ID as brother if he
could search the car, to which he agreed. Driver helped open trunk and
other areas. Stolen checks were found. Rule: The question of whether a
consent to search was in fact “voluntary” or was the product of duress or
coercion, express or implied, is a question of fact to be determined from
the totality of circumstances
 HYPO: Police stop a car at night and call for backup. Passenger is
13yr old girl, driver is her brother. Officer asks to look through
purse of girl. She is embarrassed by what is in the purse. Have 4th
Amend. rights been violated by search?
 They just have a hunch there are drugs, they don’t have
probable cause
 Is it reasonable because she gave consent to have her purse
searched
o Would an objective person believe that handing
over purse constituted consent

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  Should reasonableness require officers to inform suspect
that they can refuse search
Totality of Circumstances for Consent
US v. Gonzales-Basulto – set forth 6 relevant factors to whether consent is voluntarily
obtained
1. Voluntariness of custodial status
2. Presence of coercive police procedures
3. Extent of D’s cooperation with police
4. D’s awareness of right to refuse consent
5. D’s education and intelligence
6. D’s belief that no evidence will be found

Apparent authority vs. Actual authority

o Illinois v. Rodriguez - Woman friend of suspect consented to search of
apartment she no longer lived in. She let officers in with a key she still
had. Rule: Court held that friend didn’t have authority to consent to
search – no joint access or control. However, entry would be valid if
police had reasonable belief that friend had authority to consent.
 HYPO: Sister and brother live in an apartment and she allows
officers in to search. Officer uses key she gives him to get into
brother’s drawer. Is it a valid consent?
 The sister didn’t have mutual use and access to the drawer.
She had consent to allow them into the apartment, but not
into the drawer

Administrative Searches and Other Searches Based on Special Needs

 Traditional requirement of warrant is not well suited for school discipline, public
safety, admin. efficiency, etc.
 If govt. search or seizure is for special needs outside of criminal enforcement,
then balancing of interests under reasonableness test is used.
 Safety Inspections of Homes
o Camara v. Municipal Court – homeowner wanted to exclude health inspector
from warrantlessly inspecting home provided by SanFran housing code.
Rule: Warrant required, but you don’t need probable cause and you don’t
need individualized suspicion– you just need to have inspection be in
compliance with a reasonable administrative scheme
 Reasonable balancing by govt. with individual interests

 Administrative Searches of Businesses

o New York v. Burger - Burger owned an auto junkyard. Officers entered to
conduct an inspection under state statute. Burger had no license or police
book. Officers copied down VIN #s and determined Burger was in
possession of stolen vehicles and parts. Burger was arrested Rule:
Closely regulated industries are subject to inspection – Criteria:

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  (1) substantial govt. interest in regulation
 (2) warrantless inspection was necessary to further regulatory
scheme
 (3) statute’s inspection program provided a constitutionally
adequate substitute for warrant.
 Importance of Burger - illustrates that line between criminal
searches and admin. Searches is a very fine line and difficult to
draw. Sometimes, it is an arbitrary line
o Safford Unified School District #1 v. Redding - 13 yr old student’s was
subjected to a search of her bra and underpants by school officials acting
on reasonable suspicion that she had brought forbidden prescription and
over-counter drugs to school. Rule: Because there were no reasons to
suspect the drugs presented a danger or were concealed in her
underwear, the search did violate the Constitution. However, schools are
immune
 Special needs administrative search
 Suspicionless Searches of Persons of Basis of Special Needs
o Skinner v. Railway Labor Executives – Court upheld a program mandating
drug tests for all railroad personnel involved in certain train accidents.
 Govt. was able to establish history of drug abuse problems among
this class of people
o National Treasury Employees v. Von Raab - Customs Service employees
were subjected to drug tests. Rule: Govt. had compelling interest and
demanded measures to prevent promotion of drugs.
 No history of drug use
 Drug Testing of Schoolchildren
o Board of Education of Indep. School Dist. v. Earls- Rule: that all
students who participate in voluntary activities, like cheerleading, band, or
debate, could be subjected to random tests as part of a comprehensive
program.

Roadblocks, Checkpoints, and Suspicionless Searches

 Individual Stops without Suspicion
o Delaware v. Prouse – Rule: an officer could not, in the absence of
reasonable suspicion, stop an automobile and detain the driver in order to
check his license and registration. Officer made an ad hoc stop.
 Car driving on road – cops had hunch, but couldn’t stop car

 HYPO: Officer pulls over car, 4 Mexicans in car – officer wanted

to see if they were illegal. They all end up being legal. Officer
asks for consent to search car and marijuana is found. Driver is
charged with drug possession.

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  Driver could argue there was an unreasonable seizure –
they could argue there was no probable cause
 Original seizure of car was not based on probable cause or
reasonable suspicion
 Search was the fruit of an illegal seizure
 No specific facts that crime or violation of immigration
laws were happening
 Permanent Checkpoints
o US v. Martinez-Fuerte  SC used Terry principles and approved
suspicionless stops at permanent checkpoints removed from the border.
 Temporary Checkpoints to Check for DUI
o Michigan Dept of State police v. Sitz - Upheld suspicionless stops at
temporary sobriety checkpoints.
o City of Indianaoplis v. Edmond - *Revised its analysis is Sitz and
invalidated a roadblock because its primary purpose was to enforce
criminal law (check for drugs) while with the prior two cases (Martinez-
Fuerte & Sitz) it was to protect the public. Rule: Highway checkpoint
programs, whose primary purpose is the discovery and interdiction of
illegal narcotics, are not consistent with the Fourth Amendment
 Limits Sitz – doesn’t expand it to crime prevention roadblocks, it
has to be for primary purpose that serves interest of state – drunk
driving, drivers license, etc.

The Exclusionary Rule in Detail: Procedures, Scope, and Problems

Establishing a violation of a Personal 4th Amend. right (Standing)
 Standing  since 4th A rights are personal rights, must be able to show that your
personal rights were affected by the govt’s search or seizure
 Jones v. US  Created “automatic standing” - search could be challenged by
anyone who is legitimately on the premises where a search occurs OVERRULED.
 Rakas v. Illinois - Police stopped and searched a car, which petitioners neither
owned nor leased but were occupying as passengers. Ct. ruled D didn’ own car
and had no expectation of privacy. Rule: Standing should depend on whether the
police action sought to be challenged is a violation of an expectation of privacy
with respect to the person challenging the intrusion.
o Cut back on broad Jones rule.
o Court embarked on concept of standing to say “does person complaining
about search have reasonable expectation of privacy themselves for the
search”
 Passenger doesn’t have it for search of vehicle

 US v. Salvucci
o Overturned Jones and eliminated “automatic standing”.
Targets Without Standing

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  US v. Payner - IRS agents stole briefcase of bank official to find information on
Payner. Ct. ruled Payner had no right to object to the search of the briefcase, even
though he was the target of the search. His rights weren’t violated Rule: Person
must have standing to contest search
Presence in the Home of Another
 Minnesota v. Carter – 3 suspects arrested after a police officer observed them
through a window bagging cocaine in other person’s apartment. D’s were in
house for 2 ½ hrs, had no previous connection to person, they gave him cocaine
for letting them use his house. Rule: Short-term visits for commercial
transactions are not protected by the Fourth Amendment. People who visit
someone's home for a short time do not have the same protection against
unreasonable police searches and seizures as do the residents or their overnight
guests.

Limitations on Exclusion: The Requirement of Causation and the Exception for

Attention
- Exclusionary rule does not apply unless there is a substantial causal connection
between the illegal activity and the evidence offered at trial

Evidence Found After A 4th Amend. Violation

Brown v. Illinois - Following illegal arrest, petitioner taken to police station, after
waiving his rights per Miranda warning, gave incriminating statements Rule: Miranda
warning do not purge the taint of an illegal fruit. If so, illegal arrests would be
encouraged by the knowledge that evidence derived from them hopefully would be made
admissible.

Independent Source
- Allows the introduction of evidence discovered during unlawful search if
evidence is discovered later through a source that is untainted by the initial
illegality
Murray v. United States – warrantless search was conducted and follow-up search with
warrant was conducted after. Court ruled that warrant search was not based on 1st search
and was independent

Chapter 3 – Self-Incrimination and Confessions

Statements are inadmissible if they’re deliberately elicited after indictment & in the
absence of counsel
- Interrogation is conduct that is reasonably likely to elicit a criminal response
II.) Confessions and Due Process
 5th Amendment – “nor shall any person be compelled to be a witness against
themselves, nor be deprived of life, liberty or property without due process of
law”
 14th Amendment – nor shall any state deprive the same

24
  4th Amend talks about the right of the “people” not specific person

Due Process
 Brown v. Mississippi - Brutal whipping of suspects to get them to confess. Sham
trial was conducted - only evidence were the coerced confessions. Rule: Court
held that whipping of people (negroes) to obtain confession, was
unconstitutional – against 5th Amend.

Confessions
 Spano v. New York –Police used overbearing interrogation methods to get
confession Rule: Will was overborne by official pressure, fatigue and
sympathy falsely arouse
o Totality of the circumstances
 Deception and False Promises by the Police
o Green v. Scully – Police threatened electric chair and claimed they had
evidence to convict suspect, which wasn’t true. They lied about having
his fingerprints and blood at the scene. Cop also promised psychiatric
help, which appealed to suspect. Rule: Confession was voluntary
because promises don’t bar admission of confession
 False Documentary Evidence
o Florida v. Cayward – police used false DNA documents to interrogate D.
D confessed when shown the documents. Rule: Court found confession
involuntary because there is a difference between document and
verbal tactics.
 Totality of circumstances needs to be looked at
 Threats of Physical Violence
o Arizona v. Fulminante – Court held that confession made by one prisoner
to another was coerced and involuntary under 5th and 14th Amendments.
Paid FBI informant inmate offered to protect D from other inmates if D
told him what happened. Confession was given Rule:
 Another inmate extracted confession
 This was viewed as state action, so there was violation of
Due Process
 The threat of violence was enough to say it was involuntary
confession
 Almost a bright line rule
 Extreme Deprivation – depriving food, water, etc. is also a factor
to be considered
 What is torture and what is merely coercion?
o Torture is mostly viewed as a violation of Due
Process of 14th Amend.
 Focus on Police Misconduct
o Colorado v. Connelly – Suspect had hallucinations that told him to
confess. Rule: If police did nothing wrong and there was mental

25
 illness induced voluntary confession, then there is no Due Process
violation

- After Miranda is waived, there can still be due process violation

III. Fifth Amendment Limitations on Confessions

Miranda v. Arizona
Miranda v. Arizona – Ds were questioned "while in custody or otherwise deprived of
[their] freedom in any significant way." In none of the cases were suspects given
warnings of their rights at the outset of their interrogation. Rule: Prosecution may not
use statements stemming from custodial interrogation of D unless is demonstrates
use of procedural safeguards. Prior to questioning, person must be warned he has a
right to remain silent, any statement he makes can be used against him, and he has right
to presence of attorney
o Warnings
 1. Right to remain silent – given in clear and unequivocal
 2. Anything said can and will be used against the individual in
court
 3. Right to consult with counsel before and during questioning
 4. If you can’t get one, one will be provided
o Intelligent Waiver
 Govt. has to heavy burden to show that it was knowingly and
intelligently waived rights.
 They were warned and the y understood what it meant
 A suspect must unambiguously and clearly invoke a right.
 Do you understand your rights?  Knowing and Intelligent
 Do you want to tell me your side of the story?  Voluntary
o Asserts Rights – Leave Him Alone – Only in Custodial interrogation

 Analysis of Miranda
o Miranda brought the 5th A into the stationhouse, whereas previously it was
thought to limit state compulsion such as contempt of court.
o Plus, the 5th A’s history is relatively ambiguous in what it should be
applied to which gave the Court some leeway to apply it to the
stationhouse.
o Prior to Miranda people didn’t think the 5th A applied to stationhouses
because people during questioning weren’t compelled to speak, there was
no punishment for silence. Thus, there was no need for the 5th A. The
Court in Miranda broke from this and said that 5th A protections DO apply
 Alternatives to Miranda are not practical or economical
 Videotape everything: costly and may not be practical in all
locations
 Bringing a suspect, in custody, to a magistrate before
interrogation will take a long time
 Judicial Review and Education of the Public
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 o Court in Miranda seems to have two goals:
 Judicial Review  Under the previous Due Process test, it was
basically impossible for the court to have meaningful judicial
review over police interrogations tactics.
 Education of the Public  Since the law isn’t taught to kids like
other subjects are, rarely are people well-informed of their C
rights. Thus, this makes sure people in custodial situations are
informed of their rights.
 Impact of Miranda
o Some say that it doesn’t appear that Miranda imposed any additional costs
on police departments or have hurt conviction rates in any way either.
o Some say it has harmed: cops cant catch guilty people because of the
safeguards and get false confessions from innocent people because they
cant get them from the real culprit.
o Miranda’s objective was not to prevent confessions, but to reduce the
compelling of pressure in the interrogation process.
o Miranda doesn’t protect people from conviction, but only from a
particular method of conviction.
o The rate of confessions hasn’t changed, but those confessions are now
mostly the result of persuasion and suspect’s overconfidence, not of
pressure and fear.
 The Miranda Compromise
o Part of the reason Miranda hasn’t had that much of an advese effect on
law enforcement is that the opinion isn’t as drastic as some thought it
would be.
o It does not put an end to confessions without council, nor does it prohibit
stationhouse interrogation.
o It provides for a warning regarding rights to silence and council, but the
decision whether to invoke those rights or to waive them is made by the
suspect (in presumably the same coercive atmosphere for which these
rights were created by the Court).
o The compromise was that it didn’t give suspects a non-waivable right to
council before interrogation.
 Perhaps a good alternative to Miranda would be to just videotape custodial
interrogations.

Did Congress Overrule Miranda?

 The Court considered whether Congress could overrule Miranda in:
 Dickerson v. United States - Dickerson was charged with bank robbery and
moved to suppress a confession on ground that he didn’t receive Miranda
warnings. Rule: Miranda safeguards are still controlling, but all of the exceptions
to them still stand.
Open Questions After Miranda
What is Custody?
 How is custody defined for Miranda purposes?

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 o If person is in fact under arrest or reasonable person would think they are
under arrest.
 Person is going to police station and is not free to go
 Under control of police for a substantial period

 If the D who confesses is not in custody, Miranda doesn’t apply, and the
admissibility of the confession depends on whether it was given voluntarily under
the totality of the circs.
 So you need custody and an official interrogation to trigger Miranda.
o Stansbury v. California – subjective view of police is not relevant in
determining whether person is in custody
o Yarborough v. Alvarado - Youth is not a relevant factor in determining
whether a person is in custody. Custody is objective test.
 HYPO: D is 14, police call his home and tell his parents they want
to talk to him. They go down to police station and they bring their
lawyer. Police want to talk to him alone. They do that and
question him for 4 hours. He confesses and they let him go home
and arrest him the next day. They don’t give him his Miranda
rights.
 Should age or susceptibility be a factor? Look at it under a
reasonable test for someone the same age or same
circumstances
 Issue of letting them go can be easily manipulated – he can
be arrested later on
 Prisoners in Custody
o Mathis v. US – although the defendant was in jail for reasons unrelated to
the tax in investigation, he was still in custody, and the failure to give him
his Miranda warnings violated Const. Rights
 Guy taken from his cell to interrogation room and interrogated and
not allowed to leave  Was in custody for Miranda purposes.
 Interrogation at the Police Station
o Oregon v. Mathiason – individual at police station is not necessarily in
custody. Suspect went down to the station voluntarily, was informed he
wasn’t under arrest and left without hindrance after he confessed.
Miranda rights not violated.
 Meetings with a Probation Officer
o Minnestoa v. Murphy – privilege against self-incrimination was not
violated when probation officer called probationer to her office and
questioned him about rape and murder. Murphy not in custody or
arrested, so no need to give him Miranda rights
 Questioning During Terry Stops
o Berkemer v. McCarty - If a cop interrogates a suspect during a Terry stop,
must the officer give Miranda warnings? No, Terry stops are not
custodial for Miranda purposes.

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  6 factors to determine whether suspect is in custody for
Miranda purposes:
 Whether informed at time of questioning that it is voluntary
and is free to leave
 Unrestrained freedom of movement
 Suspect initiated contact with authorities or voluntarily
agreed to request to questioning
 Whether strong arm tactics or deception was used
 Whether atmosphere of questioning was police dominated
 Whether suspect was placed under arrest at termination of
questioning

What is Interrogation?
 Volunteered statements or “threshold” confessions (where the D walks into the
police station and immediately confesses) are not barred by the fact that they were
made without Miranda warnings.
o Rhode Island v. Innis – 3 police officers in front seat, D in the back of
police car, caged. Officers happen to get involved in conversation about
guns and proximity to schools. D confesses. Held: The Court found
officers' conversation did not qualify as words or actions that they should
have known were reasonably likely to elicit such a response from Innis.
Rule: Miranda safeguards came into play "whenever a person in custody
is subjected to either express questioning or its functional equivalent.
Interrogation doesn’t just mean questioning, it can be statements or
questions by police that result in extracting information
 Application of Innis – Confronting Suspect w/Incriminating Evidence
o Edwards v. Arizona - Police get recorded statement from co-defender
saying Edwards was guilty. They play it for him and he wants to refute it.
Rule: Court says this is interrogation.
 Booking Exception to Miranda
o Police have to ask these questions
 Court says this isn’t defined as interrogation and it is important for
administrative purposes
- Miranda Review:
o Spano Case
 Looked at totality of circumstances when looking at involuntary
confession
o Motion to Suppress
 Whether confession was involuntary
 Whether Miranda rights were given
o Court tried to create a set of bright line rules in Miranda, determining
admissibility of statements made by Ds while in custody

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  Custodial interrogation – suspect had to have been in custody and
it had to have been product of interrogation
 Custody was an objective test
 Would reasonable person have thought they were under
arrest or freedom restrained for a long period of time
 Rhode Island v. Innis – interrogation means any words or conduct
that police should know is reasonably likely to illicit an
incriminating response
 Prosecution has to show that 4 Miranda warnings were given to
suspect and that he knowingly waived those rights
Exceptions to Miranda Requirements
o Supreme Court said that Miranda requirements are not violations of 5th
Amend.
 They make sure that 5th Amend. is protected – more flexibility to
carve out exceptions
 Cost-Benefit analysis – what are costs and benefits of excluding
statements from record
o Court said in Dickerson that Miranda was compelled by 5th Amend. and
that it would keep Miranda
- Use of illegally contained confession for impeachment purposes
o HYPO: What if statements made by plaintiff were inconsistent
 Bring it to the attention of judges and jury and provide evidence of
inconsistency
Exceptions To Miranda Rule of Exclusion
- Impeaching the Defendant-Witness
o Harris v. New York – Rule: Miranda decision did not mandate that
evidence inadmissible against an accused in the prosecution's case must be
barred for all purposes from the trial. The Court reasoned that the shield
provided by Miranda could not be "perverted into a license to use perjury
by way of a defense, free from the risk of confrontation with prior
inconsistent utterances."
 This case provides a real incentive for the police to violate
Miranda
 You want parties to commit themselves to a set of facts
before they have a chance to talk to a lawyer

- Impeachment With Prior Silence

o Doyle v. Ohio - Court held that silence after a Miranda warning cannot
be used against the defendant to imply admission to guilt.
 It’s fundamentally unfair to use silence as admission of guilt when
you told them they have right to remain silence
o Jenkins v. Anderson - The Supreme Court held that a defendants silence
prior to a Miranda warning can be used by the prosecution to imply an
admission

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  HYPO: Homicide committed and Smith is arrested a month later.
He testifies at trial that it was in self defense. Would questioning
of prosecutor be admissible?
 Yes, because a fair inference can be drawn of guilt because
of length of time to claim self-defense.
- Fruit of a Poisonous Tree
o Michigan v. Tucker – D arrested for rape. Given right to silent and
counsel before interrogated. Not told he had right to appointed counsel.
Friend gives testimony incriminating Tucker. Rule: Tucker confession
excluded, friend’s not
 Before Mirandization, a suspect gives statement, identifies witness,
and offers a lead to evidence.
 An identified 3rd person’s testimony is admissible bc
Miranda only excludes the evidence of a certain suspect,
but, if any fruit of the poisonous tree is coercively gained, it
is all excluded.

- Public Safety Exception to Miranda

o New York v. Quarles –Police officer's Failed to give Miranda Rights to
suspect and asked where gun was. Rule: The Court held that there is a
"public safety" exception to the requirement that officers issue Miranda
warnings to suspects.

9/11 Terrorist Implications – Rights must be replicated

o US v. Bin Laden – Privilege against self-incrimination protects foreigners
who are interrogated abroad by American law enforcement. Rights
suspect would have received in America must be replicated the greatest
extent possible
 Reason for interrogation, was to obtain intelligence
 An argument could be made for public safety need
 What about involuntary confessions with terrorists?
 Waterboarding would be found to be involuntary in
criminal court – confession not admissible
 4th and 5th Amend. mention any “person”, not just Americans
 This would apply to military tribunals as well as criminal
courts
Successive Interrogation
Oregon v. Elstadt – arresting office got admission before giving Miranda warnings. Full
confession given later after warnings given. No ploy on part of police to get around
Miranda.
- Police weren’t taking advantage of 1st confession for 2nd
- Court said no problem, 2nd confession is admissible

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 o This affected police training – police used this as a way to get around
Miranda and getting in evidence
Missouri v. Seibert – when there is manipulation going on, it will be thrown out. When
there isn’t, it will be admissible

Relinquishment of Rights
Connecticut v. Barrett – Suspect says he will talk, but won’t sign a statement in writing.
Court held it had to be a knowing relinquishment of waiver
Colorado v. Spring – Police do not have to disclose the subject matter of the
interrogation. There was an arrest for a traffic violation and suspect is taken into be
interrogated. Officer wants to ask about homicide. Person might have said no if he knew
what interrogation was about. Court held that this didn’t matter, suspect agreed
Moran v. Burbine – sister of suspect wanted to be present when he was interrogated.
Sister got lawyer for him, but Burbine waived right to counsel because he didn’t know
what sister had done. Court held that because 4 warnings were given, there was a valid
waiver
Court is not always clear on what it is doing

Invocation of the Right to Silence

Michigan v. Mosley – Court said if you honor invocation of right, you can go back later
on and ask if he still wants to stick with that decision later on. If right to silence is
invoked, police can ask later on
- Dissent – Risk of wearing someone down
- Still good law today

Invocation of the Right to Counsel

Edwards v. Arizona - Dealt with invocation of right to counsel. This stops the
questioning, period. Police can’t go back later and ask again on this like they can in
Mosely
Ambiguous Invocation of the Right to Counsel
- Davis v. US – Court held suspect must clearly and unequivocally invoke right to
counsel in order to trigger the protections of Edwards. If invocation is
ambiguous, police questioning can continue. Statements such as “Maybe I should
get a lawyer” , “My brother thinks I should get a lawyer”, etc.
o Suspect referred to counsel, but didn’t give clear invocation of rights
o Lowenthal thinks this is a questionable ruling.

Continuous Custody Requirement

- Suspect invokes right to lawyer after being taken in for questioning. If suspect is
released from custody and rearrested 9 months later, should police have to give
rights again?
- How much of a break in custody is sufficient enough to break chain

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 o Schtzer case said two weeks is the limit. If released longer than 2 weeks,
then police can give rights again and try to get a confession without
counsel for suspect
o Minnick v. Mississippi – police initiated interrogation after invocation of
counsel may occur only if counsel is actually present during interrogation
The Right To Counsel
Powell v. Alabama - Nine black youths -- young, ignorant, and illiterate -- were accused
of raping two white women. Alabama law required the appointment of counsel in capital
cases, but the attorneys did not consult with their clients and had done little more than
appear to represent them at the trial. Rule: Determined that in a capital trial, the
defendant must be given access to counsel upon his or her own request as part of
due process.

Gideon v. Wainwright - ruled that state courts are required under the Sixth Amendment
of the Constitution to provide counsel in criminal cases for defendants who are unable to
afford their own attorneys.
o There are public defenders offices
o Court appointed lawyers
 PD have more expertise
o Contract system
 Used in rural counties
 County puts out bids for annual contracts – awarded to lowest
bidder
 There may be more cases than lawyer can handle – workload and
caseload problems
- Workload Issues
o Public agencies help out
o Training programs can help
o Decriminalization
o Correctional prisons support rural economies – harsher sentences to put
criminals there
The Right to Counsel in Misdemeanor Cases
Argersinger v. Hamlin – SC case, holding that the accused in any criminal prosecution
involving the potential deprivation of liberty is entitled to counsel. Gideon v. Wainwright
made the right to counsel provided in the Sixth Amendment applicable to the states
through the Fourteenth Amendment.
- 6th Amend says right to counsel for all criminal offenses
- Duncan case before this said – if punishment is more than 6 months in jail, then
right to counsel
- This case departed from Duncan and said any time in jail requires right to counsel
o Left to prosecutor to tell judge they are seeking jail in this case – judge
will then appoint counsel
Critical Stages for Right to Counsel
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 - Is there something that could be done that would affect the outcome of the trial
o Would the skill of the lawyer affect the outcome
- Places where critical stages are relevant

Coleman v. Alabama – preliminary hearing was a critical stage requiring appointment of

counsel for indigent defendant
Douglas v. California – D had right to counsel for first appeal

Confessions and the 6th Amend. Right to Counsel

Massiah v. US - the Supreme Court of the United States held that the Sixth
Amendment to the United States Constitution prohibits the government from
eliciting statements about the defendant from him or herself after the point at which
the Sixth Amendment right to counsel attaches.
Dissent – State didn’t compel Mr. Massiah to make incriminating statements.

HYPO: What if counsel were there when questioning happened? Still would be
violation because interrupts with counsel proceedings
- In all criminal prosecutions, once prosecution has begun, interfering with right to
counsel is against Constitution
- Why are police required to say defendant has a right to counsel?
- If police deliberately

HYPO: Suppose Massiah tells Colson about another crime that he has committed.
Which would be admissible?
- You can’t use evidence of current crime, but you can use what he said about other
crimes. He has not been charged on the other crimes. The proceedings have
already started for the current crime.

Obtaining Information From Formally Charged Defendants

Brewer v. Williams
Facts:
Williams was convicted of killing a ten-year-old girl after he abducted her from a YMCA
wrestling tournament. After his arrest, but before his trial, he met with with lawyer during
his arraignment and was advised not to say anything. Before being transferred to Des
Moines, to speak to an attorney there, the transporting police officers promised not to
question Williams. During the drive the officers, knowing Williams was a deeply
religious man and was a former mental patient, spoke about how the girl deserved a
"Christian Burial". Williams then made incriminating statements and led the officers to
the girl's body. Williams was tried and convicted of murder, and then petitioned for
habeas corpus asserting that he had been denied his constitutional right to the assistance
of counsel, and further ruled that he had not waived that right.
Holding:

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"The right to counsel granted by the Sixth and Fourteenth Amendments means at least
that a person is entitled to a lawyer's help at or after the time that judicial proceedings
have been initiated against him." Also, "[a]n individual against whom adversary
proceedings have commenced has a right to legal representation when the government
interrogates him. . ."
- Once formal charges are initiated, any illicit statements made from questioning is
against 6th Amendment.
- You can waive right to counsel, but there wasn’t a waiver here
- How could he have waived his right to counsel?
o If he initiated conversation and indicated he understood rights, and then
talked, he could’ve waived right to counsel

Application of the Deliberate Elicitation Standard

Jailhouse Plants - States v. Henry

- Informant went ahead on his own to gather information for govt. He got Henry to
talk

Use of Undercover Officers and State Agents

Kulmann v. Wilson
Facts:
An informer planted in a suspect’s jail cell obtained incriminating information from a
suspect after being told not to start the conversation, but to listen for incriminating
information.
Holding:
When police plant an informer with a jailed suspect and the informer does not ask
questions, the suspect’s statements to the informer are admissible unless the informer
took coercive steps other than listening to elicit incriminating information.
- Police planted informant in this case – different than Henry

HYPO: What if D is in a cell with a snitch. He hasn’t been formally charged, snitch is
working for govt. D gives incriminating info to snitch. Two hours later, officer gives
him his rights. D Agrees to talk and confesses. What statements are admissible?
- First statement tainted the second
- Oregon v. Elstad could apply here – 2nd statement wasn’t tainted by the 1st

Continuing Investigations
Maine v. Moulton - Respondent's Sixth Amendment right to the assistance of counsel
was violated by the admission at trial of incriminating statements made by him to Colson
after indictment and at the meeting of the two to plan defense strategy for the upcoming
trial.

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Waiving 6th Amend. Rights After Receiving Miranda Rights
Patterson v. Illinois - The postindictment questioning that produced petitioner's
incriminating statements did not violate his Sixth Amendment right to counsel.

Waiving 6th Amend. Right to Counsel After Invoking It

Michigan v. Jackson - the Court held that once an accused individual has claimed a right
to counsel at a plea hearing or other court proceeding, a waiver of that right during later
police questioning would be invalid unless the accused individual initiated the
communication.

The Right to Effective Assistance of Counsel

Strickland v. Washington - established a two-part test for establishing a claim of
ineffective assistance of counsel. Under this test, a criminal defendant may not obtain
relief unless he can show that:
- Counsel's performance fell below an objective standard of reasonableness
o Within range of reasonableness for lawyers of this type – judged by local
standard
- Counsel's performance gives rise to a reasonable probability that, if counsel
had performed adequately, the result of the proceeding—the trial, the
sentencing hearing, the appeal—would have been different
o Confidence in the outcome is shaken or undermined – serious doubts, like
probable cause – less than preponderance of the evidence
- Case law before this case – test for inefficient counsel was subjective
- Court said this is not about following a recipe book – getting away from ABA
standards
- Gave all lower courts tool for evaluating complaint that defendants make that
lawyer was bad
o D has to win on both prongs
- Dissent – Marshall – People with means are going to be able to buy a good
defense, poor people will have less effective representation
o Range of representation in rural areas – different standards for different
areas of the country
o Expectation of lawyers in capital cases is different than routine issues
o Duty to investigate Mitigating factors in death sentence cases

The Duty to Investigate

Wiggins v. Smith - spelled out standards for "effectiveness" in the constitutional right to
legal counsel guaranteed by the Sixth Amendment. Previously the court had determined
that the Sixth Amendment included the right to "effective assistance" of legal counsel,
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but it did not specify what constitutes "effective", thus leaving the standards for
effectiveness vague. In Wiggins v. Smith, the court set forth the American Bar
Association Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases Guideline 11.8.6.(1989), as a specific guideline by which to measure
effectiveness and competence of legal counsel.
- ABA standards became more rigorous
o Courts took standards more seriously than what was in Strickland
- Lawyer who suspects client is deficient in some way, they need to investigate that
- Factors such as childhood upbringing, abuse, etc. have an effect – they need to be
investigated
- If you haven’t investigated, we have limited reliance on your case

Book Review – Down and Dirty Justice

- Difference in goals of Cop and Prosecutor
o Cop wants arrest
o Prosecutor wants to prove case in court beyond a reasonable doubt
 Prosecutor can decide to file charges based on police reports
 He can turn down the case if there is reasonable doubt – 50%
turned down nationally
 Prosecutor can say that further investigation needs to be done and
turns it back over to the police to do more investigation
- Why was there a lack of investigative work over 3 years prior to when case went
to court?
o Info missed when passing from one person to another
o Work load, case load, and laziness contribute to this problem
- It was most likely stolen property, not drugs and ray Hart probably did it.
- Why did Schilling refuse the plea offer?
o He really believed he’d prevail at trial
o He bought into what his brother told him – he said he would get off
- Delay – why 3 ½ years to take the case to trial?
o A lot of work involved and changing hands between prosecutors
o The Defendant wasn’t in custody
o Courts get backlogged
o Opposing sides agree on postponement
 Judges and court admins don’t want this and fight the culture of
postponement
- What can we do about delays?
o Either by statutes or by court rules
o In the end, you have to change the culture of the court
o Delay is a product of problems of professionalism
o Bar needs to change or improve the culture
- Tension between Police and Prosecutor: difference between the ability to arrest
vs. convict someone
- Public Defender Model vs. Appointing Private Counsel paid for by the state

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 o Public Defenders, while salaried and thus cheaper, are overburdened
o Private attorneys are less specialized and more costly
- The Contract System for indigent defense awards low bid contracts to a private
attorney for all cases
o The government saves money because of the fixed cost, but if caseload
increases, the contracting attorney may be overburdened.
o For contracting attorneys, pleading is more efficient than taking a case to
trial.
- Training and workload standards for state prosecution and defense, and overflow
offices have helped.
- Treating addiction as a health issue first and second as a criminal offense is also
helpful.
- Prisons have expanded in rural areas to aid their economies, so more and more
prisoners are required.
- Community corrections yields greater returns, and reducing recidivism lowers
court burdens
-
Judge Bagley
- Consistency in the treatment of criminal defendants
o Trial judges’ discretion has been stripped away
o Legislature has been more concerned about punishment than rehabilitation
- Florida has no parole for crimes sentenced after 1984
- Issues with Plea Bargains and whether they are too harsh or too soft
- Issues of professional ethics
o More role modeling by good experienced lawyers
o Seminars
o Disbarring eventually if it gets worse
- Issues of judge bias

Ineffective Assistance of Counsel

Even if an atty hasn’t investigated something, there may be a reasonable justification for not
doing so.
Two Part Test: If an atty was ignorant and that ignorance impacted the decision, a violation
occurred.
- Did counsel’s performance fall below an objective level of reasonableness?
- If counsel performed adequately, was there a reasonable probability that the result
of the proceeding would have been different?
o Confidence in the outcome must be undermined
Policy considerations: endless litigation, extremely costly
Vagueness of the Test is an disputed issue
- People with means will be able to buy good defense attorneys and indigents won’t.

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 o However, the same standard is applied regardless of the cost of
representation
 Still, public representation is usually as good as privately retained
counsel.
- Resources in criminal defense in rural vs. urban vary greatly – are there different
standards in different places?  YES – it’s the comparable standard in a specific
locale.
There is a duty to investigate mitigating evidence in death penalty cases
If attorneys haven’t sufficiently investigated, courts’ reliance on attorneys’ judgment is limited.
Mental illness must be taken into account when considering the appropriate punishment.
- Funding is req for experts (such as mental evals) to show defenses so that DP can be
given.
o Later criminal behavior is linked to childhood abuse/neglect, drugs during
pregnancy
o This isn’t an excuse for criminal conduct, but may affect criminal
punishments

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