CRIMINAL PROCEDURE OUTLINE

SPRING 2019 – MAY 3, 2019

I. BACKGROUND INFORMATION
a. Structure of Federal Courts
i. District Court
ii. Circuit Court – three panel judge panel or en banc, en banc opinions have a greater precedential
value
iii. United States Supreme Court
1. Federal question
2. State vs. State cases
3. Writ of Certiorari – not an appeal of right, granted on a particular issue, very few writs
are granted  normally granted for circuit splits and important cases
b. Structure of Pennsylvania Courts
i. Court of Common Pleas
ii. Superior Court/Commonwealth Court
iii. Supreme Court of Pennsylvania – allocatur, not an appeal as of right
iv. United States Supreme Court on writ of certiorari
c. Chronology of a Criminal Case
i. Arrest
ii. Complaint filed
iii. Initial appearance/advice of rights
iv. Bail motion
v. Preliminary examination (determines if probable case exists)
vi. Grand Jury – 23 members, 12 to indict, hearsay evidence is admissible, prosecutor presents
witnesses, everything is on the record, secret proceeding
1. Indicting Grand Jury (5th Amendment requirement)
2. Investigating Grand Jury – issue subpoena for people, documents, etc. with no
requirements for cause, helps prosecutor discover evidence
a. Exceptions = unlawfully wiretapped, privileges (martial, attorney/client, etc),
Fifth Amendment against self incrimination
b. Immunity – only the government can grant immunity and immunity must be
accepted, if a person still refuses to testify they will be held in contempt (civil
contempt = put in jail until willing to comply with court order, criminal
contempt = put in jail for a set sentence)
i. Transactional – no prosecution for transactions of which person
testifies (currently not used in federal courts, state courts only)
ii. Use – wont use the testimony against the defendant
vii. Arraignment
viii. Discovery
ix. Motions
x. Pre-Trial Conference
xi. Trial
xii. Appeal
xiii. Habeas Corpus Appeal

II. 4TH AMENDMENT

a. The right of the people to be secure in their person, property, papers, and effect 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 search, and the person or things to be seized.
i. Is there a State action?
ii. Does the individual have standing?
iii. Does individual have reasonably legitimate expectation of privacy in a protected space?
iv. Was there an unreasonable search or seizure of evidence?
v. Is the evidence presented tainted? Directly related to illegal conduct?
vi. Exceptions to being excluded?
III. SEARCH AND SEIZURE – AN OVERVIEW OF THE 4TH AMENDMENT
a. New Jersey v. T.L.O. (Supreme Court of the United States, 1985) – teacher caught students smoking in the
bathroom, student denies smoking and says that she never smokes, teacher demands to search her purse and
finds cigarettes, rolling papers, marijuana, plastic baggies, large amounts of one dollar bills and a list of
people who owe her money, student motions to have the evidence suppressed claiming it was unlawfully
obtained
 i. Questions the court must answer
1. Does the 4th Amendment apply?  Only applies to the government, but what about
administrative proceedings?
2. What is the test for determining if a search is unreasonable?
ii. 4th Amendment does apply to public schools (4th amendment only applies to the government, but
the public school is considered a governmental entity)
iii. Search must be reasonable – balance privacy expectations of the students with the state’s interest
1. Justified at the inception of the search
2. Reasonably related in scope to the circumstances that justified the search’s inception
b. Exclusionary Rule – evidence unconstitutionally obtained must be suppressed and cannot be used in criminal
proceedings
c. Safford Unified School District v. Redding (Supreme Court of the United States, 2009) – student is
searched on suspicion of narcotics, after the exterior of her clothing does not yield any drugs, the school
orders a search of her undergarments
i. Court finds that indignity does not outlaw the search, but that a search that is so unreasonable that it
offends our conscience is outlawed under the 14th Amendment
ii. Rule: Reasonable suspicion: The content of the suspicion must match the degree of the intrusion
and reasonably related to objectives of search.

IV. THE DEVELOPMENT OF THE EXCLUSIONARY RULE (WEEKS – MAPP)

a. Weeks v United States (Supreme Court of the United States, 1914) – defendant was charged with
transporting illegal lottery materials, police entered the home without a warrant after the neighbor told them
where the key was, the police seized the evidence that they found
i. Police had to give the evidence back because it was obtained illegally under the 4th Amendment
ii. Local police could keep the evidence because the 4th Amendment only applies to federal action
(Constitution only applies to federal officials)
b. Silverthorne Lumber Company v. United States (Supreme Court of the United States, 1920) – government
obtained evidence without a warrant, makes copies and gives it back than subpoenas the evidence again
i. Evidence obtained illegally cannot be used even if its good evidence
ii. Fruit of the Poisonous Tree Doctrine = evidence obtained illegally and anything that flows from it
cannot be used at all, evidence is tainted (evidence obtained from a completely independent source
is okay to use)
c. Wolf v. People of the State of Colorado (Supreme Court of the United States, 1949) – no facts listed, asks
whether the 14th amendment makes the exclusionary rule applicable to states [case is overruled by Mapp]
i. Exclusionary Rule is not extended to states, a right without a remedy is not a right at all (court
declines the argument)
ii. Argument was that the due process clause of the 14th amendment extended the 4th amendment to
state actions
d. Rochin v. People of California (Supreme Court of the United States, 1952) – police enter without a warrant
and see two capsules, defendant quickly swallows them, the police take defendant to the hospital and have his
stomach pumped
i. Due process clause of the 14th Amendment does protect people against outrageous behavior (court
finds that forced stomach pumping is outrageous behavior and suppresses the evidence)
ii. Evidence seized by state officials for state action is suppressed for the first time, but not under the
exclusionary rule
e. People v. Cahan (Supreme Court of California, 1955) – illegal betting league, police officers installed
recording devices without a warrant
i. Issue: Whether evidence obtained could be used during a state proceeding
ii. Argument – guilty people benefit from the exclusionary rule, the criminal goes free because the
police blundered, too many exceptions
iii. Court enforces the exclusionary rule  immoral for states not to follow the constitution, nothing
else works to discourage unconstitutional sources
iv. State applies exclusionary rule based off the state constitution for the first time!
f. Jones v. United States (Supreme Court of the United States, 1960) – defendant hides drugs in a birds’ nest,
police conduct warrantless search and seize the drugs, police says the normal rules don’t apply because the
defendant has no standing because it’s not his house
i. Standing or expectation of privacy  court says guest in a home still has certain expectations of
privacy and thus standing
ii. Automatic Standing Principle = if you are charged with possession, you automatically have
standing in the property; Overruled by Rakas v. Illinois!
 g. Mapp v. Ohio (Supreme Court of the United States, 1961) – police officers went to a home looking for
someone involved in a bombing, defendant refused entry demanding to see a warrant, police came back
several hours later and forced entry and arrested the defendant for possession of obscene photographs
i. * Court extends the exclusionary rule to the states under the due process clause of the 14th
amendment
ii. Wolf v. People of the State of Colorado is no longer controlling
1. Court using analogy to no forced confessions of criminal activity to no forced seizure of
evidence
2. Eliminates the Silver Platter Doctrine = FBI gets information on a crime but not enough
to obtain a warrant, FBI would call state police and relay the information, state police
would search and arrest the defendant because the state was not bound by the 4th
amendment, Federal officials would hand the state police evidence on a silver platter
iii. Retroactivity of Mapp – people in prison on evidence that would have been suppressed under Mapp
file habeas corpus appeals  court says that decision is not retroactive to cases that were finished
post conviction appeals before Mapp was decided
h. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania (Supreme Court of the United States,
1965) – state police stop car because the rear of the vehicle is extremely low, the police find 31 bottles of
liquor without the PA tax seal, police seize both the liquor and the car
i. Court says 4th Amendment applies to civil forfeiture cases because such cases are criminal in
nature
ii. Defendant gets the car back, but not the contraband (contraband cannot be used against him in
court)
i. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (Supreme Court of the United
States, 1971) – rough physical search and strip search conducted without a warrant in front of defendant’s
family, nothing is found, defendant sues in civil court for unreasonable search
i. Court creates a new federal tort action that allows money damages for unreasonable searches under
the 4th Amendment [states have similar torts called 1983 actions]
ii. Dissent argues that creation of new civil actions should be left to the legislature and not the courts

V. PROTECTED PLACES AND INTERESTS

a. Commonwealth v. Oglialoro – Helicopter flew from 500ft to 50ft over a barn with a glass ceiling
i. Close interference into airspace may give rise to an invasion if dangerous, disruptive, or conduct
was hazardous in nature.
b. Florida v. Riley (Supreme Court of the United States, 1989) – officers observe marijuana with the naked eye
from a helicopter, officers use this information to obtain a search warrant for the property, defendant contests
the search warrant
i. Plain View Doctrine – no warrant or probable cause required for seizure of contraband that was in
plain view by the naked eye (established in Coolidge v. New Hampshire)
ii. Expectation of privacy where society would think it reasonable  society would not have
reasonable expectation of privacy from the sky, so court finds the search constitutional.
c. California v. Greenwood (Supreme Court of the United States, 1988) – trash collector separated defendant’s
trash for search on suspicion of narcotics, evidence obtained from search allows officers to obtain a warrant
i. No reasonable expectation of privacy in trash already on the curve  outside of the curtilage of the
home
ii. Katz Test = expectation of privacy only established where society would view it reasonable
iii. Only areas within the curtilage of the home would be constitutionally protected (curtilage is the
established living area)
iv. Open Fields Doctrine = areas outside the curtilage of the home are not constitutionally protected
even where the search is conducted by trespassers
d. Drug Testing and Protected Places/Interests
i. Board of Education v. Earls (Supreme Court of the United States, 2002) – school policy requires
students who want to participate in extracurricular activities to undergo drug testing
1. Test = balance the invasiveness of the search against the interest in upholding the
policy/goal
a. Nature of privacy interest compromised; character of intrusion by policy; and
nature and immediacy of the government concern
2. Drug testing isn’t overly invasive and is balanced against the school’s interest in
preventing drug use
ii. Ferguson v. City of Charleston (Supreme Court of the United States, 2001) – hospital policy drug
tests pregnant mothers, positive tests are threatened with prosecution or forced into drug treatment
plans
 1. No legitimate government goal because the purpose of the search was to collect evidence
for law enforcement, not prevent drug use
2. Drug searches by private actors are normally okay when the sanction is private (example:
suspension from job), but is not okay when the sanction is law enforcement  private
actors cannot act as government agents to avoid the requirements of the 4th amendment
e. United States v. Cohen (Second Circuit United States Court of Appeals, 1986) – search of the prisoners cells
for contraband ordered by law enforcement, papers are seized
i. Prisoners have a diminished expectation of privacy when the search is conducted by a prison
official; search must be reasonable and may not be pretext solely to obtain info for indictment
ii. Search can be instigated by prisoner officials for safety (Hudson v. Palmer), but cannot be
instigated from the prosecution for obtaining evidence
f. Bond v. United States (Supreme Court of the United States, 2000) – passenger on a bus, boarder patrol
checks immigration papers of passengers, boarder patrol feels bags in overhead containers, after feeling a
brick like object in Bond’s bag asked to search it, consensual search yielded narcotics which led to arrest
i. Personal luggage is an effect covered by the 4th Amendment
ii. Expectation of privacy in your luggage, items were not in plain view
iii. Manipulation is more invasive than a visual inspection  violates reasonable expectation of
privacy as seen by the public
iv. Consent is irrelevant because the consent flowed from the manipulation (4th Amendment violation
had already occurred when consent was given)
g. Florida v. Jardines – Police tipped of weed grower location, when arrived at premises, dogs were used to
sniff the porch and surrounding areas.
i. Curtilage: Porch is part of the home and therefore unreasonable to bring a sniffer dog to test out for
potential criminal activity absent consent.
h. State v. Ortiz (Supreme Court of Nebraska, 1999) – anonymous phone call gives evidence that defendant is
dealing narcotics, police take a drug dog to the apartment building who indicates defendants door, based on
the sniff, police obtain a no knock warrant and seize narcotics that yield to defendants arrest
i. United States v. Place – a drug dog sniff in a public place is not a search and is not subject to the
4th Amendment
ii. Federal courts find an expectation of privacy only in the apartment, dog sniffs could violate this
expectation when the dog sniffs under the door
iii. Ortiz court finds expectation of privacy in the actual hallway, but this is not what would be the
majority in federal jurisdictions
i. Consensual Monitoring/Wiretapping
i. United States v. White (Supreme Court of the United States, 1971) – undercover federal agent
wearing a wire records conversations with defendant, evidence from conversations leads to
defendants arrest
1. Hoffa False Friend Doctrine – no expectation of privacy in communications with other
individuals
a. Monitor must be consented by the false friend (distinction between consensual
monitoring and wiretapping)
b. When no one consents to having the conversation monitored or recorded, it is a
wiretap and requires a court order
c. Consent is the distinction between monitoring and wiretapping!
2. Extends false friend doctrine to include when one person is wearing a wire (person must
have consented to wearing the wire)
3. Possibilities: someone consents to wear a wire, someone consents to an agent hiding in
the closet, someone consents to having a telephone called monitored (as long as someone
consents  no problem)
4. Note: consensual monitoring can only be done by law enforcement not by private citizens
ii. Note: New Federalism
1. States cant take away what is guaranteed by the U.S. Constitution but can give their
citizens additional rights (U.S. Constitution is like a floor board)
a. Example: Commonwealth of Massachusetts v. Blood – state gave greater
constitutional rights than the federal government
2. State constitutions do not apply to federal agents
a. Reverse Silver Platter Doctrine = federal agents can do things the state police
cant because of state constitutions, state police give the federal agents
information and have them conduct the search
iii. Pen Registers (Smith v. Maryland) – telephone company conveys phone numbers of calls coming
in/out of particular home  no subject to the 4th Amendment (federal agents could hang a pen
 registers on any phone line), false friend doctrine applies because information is entrusted to the
telephone company that consented to the pen registry device
iv. Mail covers are not a search – post officers check all incoming/outgoing mail of a resident, mail is
not opened but is monitored
v. Beepers (GPS tracking of a car) is not subject to the 4th Amendment, if a beeper is attached to an
object that is likely to go into a home (example: chemicals) officers will usually get an anticipatory
warrant
j. United States v. Jacobsen (Supreme Court of the United States, 1984) – private shipping company damages
a package and opens it to inspect it for insurance purposes, they find a tube of white powder and inform Drug
Enforcement Agency, DEA comes over, opens the box, and tests the powder for cocaine
i. No governmental action in the initial search, search was conducted by a private company
ii. Second Search Doctrine = when the initial search is constitutional, the second search is okay if the
second search doesn’t yield any additional information
1. No warrant necessary for DEA search of the package because the first search was
conducted by a private actor and was constitutional
2. A chemical test that only identifies the contraband does not compromise expectations of
privacy and is not subject to 4th Amendment restrictions
k. Kyllo v. United States (Supreme Court of the United States, 2001) – thermal imaging device used from the
street reveals extreme use of heat lamps, agents use this to obtain a warrant and find marijuana
i. The use of a device by the government, which is not generally used by the public, to obtain
evidence from inside a home is a presumptively unreasonable search without a warrant under the
4th Amendment
1. Thermal imaging would requirement a warrant because the technology is so sophisticated
that you can almost see people
2. Distinguishes from the dog sniff in Place because thermal imaging is not “generally used
by the public”
ii. Warrant is tainted (Silverthorne Lumber – fruit of the poisonous tree) because the thermal imaging
search without a warrant was not constitutional
l. Waiver of 4th Amendment Rights – Consent
i. Schneckloth v. Bustamonte (Supreme Court of the United States, 1973) – traffic stop, driver of
the car says they can search the vehicle, search yields narcotics
1. Consent = waiver of a constitutional right
2. No advise of rights required for a 4th amendment waiver – consent is viewed under the
totality of the circumstances (would a reasonable person have believed the consent was
voluntary?)
a. Before this case, the police used consent forms – after this case the police no
longer used consent forms, consent is valid if found reasonable under the
totality of the circumstances
b. Only applies to the 4th amendment (advise of rights is required for a waiver of
the 5th amendment)
3. Police cannot use an assertion of a constitutional right (refusal to consent to search) to
infer anything negative, cant obtain probable cause only from a refusal to search
ii. Illinois v. Rodriguez (Supreme Court of the United States, 1990) – woman calls the police saying
that defendant assaulted her, she takes the police to the apartment, opens the door with her key and
invites them in, the police find narcotics in plain-view and arrest the defendant
1. Warrantless searches of a premise are permitted when police have a reasonable belief that
voluntarily consent was obtained from a party who possesses common authority over the
premise
2. Valid vicarious consent where cohabiting or where reasonable belief of cohabitation
iii. Commentary on Consent Issues
1. Vicarious Consent – when someone gives consent for someone else
a. Parents may consent for their children, but children may not consent for parents
b. Hotel rooms – hotel clerk has neither actual or apparent authority to consent to
a search of a guest’s room, but police can get a warrant based on hotel staff’s
observations, also once the guest no longer has a continuing interest in the
room the hotel staff can give consent because its their property
2. Scope of Consent – the standard for measuring the scope of a suspect’s consent under the
4th Amendment is that of “objective reasonableness” – what would the typical person
have understood by the exchange between the officer and the suspect
3. No valid consent under false authority or false warrant

VI. THE WARRANT REQUIREMENT

a. Chimel v. California (Supreme Court of the United States, 1969) – lawful arrest made under a burglary
warrant, police asked to look around the rest of the home but defendant refused, police than searched anyway
i. When a LAWFUL arrest is made, police may only search the person and the “Grabbing Area”
1. Danger to the police if the defendant grabs a weapon to harm
2. Destruction of evidence that the defendant can grab
ii. Probable cause must exist for the arrest, but its okay if the arrest is made of the wrong person
(probable cause could be matches a picture of suspect)
b. Steagold v. United States (Supreme Court of the United States, 1981) – arrest warrant for Lyons who was
believed to be at defendant’s home, Lyons was not there but police searched defendant’s home anyway
i. Scope of the search is limited to the object of the search – cant search in drawers when the search
warrant is for a person
ii. A search for Mr. X does not get the police over the portal of Y’s home absent a search warrant for
the home, however it does allow the police to search the entirety of Mr. X’s home
c. Kirk v. Louisiana (Supreme Court of the United States, 2002) – police staked out a home suspecting drug
sales, they stop and arrest customer, then go immediately to the home to arrest the defendant, although they
started to get a warrant, the police entered the premise before the warrant was obtained
i. Police cannot enter a home without a warrant, if no warrant must have exigent circumstances
ii. Exigent circumstances:
1. Person is a public place may be arrested without an arrest warrant
2. Hot pursuit – has probable cause to arrest someone who then runs away into a home, no
arrest/search warrant required to enter the home
3. Person is danger of death or serious bodily injury – police can enter a home without a
warrant, okay even if reasonably mistaken
4. Destruction of drugs or other evidence
d. Execution of the Warrant
i. Destruction of the premises – the lawfulness of police action depends on what the police reasonably
believed to be the circumstances, even if this reasonable belief is mistaken
ii. Time Considerations
1. Arrest warrant is valid indefinitely (until the arrest is made)
2. Search warrant is valid for a set amount of days, normally defined by statute (probably
cause is that the contraband is at the premise at a specific time)
iii. Knock-Notice Requirement
1. Police must knock and state their authority and purpose, give a reasonable amount of
time for the person to open the door
2. Hudson v. Michigan – violation of the knock and announce rule does not require
suppression of evidence (does not taint the evidence because the knock-notice
requirement is to protect the police)
iv. Detention and search of persons on the premise
1. Okay to detain while the search is being conducted
2. Cant search people in a public place [Ybarra v. Illinois]
v. Scope of the search – scope of the search is limited to the object of the search (cant look for a
stolen elephant in a drawer)
vi. Plain View Doctrine – if officers are lawfully on the premise, they can seize anything in plain view,
does not have to be inadvertent (Coolidge v. New Hampshire)
vii. Protective Sweeps – officers can look for confederates that may endanger their safety (can
generally look in nearby closets and adjoining rooms)
viii. Notice receipt and return – copy of the warrant and receipt for any property seized
e. Federal Rules of Criminal Procedure 41 – pages 146-149 in casebook
f. United States v. Salgado (United States Court of Appeals, 7th Circuit, 1986) – probable cause for a warrant
but before the warrant arrives, officer goes inside and looks around
i. Independent Search Doctrine: initial illegal evidence seen and later obtained legally and
independently may not be suppressed.
ii. Exclusionary rule does not apply – Bridges search did not influence the warrant (independent
search under Silverthorne Lumber)
iii. Seeing is not a seizure
g. United States v. Ross
i. Probable cause to search a car but no warrant is required
ii. Cars are distinguishable from homes
1. Lower expectations of privacy
2. Mobility
h. California v. Acevedo (Supreme Court of United States, 1991) – drug agent in Hawaii calls about large
portion of marijuana be shipped, police let it go through and plan to arrest the guy when he picks it up from
 FedEx, defendant picked up the package and took it home, he went into his home and came out with a brown
paper bag filled with the marijuana, defendant placed the bag in his trunk, police than arrested him and
removed the marijuana from the car
i. Time to go get a search warrant for the car might lead to the evidence getting away or being
destroyed
ii. Search of a car is constitutional without a warrant, as long as there is probable cause of contraband
or other evidence (reduced privacy interest in cars and their mobility)
iii. Police may have to testify to probably case after the fact at a suppression hearing
i. Illinois v. McCarther (Supreme Court of the United States, 2001) – wife has police escort her to get her
belongings, wife tells police that the husband has “dope”, police ask the husband permission to search but he
says no, police than have husband sit outside or be escorted inside the home, the police only keep husband in
eyesight and don’t touch anything, police then return with a search warrant, search the home and arrest the
husband
i. Not an unreasonable restriction on the privacy – time elapsed was only two hours and husband was
free to move about, he just had to stay in police’s eyesight
ii. Law enforcement can balance their needs with the privacy expectations of the defendant – probable
cause that the evidence would be destroyed if the husband returned to the home alone means its
reasonable to keep him in their sight
j. Colorado v. Bertine (Supreme Court of the United States, 1987) – defendant stopped and arrested for DUI,
inventory search of his van included a backpack behind the driver’s seat, backpack contained cocaine and a
large quantity of cash
i. Inventory search
1. Protects the police’s safety from bombs in a vehicle, etc
2. Protects defendant’s property interest
3. Protects police from false claims for stolen property
ii. Inventory search made in good faith satisfies the 4th amendment
iii. Florida v. Wells – inventory searches must stem from an established policy, but don’t have to be all
or nothing policies (all jurisdictions have established policy allowing the police to take inventory
searches)
k. Michigan v. Clifford (Supreme Court of the United States, 1984) – fire at home, police enter to search for
the cause of the fire after the fire department leaves, the cause is found in the basement but the police
continue to search the rest of the home and discover that the people burned their own home down
i. Administrative search is okay but once the cause/origin was established the search must end
ii. Administrative searches are limited to the scope, cannot look for criminal conduct without search
warrant
iii. Search was found unconstitutional because it was an unreasonably invasion of privacy (search was
conducted several hours after the fire had been extinguished, no exigent circumstances)
l. Thompson v. Louisiana (Supreme Court of the United States, 1984) – wife kills husband and then attempts
suicide, daughter calls the police who take wife to emergency room, police then search the home and find the
gun in the drawer
i. Search may only be a limited victim-or-suspect search  no homicide exception to the search
warrant requirement
ii. Search warrant is required for further extensive search of the home, without the warrant officer may
only seize items in plain view or in the immediate area of the victim-or-suspect
m. Warrantless Searches of Parolees and Probationers
i. Griffin v. Wisconsin (Supreme Court of United States, 1987) – statute allows search of someone
on probations home without a warrant
1. Person on probation has a lower expectation of privacy
2. Statute was reasonable under the circumstances, so a search within the statute is
reasonable under the 4th amendment
ii. United States v. Knights (Supreme Court of the United States, 2001) – defendant was on
probation, court appearances coincide with property damage at an electric company, statute says
probationers can be searched without a warrant, police search his home and find bombs
1. 4th amendment requires reasonableness – reasonable suspicion of criminal activity or
contraband is enough to search someone on probation, no warrant requirement
2. Probationer signs a consent form which under Schneckloth would be valid consent to the
search
a. Samson v. California – parolee signs consent for searches without warrant, no
expectation of privacy so the searches are reasonable
b. Court recognizes the difference between parolees and probationers
(probationers were never incarcerated and thusly have a higher expectation of
privacy than parolees)
 n. Frazier v. State of Florida (Florida District Court of Appeals, third circuit, 1989) – defendant believed to
have committed a murder but not enough to established probable cause for a search, fellow officer suspects
him of also committing drug offenses, does a controlled buy and obtains a warrant, homicide officer goes
with him when he executes the warrant and seizes a ski mask in plain view that links the defendant to the
murder
i. Searches and seizures are viewed under objective reasonableness – good or bad faith of the police
officer is irrelevant, no subjective analysis
ii. Piggyback warrants – warrant is obtained for one offense, but officers can still seize items in plain
view that are related to another offense
o. Arizona v. Gant – Person arrested for a suspended license but cops still search the car.
i. Exception: Reason to believe evidence of the offense might be in vehicle or arrestee is within
reaching distance of search area.
p. Zurcher v. Stanford Daily (Supreme Court of the United States, 1978) – riot on Stanford campus injures
police officers, photos of the riot appear the student newspaper, police obtain a search warrant for the
newspapers office for the photos, the newspaper is not suspected of any criminal activity
i. Search warrant may be obtained for a third party residence or business even where the third party is
not suspected of any criminal activity
ii. No 1st Amendment issue when searching a newspaper office
iii. Doesn’t matter that a subpoena would accomplish the same thing, use of the search warrant is okay
q. Commentary – Search Warrant Limitations (Pages 181-190 of casebook)
i. Search warrants have to be approved by a neutral magistrate
ii. Probable cause
1. For homes – must be before the search and stated in an affidavit
2. For cars – not required at the time of search, but may have to be shown at a suppression
hearing if the search is questioned
iii. Warrantless searches incident to a lawful arrest
1. Search areas
a. Robinson = warrantless search of an individual is okay
b. Chimel = warrantless search of the “grab area” is okay
c. Gant = warrantless search of the vehicle when the arrest is made at the vehicle
(search may include the interior of the car and the glove box but not the trunk)
 search is limited to the to reasonable suspicion of evidence pertaining to the
arrest and anything in plain view
2. Rationale
a. Prevents destruction of evidence
b. Protects the police from suspect grabbing weapon

iv. Automobile searches

1. Ross, Acevado  Probable cause required but no warrant
2. Bertine  inventory searches of vehicles are okay without probable cause or warrant
where the jurisdiction has an established policy
r. United States v. Torres (United States Court of Appeals, Seventh Circuit, 1984) – government secretly
televised the inside of safe house Puerto Rico separatist group, lower court allows the audio recordings but
suppresses the video
i. Visual and auditory surveillance okay under Federal Rule of Criminal Procedure Rule 41
ii. Visual surveillance normal investigation methods would be impractical, dangerous or unsuccessful
iii. Limited to thirty days (can be extended) and the type of information that the police are trying to
collect

VII. PROBABLE CAUSE AND PARTICULARITY

a. Aguliar v. Texas (Supreme Court of the United States, 1964) – search warrant for defendants home,
defendant says the affidavit was unreliable because the probable cause was supplied by an anonymous source
i. Aguliar Two Prong Test
1. Underlying circumstances leading to the probable cause
2. Establish the reliability of the informant
ii. Reliability of the informant does not require disclosure of his/her identity
iii. Police cant make up informants because the affidavit is under oath
b. Commentary – Page 209
i. Four Corners Rule = probable cause is evaluated based on what is actually set forth in the affidavit,
cannot go outside the actual document
 ii. Under McCray, the name of the informant is not required to establish reliability
iii. Roviaro Exception – if the prosecution has promised not to reveal the identity of an informant, they
cannot charge the crime in their vicinity, if the crime is charged in their vicinity, they are an
essential witness and either have to be revealed or the charges must be dropped
c. Illinois v. Gates (Supreme Court of the United States, 1983) – anonymous letter contains evidence of drug
trafficking, police observe the behavior as indicated in the letter and then obtain a search warrant
i. Search warrant is valid when probable cause is established by cooperated evidence
ii. Abandons the two prong test from Aguliar  fair probability that the contraband will be found
based on the totality of the circumstances
1. Simplifies the test to a more common sense approach
2. Under new federalism states may choose to retain the Aguilar two prong test
d. United States v. Grubbs – Anticipatory search warrants need to be subject to probable cause and have to
state two components: Place to be searched and Person or thing to be seized.
e. United States v. Celio (United States Court of Appeals, Seventh Circuit, 1991) – drug scheme discovered
that ships drugs from Texas northward, DEA calls the Illinois state police and has them stop the vehicle,
defendant argues that the Illinois police did not have independent probable cause
i. Collective knowledge of law enforcement sustains probable cause
ii. Policy argument – convicts more criminals because they cant simply leave the jurisdiction to get
away, especially relevant with the increased mobility
f. Andresen v. Maryland (Supreme Court of the United States, 1976) – search warrant for information relating
to a particular lot, police seize other documents about surrounding lots during the execution of the warrant
i. General warrants are prohibited by the 4th amendment
ii. Evidence seized must show that it will aid in that particular apprehension or conviction (can seize
evidence on the other lots because it will show the intent for the fraud of the lot in question)
g. Particularity requirements are usually really easily established – warrant generally includes a wide array of
items and then can also seize anything in plain view
h. Lafayette v. Illinois – allows inventory searches of a person (Robinson allows the police to search a person
incident to a lawful arrest

VIII. DENTENTION AND SEARCH OF THE PERSON

a. Terry v. Ohio (Supreme Court of the United States, 1968)
i. Terry frisk – standard is reasonable suspicion, permits a reasonable search for weapons for the
officer’s safety
1. External search only – only wants the weapon is identified can the officer go inside the
person’s clothing to seize the weapon
2. Police should have reasonable suspicion that the suspect is dangerous
3. Plain view doctrine extends to plain feel, but no further manipulation if the feel doesn’t
immediately identify the item
ii. Terry detention – standard is reasonable suspicion of criminal activity
iii. Terry frisk of a vehicle (Michigan v. Long) – police have reasonable suspicion of weapons in the
vehicle that would endanger him
1. Intrusions into cars generally
a. Gant – search of a car incident to a lawful arrest
b. Long – frisk of the vehicle
c. Schneckloth – consent to search applies to vehicles
d. Ross/Acevado – probable cause to search a car, no warrant requirement
e. Bertine – inventory searches of cars
b. Dunaway v. New York (Supreme Court of the United States, 1979) – tip that defendant was involved in a
burglary and murder, not enough for an arrest warrant but they brought him in for questioning, and he
implicated himself
i. Court finds that he was essentially under arrest, no Terry detention because this went beyond the
scope of a detention
ii. Arrest requires probable cause and since there is no probable cause, the evidence must be
suppressed
iii. Information obtained during an illegal arrest must be suppressed under Silverthorne Lumber’s fruit
of the poisonous tree doctrine
c. New York v. Harris – a statement obtained from a suspect following an unlawful arrest may have to be
excluded as a the fruit of a Fourth Amendment violation even if the statement satisfied the Fifth Amendment
requirements because it was voluntary and the Miranda warnings were given
d. United States v. Sokolow (Supreme Court of the United States, 1989) – airline tickets under a false name,
paid for in cash, no checked luggage, very short trip for a long travel time to a source city, DEA agent stop
 defendant and the dog alerts to his jacket, DEA agent doesn’t find anything so allows him to leave but keeps
his luggage
i. Reasonable suspicion for a Terry detention under the totality of the circumstances
ii. Terry detention is limited to a reasonable amount of time
e. Florida v. Bostick (Supreme Court of the United States, 1991) – officers board a bus and ask defendant
permission to search his bag, defendant gives consent and the officers find cocaine
i. Whether a reasonable person would feel free to decline the officer’s request or otherwise terminate
the encounter
1. If a reasonable person would not feel free to decline that the person has been detained
2. Detentions require reasonable suspicion under Terry
ii. Detention is evaluated under the totality of the circumstances, not automatically a detention
because it occurred on a bus and the person might not be able to leave (the person still could
decline the request)
f. United States v. Drayton (Supreme Court of the United States, 2002) – officers working the buses,
defendant identifies his bag and gives consent to search, when nothing is found in his bag, the defendant
gives consent to search his persons, a pat down search yields large amounts of cocaine
i. Reasonable person feels free to decline an officer’s request than no detention
ii. No requirement to inform the defendant of his right to refuse
iii. Consent is viewed in the totality of the circumstances
g. Kaupp v. Texas (Supreme Court of the United States, 2003) – police did not have enough to obtain a warrant
but brought the defendant in for questioning in the middle of the night anyway, defendant ended up
confessing to the crimes
i. A confession obtained by exploitation of an illegal arrest may not be used against a criminal
defendant
ii. Unlawful arrest because there is no probable cause (Dunaway), unlawful arrest requires a
suppression of any evidence obtained
h. Whren v. United States (Supreme Court of the United States, 1996) – undercover officers patrolling a high
drug area, suspicious truck violates traffic law, police pull the truck over and find large bags of cocaine in
plain view
i. Police need a basis for pulling a vehicle over (reasonable suspicion of drug activity, violation of a
traffic law, etc)
ii. Motivation of the officers is irrelevant, doesn’t matter if the traffic stop is a pretext for another
search  reasonable suspicion is analyzed under the objective facts only
i. Atwater v. City of Lago Vista (Supreme Court of the United States, 2001) – seatbelt violation allows for
arrest, woman arrested for not wearing a seatbelt, booked and released over an hour later on bail
i. Arrest did not violate the 4th amendment, okay to arrest people for minor civil offences, no level of
offense required for an arrest
ii. States cant give directions on when an arrest is okay because the 4th amendment cant apply
differently to different states
j. United States v. Avizu (Supreme Court of the United States, 2002) – Roaming patrol and sensors to catch
people trying to avoid a checkpoint, minivan driving suspiciously, turns at last road to avoid checkpoint,
police pull over van, get consent to search the vehicle and find drugs
i. Reasonable suspicion based on the totality of the circumstances
ii. Reasonable suspicion does not require individualized suspicion of each factor alone
k. Three tiers of police/citizen interaction
i. No 4th Amendment Violation – reasonable person would feel free to leave or terminate the
encounter (Bostick, Drayton)
ii. Detention – reasonable suspicion to detain, informant or conduct may give rise to reasonable
suspicion, without reasonable suspicion the search is tainted and the evidence must be suppressed
(Sokolow)
iii. Full-Scale Arrest – probable cause required to sustain an arrest, if no probable cause than the
evidence must be suppressed (Royer – temporary detention okay with reasonable suspicion, but
cannot deprive of liberty without probable cause, when police took his airline ticket he was under
arrest not merely detained)
l. Traffic Stops for Drug Enforcement
i. Officer does not have to advise the person that they are free to leave
ii. Dog sniffs of vehicles of vehicles are okay as long as they don’t take a prolonged amount of time
iii. Okay for officers to order people out of their vehicles – increases police safety because they can see
everyone and what they are doing
iv. Increased tolerance for frisks because it protects the officers’ safety
 m. United States v. Hensely (Supreme Court of the United States, 1985) – flyer issued that defendant was
wanted for questioning in connection with a burglary, police in a neighboring town see defendant, pull him
over and search him for weapons
i. Reasonable suspicion where the officers issuing the flyer would have had probable cause for the
arrest
ii. Can stop a defendant, ask for identification, etc to deal with their reasonable suspicion that he is the
person in the wanted flyer
n. California v. Hodari D. (Supreme Court of the United States, 1991) – police see a car who speeds away,
defendant runs away and discards contraband while running
i. No arrest where the police say “stop” and the suspect continues to run
ii. No 4th amendment seizure until after the defendant is restrained or submits to authority –
contraband discarded during the chase is abandoned and does not implicate the 4th amendment
iii. No reasonable suspicion needed to start the chase
o. Illinois v. Wardlow (Supreme Court of the United States, 2000) – heavy drug traffic area, defendant sees
police and runs, officers catch him, frisk him and finds weapons
i. Reasonable suspicion can be based on common sense judgments and inferences about human
behavior
ii. Flight can be a factor in reasonable suspicion, possible inference of guilt attached to flight (flight
jury instruction)
p. Florida v. J.L. (Supreme Court of the United States, 2000) – anonymous tip says a man in a plaid shirt at the
bus stop is carrying a gun, police go to the bus stop and search the man and find a gun
i. Anonymous tip is not enough for reasonable suspicion without being cohobated by other inferences
of criminal behavior (conduct, etc)
ii. A bare anonymous tip is not enough, must have more semblance of reliability (White)
q. United States v. Montoya de Hernandez (Supreme Court of the United States, 1985) – defendant detained
in airport suspected as a drug mule, defendant refused to agree to an x-ray or use the bathroom, court
eventually ordered screening which yielded balloons of cocaine
i. Nothing required for a routine border search, protects national security
ii. Extensive detention is outside of a routine border search and requires reasonable suspicion – can
detain for a reasonable amount of time to prove or dispel the suspicion
iii. Strip and body cavity searches are permitted under certain circumstances, no blanket ban because
people would then use this as a way to hide contraband
r. Indianapolis v. Edmond (Supreme Court of the United States, 2000) – checkpoints for routine traffic stops
to search for drugs
i. Historically, routine traffic stops were okay but were eventually found unconstitutional because
there was too much police discretion on who to pull over, fear that police would use this against a
certain subset of people
ii. Checkpoints are constitutional
1. DUI checkpoints when no discretion as to which cars to pull over is left to the police
2. License and registration check when no discretion as to which cars to pull over is left to
the police
3. Near borders to protect against illegal immigration
iii. Limit on checkpoints – must serve a legitimate government interest (border security, roadway
safety), ordinary criminal activity is not enough

IX. THE RETREAT FROM THE EXCLUSIONARY RULE

a. Stone v. Powell (Supreme Court of the United States, 1976) – defendant convicted of murder based on
evidence obtained during a search incident to arrest for vagrancy, vagrancy statute was declared
unconstitutional so the arrest was invalid
i. Habeas corpus petitions (2254s and 2255s) are post conviction appeals
ii. No habeas corpus available for an appeal based on a violation of the 4th amendment if the issue has
already been litigated in a state court
iii. Does not extend to other constitutional appeals (example: 6th amendment ineffectiveness of
counsel can still be raised even if previously litigated or if based on the 4th amendment violation
(i.e. Failure of counsel to bring suppression motion))
b. United States v. Ceccolini (Supreme Court of the United States, 1978) – officer picks up envelope
containing money and policy slips, FBI investigation follows and testimony from that investigation, initial
search was illegal to defendant wants to suppress everything from the following investigation
i. Exclusionary rule does not apply when there is a casual relationship between the evidence and the
constitutional claim
ii. Live witnesses should be treated differently and testimony should not be easily suppressed
 iii. Fruit of the poisonous tree doctrine does not extend forever, some point where it is too intenerated
and the evidence will not be suppressed
c. Rakas v. Illinois (Supreme Court of the United States, 1978) – car stopped because it matched the
description of a getaway vehicle, police seize weapons in plain view, petitioners are passengers in the car
[STANDING ISSUE]
i. Standing requires a possessory or proprietary interest in the place or the items seized
ii. Must have a reasonable expectation of privacy, being on the premise legally is not enough to
constitute standing without more of an interest
iii. Post Rakas Cases
1. United States v. Salvucci – no automatic standing
2. Rawlings v. Kentucky – defendant drops contraband into his friends purse than objects to
the search of the purse
a. No standing in the purse, even if he claims the drugs
b. Cannot object to the search of the purse because no proprietary or possessory
interest in his friend’s purse
3. United States v. Payner – IRS stole the briefcase of a Bahamian bank official to
photograph documents of tax fraud
a. No possessory or proprietary interest in the briefcase
b. Doesn’t effect standing that the government’s conduct was illegal
4. United States v. Padilla
a. No co-conspirator standing
b. Standing stems from privacy and property not the participation in a criminal
conspiracy
5. Minnesota v. Carter – officer saw defendant bagging cocaine through an apartment
windoe than searched the home
a. No standing to object to the search of the home because they were only there
for two hours, no possessory interest
b. Overnight guests have a legtimate interest and standing
c. Person merely legally on the premises does not create standing
d. United States v. Havens (Supreme Court of the United States, 1980) – defendant caught with his friend who
was smuggling drugs, the defendant was implicated by a t-shirt which was suppressed but later used to show
perjury at trial
i. Illegally obtained evidence may be used to impeach the testimony of a defendant when the
defendant chooses to testify in his own defense
ii. Cant be used in the prosecution’s case in chief but can be used for other reasons (Harris v. New
York – 5th amendment equivalent / Michigan v. Harvey – 6th amendment equivalent)
e. United States v. Leon (Supreme Court of the United States, 1984) – insufficient warrant for probable cause
but signed by the magistrate
i. As long as acting in good faith, the exclusionary rule does not apply (good faith exception)
ii. Purpose of the exclusionary rule is to deter police from violating the 4th amendment, when the
police are acting in good faith this purpose is not served (usually considered good faith where the
magistrate approves the search)
iii. Examples of not good faith: affiant knows the information is false, magistrate doesn’t look at the
affidavit in good faith, affidavit is lacking that finding probable cause would be unreasonable,
warrant is so defective
f. Massachusetts v. Sheppard (Supreme Court of the United States, 1984) – search warrant for murder
evidence was filled out on the narcotics form, magistrate said he would make the necessary changes but never
did
i. No exclusion if there is mistake by the magistrate
ii. When officers in good faith believe that a warrant is valid when they execute the search, than the
exclusionary rule does not apply
iii. Exclusionary rule does not apply in INS proceedings
iv. Blood sample okay because of exigent circumstances but cant force a defendant to have elective
surgery to obtain evidence
g. Arizona v. Evans (Supreme Court of the United States, 1995) – defendant was driving the wrong way down
a one way street in front of a police station, outstanding warrant for his arrest and contraband in the car, arrest
warrant had previously been quashed but the police were never notified
i. Exclusionary rule not applicable because the mistake was by a clerical employee and not by the
police
ii. Deterrence purpose of the exclusionary rule would not be served by suppression because the police
believed the warrant was good
iii. Conduct of the clerk was not intentional  extends Leon good faith exception
 h. United States v. Tejada (United States Court of Appeals, Second Circuit, 1992) – controlled buy leads to an
illegal search of an apartment, evidence is suppressed but than is used in sentencing
i. Evidence suppressed can be used for sentencing enhancement as long as not seized explicitly for
this purpose
ii. Retreat from the exclusionary rule because the suppressed evidence is still allowed to be used for
sentencing even if not for the government’s case

X. ENTRAPMENT AND OUTRAGEOUS INDUCEMENT

a. United States v. Russell (Supreme Court of the United States, 1973) – government supplies chemical for the
production of meth, defendant asserts entrapment defense
i. The burden of proof is on the government to prove that a defendant is predisposed to violate the
law before the government intervenes
1. Entrapment defense is focused on the defendant’s actions
2. A minority of jurisdictions focus on the conduct of the government rather than the
defendant (Hawaii, California)
ii. Entrapment is not suppose to protect the unwary criminal, very hard to prove an entrapment
defense if any predisposition is evident
iii. Entrapment defense leads to an acquittal but another possibility is a due process claim, if there is a
due process claim successful the entire case would be dropped, due process claims are allowed
when the government conduct is so outrageous (circuit cases Green and Twig are examples of
outrageous inducement)
b. Jacobson v. United States (Supreme Court of the United States, 1992) – defendant buys child pornography,
government sends letters and magazines to the defendant who finally makes a purchase
i. Okay for the government to offer the opportunity to commit the crime  reinforces the standard in
Russell that focuses on the defendant’s behavior
ii. Efficiency argument – no reasonable juror could find that the defendant was predisposed, very
limited holding on the specific facts
iii. Government’s conduct was not deemed outrageous and the court did not pursue a due process
analysis

XI. 5TH AMENDMENT

a. Requires that no person be denied life, liberty, or property without due process of law, and grants each person
a privilege against compelled self-incrimination
i. Is person in custody?
ii. Is there an interrogation?
iii. Has the person been told of Miranda rights?
iv. Has the person invoked right to counsel or refusal to talk?

XII. THE “ACCUSATORIAL” SYSTEM OF JUSTICE

a. Moran v. Burbine (Supreme Court of the United States, 1986) – counsel representing defendant calls police
to say not to talk to the defendant, without telling the defendant about the lawyer, the police inform the
defendant of his rights and question him anyway
i. Police fulfilled their duty by advising the defendant of his rights, okay because the defendant was
informed of his rights and waived them
ii. Accusatorial system only requires that the defendant is aware of his rights
b. Ohio v. Reiner (Supreme Court of the United States, 2001) – manslaughter from shaken baby syndrome,
defendant says it was the babysitter and not him, baby sitter asserts 5th amendment privilege and refuses to
testify without immunity
i. 5th Amendment privilege protects witnesses who have reasonable cause to apprehend danger from
a direct answer
ii. Protection against self-incrimination applies to both the innocent and the guilty, privilege protects
the innocent from being ensnared by ambiguous circumstances

XIII. 6TH AMENDMENT

a. Requires that in all criminal prosecutions the accused has the right to: assistance of counsel; public trial; cross
examine; confront witness against them; and be present at defendants’ own trial.

XIV. THE RIGHT TO COUNSEL AND EQUAL TREATMENT

a. Gideon v. Wainwright (Supreme Court of United States, 1963) – request to counsel in a state proceeding is
denied
i. 6th Amendment right is extended to the states through the 14th amendment’s due process clause
 ii. Right to counsel is universal, states must now pay for provided counsel
iii. Assets and other information provided to the court to determine if the defendant is in need of court
appointed counsel, courts usually allow for counsel when it is a close call
b. Anders v. California (Supreme Court of the United Stats, 1967) – attorney finds no merit to the case, tells
the court and defendant writes his own pro se brief
i. Court defines what has no merit, not the court appointed counsel
ii. Anders Brief – counsel must write a brief of potential issues and give it to the defendant who can
then write their own pro se brief; and state why frivolous in order to withdraw or be relieved
iii. Only an issue with appointed counsel, not retained counsel – appointed counsel may try to get out
of a case by saying the claims have no merit
c. Alabama v. Shelton (Supreme Court of the United States, 2002) – defendant is denied right to counsel and is
sentenced to a thirty day suspended sentence
i. 6th Amendment right to counsel when there is actual imprisonment
ii. Suspended sentence is still a potential deprivation of the defendant’s liberty – right to counsel
applies when the person has any jail time
d. Caplin & Drysdale, Chartered v. United States (Supreme Court of the United States, 1989) – forfeiture
case where defendant loses proceeds from drug enterprise, attorneys want paid form the forfeited funds
i. Supreme Court says no discretion for the trial judge to decide when forfeited funds can be used 
forfeiture cant ever be used to pay counsel
ii. 6th Amendment is not the right to counsel of choice, just the right to effective assistance of counsel
e. Strickland v. Washington (Supreme Court of the United States, 1984) – defendant admits to crimes against
the rights of counsel when he hears the court is friendly to people who admit their wrongs
i. Ineffective assistance of counsel is only found when inadequate legal assistance
ii. Effect of ineffective assistance counsel, reversed on appeal and the individual is granted a new trial
(some states have the issue raised on a post-conviction appeal and not on the regular appeal)
iii. Failure to provide adequate legal assistance …
1. Counsel’s performance was deficient – extremely deferential standard to the lawyer,
lawyer can decide what measures are appropriate for a given case
2. Outcome has to have been effected (no ineffective of counsel if the defendant would have
been convicted even with the best counsel)
f. Glover v. United States (Supreme Court of the United States, 2001) – counsel did not assert the grouping
issue for the sentencing, defendant got extra jail time because the offenses were not grouped
i. Actual jail time is prejudice (outcome determinative) under the 6th Amendment for ineffective
assistance of counsel; may be considered as a factor under Strickland Rule.
ii. Ineffective assistance of counsel is possible at the sentencing stage even if representation was
adequate during the trial
iii. Sentencing guidelines can have great effect on jail time depending on how the guidelines are
interpreted
g. Martinez v. Court of Appeals of California (Supreme Court of the United States, 2000) – paralegal
convicted of embezzlement after representing himself pro se at trial, wants to represent himself pro se on
appeal
i. Faretta grants a right to pro se representation at trial
ii. NO 6th Amendment right to pro se representation on appeal
iii. Never recommended for a defendant to represent himself pro se – sometimes courts will appoint an
attorney in an advisory role to assist a pro se defendant
h. Notes on Ineffective Assistance and the Right to Counsel
i. Types of Ineffective Assistance of Counsel
1. Failure to provide adequate legal assistance (Strickland Test)
a. Counsel’s performance was deficient
b. Outcome was effected
2. Interference with decisions
ii. Ineffective assistance of counsel can result from conflicts of interest
1. Financial interests, former clients, multiple defendants can affect judgment or appear to
affect judgment leaving the attorney vulnerable to malpractice suits, ethical violations
and ineffective assistance of counsel claims
2. Multiple defendants represented by the same attorney
a. Benefit of one defendant to testify against the other for immunity creates
conflict between clients
b. Confidentiality issues between the two defendants
c. Holloway v. Arkansas – if an attorney is appointed to multiple defendants and
raises a conflicts issue, the court must appoint separate attorneys
 d. Government may motion for separate attorneys in order to open the possibility
for plea agreements and immunity to testify against other defendants, etc.

iii. Relationship between counsel and the defendant

1. The accused decides what plea to enter, whether to waive jury trial, whether the
defendant will testify  Ineffective assistance of counsel when an attorney interferes
with those decisions, counsel must give the client advice but cannot make the final call
2. Counsel decides what witnesses to call, whether to cross examine and all other strategic
decisions related to the trial

XV. CONFESSIONS FROM BROWN TO MIRANDA

a. Historically confessionals were suppressed when they were totally involuntary
b. 5th Amendment right to be indicted has never been extended to state proceedings  states may charge on
information through a signed charging document
c. McNabb-Mallory Rule – an officer making an arrest shall take the arrested person without unnecessary delay
before the nearest available commissioner  stems from Federal Rules of Criminal Procedure 5(a)
i. Federal statute made confessions valid if within six hours of the arrest
ii. Many courts began to eliminate the McNabb-Mallory rule when Miranda rights were given
d. Corley v. United States (Supreme Court of the United States, 2009) – defendant not taken to the magistrate,
waived Miranda rights and confessed more than a day later
i. McNabb-Mallory Rule is resurrected  person MUST be taken to a magistrate within six hours of
arrest, if not any confession must be suppressed (ONLY applies to federal custody)
ii. Six hours begins at the time of arrest
e. Massiah v. United States (Supreme Court of the United States, 1964) – partner decides to cooperate and
wore a wire, defendant makes incriminating statements to the partner
i. 6th Amendment attaches after indictment, right to counsel when being questioned or when the
eliciting incriminating statements
ii. Evidence can be suppressed based on the 6th Amendment right to counsel
iii. Maine v. Moulton – incriminating statements pertaining to other crimes, as to which the 6th
amendment right has not attached, are admissible at a trial of those offenses
iv. 6th Amendment has a time element and a subject matter limitation – attaches after indictment and
only attaches to subject matter related to the offense that the defendant was indicted for
f. Miranda v. Arizona (Supreme Court of the United States, 1966) – consolidated cases where defendants
were questioned without being read rights
i. 5th Amendment right against self incrimination – only applies when defendant is exposed to
custodial interrogation
1. Defendant must be in custody
2. Defendant must be under interrogation  defendant must be answering questions not just
talking randomly
ii. Defendants must be advised of the following rights
1. Right to remain silent
2. Anything can and will be used against the defendant in court
3. Consult with a lawyer
4. If you cannot afford a lawyer, one will be appointed to you
5. Right to terminate the questioning at anytime

XVI. THE IDENTIFICATION CASES

a. United States v. Wade (Supreme Court of the United States, 1967) – without notice to lawyer, defendant
was observed and identified in a line up
i. 5th Amendment right against self incrimination only applies when the information is testimonial or
communicative in nature (does not apply to the line up because not testimonial or communicative)
1. Schmerber v. California – blood sample is not testimonial or communicative in nature
2. In re Special Federal Grand Jury – handwriting sample, even where directed to write
in a specific style, is not testimonial or communicative in nature
ii. 6th Amendment applies only to critical stages of the prosecutorial process  adds to temporal and
subject matter limitations (line up is a critical stage so because the lawyer was not present, the
identification must be suppressed unless it can be supported by an independent search under
Silverthorne Lumber)
1. Kirby v. Illinois – Wade rule does not apply before the defendant is formally indicted,
right to counsel attaches at formal charging or arraignment (no counsel for line up
required when it takes place before the defendant is formally charged or arraigned)
 2. United States v. Ash – no 6th amendment right to counsel in a photo spreads
3. “Russell Show-Up” – arrest someone that matches the description and take the person
immediately to the victim to identify, admissible because it benefits the police and the
suspect, suspect is detained for a lot less time and police get quick information
b. Neil v. Biggers (Supreme Court of the United States, 1972) – victim identified the defendant in a show up,
victim hadn’t previously identified anyone in a line up
i. Identification will not be suppressed if in the totality of the circumstances it is still reliable
ii. Stovall v. Denno – no admission of evidence deriving from suggestive identification procedures
c. Types of Identification
i. Russell show up
ii. Photo spread
iii. Line-up
iv. In court identification by victim/witness on the stand
d. Perry v. New Hampshire – Suspect breaking and entering cars, stealing items, and was identified by
neighbors.
i. Due Process Clause is not implicated and does not require inquiry into reliability of eye witnesses
identification unless the identification was procured under unnecessary suggestive circumstances
e. Pennsylvania v. Muniz (Supreme Court of the United States, 1990) – defendant was arrested for DUI but
not immediately read his Miranda rights, defendant was asked various questions as part of a sobriety test
i. Routine booking exception – name, address, date of birth, etc. are not covered by Miranda, don’t
need a Miranda warning before these types of identification questions
ii. Actions and manners of speech are not testimonial or communicative so no 5th Amendment
Miranda warning required
iii. Something is testimonial or communicative when it requires a mental process  Miranda warning
would then be required
iv. Spontaneous statements are not from interrogation so the 5th Amendment doesn’t apply (Oregon v.
Bradshaw)

XVII. THE POST MIRANDA CONFESSION CASES

a. CUSTODIAL INTERROGATIONS
i. United States v. Mesa (United States Court of Appeals, Third Circuit, 1980) – hostage situation
with defendant in a hotel, hostage negotiator talks to defendant on cell phone, incriminating
statements made but Miranda rights were never read by the hostage negotiator
1. No Miranda rights required because the defendant was not in custody when the
incriminating statements were made
2. Miranda requires custodial interrogation so when the defendant was not in custody the
statements are admissible when no warning was given
ii. New York v. Quarles (Supreme Court of the United States, 1984) – defendant under arrest
warning a holster so police ask him where the gun is and he tells them
1. Public safety exception to the Miranda warnings
2. Exception could eat the rule, should be narrowly interpreted
iii. Rhode Island v. Innis (Supreme Court of the United States, 1980) – defendant was under arrest
and asked for a lawyer, in the car on the way to the police station police discuss between
themselves that it would be a shame if a child came across the missing gun, defendant interrupts
and tells them where the gun is located
1. Voluntary and spontaneous statements while in custody without inducement or
interrogation are not in violation of 5th amendment.
2. An interrogation can be express questioning or police behavior that elicit a response from
the defendant
3. Police words or conduct is interrogation when the police know or should know that it will
elicit an incriminating response
iv. United States v. Henry (Supreme Court of the United States, 1980) – defendant was arrest and
indicted, paid jailhouse informant was told by the defendant that he participated in the robbery,
informant testified at trial
1. Violation of 6th Amendment right to counsel because the police created a situation to
elicit response from the defendant (right to counsel was attached because the defendant
had already been indicted)
2. Jailhouse informants are problematic – hard for the defendant to contradict, yet often lie
to reduce their own charges, etc, problem because the police are trying to find out more
information when the defendant is entitled to a right to counsel
v. Commentaries
1. Suspect can be in custody in his own home
 2. Custody where the person couldn’t refuse the officer’s request to come to the station (see
Dunaway)
3. Terry stops do not trigger the 5th Amendment requirement for Miranda warnings
4. Once 6th Amendment right to counsel attaches, police cant solicit incriminating
information without counsel present (Massiah)
a. No violation of Messiah simply by showing that a jailhouse informant reported
statements to the police, must show action to elicit the information beyond
mere listening
b. No violation of the 5th Amendment Miranda warnings for a jailhouse
informant because there is no custody without a police dominated atmosphere
(Illinois v. Perkins)
5. A person who is not a suspect could be in custody and require 5th Amendment Miranda
warnings

b. WAIVER
i. Edwards v. Arizona (Supreme Court of the United States, 1981) – defendant was brought in for
questioning and advised of his rights, defendant asked for counsel, the next day police reinitiated
questioning without counsel present and defendant made incriminating statements
1. Once the defendant requests counsel after being read his/her Miranda rights, questioning
must be stopped until counsel is present (5th Amendment case – waiver of 5th
amendment rights)
2. Distinction between requesting counsel and simply remaining silent – if only refusing to
talk, police can reinitiate questioning after a period of time has passed (Michigan v.
Mosely), police must also redo the Miranda warning
3. No violation of a request for counsel when statement is completely voluntary, statement
must not be subject to any police action to be considered voluntary (Kuhlman v. Wilson)
4. Note: opposing lawyer cannot have any direct contact with a defendant who is
represented (Hammad), defense lawyer should put the prosecution on notice that they
are representing a defendant, especially if the defendant has yet to be charged
ii. Michigan v. Harvey – impeachment exception also applies to statements obtained in violation of
the Massiah 6th amendment right to counsel (impeachment exception to 5th amendment violations
under Harris v. New York and to 4th amendment violations under United States v. Havens)
iii. Maryland v. Shazter (Supreme Court of the United States, 2010) – questioning stopped when
defendant asked for counsel, three years later defendant waived his right s and made statements
1. Police may re-open questioning of a suspect who asked for counsel if there has been a 14
day or more break in Miranda custody
2. Edwards disability ends 14 days after released from custody, fits with the purpose of the
Edwards to protect defendants from waiving his rights in pressured situations
iv. Montejo v. Louisiana (Supreme Court of the United States, 2009) – defendant waived his rights
and was interrogated, counsel was appointed, detectives interviewed defendant after reissue of
Miranda warnings
1. Voluntary waiver after Miranda warnings applies to the 5th and 6th amendment
(Patterson)
2. Waive 6th amendment right to counsel when waiving the Miranda rights – adequately
aware of the right to counsel because its part of the Miranda warning
3. No distinguishing between represented and unrepresented defendants
v. Colorado v. Connelly (Supreme Court of the United States, 1986) – defendant approaches officer
and says he wants to talk about a murder, officer advises of Miranda rights and then the defendant
confesses, psychiatrist says confession was caused by mental illness
1. Government has to prove waiver by a preponderance of the evidence
2. Doesn’t matter what caused the defendant to confess, only that there was no coercive
police conduct that violated the constitution
vi. Colorado v. Spring (Supreme Court of the United States, 1987) – defendant killed a man while
hunting, defendant arrested for illegal firearm trade, waives Miranda rights and then confesses to
killing his aunt and the man on the hunting trips
1. Miranda warning says that anything you say may be held against you in court – no advise
of specific crimes that questioning will relate to required
2. Police are not required to advise the defendant of what crimes the questioning will pertain
to
3. Connecticut v. Barrett – confessions obtained after ambiguous waiver are admissible
(oral confession with refusal to record or give a written statement is still admissible)
 vii. Oregon v. Elstad (Supreme Court of the United States, 1985) – oral confession before Miranda
warning than written statement of confession after Miranda warnings
1. No suppression when an unwarned admission absent deliberate coercive or improper
tactics
2. Fruit of the poisonous tree doctrine doesn’t apply when a defendant repeats a confession
after the Miranda warning

c. THE VOLUNTARINESS DOCTRINE AFTER MIRANDA

i. Arizona v. Fulminante (Supreme Court of the United States, 1991) – defendant in jail for firearms
charges, confesses to an unrelated murder to a fellow inmate in exchange for protection in the
prison
1. Coercive confession because defendant only confessed in exchange for prison protection
2. Harmless error rule applies to coerced confessions – conviction can be upheld if beyond a
reasonable doubt that the constitutional violation did not cause the verdict (Chapman v.
California)
ii. Miller v. Fenton (United States Court of Appeals, Third Circuit, 1986) – defendant waived his
Miranda rights and was then questioned by the police, police gave untrue facts, told the defendant
he needed treatment not jail time and that the police wanted to help the defendant
1. Psychological impact of interrogation techniques used to break down self preservation
instinct
2. Psychological and physical coercion can effect voluntariness but look at the totality of the
circumstances to determine if free will is effected
3. Voluntariness is going to be hard to overcome once the defendant waived his Miranda
rights
iii. Bruton Problem – confession from one individual that implicates another, X says “Y and X killed
the decedent”
1. If tried together, the confession cannot be admitted in the government’s case-in-chief
because if X does not take the stand, Y would not have the chance to cross-examine X
2. Bruton Problem is eliminated if the confession is redacted or if the defendants are tried in
separate trials (Supreme Court prefers separate trials to the redaction)
iv. Allen v. Illinois (Supreme Court of the United States, 1986) – defendant had to submit to
psychiatric evaluations as part of a civil commitment proceedings, Miranda warning was not given
before statements were made during the evaluations
1. No Miranda warning required for civil commitment proceedings, Miranda warnings are
only required when the proceeding is criminal in nature
2. Something is civil in nature when the penalties are civil and not criminal (jail time, etc.)