CRIMINAL PROCEDURE – POLICE PROCEDURES

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.
5TH AMENDMENT - nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law.
6TH AMENDMENT - In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel
for his defense.

1. THRESHOLD REQUIREMENT – was there a search?

a. Katz – in determining whether there was a search we ask: does person have a
reasonable expectation of privacy?
b. State Action – Need state action to show 4th violation.
c. Open Fields – if you can see it from the street u shit out of luck
d. Curtilage – might be protected under the 4th, look at totality and determine
whether the person had a reasonable expectation of privacy in their curtilage
(proximity, existence of enclosure, nature of use, precaution taken to exclude
others)
2. UNREASONABLENESS AND PROBABLE CAUSE
a. Probable Cause to Search -exists where facts and circumstances within officer’s
knowledge and of which they have reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that
an item subject to seizure will be found in the place to be searched
b. Probable Cause to Arrest –– exists where facts and circumstances within
officer’s knowledge and of which they have reasonably trustworthy information
 are sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed by the person to be arrested
c. Information obtained by Tip – totality of the circumstances; but look at Aguilar-
Spinelli factors to determine whether a tip can be relied on
i. Basis of Knowledge) underlying circumstances surrounding tip)
ii. Veracity (reliable/credible)
d. Pre-textual Stop – all good so long as there was a valid pretext; then you need
probable cause to do anything else (search). Whren
3. UNREASONABLENESS AND THE WARRANT REQUIREMENT
a. Searches Without Warrants – a police search of private premises without a
warrant is presumptively unreasonable.
b. Searches of People, Houses, and Papers
i. Knock and Announce – you must knock and announce, unless your
warrant specifically states that the danger/destruction of evidence is
almost guaranteed by reasonable suspicion
1. Need reasonable suspicion to believe the suspect is present at his
residence at the time they enter to arrest.
ii. Anticipatory Warrants – warrant only valid after a triggering condition
based on probable cause that the evidence will be there at a certain time
c. Seizures of People
i. An arrest warrant is unnecessary for arrests in public.
ii. Absent exigent circumstances, an arrest warrant is required in order to
arrest a person in her own home – Payton Violation
d. Issuance, Content, and Execution of Warrants
i. Neutral and Detached Magistrate
ii. Pleaded with Particularity → Place to be searched/items to be seized
iii. Probable Cause
4. REASONABLE SEARCHES WITHOUT WARRANTS
a. Searches Incident to Arrest (SILA)
i. Applies so long as there is probable cause to arrest
ii. In the Home – Arrest someone in the home, you can search in their grab
zone (Chimmel), you can also do a protective sweep, i.e. look for
PEOPLE all over the house (Buie)
iii. Automobiles - when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile.
b. Searches for Arrestees
i. Arrest ∆ in a 3rd Party house - an arrest warrant (opposed to a search
warrant) is adequate to protect the Fourth interests of a person not named in
the warrant when their home is searched without their consent in an absence
of exigent circumstances. Steagald
1. The third party has a reasonable expectation of privacy in the home
and has standing to suppress.
ii. Arrest ∆ in his own Home - an arrest warrant is required in order to arrest
a person in her own home Payton
c. Exigent Circumstances
 i. Three Reasons
1. Hot pursuit of a suspect;
2. stop destruction of evidence;
3. prevent harm to others
ii. Exigent Circumstances only relieve the government of the warrant
requirement; there still must be probable cause if the subsequent search is
to be constitutional
iii. The nature of the exigency determines the scope of the search.
iv. No police created exigencies
d. Vehicle and Container Searches
i. Automobile Exception to Warrant Requirement - officers may search
anywhere in the vehicle if there is probable cause to believe that
contraband is contained in those vehicles
ii. Inventory Searches - may not be used to search for evidence of criminal
activity. They must be conducted pursuant to standardized departmental
regulations so as to limit officer discretion and protect against using
automobile inventory searches as a ruse for
criminal investigations.
iii. Mobil Home – Totality, but generally if its
hooked up to utilities, it’s a home; if it’s on
the road/mobile it’s a vehicle
iv. Containers - If you have PC to search the
car and you find a bag, you can search it. If
you have PC to search a container, once
you find the container, you must stop
searching the car.
e. Consent Searches shneckloth v. busamonte→
i. Voluntary
ii. Totality of the Circumstances Test: how
many officers, tone, setting, etc.
iii. Who can consent: anyone with apparent authority
f. Plain View Doctrine – if the officers have consent or come in bc of an exigency,
and see shit in plain view then u out of luck; must be immediately apparent that it
is contraband.
5. BALANCING APPROACH
a. Seizures - A person is seized only if, in view of all the circumstances, a
reasonable person would have believed that he was not free to leave
b. Terry Stops
i. Showing Necessary: Reasonable Suspicion that crime is afoot→ you can
stop the suspect, and question him. To search you must have reasonable
belief after questioning that the suspect is armed and dangerous!
ii. Scope: If the stop standard is satisfied, the officer may "stop" the suspect,
ask him questions, and subject him/her to a pat-down search for weapons
if the questions do not produce satisfactory answers.
1. officer is not allowed to conduct a thorough search of the suspects
and any belongings that they have with them. limited search,
 designed to ascertain the presence of weapons, is all that is
permitted.
2. a police officer may not slide or manipulate suspicious items that
she happens to notice during the course of the pat down; nor can
she pull any packages out of the coat to examine them further
unless she has probable cause that the item is contraband.
iii. Terry in the Whip - (officers can Terry frisk a vehicle when it’s in “close
range”). The perimeters of Terry and SILA are the same – where person
could reach a weapon.
c. Informant’s Tips - need to have the anonymous tip AND personal observations
of circumstances under Terry to justify the investigatory stop of a ∆’s car or a
person (totality of circumstances – quality and quantity of information). Standing
alone, a tip would not warrant reasonable suspicion that a stop is appropriate.
d. Special Balancing
i. Schools – requires reasonable suspicion – children have a diminished
expectation of privacy while at school
ii. Checkpoints - more likely to be found reasonable if they minimize or
constrain officer discretion, especially through neutral criteria for its
exercise, minimize the degree of intrusion to vehicle occupants and serve
important governmental interests. No general crime control.
iii. Drug Testing – has always been held as a search; no legal burden of proof
when special need is involved.
1. Is the drug testing reasonable?
iv. Border Searches – no suspicion necessary; searches at our borders without
probable cause and without a warrant are nonetheless “reasonable”
1. Vehicles, persons and effects can be thoroughly searched,
including opening containers or compartments and disassembling
vehicles, but strip or body cavity searches require a higher degree
of suspicion.
v. DNA – must be part of documented police procedure and person was
arrested for a serious offense (violent felonies); goal is identification
vi. Higher than Usual Standards:
1. Seizure using Deadly Force –
a. Threatens officer with a weapon OR
b. If PC to believe crime was committed involving infliction
or threats of serious physical harm and that harm still exists
to the community rn
2. Blood Samples – no per se rule, compelling blood samples is fine
so long as there is a need to collect diminishing evidence and it
doesn’t pose a threat or harm to person; def a search
3. Compelled Surgical Procedure – look at totality, is this the only
evidence, is there a less invasive means, etc.
6. DUE PROCESS AND CONFESSIONS –
a. 5th Amendment – privilege against self-incrimination
b. Due Process 14th – government (feds/states) may not impede on the liberty, life,
or property w/o DP
 c. Ashcroft – look at the circumstances surrounding the interrogation (time, place,
duration) your confession must be voluntary, if its coerced, there is a DP violation
i. Coercion – must involves state action; a person’s will has been overborne
ii. Voluntary – police can use trickery, so long as it’s not coercion (mislead
regarding sentencing or $$)
7. MIRANDA – prophylactic measures; to have Miranda rights you must be:
a. In custody - questioning by the police when the suspect is detained for a period
longer than that of a Terry stop; When a reasonable person would say they are
deprived of freedom of movement in any significant way.
i. Traffic Stop is not custodial interrogation
b. Interrogation - subjected to either express questioning or its functional
equivalent; extends only to words or actions on the part of police officers that they
should have known were reasonably likely to elicit an incriminating response
c. Miranda Warnings NOT Required
i. Person “is unaware that they are speaking to a law enforcement officer
(like undercover officer) Perkins
ii. routine booking questions (because they are not really interrogation)
iii. Public Safety Exception - if a question about a weapon was “reasonably
prompted by a concern for public safety” under the circumstances of the
arrest, the arrestee’s answer to the question is admissible evidence, as well
as any weapon that is located as a result of the questioning. Quarels
d. Waivers
i. A totality of the circumstances test is used: “the duration and conditions of
detention, … the manifest attitude of the police toward ∆; physical and
mental state of ∆; the diverse pressures which sap or sustain ∆’s powers
of resistance and self-control
ii. must be “voluntary, knowing and intelligent.”
iii. The state must prove waiver by a preponderance of the evidence. Connelly
iv. A waiver may be implied through oral statements and conduct, and does
not have to be in writing. Butler
v. A waiver may be inferred from the fact that the suspect eventually makes
statements to the police. Berghuis
e. Invocations and Protections
i. Miranda Invocation - Pigs must honor an arrestee’s invocations of the
right to silence, the right to counsel, or both, by “cutting off” the
interrogation.
1. Post-Miranda cases have resolved three questions about a suspect’s
invocation of rights:
a. an invocation of counsel or silence (police are barred from
initiating discussions and seeking waivers);
b. police may seek a waiver after either type of invocation
when the arrestee initiates a generalized discussion about
the investigation with the police; and
c. an invocation of either silence or of counsel must be
unambiguous. If an arrestee’s invocation does not satisfy
 these standards, police may ignore the invocation and
continue to interrogate.
ii. Unambiguous Invocation - An adequate invocation occurs when a
reasonable police officer in the circumstances would understand the
statement to be a request not to talk to the police (i.e. Leave me alone pig!
Not, I might want a lawyer…Davis)
iii. Invocation of Right to Silence - “a blanket prohibition” against
questioning after invocation of the right to silence would inhibit police
investigations and prevent suspects from making “informed and intelligent
assessments” of their interests. Moreover, a resumption of questioning
after a time lapse permits the suspect to retain “control” over the timing,
subject and duration of an interrogation, in order to counteract “the
coercive pressures of the custodial setting.”
iv. Invocation of Right to Counsel - The invocation of silence shows that the
suspect does not want to talk, while the invocation of counsel is an
indication by the suspect that he feels incapable of speaking to the police
on his own. Because of the Court’s concern that a suspect asserting his
right to counsel is not as likely to change his mind for reasons other than
police pressure, the Court accords the police less flexibility (after the
invocation) therefore, the police cannot interrogate the suspect unless he
initiated the contact. Edwards.
1. Edwards rules remain in effect until the suspect is released from
jail and before the end of the fourteen days of release. After the
fourteen-day period, the police may resume questioning without
the suspect re-initiating the conversation.
8. CONFESSIONS AND THE RIGHT TO COUNSEL
a. 6th Amendment – Right to Counsel, (separate from Miranda/5th)
b. Attaches – upon the commencement of adversarial judicial proceedings
i. initial appearance, formal charge, preliminary hearing, indictment or
information; once adversary proceedings are instituted, law enforcement
officials or their agents may not interrogate the accused in the absence of
counsel, unless the accused has validly waived that right.
1. If you never ask for counsel, you have never invoked ur right
2. Offense specific!
c. Massiah –
i. bans the deliberate elicitation of statements by undercover police agents;
ii. to conduct questioning, the police must obtain a Sixth Amendment waiver;
iii. if police officers do not obtain such a waiver, they may not engage in
“deliberate elicitation” of incriminating statements.
1. “Elicitation” includes both express questioning and other kinds of
police statements that are “tantamount to interrogation.” (Christian
Burial Speech – Brewer v. Williams)
iv. Massiah Waiver Standard - an intentional relinquishment or abandonment
of a known right or privilege
d. 5th vs. 6th re Right to Counsel - relates to the treatment of persons who are
questioned by undercover police agents. The Perkins exception to Miranda allows
 the “interrogation” by undercover agents of persons in custody. Massiah does not
allow the “deliberate elicitation” of incriminating statements by undercover
agents from persons who possess 6th rights, regardless of whether the suspect is
incarcerated at the time of questioning.

Sixth Amendment Fifth Amendment / Miranda

ATTACHES TO Adversarial Proceedings Custodial Interrogations (earlier)
CUSTODY Don’t need custody to trigger Need custody to trigger
OFFENSE SPECIFIC Yes Non-offense specific
2nd INTERROGATION No Yes
WAIVER Intentional relinquishment or Knowing, intelligent and voluntary
abandonment of a known right or
privilege
STANDARD Deliberate Elicitation (less trickery) Interrogation (more trickery)
UNDERCOVER CASES Informant is purposely trying to Passive listener – if you trust
STANDARD extract the statement under someone, you’ve run the risk of them
government’s authority going to the authorities

9. IDENTIFICATIONS
a. 6th Amendment Requirement – counsel’s presence only required at live lineups
(not show ups), and only when these are conducted after formal proceedings in
the case have begun (usually indictment). There is no Sixth Amendment
requirement for counsel's presence at photographic (i.e., non-live) identification
procedures, regardless of when these are conducted.
i. Lawyers job is to observe and use id procedure to impeach witnesses on
cross at trial
b. Due Process Requirement - All identification procedures, whether in person or by
photo, must be assessed for reliability as a matter of due process - including
whether they were suggestive. Even when unconstitutional pre-trial identification
procedures have been used, subsequent "in-court" identifications are only
excluded if they are not "reliable."
i. Show ups are almost always suggestive absent a showing of absolute
necessity by the state (witness about to die, etc.)
10. EXCLUSIONARY RULE
a. The exclusionary rule is a judicially created remedy used to deter police
misconduct in obtaining evidence. Under the exclusionary rule, a judge may
exclude incriminating evidence from a criminal trial if there was police
misconduct in obtaining the evidence.
b. Weeks → exclusionary rule created; discusses constitutional basis
c. Mapp → exclusionary rule applicable to the states; discusses policy, deter
unreasonable searches and seizures by the state
i. Purpose - deter unlawful searches/seizures by police
ii. Standing- must have a reasonable expectation of privacy!
1. Ownership isn’t enough to establish privacy → you can’t argue
that your crack pipe was in her bag and she has a reasonable
expectation Alderman
2. No automatic standing, must look at totality of where you are
 3. Overnight guest has expectation but a brief visitor has no
expectation of privacy Carter, Rakkas
4. Passenger has no legitimate expectation of privacy in a car search.
Once that passenger is seized, he/she can challenge the illegality of
the seizure, but he/she still cannot challenge the search. If a seizure
is unlawful and something is found because of that seizure, the
things found are suppressed (because of the illegality involving the
seizure). Brendlin
d. Good Faith Exception - allow evidence in when officers have reasonably relied
in good faith on a warrant issued by a neutral and detached magistrate even if the
warrant is subsequently determined to be invalid. Leon
i. When Good Faith Doesn’t Apply
1. Mere negligence in warrant, if becomes a systematic issue may rise
to level of reckless disregard
2. if the magistrate misled by information in an affidavit that the
affiant knew was false or would have known was false except for
his reckless disregard of the truth.
3. issuing magistrate wholly abandoned his judicial role;
4. the affidavit underlying the warrant is so lacking in probable cause
that no reasonable police officer would have relied on it;
5. the warrant is so facially deficient (failing to particularize the place
to be searched or the things to be seized) that the executing officers
cannot reasonably presume it to be valid.
e. Impeachment Exception – You need to have a 5th amendment issue here, i.e. a
self incriminating statement
i. Statements - an unwarned statement was admissible during cross-
examination to impeach the credibility of the defendant’s testimony if the
statement was not obtained in violation of Due Process, i.e., if it was given
voluntarily (without coercion) Harris
ii. Evidence – evidence suppressed as fruit of an illegal search may be used
to impeach. Havens
iii. The impeachment exception applies only to impeaching the defendant and
not to defense witnesses. James
iv. A statement coerced in violation of Due Process cannot be used for
impeachment. Mincey
f. Miranda Exclusion Doctrine – court created doctrine that furthers the
prophylactic policy of Miranda
i. Question First and Warn Later - warnings that are given “midstream”
between two interrogations that are “close in time and similar in content”
do not “reasonably convey” the Miranda rights. Basically, the polices way
to get around giving Miranda = no good Siebert
ii. New and Distinct Experience - good-faith mistake in failing to give
warnings before a single comment by an officer prompted an unwarned
admission during arrest in his home. The warnings given later at the
station were “adequate,” because the station house interrogation was
deemed to be a “new and distinct experience” Elstad
 1. applies only when different periods of interrogation form one
continuous whole. The use of Miranda warnings at subsequent
periods is sufficient to offset the failure to do so at an earlier period
of questioning, if questioning is sufficiently attenuated then you
must give Miranda at the later and may not bring in the earlier
comments.
g. Fruit of the Poisonous Tree Doctrine – a court may exclude from trial any
evidence derived from the results of an illegal search; an extension of the
exclusionary rule, which, subject to some exceptions
i. the poisonous tree is the initial bad act by the government; direct evidence
the poison fruit is then gleaned from the tree; and then derivative evidence
is then gleaned from the direct.
h. Independent Source Doctrine - Evidence that is not causally linked to
unconstitutional governmental activity is admissible pursuant to the independent
source doctrine.
i. The doctrine applies if the challenged evidence is:
1. First discovered during lawful police activity; or
2. Initially discovered unlawfully, but is later obtained lawfully in a
manner independent of the original discovery.
i. Inevitable Discovery Doctrine - Evidence obtained illegally may be admissible
in a criminal trial if the prosecutor proves by a preponderance of the evidence that
the challenged evidence “ultimately or inevitably would have been discovered by
lawful means.”
j. Attenuation Doctrine - evidence that otherwise qualifies as fruit-of-the-
poisonous-tree may be admissible if its connection with the illegal police activity
is so attenuated (far-stretched like a rubber band) that it is purged of the taint.
i. Factors to consider for attenuation are:
1. Temporal proximity of the illegality and the acquisition of
evidence
2. Intervening events and circumstances (the presence of)
3. Act of free will
4. Flagrancy of the violation