Background

4A – search + seizure (privacy)

5A – interrogation (autonomy)
6A – counsel, ID procedures (reliability)
Due Process – counsel, ID procedures (reassuring reliability)
Why Regulate the Police and why is it difficult?
1. History of the police: Evolution of American law enforcement generally paralleled its British counterpart –
fearful of central police system (unlike France); Framers unfamiliar with modern policing, how do we regulate
through C when framers did not anticipate today’s system?
a. During colonial times: North had “watch and ward” systems and South had sheriffs; no interrogations
by police, done by magistrate, only reactive policing
b. Modern policing did not begin until 19th century (NY first), state police forces developed slower than
municipal law enforcement agencies
c. Today, more than 19,000 different law enforcement agencies in US  with a decentralized police
force, it is necessary for SCOTUS to step in and create rules that apply to all police
2. Police demographics:
a. White, male, lower/middle class, not a lot of money
b. Average education is end of high school/beginning of college
c. Not a lot of diversity, which means less sensitivity to racial issues
3. Training and attitudes:
a. Police training is lacking in criminal procedure context
i. Most cops do not understand C protections
ii. Trained to be firm, become overly firm
iii. Court decisions not explained well and if they support D’s rights, viewed negatively
iv. Academies deemphasize values associated with protecting criminal Ds
b. Police as liars (“testilying”) and use of deception (Barker & Carter)
i. Hard to regulate deception, viewed as part of the job
ii. Accepted police lying: necessary to perform undercover operations
iii. Tolerated police lying: white lies; cops may tell teenagers to move along or get arrested even
though no basis
iv. Deviant police lying: violate substantive law and/or police rules
1. Relativism: suspect can lie, why can’t we? Prevent D from getting off on a technicality;
pursuing legitimate goals; you owe your partner; reward and requirement of meeting
quotas (hard to be sensitive to DP when you have a quota); career fatigue; us vs. them
feeling
2. BUT: danger of perjury, deviant lies in support of illegitimate goals
c. Code of silence/brotherhood; feelings of isolation from society
d. Belief that society wants/needs us to protect them and do what we do; only confront real danger 2% of
time, but we don’t know when that will be  public wants meat-eaters
i. Image of street cop vs. management cop
ii. Bias towards crime control
iii. Police mystique – in reality, police work can be very mundane
e. Discretion and race
i. Clearly an issue, “ratchet effect”
ii. Police response reflects cultural bias – self-fulfilling prophecy
f. Violence: study of LA police department showed significant group of problem officers posed a higher
risk of excessive force than others; only small percentage using excessive force but hard to police
4. Course Framework for Regulating the Police: CC Crusader vs. DP Junkie
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 a. Crime control crusader: associated with post-Warren court (Roberts, Burger, Rehnquist), legislature
i. Focus on factual guilt – legal innocence is BS
ii. Need to efficiently convict guilty people – presume police are good, “conveyer belt”
iii. Informal fact-finding is okay, flexibility
iv. Don’t like case-by-case analysis/reasonableness, focus on CBA (costs quantifiable, not getting to
use confession, but how do you quantify benefits?)
v. Presumption of police regularity
vi. Shouldn’t have to give Miranda if D knows his rights; admit spontaneous admissions before
warning
b. Due process junkie: Warren Court (1961-1969)
i. Focus on legal guilt – only guilty if facts are determined in a procedurally correct way within
powers of authorities; loves Miranda and exclusionary rule
ii. Focus on equality, provide counsel who can check the police, slows process down
iii. Presume police will abuse their power, distrust of police
iv. Favor bright line rules, overrestrictive, adjudicative process, adversary system worry about
error and false conviction stigma; protection of abstract, C values
Sources of Regulation – courts, legislatures, and PD itself (Which is the best combination to develop rules to
regulate the police?)
1. Courts: Since 1960s, SCOTUS and federal courts have been regulatory institutions with most impact on police
regulations
a. Incorporation doctrine, 14th Amendment, “no state shall deprive life, liberty, or property without DP of
law,” incorporate Bill of Rights to the states
b. Can create national law through SCOTUS regulating the police
2. Tennessee v. Garner (1985) – p. 41: Memphis police officer responding to nighttime burglary call spotted
Garner running from back of victim’s house to 6-foot chain link fence. Yelled at G to halt, G tried to climb fence
and officer shot him. G was 15 and had taken purse and $10. G’s dad brought civil suit alleging G was seized in
violation of 4A. Officer said he was acting under authority of TN statute that said officer could use “all
necessary means” to effect an arrest if he has given notice of intent to arrest; all necessary means included
deadly force
a. Issue: Whether it is C impermissible for police officers, as a last resort, to shoot a burglary suspect
fleeing the scene of the crime
b. Holding (6-3 White): TN statute violated reasonableness requirement; unC to use deadly force on a
fleeing non-violent felon; but where an officer has PC to believe that the suspect poses a threat of
serious physical harm it is not unC to prevent escape by using deadly force”; Garner’s life unlawfully
seized under 4A
c. Balancing individual interests vs. government interests: individual’s life > government interest in
catching suspect
3. Note on Guest Speaker: police training made him fundamentally fearful and mistrust other human beings;
people deserve what they get; cops would rather be judged by a jury than dead

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Searches and Seizures: Fourth Amendment
I. Background/Policy
“(1) 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 (2) 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.”
1. Reasonableness clause: prohibits unreasonable searches and seizures
2. Warrant clause: Should there be a presumption in favor of warrants?
a. History
i. CC  doesn’t say warrant required, warrantless searches took place all the time, remedy was
damages, not exclusion
1. Terry (1968): central inquiry under 4A is reasonableness in all the circumstances of
particular governmental invasion of a citizen’s personal security; reduces presence or
absence of a warrant to one factor among many in evaluating overall reasonableness of
search or seizure
ii. DP  no organized police forces at time, search and seizures only took place when private
citizen went to constable, now vast police forces, nobody knows anybody, need brake on police
activities more now vs. colonial times, 2 independent clauses, unreasonable = no warrant
1. Justice Steward in Katz (1967): A warrant should be obtained before a search and
seizure subject to only a few specifically established and well-delineated exceptions”
b. Warrants don’t protect from police intrusions
i. CC  only 5% time police get warrants, other times are consent, typical warrant application is 2
minutes, rubber stamps, warrants are inefficient, have exclusionary rule as remedy/deterrence
ii. DP  people consent because they are threatened with getting a warrant, most time police get
warrants they produce evidence, most warrants are for search of homes, which we want to
protect the most, still good to get second opinion, cops knowing someone is checking, most
jurisdictions prosecutor gets involved, only 5% searches with warrants get excluded, want to
make police think about intruding on privacy, telephone warrant process makes it more
efficient, slowdown isn’t a disaster, prosecutor just doing her work (establishing PC) on front
end
c. Exclusionary rule
i. CC  don’t need warrant process
ii. DP  this is ex post remedy, warrants are ex ante (beter)
1. Memorialization before search takes place, can create stories ex post knowing what
they found
2. Judges have hindsight bias ex post PC, at warrant stage more rigorous PC, credibility
issue ex post with D vs. police, if there’s no warrant only get review ex post
II. Fourth Amendment Analysis
STEP ONE: Is the 4A implicated?
1. Was there government action?
a. Unless an intrusion or detention is by a government official, or by an agent of such official, the 4A is not
implicated  origin and history of 4A shows that it was intended as restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon others
b. Burdeau (1921): Private papers taken by thieves, later obtained by government could be used in
evidence in federal prosecution; exclusion not mandated by an unlawful private search
c. Jacobsen (1984): In state prosecutions, rights applied to states through 14A are violated only by state
actions
d. Government actors: SCOTUS has said that virtually all public officials who engage in searches are
governed by 4A, even when they are looking for something other than criminal activity
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 i. State health and safety inspectors (Camara); OSHA inspectors (Barlows); fire inspectors
(Tylers); public employers (Ortega); public school teachers (L.T.O.)
ii. Private action can implicate 4A under certain circumstances (carrying out traditional
government function)
1. Skinner v. Railway Labor Executives Ass’n (1989): Drug testing by private railway co.
constituted state action when federal law strongly encouraged the tests, granted
authority to promulgate testing procedures, prohibited railways from bargaining away
this authority and conferred upon Federal Railway Administration the right to samples
of private co.’s tests
e. 4A does not apply to: individuals employed by banks, stores, residential areas and other concerns as
private security agents; private police regulated through tort doctrines
i. Policy: Prof. Burkhoff thinks 4A should apply to searches and seizures by private employers
because private security agents are rarely sued for unlawful action; plus, accepting these fruits
may be an unC “seizure.” Also cites “mutual dependence” of public and private law
enforcement sectors
1. State use of evidence obtained by private security guards leads to tacit encouragement
and ratification of unlawful conduct; state should not be able to profit from private
action that violates C norms; cf. Shelley v. Kramer (1948) (for equal protection
purposes, sufficient state participation occurs when its courts enforce privately-drawn
racially restrictive covenants); Elkin (1960) (pre-Mapp v. Ohio, federal courts cannot use
evidence illegally obtained by state police, even when there is no proof that federal
police encouraged state officers to obtain the evidence)
ii. Vast majority of courts unwilling to find state action without a very significant relationship
between government and private police; Lima (1980) (look for a symbiotic relationship or
intrusion into private activities)
1. Applies where anonymous hackers hacked into computers in violation of federal law and
emailed evidence of crime to FBI (D’Andrea 2011)
iii. 4A does NOT apply when foreign police search American citizens, unless American police are
also involved (Rose, 9th Cir. 1978)
f. NO State Action:
i. Boettner (N.Y. 1974): G wrote letter to his gf describing purchase of 1 lb of marijuana, letter
intercepted by gf’s mother, who called police. Police told university’s protective services that
they were going to get a warrant. But, school wanted to search before winter break so without
telling police, campus protective services authorized a search of G’s apartment. Found drugs, G
also said he got drugs from B. Neither search authorized in writing, as required by school policy.
1. Held: No state action because did search because it was the weekend, not because of
police
2. Defense argument (yes): evidence of pressure to search (but no direct evidence), private
actor taking action traditionally held by state
ii. Lamar (5th Cir. 1977) cert denied: Police officers asked airline employee to notify him if anyone
claimed suspicious drug dealer’s bag. In accordance with his customary duty, employee
searched bag for identification and found heroin. Officer was present but did not request or
participate in search.
1. Held: No state action; airline employee was not agent of the officers. Need very strong
government connection to implicate 4A.
2. Prosecution: a part of normal duties, would have searched bag anyways
3. Defense: officer prompted search, employee looking much more closely than policy
required, policy only implicated because of cop, not searching every other bag; policy is
pretextual (Whren), BUT not state action in first place
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 iii. Jacobsen (1984): Pursuant to written co. policy, Fed Ex employees opened a package that was
damaged by a forklift. Found crumpled newspaper covering a tube made of duct tape. Cut open
tube and found bags with white powder. Notified DEA and repacked box. When DEA arrived,
saw tube through top of box, which was open. Removed tube and used filed test. Held: Agent’s
search did NOT constitute government action
1. But Walter (1980): Yes, government action where FBI viewed obscene films that private
parties had already taken out of their canisters and labels revealed contents were
obscene; saw labels on films (not private) and then watched (went beyond)
2. Distinction: plain view, validly in package, duplicating private party activity in Jacobsen,
PC to believe evidence of crime; + reduced expectation of privacy (no reasonable
expectation of privacy in contraband)
2. Was there a search or seizure?
SEARCH
a. Originally, Court drew from property concepts so a search meant a trespass on C protected area
(persons, houses, papers and effects); whether something was regulated by 4A depended upon
whether device trespassed on target’s property, must have physical intrusion
i. Olmstead (1928); Goldman (1942) – no search occurred because D’s phone lines were tapped
outside the home; Silverman (1961) – eavesdrop evidence excluded because it was obtained
through use of “spike mike” inserted under baseboard of wall until it made contact with heating
duct running throughout D’s house; On Lee (1952) – no search when they overheard
conversations though a bug concealed on undercover agent because even though agent on D’s
property he was there by invitation and thus no trespass occurred
b. Katz (1967): Government bugged a public telephone booth and used the information at trial against D
i. Holding (Stewart): 4A protects people and not simply areas against unreasonable searches and
seizures, moves 4A analysis from property orientation to privacy orientation; protection for
wherever a person has a reasonable expectation of privacy
ii. Concurrence (Harlan): Two-fold requirement, person must exhibit an actual (subjective)
expectation of privacy and that expectation is one that society recognizes as reasonable 
most prominent opinion, but Court has deemphasized subjective prong in subsequent decisions
(Smith v. Maryland (1979): where individual’s subjective expectations had been conditioned by
influences alien to well-recognized 4A freedoms, those subjective expectations could play no
meaningful role in ascertaining what scope 4A protection was)
1. Subsequent decisions speak of whether police action infringed upon privacy
expectations that society is prepared to recognize as reasonable or alternatively upon
reasonable expectations of privacy
iii. Dissent (Black): No general right of privacy under C; only “persons, houses, papers, and effects”
iv. Under trespass doctrine, analysis would have been:
1. No physical intrusion – bugging phone booth
2. Not house, persons, papers, effects/chattel – was D leasing phone booth? Not C
protected area
3. Intangible communication is not an effect – can’t seize a conversation
c. Post-Katz: one usually has a reasonable expectation of privacy in one person’s home, papers, and
effects (cars and suitcases), but NO expectation exists in many other situations (undercover activity,
open fields trespasses, flyovers, intrusions into containers, use of sense enhancement devices)
d. Three Perspectives on “Reasonable Expectation of Privacy”
i. Survey of caselaw indicates that courts have identified 7 factors that might play a role in
determining whether privacy should be expected
1. Nature of place to be observed; steps taken to enhance privacy; degree to which
surveillance requires physical intrusion onto property; nature of object or activity
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 observed; degree to which any technology used to view premises is available to general
public; extent to which any technology used “replaces” rather than merely “improve”
the senses; extent to which the viewing is unnecessarily pervasive, invasive, or
disruptive
ii. Views of citizens rather than courts, empirical research (p. 217-18), what society is prepared to
recognize as reasonable
iii. Positive law: property law, tort law, K already saying place is private
1. Jones (2012) (Scalia) – regardless of whether a reasonable expectation of privacy exists,
a trespass on a house, person, paper or effect that is meant to find out information
about a person, public or private, is a 4A search
2. Other examples – whether police can look through garbage might depend on whether
local ordinance prohibits sanitation co. from doing this; use of video surveillance
depends on whether private use of video cameras would be breach of privacy under tort
law
3. A decision that a search has occurred often means police should have gotten a warrant
from a magistrate based on PC, maybe informs court’s conclusions about reasonable
expectations of privacy
e. Undercover Activity
i. Lewis (1966, pre-Katz): undercover agent called L’s house and said mutual friend said L could
sell him weed; L said, “I can take care of you” and gave agent directions to his house. Sold him
weed twice. Held: No 4A issue
ii. Hoffa (1996): 4A NOT implicated when government asked H’s business colleague to report any
relevant conversations with H about H’s jury tampering
iii. Macon (1985): Entering a porn store during business hours, browsing for a few minutes and
purchasing 2 magazines does not implicate 4A
iv. Gouled (1921): Undercover agent invited into P’s home conducted a search when he rummaged
through D’s desk when D was not there; went beyond scope of invitation
v. Lewis/Hoffa (D invited) vs. Gouled (never told agent he could go through drawer, no invitation)
 Lewis/Gouled used old definition of search but still good law
f. Third party doctrine, assumption of risk by disclosing info to third party
i. Interesting because society views undercover activity by chauffeur or secretary as more
intrusive than pat-down
ii. YES Search
1. Lo-Ji Sales, Inc. (1979): Search occurred when police entered pornography store after
hours and viewed packaged magazines/films that were not allowed to be open there
iii. NO Search
1. On Lee (1952): OL suspected of opium dealing, police wired his old friend and had him
visit OL’s laundry. Used info from eavesdropping to help convict OL.
a. Holding: No search; trust no one (affirmed post-Katz in White/Carceres)
b. Prosecution: invitation (Lewis/Hoffa), no privacy when voluntarily agreed to talk
to individual, under property-based theory, no physical intrusion so no
trespass/search, still same post-Katz
c. Defense: OL did not intend to communicate with the “third person” in the room,
the federal agent, informant wouldn’t be able to remember ver batim, according
to empirical evidence should require PC
d. Problem with looking to positive law  some states require all parties’ consent
to record conversations; different expectations in different states
2. Miller (1976): Prosecutor subpoenaed bank for M’s financial records, which were used
to convict M for conspiracy and possessing an unauthorized distillery.
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 a. Holding: No search, positive rights don’t matter; a person “takes the risk, in
revealing his affairs to another, that the information will be conveyed by that
person to the government,” only objective analysis matters
b. Prosecution: same as Lewis and Hoffa, except it involves an “institutional”
undercover agent. A person assumes the risk that info voluntarily revealed to
bank will find its way to the government, just as one assumes risk that friend will
provide confidential info to government. D is voluntarily, knowingly giving info
to 3d party, no 4A protections
c. Defense: Bank record scenario ranked very intrusive in empirical study,
suggesting that society expects privacy in this situation; communication with
bank less voluntary than communication with friend, must deal in order to
function in modern society; institutions don’t have autonomy and have no right
to reveal another’s personal info whenever their agents feel like doing so
3. Smith v. Maryland (1979): a person does NOT have a reasonable expectation of privacy
in identity of phone numbers he dials when they are routinely recorded by a phone co.
iv. Congressional reactions to Miller and Smith
1. Right to Financial Privacy Act (1978): Requires that customers be given opportunity to
challenge federal subpoenas for financial records prior to their execution unless it would
seriously jeopardize investigation
2. Electronic Communication Privacy Act (1986): Law enforcement seeking to intercept
phone or computer information must certify to a court facts that show the information
is relevant; BUT violations of these provisions do NOT require exclusion
g. Open Fields Searches
i. Hester (1924): “Open fields” beyond curtilage of home are NOT protected by 4A
ii. Oliver (1984): Acting on trip that O was growing marijuana, 2 plainclothes police officers went
to farm to investigate. Drove past house to locked gate with a “no trespassing” sign on it. Took
a footpath around one side of the gate and walked several yards past barn and past parked
camper. Someone shouted “no hunting, come back.” Shouted that they were police and kept
going. Found field over a mile from O’s house, but still on private property.
1. Holding: Hester is still good law. “Open fields” are not protected under 4A, no search;
BUT people ranked open fields searches more intrusive than pat down
2. Prosecution: Not house, person, paper or effect; one should not expect privacy where
virtually nothing private occurs; no trespass signs and fences not considered barriers to
public, do not protect against sightings by air, therefore do not create expectation of
privacy; cannot have legitimate privacy interest in marijuana; police should not have to
decide how much effort to protect privacy is needed
3. Defense: Intimate activities do occur in open fields, which are private property. Public
not listening to signs should not determine scope of privacy protection, would allow
suspicionless, government intrusion whenever causal private intrusion occurs, which is
not what society expects/should allow. Intrusion will already have taken place by time
illegitimate interest is discovered, police should have to at least demonstrate RS.
iii. California v. Ciraolo (1986): Received tip that C was growing weed in his backyard; could not
see over 6’ outer fence and 10’ inner fence. Flew a private plane over yard at altitude of 1,000
feet and identified weed plants. Photographed area and then got warrant which lead to
discovery of drugs.
1. Holding: No search. If public can do it police can do it, because no reasonable
expectation of privacy

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 2. Prosecution: No physical intrusion, space is accessible/viewable to public and should not
be protected against similar viewing by government officials; contraband has no privacy
significance; not interfering with use/possessory interests
3. Defense: it is privacy vis-à-vis the government, not the public; curtilage, not open field,
private activity occurs, O’Connor, fifth vote in Riley, issue should be whether type of
flyover is rare or not, after Riley it will be less rare, Court determines our expectations of
privacy
iv. Florida v. Riley (1989): Helicopter flights 400 yards over backyard are NOT a search, as long as
do not cause a hazard to anyone or interfere with normal use of home curtilage
1. O’Connor: If flyover is rarely taken by civilian aircraft, it should implicate 4A
v. Dunn (1987): DEA agents tracked C to D’s 198-acre ranch, completely encircled by perimeter
fence with interior fences. Ranch buildings were in a clearing ½ mile from public road.
Residence also encircled by fence with locked gates. Barn was 50 yards behind house,
connected to house by a path. No wall, but barn enclosed by fence with locked gates, and
netting. DEA agents made way to resident and barn from public road, smelled chemicals they
thought were drugs. Used a flashlight to look inside and found drug lab.
1. Is barn in open fields (not a search) or curtilage (at least entitled to some 4A protection
according to Hester)?
2. Holding: Barn NOT in a curtilage so NOT protected, using 4-part test:
a. (1) proximity of area claimed to be curtilage to home; (2) whether the area is
included within an enclosure surrounding the home; (3) nature of uses to which
area is put; (4) steps taken by resident to protect area from observation by
people passing by
3. Prosecution: nothing legitimate in barn, inspection did not involve physical intrusion but
rather observation for a lawful vantage point (lawful because police can trespass on
open fields with impunity)
4. Defense: Barn can contain many legitimately private items; police only found drug lab
after they looked; use of flashlight to pierce that privacy infringed on Dunn’s reasonable
expectations
h. Container Searches
i. NO Search
1. CA v. Greenwood (1988): perusal of garbage bags left on curb, found items indicative of
narcotics after asking trash collector to give bags to police; no search because no
reasonable expectation of privacy in abandoned trash, if city government can do it,
police can do it
2. IL v. Andreas (1983): Large, locked metal container shipped to A. Customs agent opened
it and found a wooden tabletop with marijuana inside. Notified DEA and then resealed.
Agents posed as deliverymen and brought it to A’s house. One agent went for search
warrant while other waited outside. When A came outside with container, officer
arrested him and took him to police station, where container re-opened.
a. Holding: Customs agent did NOT conduct search; inspection after the “controlled
delivery” was NOT a search since no substantial likelihood contents had changed
 replication cf. Jacobsen
i. Government has “undoubted right to inspect all incoming goods at a port
of entry” (Ramsey, opening of international mail by customs officials not
a search), no expectation of privacy at border, everyone subjected to
search at border
ii. Second inspection of table after controlled delivery not a search because
no substantial likelihood contents had changed (Jacobsen, doing same
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 thing as first search, doing same thing border agents did) + no reasonable
expectation of privacy in contraband
iii. Defense: Bond applies, physical intrusion of property
ii. YES Search
1. Bond (2000): officer who squeezed opaque canvas bag in overhead luggage rack of bus
and felt brick-like substance conducted a search
i. Technology: Use of Enhancement Devices
i. Kyllo (2001) (General Public Use Doctrine): use of relatively primitive thermal imaging device is
search if device is directed at a house because technology in question is not in general public
use
1. Holding: Search, not in GPU; if had looked inside with binoculars it would’ve been okay
2. If device is in general public use, police can use it without implicating 4A
3. Defense: without technology to get same info would require physical trespass, can
protect against (blinds), can’t protect against thermal imaging
4. Prosecution: Greenwood, heat waves are abandoned
ii. Jones (2012): Installed GPS on J’s car and tracked car traveling on public roads for 28 days. Had
a warrant but conceded it did not authorize GPS installation because installation took place in
Maryland rather than DC, where warrant directed GPS device to be installed.
1. Holding: Installation of GPS a search and trespass on an effect; other 4 concluded
majority’s trespass theory was highly artificial but agreed that search had occurred on
separate ground that use of longer term GPS monitoring in investigations of most
offenses impinges on expectations of privacy, looked at duration
2. GPS signals from phone not a search under this reasoning, no search because no
trespass (6th Cir. agrees)
3. Did not resolve whether PC required for GPS warrant
4. Prosecution: Car was in public, no expectation of privacy on public roads, if on Day 1 no
expectation of privacy, no expectation on Day 28
5. Grady v. NC (2015): monitoring sex offender with tracking device affixed to ankle is a
search; did not address whether this holding required a warrant or any degree of
individualized suspicion
iii. Knotts (1983): A search did NOT occur when police put a beeper in can of ether BEFORE D took
possession of the can, put it in his car and tracked for an hour; in public, no expectation of
privacy, seeing what someone in public could see
iv. Karo (1984): Using tracking device to reveal movement inside a home implicates 4A and must
be authorized by court order; unclear whether PC or RS needed; cannot use technology to
investigate inside home that police cannot detect with own senses
v. Dow Chemical Co. (1986): Dow operated a chemical manufacturing plant, had lots of security to
protect trade secrets. Allows EPA to make ground levels checks for emissions but said no pics.
EPA hired private firm to photograph plant from 1200 feet. Pics allowed lots of enlargement,
could identify even small power lines
1. Holding: No search, GPU, money is no object.
2. Prosecution: This is a business rather than a home and thus area photographed is not
really even “curtilage;” even curtilage can be flown over by police without triggering 4A
(Ciraolo); despite its magnification capability, camera was not actually used to
photograph intimate objects and is readily available eo public; violation of civil law alone
does not trigger 4A protection (Oliver); Dow obviously knew its privacy was subject to
infringement (thus the precautions)
3. Defense: Distinguishable from Ciraolo: (1) objects of photography were on curtilage not
visible to causal flyover observer, unlike marijuana in Ciraolo; (2) camera not like camera
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 in Ciraolo given its ability to magnify; (3) aerial photography of this type if prohibited by
trade secret laws; (4) Dow took incredible steps to protects its privacy
j. Dog sniffing
i. Florida v. Jardines (2013): Officer used driveway and paved path to get to D’s home with drug
sniffing dog; dog smelled drugs.
1. Holding: Dog sniff was search because it went beyond typical license granted to visitors.
To find a visitor knocking on door is routine, to spot visitor exploring front path with
metal detector or marching his bloodhound into garden before saying hello and asking
permission not routine
ii. Illinois v. Caballes (2005): Dog sniff of lawfully stopped car does NOT implicate 4A as long as it
does not prolong the stop
iii. Place (1983): dog sniff of luggage is NOT a search because only discloses presence or absence of
narcotics, contraband – binary search, only notifies of contraband, no expectations of privacy in
contraband
iv. FL v. Harris (2013): if a bona fide organization has certified a dog after testing his reliability in a
controlled setting or the dog has recently completed a training program that evaluated his
proficiency in locating drugs, a court can presume that dog’s alert provides PC for a search
SEIZURE OF PROPERTY/THINGS
a. Whether there is some meaningful interference with an individual’s possessory interests in the
property – Jacobsen
i. Does no seizure occur because contraband is illegal to possess? No, seizure still occurs;
government conducted field test of white powder, which destroyed part of powder,
converted what had been a temporary deprivation of possessory interests into a permanent
one, and assumed seizure had taken place.
ii. Also argued that a thief can be dispossessed of stolen property since under CL the thief has
superior title to stolen property besides true owner
iii. Finding that a seizure of property has occurred is seldom of much use to D, Jacobsen, held
testing was reasonable because virtual certainty the powder was cocaine and minimal
amount destroyed; Andreas, found seizure of marijuana from table was reasonable
iv. If the police may validly look in an area, they may generally seize any item in that area
which is in plain view and appears to be (PC) evidence of crime
a. Impoundment: need PC to believe impoundment is authorized, but don’t need
warrant
b. Chambers delayed automobile search – no warrant needed to take car
c. Chadwick: Luggage may be held without warrant if PC to believe it contains evidence
d. Segura: Even premises may be seized after an arrest while officers get search warrant
v. Limits on duration of seizure: stringent limits if no PC; RS not enough to seize/detain property
a. Place (1983): Had RS to search P’s luggage for drugs based on tip; told him they were
going to get a warrant, he could come. P declined and left his bags there. After 90
minutes, police brought drug dogs that smelled drugs. Held: Not permissible seizure,
essentially seized person too
b. Smith (11th Cir. 1986): cop pulls over car for traffic violation, fit drug courier profile,
expired rental car, calls for drug dog. Takes 40 min. Held: Detention unC.
vi. Once you have PC, limits not very stringent
a. Segura (1984): sanctioned a 19-hour overnight seizure of an apartment
b. Johns (1985): Upheld search of packages in which weed was found three days after
validly seized from vehicle under Carroll doctrine
c. Cardwell v. Lewis (1974): Upheld impoundment of car for one day
d. Cooper (1967): upheld impoundment of car for 7 days
10
 vii. BUT: a 3P/non-police entity can detain property on less than PC
a. Van Leeuwen: Upheld post office’s retention of 2 packages for 29 hours while warrant
obtained, because no 4A interest invaded by forwarding package following day rather
than day it was deposited. D didn’t even know they were being seized
b. NOT seizures
i. Did not dispossess D of anything (Ciraolo, flyover)
ii. Seized “abandoned item” (Greenwood, garbage)
iii. Obtained item with D’s consent (Lewis, undercover pot deal)
iv. No reasonable expectation of privacy in contraband (Lewis/Andreas), but possessory interest
in contraband (Jacobsen, Jeffers – standing)
v. Placing beeper in can, merely a technical trespass, no dispossession of property (but dissent
argued conversion theory) (Karo)
c. Forfeiture Statutes: Authorize government property seizures, can be civil or criminal in nature
i. Very low bar, only need a nexus between confiscated property and underlying misconduct
ii. Criminal: only after conviction, part of criminal punishment
iii. Civil: culpability does NOT need to be proven beyond a reasonable doubt
iv. No “innocent owner” defense under C, although there may be under state law
a. Once nexus between crime and property is found, property can be seized even if
owner had no connection to the crime
b. Bennis v. MI (1996): Court found a nexus between B’s solicitation of prostitution and
the car he had used for that purpose, thus his wife’s ownership interest in the car
could be forfeited despite her ignorance of his illegal activity
v. Pre-Seizure Hearings
a. Fuentes (1972): as a matter of DP, debtors are entitled to some type of hearing before
private creditors can seize their property
i. BUT when necessary to important government/public interest is pretty broad
exception
b. Calero-Toledo v. Pearson Yacht Leasing Co. (1974): Relied on F-S exception, and
upheld seizure without notice or hearing of yacht that had been leased by PY to
individuals who had used it to transport drugs
c. US v. Good Real Property (1993): DP requires adversarial hearing prior to seizure of
real property under federal forfeiture statute
vi. Ex-ante review: 4A not much help
a. Florida v. White (1999): 4A requires PC but warrant requirement does NOT apply in
forfeiture context, at least when personal property involved and seizure does not
require entry of a private premise
vii. 8A Prohibition on Excessive Fines
a. Austin (1993): when payment to government is meant to be “punishment for some
offense” then excessive fine clause applies; police seized entire auto body shop and
mobile home of D who sold coke
b. Alexander (1993): Government’s confiscation of D’s multi-million dollar real estate
holdings and chain of adult retail stores after his conviction for selling obscene
materials and racketeering was subject to proportionality analysis
c. TBD: is taking a small amount of pot excessive?
viii. Rationale: Calero-Toledo v. Pearson Yacht Leasing Co.
a. Designed to remove contraband and criminal instrumentalities from circulation
b. Impose economic penalties on owners
c. Compensate government for enforcement efforts
d. Provide methods for obtaining security for subsequently imposed penalties and fines
11
SEIZURES OF PERSONS: can take place on less than PC
a. Terry v. Ohio (1968) – person is seized for purposes of 4A when the officer, by means of force or show of
authority, has in some way restrained the liberty of a citizen; officer seized Ds when he confronted them,
asked them a question, and frisked them
b. Mendenhall (1980) – seizure of person occurs when a reasonable person would have believed that he was
not free to leave; plainclothes DEA agents noted M was last off plane in LA, had been acting nervous, did
not claim her luggage and changed airlines; approached M using drug courier profile and asked for ID,
ticket and name. Gave it back to her. Asked why she was using a different name, officer identified himself
and M started trembling. Never said she couldn’t leave.
 Holding: 2 judges said no seizure, 3 assumed arguendo it was a search but it was justified under 4A;
4 dissenters said seizure occurred by time officer identified himself.
c. Competing Perspectives:
a. Rubenstein: Every encounter with police is seizure when no danger begins with abridgement of
personal encounter; inevitable tensions, no one really feels free to leave here
b. LaFave: Mendenhall-Royer grounded in policy considerations that police need to get the ball
rolling; strikes fair balance between law enforcement and individual interests
d. NO SEIZURE
 Florida v. Rodriguez (1984) – seizure did not occur when R agreed to accompany an officer to
where his colleagues were being questioned by another officer; clearly sort of consensual
encounter that implicates no 4A interest
 Immigration Service v. Delgado (1984) – visited factory with a warrant to survey employees;
employees free to walk about factory but not free to leave it without being questioned, going to
stay inside factory to work anyways; agents were armed and stationed themselves near building
exits; asked people questions and sometimes immigration papers, if illegal, handcuffed and
escorted out
o Holding: No seizure occurred; Rhenquist emphasized that police questioning by itself is
unlikely to result in 4A violation
o Government has right to come up to person and ask questions without it being a seizure
o LaFave – unless this type of dragnet approach is permitted, stopping illegal immigration will
be very difficult
 Drayton (2002) – as part of routine drug and weapons interdiction effort, 3 plainclothes officers
boarded a bus; no one visibly armed, one stared at front of bus, other at back and third asked if
they could check D and his friend’s bag. Asked to pat down D’s friend, found drugs and arrested
him. D agreed to be patted down, also found drugs. Officer said people were allowed to leave, but
did not tell people they did not have to cooperate.
o Holding: No seizure occurred and valid consent (ignorance of 4A rights just one factor in
evaluating whether consent is voluntary)
o Prosecution: Like Delgado, people on bus weren’t going to leave anyways. Police did not
display any force, acted low-key/professionally, asking for consent implies that D had right
to refuse. Identical encounter on the street would not be a seizure; other people around
alleviates any sense of coercion
o Defense: passengers would not feel free to leave, people rarely say no, very coercive. At
least as confining as Brendlin.
 Bostick v. FL (1991) – on similar facts as Drayton, avoided seizure issue but said consent voluntary;
seizure occurs when a person would not feel free to decline the officers’ request or otherwise
terminate the encounter. Marshall dissented, noting that 7/100 random bus sweeps resulted in an
arrest.

12
  CA v. Hodari (1991) – 2 officers in unmarked car (but wearing jackets that said police) saw a group
of youths huddled around a small car. When youths saw officers’ car, ran away and officers started
chase. H tossed coke onto road.
o Holding: No physical seizure of H by time he threw the cocaine. Need a physical seizure to
trigger the 4A.
 MI v. Chesternut (1988) – no seizure when police in a cruiser accelerated to follow D after he
started running upon seeing the cruiser
e. YES SEIZURE
 Florida v. Royer (1983) – seizure occurred on facts similar to Mendenhall (airport, asked questions
in airport and for ticket and ID, no seizure) except officers did not return ticket or ID
 Brendlin v. CA (2007) – passenger and driver are both seized under 4A when stopped for a traffic
violation

f. Distinguishing arrests from lesser seizures: When a police-citizen confrontation is not a “seizure,” it does
NOT implicate the 4A at all  stops only require RS, not PC
 Arrest: police detention of an individual for the purpose of taking him into custody (PC)
 Stop: prior to arrest, akin to Terry where officers just stopped suspects, asked a few questions and
patted them down (RS), can be based on less reliable evidence (Alabama v. White)
 Frisk: RS of danger (Terry)
 Professor LaFave’s factors to determine whether intermediate detentions are stops or arrests:
o Officer perceived or announced he was making an arrest
o Used force or show of force
o Moved suspect to police facility
o Moved suspect to another location in the field
o Utilized different investigative methods
o Held the suspect longer
 Terry v. Ohio (1968): Officer saw 2 men hovering on street corner for extended period of time,
pacing along route, looking into storefront window 24 times and conferencing with one another. A
third man briefly joined the Ds and then Ds rejoined third man a few blocks away. Officer
approached 3 men and asked for their names. When they only mumbled in response, officer
grabbed D and patted him down, felt a pistol and removed D’s overcoat and made all 3 men go into
store where he patted them down. D convicted of carrying concealed weapon.
o Majority (Warren): Intrusion was justified. Establish balancing test to determine
reasonableness of officer’s actions. Balance need to search or seize against the invasion
which the search and seizure entails.
 Was the officer’s action justified at its inception?
 Balance nature of government interest against degree of intrusion
 Holding: Officer must have reasonable suspicion of danger; specific,
articulable facts that reasonably warrant intrusion; RS of danger before
frisk.
 Was it reasonably related in scope to the circumstances, which justifies interference
in the first place?
o Dissent (Douglas): seizure of a person is only reasonable if police have PC
 Arguments against Terry RS
o RS is slippery
o RS will become default justification – argue this is not as intrusive/greater weight towards
government interest
o Cop > magistrate
13
 o Calamity of small steps
 Arguments for Terry RS
o There is a definition of RS
o Would only be default with less intrusive government actions
 Proportionality – need more than warrant for electronic surveillance and body
intrusive searches, only fair to go other way
o Can still litigate whether cop had RS – 4A says search and seizure must be reasonable,
doesn’t require a warrant
o Trust courts, don’t have to worry, want this over Douglas’ argument, government would
just say it wasn’t a seizure
 Camara v. Municipal Court (1967) – SCOTUS sanctioned certain types of searches on less than PC,
based on balancing test (need for search vs. invasion search entails); involved residential safety
inspection, allowed low level of generalized suspicion, based on idea that reasonableness should be
determined by balancing the need to search or seize against invasion which search or seizure
entails
 Commentators:
o Sundby: Instead of applying reasonableness test, Court should assume that a seizure
requires a warrant based on PC unless imminent threat to public or officer safety (exigency)
o Tribe: General critique of balancing tests in areas of C litigation; Terry is slippery slope
(“tyranny of small steps”)
g. Efficacy of aggressive patrolling
 Some empirical studies (Boydstun) have found that field interrogations are effective forms of crime
control
 But: FN7 in Terry notes field interrogations are major source of police and minority groups; also
consider displacement effect
 Other strategies: problem solving, create new crimes (loitering statutes)
h. Determining RS for lesser seizures:
 Michael K. Brown, Working the Street: police stop people for 3 main reasons
o Incongruity (race, black in white neighborhood)
o Prior information (past offenses, specific info obtained about crime that has been
committed, general rules of thumb)
 But see Hensley (1985): when criminal activity at issue is minor, RS might not justify
a stop for a past crime, as opposed to present/future activity (lower government
interest, nothing to prevent and would give officers too much discretion)
o Appearance (look dirty, based on widespread social stereotypes)
 Walk, don’t run in high crime areas
o Wardlow (2000) – standing alone in high crime does not give RS, running away from cops in
high crime area gives RS
o Brown v. Texas (1979) – police saw 2 men walking in opposite directions from each other in
an alley (in high drug area). Asked Brown to identify and explain himself and he refused.
Officer said he looked suspicious and had not been in that area before. Brown was angry
and said officers had no right to stop him. He was frisked (nothing found) and then arrested.
Convicted under TX statute that made failure to identify himself a misdemeanor. Held: No
RS to make stop, did not address statute (see below)
i. Arrest: PC required (What is an arrest?)
 Dunaway v. NY (1979) – Police did not believe they could obtain warrant based on accusations of
others, so ordered officers to pick up D (suspect for robbery and murder). Three officers went to
D’s house and asked him to come to police station for questioning. Not told he was under arrest or

14
 handcuffed. Once at police station, given his Miranda warning and he made incriminating
statements.
o Holding: Illegal arrest; D arrested by time interrogation began.
o Prosecution: No seizure occurred because consent. If seizure, police action justified under
Terry balancing test; state has strong interest in questioning possible suspects, should be
able to bring people in for questioning on less than PC, so long as it has some articulable
suspicion that they are suspects and intrusion is not significant. Police had specific grounds
for believing D was perpetrator of the crimes, coming very close to PC. Only held for an hour
before he gave statement that gave police PC to arrest. Invasion justified by the need. Could
argue material witness statute authorized detention because police had cause to believe
that D knew something about the crime. Fact that such detention might be a pretext
designed to get a confession is irrelevant. Al-Kidd.
o Defense: As seizures should require PC as Douglas argued in Terry; alternative, as Sundy
argues, PC standard should only be relaxed in exigent circumstances. But if we follow Terry
balancing test, seizure unC because D was under functional equivalent of arrest because he
could not have felt free to refuse a request to come to the station, he was put in an
interrogation room and given Miranda warnings, and as far as he could tell police were
going to keep him at station until he talked (LaFave’s factors). Clearly more restraining than
type of stop approved in Terry, and should require more than slight suspicion. Material
witness statute N/A because even Al-Kidd requires individualized suspicion that D is flight
risk.
 Material Witness Statute (18 U.S.C. § 3144) – person may be arrested as material witness if he is
material in criminal proceeding, and it is show that it may become impracticable to secure
presence of person by subpoena (flight risk), detention limited to reasonable period of time
necessary to take deposition, although may be conintued if person refuses to be deposed or if
necessary to prevent failure of justice
o Upheld on 4A challenge even though no PC showing with respect to crime, materiality of
testimony, or necessity of detention
o Ashcroft v. Al-Kidd (2011) – pretextual use of material witness does not violate 4A (Whren,
s+s based on individualized suspicion that Kidd is material witness is permissible even if
police have ulterior motive and lacking in PC)
 Kaupp v. Texas (2003) – arrest occurred when 6 police officers investigating murder went to home
of 17 year-old boy at 3am, told him “we need to go and talk” and took him barefoot and in his
underwear to police station, where he made incriminating statements.
 Royer (1983) – Royer observed in airport by detectives, when they found his license did not match
his ticket or baggage ID, asked him to come with them to room about 40 feet away. Room was
described as a large storage closet. Detectives got his bags and asked if they could search them.
Royer gave key to first bag and gave verbal consent to other bag. Drugs found, duration of about 15
minutes.
o Holding: Arrest once D and his luggage were in the room, moved him to another location,
got his luggage without his consent, small space. Suggests that if search was done in open it
might be different outcome.
j. No Arrest: Only RS required
 Hayes v. FL (1985) – suggested that it would permit a suspect to be taken from home to
stationhouse on less than PC if sole purpose was to obtain fingerprints and detention was judicially
authorized and no interrogation even though coercive; ID is lesser intrusion
 Sharpe (1985) – Two DEA agents in separate cars tried to pull over suspected drug courier; first DEA
agent made stopped car wait while other DEA agent was chasing other car, pulled over half mile
down the road.
15
 o Holding: Detention of second suspect for 20 minutes while officer waited for more
experienced DEA agent to join them did not require PC; police acted diligently and that
suspect’s actions contributed to added delay
 ALI Approach – would permit stops of suspects or material witnesses for up to 20 minutes, end of
which person must be released unless PC to arrest
k. Arrest at Borders
 Montoya De Hernandez (1985) – customs officials suspected D of being an alimentary canal
smuggler, had made several trips from Colombia to Miami/LA; after strip search and probing
revealed no drugs, officers asked if she would undergo an X-Ray. D initially agreed, but then refused
when officers tried to handcuff her and bring her to hospital. Locked her in room for 12 hours (tried
to place on plane back to Colombia). Asked to call husband, not allowed. About 12 hours after put
into room, strip-searched again. 24 hours after entering country, still had not defecated, magistrate
issued order authorizing rectal examination and involuntary x-rays at hospital. 88 balloons with
drugs discovered.
o Holding: No arrest, detention okay, assuming officers had RS. Stevens (concurring)
suggested customs officers can require non-pregnant people suspected of smuggling to
submit to X-ray as incident to border search
o Prosecution: Government’s interest > D’s at border, D interests greatly reduced at border,
government strong interest in stopping smuggling (Villamonte/Marquez/Andreas),
government acted diligently and tried to give her another option (Sharpe), flight back to
Colombia, and suspect’s refusal to undergo X-ray or defecate was cause of detention’s
length (Sharpe)
o Defense: couldn’t make phone call, held between 16-24 hours, D > government interest,
once it goes beyond routine border check, fact that it’s at border should be irrelevant; X-ray
at least as invasive as blood test, which government requires PC (Schmerber), illustrates
Tribe’s point, small decision
 Flores-Montano (2004) – upheld seizure of D and his car for 2 hours while border officials removed
and inspected gas tank for drugs without PC or RS
l. Police may detain occupants of a house when executing a search warrant
 [Can detain occupants while executing SW] MI v. Summers (1981) – officers had valid search
warrant for drugs to search D’s house; asked D to let them in as he was leaving, D did not have his
key but rung the intercom. Police forced their way in, detained other 7 occupants and brought D
inside. Police did not fear harm. Officers searched home and found narcotics in basement; arrested
D because it was his house.
o Holding: Detention prior to arrest okay.
 [Can’t detain if executing Arrest Warrant] Rawlings v. KY (1980) – cannot detain other occupants
of house without PC when officers only have arrest warrant for individual who lives in home but
not the defendant  just visitor, can’t be detained just because they’re in same house as person in
arrest warrant
 [Can detain outside home while waiting for/executing SW] IL v. McArthur (2001) – police had PC
to believe D had hidden marijuana in his home, prevented D from entering unaccompanied by an
officer for 2 hours while they obtained a search warrant; detention upheld.  not that much of
detention, only can’t go inside house
 [Can detain when have PC of evidence in home] Muehler v. Mena (2005) – court upheld
handcuffing 4 people in garage while searching residence that they had PC to believe was home to
gang members
 [Cannot detain if nowhere near place being searched] Bailey (2013) – when occupants of house
for which police have valid search warrant are outside the immediate vicinity Summers does not
apply; Ds were 1 mile away.
16
m. Traffic stops & automobile passengers – as long as officer’s inquiries do not measurably extend the
duration of the stop an officer can ask passenger things unrelated to traffic stop without converting
encounter into unlawful seizure; but if there is no RS that passenger is dangerous, passenger may be able
to leave scene of traffic stop.
 AZ v. Johnson (2009) – Assuming the officer’ suspicion that J was armed was reasonable, Court
upheld seizure and frisk of passenger in backseat of stopped car
 Brendlin v. CA (2007) – a passenger in car stopped for traffic violation is seized
 MD v. Wilson (1997) – Passengers may be ordered out of car at officer’s discretion, given danger
involved but did not decide whether passengers could be detained without RS  can seize
passenger after arresting driver? Court has avoided
n. Loitering Statutes
 Failure to identify statutes (based on RS) are C under 4A and 5A if there is RS for initial stop
(Brown)
o Hibel v. NV (2004) – D arrested under statute criminalizing failure to identify oneself when
there is RS that person has or will commit an offense, police had RS.
 Holding: Statute upheld.
 4A: Obtaining suspect’s name in course of Terry stop serves important government
interests; statute does not alter nature of stop itself or change duration or location.
Arrest of person who fails to identify himself (D refused 11x) does not circumvent PC
requirement when request for ID is reasonably related in scope to circumstances
which justified the stop.
 5A: Identification usually not incriminating (only in rare cases will time of stop give
officials like in chain of evidence to convict D of another offense); Byers (ID is not
incriminating, fingerprints are nontestimonial)
 BUT DP Clause prohibits statutes that are unC vague – do not give notice/give too much discretion
to police
o Kolender v. Lawson (1983) – loitering statute unC vague because the state had construed it
to require “credible and reliable” identification be given to any police officer who had
reasonable suspicion of criminal activity. Gives officers complete discretion to define refusal
and identification, must be permitted to go in absence of PC to arrest.
o MPC § 250.6 (p. 272): found valid by some courts, does not require person to justify
presence and does not make refusal to answer an element of offense, just lists as factor;
can determine whether alarm is warranted if: D takes flight upon appearance of officer,
refuses to identify, or manifestly endeavors to conceal himself or any object.
o To avoid vagueness challenges, legislatures can:
 Prohibit loitering committed for specific purposes (drug dealing, prostitution)
 Prevent loitering in designated spaces (within 30’ of ATM)
 Obtain injunctions against specific individuals (enjoin gang members from standing,
sitting, etc. anywhere in public view with any other D, confronting residents or
visitors of specified area)
 Acuma – California upheld injunction against vagueness challenge because it
specified targets, provided sufficient context, rejected 1A association
challenge, not available to criminal groups/not formed for purpose of
engaging in protected speech or religious activities)
o Chicago v. Morales (1999): City passed ordinance allowing police to order people to
disperse and arrest them for refusing if loitering “for no apparent purpose”, trying to get rid
of gang activity. PD construed it to require PC that a person was gang member before arrest
could take place, max penalty 6 months in jail.
 Holding: unC vague on its face
17
  Key issue: Arrest is not based on an act, but based on status of being gang member
(Slobo: but dispersing is an act)
 Dicta: OK if banned loitering that had harmful purpose/effect or if everyone loitering
was gang member
 Prosecution: PC allows arrest under 4A, can arrest even if infringing on 1A
 Defense: 1A infringement on association rights, punishes status, unC vague, any
cluster of people could be arrested, police have too much discretion
o. Roadblocks – analyzed as special needs situations?
 PERMISSIBLE
o [Border] Martinez-Fuerte (1976) – police authorized checkpoint 66 miles north of Mexican
border to detect transportation of illegal Mexican aliens; signs warned a mile away, a
quarter mile away and at checkpoint. Cars were brought to virtual/complete stop, .6%
screened cars referred to secondary checkpoint which lasted for 5 minutes. Relied largely
on race but other factors as well, 20% hit rate at second checkpoint, 12% of all cars
approaching checkpoint.
 Holding: Valid. Even if it is a seizure, strong government interest and not very
intrusive
 Prosecution: People on notice, could turn around and deny consent, then would
have no RS to stop; stopped everyone, no discretion in suspicionless stops, stronger
government interests at border (Andreas), only 5-10 minutes, first checkpoint isn’t
even seizure but assuming it is it is still justified given necessity of stopping illegal
immigrants, difficulty of doing so if individualized suspicion were required before
such seizures, and fact that police discretion is significantly minimized by fixed
nature of roadblock.
 Defense: fact that problem exists should not mean government no longer has to
show individualized suspicion.
o [Sobriety Checkpoints] MI v. Sitz (1990) – MI established guidelines for sobriety
checkpoints. Required all cars to be stopped and drivers examined for intoxication (about
25 seconds). If detected signs of intoxication, driver referred to second checkpoint and
detained.
 Holding: C because magnitude of DD problem outweighs privacy intrusion.
 Prosecution: Roadblock not aimed at ordinary crime control as in Edmond, targeted
at preventing imminent harm to drivers. No police discretion, success rate
underestimated because checkpoint prevented drunk drivers from taking that road.
 Defense: alternative, police use normal, more successful techniques
o [Crime Detection] IL v. Lidster (2004) – checkpoint set up to find witnesses to hit and run
that occurred at same location a week earlier
 Holding: C, intended to apprehend other individuals, not the vehicle’s occupants,
like soliciting information from pedestrians, less likely to provoke anxiety
o Checkpoint solely for checking licenses? Prouse
 NOT PERMISSIBLE
o [Narcotics checkpoint/ordinary crime control] Indianapolis v. Edmond (2000) – Police may
not establish a checkpoint that’s primary purpose is to uncover ordinary criminal
wrongdoing/ordinary crime control. Narcotics checkpoints selected in advance based on
traffic flow and crime area stats. Average stop 2-3 minutes.  Slobo doesn’t buy the
distinction
p. Was arrest conducted properly? (See Exigency Analysis handout)

18
 Common law – warrant not necessary for arrest of felon in public, and was only needed to
authorize arrest of misdeamant in those cases where misdemeanor did not occur in officer’s
presence
 Watson (1976) – felony arrests made in public do not require a warrant
 Gerstein v. Pugh (1975)/Riverside county v. McLaughlin (1991) – when arrest not authorized by
warrant or grand jury indictment, its validity must be reviewed by judicial officer within 48 hours of
detention
 [Need arrest warrant to arrest someone in home unless exigent circumstances] Payton v. NY
(1980) – if officers have an arrest warrant founded on PC, they can enter the suspect’s home
without a search warrant if there is reason to believe the target of the arrest warrant lives and is
within the home; basic principle of 4A law that searches and seizures inside home without a
warrant are presumptively unreasonable.
o What is “inside the home”?
 Santana (1976) – undercover officer arranged heroin buy with M, who directed him
to D’s house. M took officer’s money, went inside to get drugs, and returned, gave
cop to heroin. Cops arrested M, went back to S’s house, where she was standing
with brown paper bag in her hand. Shouted police and she retreated inside. Police
arrested her inside vestibule without a warrant.
 Holding: Valid arrest. Exigency was avoidable but it did not matter.
 Unlike search warrants, which authorize intrusion into areas the contents of which
change normally, arrest warrants rarely go stale
 Polumbo (8th Cir. 1984) – bugged hotel room, valid warrantless arrest.
 Carney – mobile home is a car, see Caroll-Chambers doctrine
o Exigent circumstances? Consider:
 Timing: Could police have gotten a warrant? BUT Santana, police had plenty of time
and it was still okay
 Availability of magistrate, availability of telephonic process, police creation of
exigency
 Type of emergency – escape of felon/hot pursuit, protecting against harm to
people/evidence, serious crime?
 How certain do you need to be of emergency? PC because it is exception to
warrant requirement
 MN v. Olson (1990) – warrantless intrusion may be justified by hot pursuit of a
fleeing felon, imminent destruction of evidence, need to prevent suspect’s escape,
or risk of danger to police or to other persons inside or outside the dwelling, gravity
of crime (Welsh)
 [ESCAPE OF FELON, HOT PURSUIT EXCEPTION] Warden v. Hayden (1967) – 4A does
not require officers to delay investigation if doing so would “gravely endanger their
lives or the lives of others.” Upheld warrantless arrest because police had hotly
pursued the suspect after being told by reliable informants 5 minutes earlier he had
robbed a house.
 [PROTECTING AGAINST HARM] UT v. Stuart (2006) – officers may make warrantless
entry if they have an objectively reasonable basis that entry is necessary to prevent
violence and restore order
 [DESTRUCTION OF EVIDENCE] KY v. King (2011) – Police did not have enough for PC
(only RS) but went to home, knocked and heard noises of drug destruction, now
have PC to enter and make warrantless arrest. It does not matter if police created
the exigency or acted pretextually.
 [GRAVITY OF CRIME] Natural Dissipation of alcohol in blood is NOT per se exigency
19
  Welsh v. WI (1984) – drunk driver left scene, without warrant police arrest
him in his house in effort to obtain BAC
o Holding: Invalid, first DUI offense classified as noncriminal, only $300
fine possible, gravity of crime matters for exigency
 MO v. McNeely (2013) – warrantless hospital blood test conducted 25
minutes after driver was pulled over for drunk driving
o Holding: Blood dissipation is not per se exigency because alcohol
dissipates gradually and predictably, ignores technological
developments in warrant procedures, might diminish incentive for
jurisdictions to pursue aggressive approaches to warrant acquisition
 CERTAINTY THAT EXIGENCY EXISTS? PC or RS?
 [Need arrest warrant AND search warrant to go into third party’s home to look for suspect]
Steagald (1981) – search warrant should issue only if there is PC to believe the suspect is in the
third party’s home; a different holding would allow with an arrest warrant to authorize searching
all the homes of that individual’s friends and acquaintances
3. Was there consent?
a. Consent must be voluntary, search must be within the scope of the consent, and the person giving
consent must have had actual or apparent authority to give it
b. (1) Voluntariness?
i. Schneckloth v. Bustamonte (1973, Burger court): Police stopped car with lights burned out. Six
men in vehicle, only one could produce ID. After everyone stepped out of car, officer asked to
search and given permission. One of men in car helped officer search by opening trunk and
glove compartment. Officer found 3 stolen checks wadded up under left rear seat. Search was
very congenial.
1. Holding (Stewart): Whether search is voluntary is a question of fact to be determined
from the totality of the circumstances. Knowledge of right to refuse consent is one
factor to be taken into account, not determinative (hard for prosecution to prove) and
don’t need to give D warning that he can refuse consent, impractical to impose on
normal consent search detailed requirements of effective warning. Doesn’t matter if
you don’t know your information is being kept.
a. Different from Miranda because searches occur under “informal and
unstructured conditions”
b. Balances need for consent searches (efficiency, practicality, do not want to
stymie investigations from the starts) against 4/14A requirement that consent
not be coerced
2. Because pre-arrest, effort to get evidence to get PC, not coercive as interrogation
a. Before arrest: “May I search...” implies you can refuse
b. At time of arrest: start with asking about crime
3. 4A not about bright line rules, about reasonableness and totality of circumstances vs. 5A
“thou shall not compel”
4. Crime Crusader hierarchy of rights: 6A (counsel, protective of reliability of system)  5A
(Miranda, exclude unreliable testimony)  4A (only job is to exclude reliable evidence)
5. DP: Reliability is not only issue
6. Dissent (Marshall): lack of knowledge invalidates consent; prosecutor can demonstrate
knowledge of rights based on behavior, prior experience, and witnesses. Does not think
informing someone of his rights destroys informality of exchange.
ii. Bumper (1968): referenced in Marshall’s dissent; officers went to B’s grandma’s house and told
her they had a warrant so she let them in; had no warrant, cops lied. Held: Consent cannot be
established by merely showing acquiescence to claim of lawful authority.
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 iii. Commentators:
1. Lichtenberg: People consent due to fear of reprisal if they refuse; even if people are
aware of their right to refuse, have no faith that police will follow the law.
2. Professor Kagehiro: way police phrase question to search influences consent
iv. Davis (1946, Douglas, usually DP): D arrested at his gas station during business hours for
violating wartime gasoline rations. After arrested, police demanded key to boxes where ration
coupons were kept and searched the boxes. Asked D to search inner room where records were
kept. D refused, Police told him he would have to, looked in rear window with a flashlight. D
eventually unlocked door.
1. Holding: Consent valid largely because searched area was a business rather than a
residence and seized items were government (not private) property.
2. Consent: Does person know they have right to refuse? D owns business, refused initially.
v. After Schneckloth, should a consent given by an arrested person ever be considered voluntary?
Watson (1976), D’s consent to search of his car for stolen credit cards valid after he had been
arrested in restaurant moved onto street. YOU CAN CONSENT EVEN AFTER ARREST.
vi. Amos (1921) – revenue officers approached D’s wife at his house and told her they had come to
search for violation of revenue laws. Held: Implicit coercion.
vii. Mendenhall (1980) – Two DEA officers stopped 22 year old female in airport on suspicion of
being drug courier. Her name did not match her ticket/ID and had only been in CA for 2 days.
Gave her back her ticket, told her they were from DEA and asked her to follow them to private
room. Asked if they could search her person and handbag and told her she could decline. A
female officer arrived and against asked to search, informed her of right to refuse. Told her that
if she was not carrying drugs there would be no problem. Found packages of heroin. Officer
testified that if M had tried to leave office she would’ve been forcibly restrained but this was
not communicated to M.
1. Holding: Valid consent as to both search of purse and person.
viii. Shaibu (9th Cir. 1990) – officers looking for N rang buzzer for the apartment; never identified
themselves when a voice asked over the intercom, and were buzed in the gate. While walking
toward S’s apartment, identified themselves and asked S where N was. S (Nigerian national)
walked back into his apartment without saying anything or locking/closing door. Detectives
followed him and searched his apartment and found evidence of bank fraud against S.
1. Holding: No implicit consent. **SCOTUS may have decided other way**
2. Question after Schneckloth is whether a reasonable cop would’ve thought D was acting
involuntarily. Can assume they know right by phrasing as question.
3. Prosecution: S implicitly consented physically, no coercion.
4. Defense: Nigerian national, not aware of right to refuse and police did not phrase as
question.
ix. Consent and Traffic Stops: Police often avoid warrant requirement by concocting consent.
DEA’s Operation Pipeline trains laws enforcement officers to use traffic stops as pretext for drug
interdiction. Iowa State Police regulations governing consent searches of cars after traffic
violation (p. 233)
1. Birchfield v. ND (2016) – Consent to blood test after DUI stop is invalid if given
subsequent to being told refusal can result in criminal penalties.
a. BUT same threat does not necessarily invalidate consent to breathalyzer test,
which court views as less intrusive than blood test
b. SD v. Neville (1983) – court indicated that consent to blood test after being told
that refusal can lead to forfeiture of license or be used as evidence of guilt can
still be voluntary; results of test are nontestimonial (5A)

21
 2. OH v. Robinette (1997) – R pulled over for speeding; issued verbal warning and returned
license. Then asked, “one question before you get gone, are you carrying any illegal
contraband in your car?” R said no and consented to search. Police found drugs.
a. Holding: Remanded for whether consent voluntary under Schneckloth. It would
be unrealistic to require police officers to always inform detainees that they are
free to go before consent of search may be deemed voluntary. Detention after
return of DL was seizure but legitimate extension of traffic stop.
b. Standard police maneuver – ask if they have contraband, then ask if you can
search (Operation Pipeline, hit rate <6%)
c. Prosecution: Only couple minutes (Delgado), already there (Drayton), ignorance
of 4A rights only one factor (Drayton)
d. Defense: R wanted to go unlike in Drayton, didn’t pose as question so R felt he
couldn’t leave, should’ve been notified he could refuse
3. Rodriguez v. US (2015) – after police complete traffic stop duties, a 7-8 minute delay to
wait for drug dog is impermissible for purpose of detecting evidence of ordinary
criminal wrongdoing unless police develop RS. Can only detain a person for the period
necessary and reasonable.
4. Arizona v. US (2012) – court refused to strike down law requiring police to make
reasonable attempt to determine immigration status of those legitimately stopped for
other reasons, but detaining individuals solely to verify status would raise C concerns.
5. US v. Digiovanni (4th Cir. 2011) – 4A violated because officer spent 10 minutes talking
to D about drug trafficking and asking for consent before asking for documentation
c. (2) Scope of Consent?
i. Given 4A’s language requiring only reasonable searches, the scope of a consent search is to be
determined not according to the suspect’s intent but based on what the typical reasonable
person would have understood by the exchange between the officer and the suspect (Jimeno)
ii. Consider whether duration (specific withdrawal), area to be searched, or objective of search
might limit scope of consent. Should nature of consent inform the search?
1. Graves v. Beto (5th Cir. 1970) – blood sample taken with D’s consent for purpose of
determining alcohol content was not admissible to establish identity in rape case
iii. [Scope] FL v. Jimeno (1991) – Officer overhead D make what he though was drug related transx
on public telephone. Followed his car and pulled him over for failing to stop at red light. Told D
he was going to issue citation, asked to search for narcotics and told D he did not have to
consent. D consented and officer found a brown paper bag with drugs on car’s floorboard.
1. Holding: D’s consent covered search of the bag. Scope of a consent search is based on
what the typical reasonable person would have understood by the exchange between
the officer and the suspect.
2. Defense: consented to search of car, not the bag; steps taken to protect privacy, what if
in trunk and locked?  makes 4A dependent on wealth
3. Prosecution: D consented to search of car and everything in it; police reasonable in
believing consent extended to search of bag.
4. What if it was a gun inside the bag? Prosecution can cite Coolidge and Hicks because
officer was validly in bag and can search if PC it was evidence of crime. (PVD)
a. Hicks – find 2 new stereo sets in squalor apartment, RS about stolen stereos but
no PC: impermissible to do serial # search (on back of stereos) on RS, need PC to
believe it’s evidence of crime before you can move it
iv. [Duration] Brochu (Maine 1967) – B urged police to search his house for evidence of his wife’s
cause of death; police took some bottles of liquor with them. Later took a statement from B’s

22
 daughter indicating B had given his wife a drink of pure alcohol. Next day police returned and
found evidence to convict B.
1. Holding: No valid consent. Durational issue, cannot extend consent to next day, gave
consent at particular point in time, can’t search house forever
2. What if 12 year old had consented? Even with apparent authority, can’t say 12 yo has
authority; Dad’s refusal would trump child’s consent
d. (3) Actual or apparent authority? [Third Party Consent]
i. 4A is only one that can be waived by third party; consider hierarchy argument, reduced
expectations of privacy and assumption or risk
ii. Coombs: interest of third party outweighs D’s privacy concerns; autonomy-based right to
choose to cooperate with authorities
iii. Historically: property based rationale to determine whether third party consent is valid
1. Chapman (1961) – A landlord cannot consent to search of his tenant’s home
2. Stoner (1964) – hotel clerk cold not sent to search of room because a guest can only
surrender 4A rights directly or through an agent
iv. Matlock (1974) – M arrested on robbery charges in front of his house. He lived with his
landlady, landlady’s daughter (who he shared a bedroom with) and landlady’s kids. Police asked
daughter (Graff) is they could search the house and she said yes. In shared bedroom, found
cash in a diaper bag in closet. Conducted subsequent search few minutes later (temporal gap);
third search consented to by landlady.
1. Holding: Turns on whether third party had common authority over the searched area.
Remanded but suggested Graff had actual authority to consent to search of bedroom.
2. Common authority rests on mutual use of property by persons generally having joint
access or control for most purposes. Reasonable to recognize that any of the
cohabitants has right to permit inspection and others have assumed the risk that the
common area might be searched.
3. Would LL have control over bedroom? No, when you rent that’s your room even though
LL has title, you have apparent authority
v. Frazier v. Cupp (1969) – upheld consent by F’s cousin to search duffel bag they shared because
F had assumed risk that cousin would allow someone else to look inside
vi. Georgia v. Randolph (2006) – refusal trumps consent; exigent circumstances exception would
apply in situations of domestic violence (could ask woman for consent after husband removed
from premises)
1. Prosecution: person should have right to do anything she wants with her property,
autonomous decision
2. Defense: reasonable observer would say no wins, invade another person’s right without
their consent
3. Fernandez v. California (2014) – D’s objection does not trump a co-occupant’s consent
that is obtained subsequent to D’s arrest and transfer to police station; maneuver
around Randolph.
4. People v. D.C. (1st Cir. 2010) – 15 yo’s consent does not trump parent’s
vii. IL v. Rodriguez (1990) Adopted Apparent Authority Doctrine – D’s girlfriend called police after
being beaten by D. Consent to travel to D’s apartment with police to unlock the door. Referred
to apartment as “ours,” said she had clothes/furniture there. Police found coke and drug
paraphernalia in the apartment.
1. Holding (Scalia): No actual common authority but adopted apparent authority doctrine.
Allow consent searches if facts existed that a “man of reasonable caution” would believe
the consenting party had authority over the premises. Remanded case to determine
whether officers reasonably believed girlfriend had authority to consent.
23
 2. Scalia: “4A only guarantees reasonable judgments, not accurate ones.”
3. Dissent (Marshall): Third party consents turn on whether the Ds have waived a right to
privacy by sharing it with consenting individual. Consent is not valid if person has not
voluntarily surrendered his privacy to consenting individual.
4. Jacobsen might be better analyzed under 3rd party consent – Fed Ex had actual control
e. National Security Wiretaps, Subpoenas and Data Mining (p. 241)
i. FISA governs domestic surveillance of foreign powers, post-9/11 Patriot Act expanded this
scope; warrant obtained from special court that operates in secret
1. Under 2703(c) of Patriot act, subscriber info (everything but content) relevant to
investigation (relevance lower than RS)
ii. Protect America Act eliminated warrant requirement for national security surveillance, if and
when AG and director of National Intelligence certify that surveillance is directed at person
reasonably believed to be located outside of US
1. Amended ECPA to provide that ex parte subpoena is sufficient to obtain basis subscriber
information
2. Section 215 (NSL) order allows FBI to obtain any tangible things upon showing
reasonable grounds to believe they are relevant to investigation; FBI issues 30k-50k
NSLs/year; FBI agent can authorize, used most often
3. Third party served with 215 order is prohibited from telling target about order – any
tangible things (including electronic records, but no library records)
iii. Stored Communications Act – “abandoned” emails, server belongs to third party; subpoena for
emails on server for more than 180 days
iv. Total information awareness – defunded in 2003, didn’t even require relevance, “digital
dossiers”
v. How legal are these?
1. Balancing – greater interest in national security than individual interests
2. No reasonable expectation of privacy – not a search – you already gave to third party,
assume the risk
3. Miller and Smith, assumption of risk applies in 4A situations; probably permit NSL
programs, but defense could use cases like Jones as a spring board (5 justices agree
aggregation makes a difference, can create a dossier)
vi. Congress changed the name of data mining program (“knowledge is power”) but still allowed
after consulting with Congress

STEP TWO: If the amendment is implicated, was there a valid warrant?

1. Issued by an independent magistrate?
a. Magistrate must be independent and detached – removed from the competitive enterprise of ferreting
out crime (Johnson, 1948)
b. NOT detached when:
i. Lo Ji (1979) – warrant signed by magistrate who accompanied police to scene of seizure and
filled in items to be seized as they were discovered
ii. Coolidge (1972) – warrant issued by prosecutor (happens in Europe)
iii. Connally (1977) – warrant issued by magistrate who received $5 for each warrant issued but
nothing if it was denied
c. Absent obvious biasing factors, court has assumed that magistrates exercise own judgment in
evaluating warrant applications – but according to NCSC, evidence some magistrates rubberstamp
warrant applications by police
d. Many magistrates not legally trained
2. Based on probable cause? (50%)
24
a. To arrest: exists when facts and circumstances are sufficient to warrant a prudent person in believing
that the person to be arrested has committed or is committing a crime
b. To search: when the same prudent person would believe that the evidence or persons to be seized are
located at the place to be searched
i. Anticipatory search warrants are okay – Grubbs (2006): upheld validity of warrant authorizing
search of house once a package ordered by occupant and known to contain porn was delivered
there
c. Peters (1968) – PC existed for arrest when an off-duty officer saw, through his peephole, 2 strangers in
his apartment building tiptoeing furtively down hallway at 1pm and then fleeing when officer came
into the hallway
d. PC is contrasted with lower levels of suspicion, RS (Terry) and relevance (subpoenas)
i. Reasonable Suspicion – about 30%, Terry v. Ohio, some types of warrantless police action are
short of full arrests (stop, short detention) or most intrusive searches (frisk) authorized by RS
1. A suspicion of criminal activity based on specific and articulable facts rather than a
hunch, but below threshold of PC, 1/3 chance guys involved in criminal activity
ii. Relevance – about 10%, dealing with administrative rather than criminal investigations;
evidence is relevant if it has any tendency to make existence of any fact that is consequence to
determination of action more probable or less probable than it would be without evidence”

1. Used for subpoenas, b/c lesser intrusion to hand over property than full search
e. In determining whether any level of certainty exists, consider the quality and quantity of the
information available
i. Quality of information: credibility of information relied upon, accuracy of information
1. Informants: Police are most credible hearsay informants, followed by victims, other
eyewitnesses willing to reveal their identity and then confidential informants
2. Ventresca (1965) – observations of fellow officers engaged in common investigation are
plainly a reliable basis for a warrant applied for by one of their number
3. Whiteley v. Warden (1971) – police radio bulletins and flyers can be relied upon as long
as issuing officers had requisite level of certainty
4. Jaben (1965) – warrant based on information from D’s biz associates about his financial
affairs, supporting information concerning credibility of informants is not required
whereas it would be in narcotics case; illustrates court’s positivity toward civilian
informants
5. Briscoe v. LaHue (1983) – police officers have absolute immunity against false testimony
suits brought under § 1983
6. Franks v. DE (1978) – D can challenge veracity of an officer-affiant’s statements to
magistrate issuing the warrant, BUT
a. D can only challenge veracity of affiant – informant privilege protects challenge
against veracity of informants
b. D only entitled to hearing on veracity if he alleges and supports with
documentation that the affiant’s statements were made deliberately or with
reckless disregard for the truth and that without these statements, no PC
c. If hearing granted, D must show by preponderance of the evidence that false
statement was made deliberately or with reckless disregard for the truth
7. As long as an officer objectively, reasonably believes that PC or RS exists, even if belief
based on mistake of fact or law, as long as mistake is objectively reasonable, a search or
seizure is C

25
 a. Hill v. CA (1971) – upheld search incident to arrest of person who police believed
was D, but was actually his roommate; applies to information from informants
too
b. Extended to mistakes of law as well as fact
c. Heien v. NC (2015) – upheld a stop when police stopped a car for only have one
backup lamp, because officer thought the law required two BUT NOTE statute
was ambiguous and court emphasized mistake must be objectively reasonable
ii. Quality of Confidential Informants: requires a more searching inquiry
1. Court initially applied the two-prong Aguilar-Spinelli Test, bright line rule by Warren
court  NOW OUTDATED
a. Basis of information – how did CI get the information? Magistrate must be able
to evaluate independently whether informant’s conclusion were correct
i. Personal observation or source of CI’s information
ii. Detail, especially predictive activities
b. Veracity of informant: avoids fabrication and embellishment – must attempt to
support claim informant was credible
i. Prior accurate reports?
ii. Corroboration of information?
iii. Suspect’s reputation? (Harris)
iv. Declaration against penal interest? (Harris, “I bought drugs from the
suspect”)
c. Spinelli (1969) – affidavit (sworn by FBI agent) alleged that S had been observed
driving to, parking near and/or entering specific apartment. Phone company
records reflected 2 phones in SW corner apartment on second floor of same
building. S was “known to this affiant, federal and local law enforcement agents”
as a bookie and gambler. FBI was informed by a “confidential reliable informant”
that S was operating a handbook and accepting wagers by means of telephone
numbers assigned to same ones registered to corner apartment
i. Under Aguilar, court held that 2-prong test was not met because not
sufficient information about how informant accessed the information,
and affirmed under totality of circumstances (prosecution had
corroboration, declaration against penal interest, and FBI knowledge, but
court reluctantly affirmed under Gates)
d. McCray v. IL – allegation that informant had previously given reliable
information would be sufficient to meet second prong
2. IL v. Gates (1983) – 2 prong A-S test should be replaced with totality of the
circumstances analysis (post-Warren court)
a. Police department received anonymous letter that a couple sold drugs, details
on where/when/how buys are done. Explained that wife drives car to FL, loads it
up with drugs, and then husband flies down to drive back with her. Predicted she
would drive down on May 3, and said that the couple had more than 100k drugs
in their basement. Police verified man’s license was registered to that address,
and he had booked flight to FL at 4:15pm. Once in FL, man and woman got on NB
interstate. Police got warrant, and waited for them when they arrived back in
Indiana. State Sup. Ct. ruled to suppress the evidence because A-S prongs were
not met (anonymous letter on its own was not enough for veracity).
i. Holding (Rehnquist): Test should be under the totality of the
circumstances; deficiencies in one prong can be made up by another
(crime crusader analysis). A-S test too technical and rigid, makes it too
26
 hard to rely on CI. Here there was tons of corroborative details (Draper),
and facts made sense, details about travel plans suggested informant had
reliable information.
ii. “Veracity, reliability, and basis of knowledge are all highly relevant in
determining value of report, but should be understood simply as closely
intertwined issues that may usefully illuminate commonsense, practical
question whether there is PC to believe that contraband or evidence is
located in particular place.”
iii. Don’t know about basis of information, detail suggests it’s from personal
observation, some details predictive, more credible because persons
doesn’t want to get involved?
iv. Dissent (Brennan and Marshall): should subject anonymous tip to A-S
analysis
v. Dissent (Stevens and Brennan): not all details were corroborated, there
was an innocent explanation. Majority just assumed couple as going back
to Indiana when warrant issued.
3. Draper (1959, mentioned by White’s concurrence in Gates) – informant reported that
Draper would arrive in Denver on train from Chicago on one of two days, that he would
be carrying heroin and wearing light colored raincoat, brown pants and shoes, and
would be walking fast. On one of two dates, officer spotted man matching description
a. Holding: officer had “reasonable grounds” to believe that D had drugs, enough
for PC under A-S
4. Alabama v. White (prediction, RS) (1990) – Tip that D would leave apartment at certain
time in specific car to go to motel, would have coke in brown attaché case. Police saw
her get into car empty handed, stopped her before she got to the motel, she consented
to search, cops found coke in attaché case in her trunk.
a. Holding (White): Enough for reasonable suspicion to stop her. Caller provided
considerable detail, some of it predictive and most of it corroborated. “Minimal
Credibility Test”
b. RS is a less demanding standard than PC not only in sense that reasonable
suspicion can be established with information that is different in quantity or
content than that required to establish PC, but also in sense that RS can arise
from information that is less reliable than that required to show PC
5. Florida v. J.L. (no prediction, no RS) (2000) – anonymous phone call that a young black
male standing at particular bus stop and wearing plaid shirt carrying a gun did not justify
a frisk of a black male simply because he was found at named bus stop wearing a plaid
shirt.
6. Navarette v. CA (no real prediction, RS) (2014) – police stopped truck that matched
description and driving in direction and location given by anonymous 911 caller who
reported vehicle ran her off road.
a. Holding: Police had RS of drunken driving, even though they didn’t observe
erratic driving for 5 minutes they followed truck before stopping it.
7. Informant’s Privilege (McCray v. US (1967)) – Neither DP or 6A requires the government
to produce an informant at trial; protection informant system (NCSC study, law
enforcement officers and prosecutors prefer to forego convictions than jeopardize
safety of informants)
a. Franks (1978) – D may suppress evidence discovered pursuant to warrant that
was substantially based on statements intentionally or recklessly made by police
officers; only focuses on government actors. (See above)
27
iii. Quantity of Information: does the weight of the credible information before the decision
maker amount to PC, RS, etc.?
1. MD v. Pringle (2003) – police officer found cocaine in D’s car and arrested all 3 of car’s
occupants after none of them claimed cocaine; Held: a reasonable officer could
conclude that there was PC to believe D committed crime of possession of cocaine,
either solely or jointly.
2. Franks (1978) – What was the quantity of information?
a. Confession – thrown out, no Miranda/fruit of poisonous tree
b. Clothing – thrown out, police lying
c. Height/weight/race
d. Nearby residence
e. Prior rapes  do c-e add up to 50%?
f. **Lineup doesn’t require RS**
3. Quintero (Colo. 1983) – Neighbor called to report Q looking in houses and then coming
out of house carrying TV set that he covered with a T-shirt. When police stopped him
and asked for ID, Q didn’t have but said he had bought TV from a friend. Officer frisked
him and found wool gloves, arrested him when neighbor arrived.
a. Holding: No PC to arrest.
b. Stop – need RS, CI identified D  quality: credible, unusual behavior for her
neighborhood, first-hand knowledge, fair amount of detail but not predictive,
could’ve knocked; Defense: not suspicious enough, could’ve been looking for
friend
c. Frisk – RS of danger  burglars are dangerous (Garner), violence in connection
with burglary, wool gloves; Defense: many officers, no RS of danger; Prosecution:
don’t need wool gloves, have random TV
d. Arrest – Colo. said no PC
e. Good faith exception because police thought they had PC?  no good faith PC
exception
4. Zelinske (N.M. 1989) – stopped Z at roadblock, smelled deodorizing agent and asked to
search car. Z nervous but opened trunk and briefcase in trunk. Refused to open box
inside garment bag and said he wanted search to stop. Police escorted Z to police
station, obtained warrant and found coke and money in garment bag.
a. Holding: No PC to search box.
b. A right to refuse is meaningless if a refusal automatically gives police PC. Police
need something else suspicious in addition to refusal.
5. Generalized vs. Individualized Suspicion
a. SCOTUS has never expressly approved or disapproved of use of hijacker or drug
courier profiles (ad hoc, shifting characteristics) but evaluates the information
available to the officers for its logical relationship to guilt (Royer, found
constellation of facts sufficient for RS, but no PC)
b. DEA Profile at Airports – problem 8
i. Prosecution: Criticism of drug courier profiles are misguided; merely
make explicit the types of factors police have always relied on (Zelinkse
police relied on deodorizers, Gates relied on FL as drug hotspot –
basically like proxy for someone else’s experiences). Profiles are better
because make police observe before intervening and rely on stats; deter
racial prejudice.
ii. Defense: Conducted by DEA (implicit bias); some people stopped for
some other reason than meeting profile; don’t know how consistent
28
 agents were in applying profile. Use of profiles are different from
generalized suspicion because stereotype must be clearly suspicious
(Gates – flying to FL for one night), plus these tactics effect too many
innocent people (many okay for hijackers, but drugs not serious enough)
c. Raspberry Column: Should race be a factor police can consider if it is statistically
correlated with crime?
i. No: stats are self-fulfilling prejudices of the police (Brown)
ii. Slobogin: Police action that depends upon factors such as race denigrates
the state’s interest in maintain a democratic society and allegiance of
populace; symbolic effect of government action damages societal
institutions. Race is an innocent fact.
3. Describing persons or items with particularity?
a. Stems from worry about historical abuse of general warrants; particularity prevents government
officials from using warrants as “carte blanche” authority for indiscriminate searches; fairly low
standard despite Framers’ concerns (plus good faith exception)
b. Groh v. Ramirez (2004) – warrant did not identify any of the items police wanted to seize, but did
indicate residence to be searched. Underlying application fully detailed items police sought.
i. Holding: unC; need list of items sought on face of warrant, need written assurance magistrate
actually found PC to search for and seize every item mentioned in affidavit.
c. How particular does it need to be?
i. Steele (1925) – description of place to be searched must be such that the officer can with
reasonable effort ascertain and identify the place intended
ii. Marron (1927) – the things to be seized must be described sufficiently precisely so that nothing
is left to discretion of officer executing the warrant. Warrant only permitted seizure of liquors
and articles for their manufacture; officers could not seize the account ledgers. BUT seizure of
ledgers and bills was upheld as search incident to arrest – characterized as part of criminal
enterprise to avoid Boyd/Gouled
iii. Andreson (1976) – Blackmun, state fraud unit got warrant to search A’s office. Listed specific
items and ended with “boiler plate” language – “other fruits, instrumentalities and evidence of
crime at this time unknown.”
1. Holding: Particularity met. Catch all only for items related to original crime searching for.
Requiring more specifity might make search impossible or require a second search after
D has notice.
iv. Messerschmidt v. Millender (2002) – police executed warrant authorizing search of M’s house
for all weapons and articles of evidence showing gang membership or affiliation in connection
with foster child of M.
1. Holding: Reasonable for executing officers to believe warrant was valid (suggest that
boiler plate language about evidence of ownership is not violation of 4A).
2. Dissent (Kagan): Gang membership not a crime, Sotomayor: only shotgun (murder
weapon) should have been listed
d. Good Faith Exception (see also Exclusionary Rule)
i. MD v. Garrison (1987) – warrant authorized search of 3rd floor apartment, police only thought 1
apartment on third floor but actually 2. Had warrant for G’s neighbor but went into G’s after
they saw him standing in hallway in his pajamas, failed to double check or ask about the floor
plan. Found marijuana. Police did not check mailboxes before.
1. Holding: Applying reasonable mistake test, particularity requirement met.
2. Dissent (Blackmun): Blackmun wrote Andreson, but that concerned search of extra file
cabinet, this involves invasion of another person’s home. Garrison also raises issue of

29
 execution of warrant (pushed past G even though 2 apartments); authorizing search of
additional place for which there was no PC.
ii. Massachusetts v. Sheppard (1984) – issuance of warrant inaccurately describing things to be
seized might violate 4A, BUT exclusion of those items is not necessary when warrant affidavit
attached to warrant properly described things to be seized and officer reasonably relied on
validity of warrant.
4. Executed properly? Consider timing, effect of police mistake, manner in which police enter premises, manner
in which premises are searched, whether police seized items not named in warrant; seems to turn on
reasonability  also see Execution of Arrest (above)
a. Timing of warrant’s execution
i. Fed. R. Crim. Proc. 41(c) – warrant must specify time within warrant is to be executed, not to
exceed 10 days (avoid going stale)
ii. Fed. R. Crim. Proc. 41(h) – limits searches and arrests to daytime and evenings (6am-10pm)
unless magistrate finds and states in warrant that there is reasonable cause to execute at some
other time (avoid unnecessary invasions of privacy and embarrassment)
iii. Gooding (1974) – federal statute regulating searches for controlled substances does not require
a special showing for nighttime searches
b. Effect of police mistake as to premises entered or things/persons seized
i. Turns on reasonability
ii. Garrison (1987) – court found officer’s activity was reasonable. When first arrived, pushed all 7
doorbells. Were able to get in using M’s key after he drove up. When they got to third floor,
saw G and despite seeing both doors did not ask about layout. Only found out about 2 separate
apartments after finding marijuana in Garrison’s apartment. Officers’ conduct consistent with
reasonable effort to ascertain and identify place intended to be searched within meaning of 4A.
iii. Hill v. CA (1971) – upheld as reasonable search of Hill’s apartment conducted incident to arrest
of Miller whom police reasonably mistakenly took to be Hill when they found him in Hill’s
apartment; despite invalidity of Miller’s arrest, court sanctioned search incident to arrest
c. Manner in which police enter premises: at common law, officers were required to knock and
announce before entering home. BUT 18 U.S.C. § 3109 allows officers to break open outer part of
house only when admittance is refused.
i. Ker v. CA (1963) – police can forego knock and announce rule where evidence could easily be
destroyed or suspect might expect the officers
ii. Wilson v. Arkansas (1995) – knock and announce rule is element of reasonableness inquiry
under 4A but rule can be dispensed of when it might endanger officers or lead to escape of
suspect or destruction of evidence
iii. Richards v. WI (1997) – must have RS that such circumstances exist before entry can be made
without knocking. Heard evidence of drug destruction, so knock and announce not required.
Struck down WI rule permitting a no-knock entry in any drug felony investigation; failure to
answer may authorize immediate entry with force if necessary.
iv. Banks (2003) – once police have knocked and announced, a failure to answer may authorize
immediate entry. Court said it was reasonable to use a battering ram to break down door of a
person suspected of being drug dealer 15-20 seconds after announced their presence.
d. Manner in which search is conducted once entry is obtained: if admittance is refused, § 3109 allows
officers to break down doors. If police execution is excessively forceful or damaging to property, might
constitute unreasonable search or seizure.
i. Los Angeles v. Retele (2007) – use of excessive force or restraints that cause unnecessary pain
or are imposed for prolonged and unnecessary period of time in carrying out searches violate
the 4A.

30
 ii. BUT Anderson v. Creighton (1987) – SCOTUS said reasonable officer could have believed PC
existed and granted SJ, despite fact the officers confronted sister (who did not know her
brother was a suspect) with a shotgun, yelled at them, punched husband and hit one of
daughters
iii. Wilson v. Layne (1999) – 4A prohibits “media ride-alongs” during search of houses. Publicizing
government efforts to combat crime and facilitating accurate reporting on law enforcement
activities are not sufficiently related to purposes of residential search or seizure to outweigh
intrusion involved. Although presence of third parties might be justifiable if it were meant to
protect suspects or officers, generally not media’s purpose.
e. Whether and when police executing a warrant may seize items not mentioned in the warrant 
Plain View Doctrine (includes plain smell, taste, etc.)
i. PVD: When police are validly on the premises (pursuant to warrant or otherwise), anything they
spot in plain view that they have PC to believe is evidence of a crime may be seized. Coolidge
(1973, Stewart) set out 3 criteria for PV:
1. Seizure must occur after a “valid intrusion” under 4A into the searched area, either
pursuant to a warrant or an exception to the warrant requirement
a. NOT something spied in plain view from outside searched area, plain view alone
not enough to justify warrantless seizure of evidence (pot plant in window seen
from street)
2. Item must be immediately apparent as evidence of criminal activity – need PC to
believe item is incriminating
a. BUT Texas v. Brown (1983) – only need PC to believe item is incriminating,
“immediately apparent” was unhappy choice of words
3. Item’s discovery must be inadvertent
a. Concern was that police could pretextually seek warrant authorizing residential
safety inspection to gain entry
b. Horton v. CA (1990) – eliminated this requirement; too hard to get into head of
officer, already have valid warrant that meets particularity, hard to implement
(allowed pretextual searches). As long as within scope of valid intrusion, it’s okay
– cannot look for rifles in breadboxes
f. Pretextual Searches Allowed (but 3 exceptions): Horton sidestepped this, flagged by Brennan’s
dissent
i. Commentators’ Approaches:
1. Burkoff: Pretextual searches are unC; to determine whether search is pretextual, inquire
into officer’s subjective state of mind at time of search
2. LaFave: Argue for objective inquiry (subjective standard is a “fruitless allocation of
judicial resources”); look at whether search carried out in accordance with standard
procedures in PD
3. Haddad: Only take pretext into account when fashioning general search and seizure
rules, no individual cases; ask whether police are routinely using search incident to
arrest authority to search entire homes without warrants
4. Butterfoss: Power to arrest and search in connection with minor crimes should be
eliminated, thus also limiting possibility of pretextual searches
ii. Whren (1996) – plainclothes police officers driving an unmarked car in high drug area saw
driver of truck look down into lap of his passenger and remain stopped at an intersection for
more than 20 seconds after. When officers made U-turn to head back toward truck, it turned
right without signaling and sped away at an “unreasonable speed.” Officers stopped car and
found crack in Whren’s hands. It was not normal vice-squad procedure to pull cars over

31
 1. Holding (Scalia): Pretextual stops and searches do not violate the 4A as long as police
have PC to believe violation of some law has occurred; subjective intentions play no role
in ordinary, PC 4A analysis.
2. Refuses to decide at what point a code of law becomes so commonly violated that
infraction is no longer a measure of lawfulness
3. Court established in dicta 3 possible exceptions:
a. Racial bias/Equal protection: if seizure is product of intentional racial
discrimination, might violate 14A (hard to prove)
b. No individualized suspicion/basis for search or seizure is not PC (ruse
residential inspection)
c. Very intrusive action/search and seizure works such a significant harm on
individual that pretextual actions would be barred even when there is PC for
police action
i. Garner – use of deadly force; Wilson – unannounced home entry;
Winston – physical penetration of body; Welsh – home entry without
warrant
iii. San Diego – use boilerplate language to allow pretextual searches, use language to search
entire house
g. Villamonte-Marquez (1983) – customs officers boarded LA sailboat pursuant to law that allowed
customs officers to board vessels to check docs. Boat validly registered to France, officer smelled weed
and looked through open hatch, where he saw burlap wrapped bales and VM asleep on top of them.
Defense said statute irrelevant because customs officers were acting on a tip (very intrusive action)
i. Holding (Rhenquist): Evidence admissible. Nature of government interest in assuring
compliance with documentation requirements is substantial and intrusion (while not minimal)
was limited. Typical practice of customs officials.
ii. Plain view also means “plain smell, taste, etc.”
iii. (1) Valid intrusion (2) PC – emergency exists to seize pot, smell can establish PC (3) could make
no individualized suspicion argument, arranged for uniformed cop to be there and plain smell
shouldn’t matter because it was smelled from outside area police could validly intrude on;
prosecution would cite Horton/Whren
h. Traffic Stops in MD and FL
i. Could Hispanic and black drivers assert a pretext argument for being stopped?
ii. (1) Valid intrusion to stop, PC traffic violation has occurred (can’t stop car randomly), (2) find
incriminating evidence, PC to believe drugs = crime, can seize (3) Equal protection violation?
Hard to win intentional racial animus, data suggests disparate treatment
1. Slobogin: 3 block rule – probably breaking law every 3 blocks, modern equivalent of
general warrant
iii. Court said it was EP violation, issued injunction to report race for stops, PD still stopped blacks
more, another inunction filed
iv. Remedies: Injunction (doesn’t really work), damages against PD/right to cops’ salaries?
i. Hicks (1987) – officer investigating a shooting in a squalid apartment. Suspected stereos were stolen
but did not have PC. Moved them to check serial numbers.
i. Holding (Scalia): Movement of stereo not permissible; need PC.
ii. Dissent (O’Connor): cursory inspections should be permitted on RS
iii. Need individualized PC to search an object
iv. Slobogin: seems to expand PVD by saying if you have PC, you can search more (if serial numbers
had been visible without moving stereo, running numbers would probably have been okay)
j. Stanley v. GA (1969) – police validly executed warrant to search for bookmaking activity, looked
through desk drawer and found 3 unlabeled reels of 8-mm film. Viewed films and found them obscene;
32
 arrested S. Did not reach 4A issue but 3 justices (Stewart) argued that 4A prohibited seizure and
viewing of the films.
k. Carey (10th Cir. 1999) – warrant authorized search of computer files for names, telephone numbers,
ledger receipts, addresses and other documents pertaining to sale and distribution of controlled
substances. Opened files with .jpg and titles such as “teen” and “young.” Contained porn.
i. Holding: Violated 4A, indicates that courts are willing to protect computer files not referenced
in the warrant even though police are validly “in” the computer. Odds because not an issue in
VM.  entered into holding even though not in area police validly allowed to intrude on
l. Ybarra v. IL (1979) – Cops searched customer when they only had warrant to search tavern and
bartender for drugs.
i. Holding: Frisk of customer not justified by warrant or RS of danger
ii. Cf. Hicks, need individualized PC to search an object; fact that bar was dimly lit does not
provide individualized suspicion that Y was dangerous.
m. Inventory of seized evidence
i. Police who execute warrant are supposed to provide inventory of seized evidence to searched
party and issuing magistrate. Deter theft, allow magistrate to double check and give owner
notice of what has been taken.
ii. BUT Cady v. Dombrowski (1973) – strongly suggested inventory not required by 4A
5. Does the search or seizure require more than a warrant? When is a warrant plus needed? Need adversarial
hearing where D is present, no longer ex parte
a. Some searches, such as those aimed at obtaining private papers, bodily intrusion, and electronic
surveillance, are considered unC even when authorized by a valid, properly executed warrant
b. Bodily Intrusions
i. Winston v. Lee (1985): prohibited a surgery to remove a bullet from underneath collarbone to
obtain evidence that Lee attempted a violent robbery. Held adversarial hearing. Unanimously
prohibited surgery but did not bar surgery for evidentiary purposes altogether. Courts should
consider extent to which:
1. Procedure threatens health or safety individual
2. Intrusion impinges upon dignitary interests in personal privacy and bodily integrity
3. Prohibiting intrusion would affect community’s interest in fairly and accurately
determining guilt or innocence
ii. Rochin v. CA (1952): forcing emetic down suspect’s throat to facilitate disgorgement of
swallowed drugs violates DP
iii. Breithaupt v. Abram (1957) (Warren dissenting): when blood is drawn from unconscious
individual, DP requires officers to stop short of bruising the body, breaking skin, puncturing
tissue or extracting bodily fluids whether contemplate doing it by force or by stealth.
iv. Schmerber v. CA (1966) – Brennan rejected claim that 5A was violated by forcible seizure of
driver’s blood for BAC because blood is nontestimonial; only seizure of evidence that involves a
communicative act or writing implicates prohibition against requiring person to testify against
himself
1. Not unreasonable under 4A because PC to believe D was drunk, intrusion was minimal,
and blood test had been carried out in reasonable manner at hospital (exigency
exception to warrant requirement)
2. Defense: BAC is mere evidence
3. Prosecution: blood with alcohol is fruit of crime and instrumentality
v. Warden v. Hayden (1967) – Brennan found seized clothing admissible even though not
contraband or fruit or instrumentality of crime, abandoned Gouled’s mere evidence rule
c. Private Papers Current Rules

33
 i. Government can seize business papers with a warrant (Andreson), can subpoena business
papers (Fisher) and those belonging to individuals (Doe) as long as government knows location
and identity of papers, supplies reasonable particularity, BEFORE subpoenaing (Hubbell)
ii. If going after a suspect, must use warrant, going after 3d party, can choose subpoena or
warrant
1. Warrant for diary – no compulsion problem (5A)
2. Subpoena for diary – too much intrusion, so high it’s off limits
iii. Andreson v. MD (1976): Seizure of business papers pursuant to a warrant, as opposed to
subpoena, never violates 5A because it does not even compel production of papers, no self
incrimination or compulsion; not compelling creation of content, D voluntarily created the
content, the actually act of producing papers not incriminating
iv. Fisher (1976): subpoena for documents compels nothing of incriminating value; contents of
papers are created voluntarily, creation not compelled by the state; act of producing not usually
incriminating
1. 5A implicated only when D’s production of document is incriminating, as when it proves
D knows the papers exist or authenticates them as genuine and fact of their existence or
genuineness is an element of prosecution’s case
v. Doe (1984): upheld compelled production of documents belonging to proprietorship; 5A
provides no protection for contents of private papers of any kind
vi. Hubbell (2000): where location and identity of documents demanded by subpoena are not
known by government, then compelling production may implicate 5A; D forced to take mental
and physical steps necessary to provide prosecutor with accurate inventory of many sources of
potentially incriminating evidence sought by subpoena
1. Now, lower courts permit subpoenas against individuals only so long as prosecution can
with reasonable particularity establish its knowledge of existence, possession and
authenticity of the document
vii. Zurcher v. Stanford Daily (1978): upheld seizure pursuant to warrant of pictures a student
newspaper took of demonstration in which police officers were injured even though newspaper
was not suspected of crime; officers read notes and correspondence but did not open locked
drawers or rooms. Found negatives of already published pictures. 5A not implicated.
1. Defense could argue mere evidence rule should remain viable when third parties (such
as newspapers – inhibit freedom of the press) are threatened
2. Congress enacted Privacy Protection Act directing subpoenas be preferred method of
seeking information from newspapers and others engaged in 1A activities
3. First Amendment arguments fail because PJ Video (1986) PC in application for warrant
provides sufficient protection against arbitrary suppression of speech
viii. Importance of subpoenas: can be challenged before executed, unlike warrants. Gives D notice
(can potentially destroy evidence); only requires relevance and avoids PVD
d. Private Papers History
i. Entick v. Carrington (1765) – prohibited any government attempts, through warrant or
subpoena, to obtain legally owned private property, but opted for damages over exclusion;
comes from colonists’ private papers being seized regarding sedition
ii. Boyd (1866) – rejected subpoena for private business records (invoice), exclusion at trial over
damages; C basis came from both 4A (seizing anything written is unreasonable) and 5A
(compelling testimony), created “zone of privacy” for private papers and business documents
iii. Hale v. Henkel (1906) – exception to Boyd in cases involving corporate papers sought to be
used in prosecution against corporate entity, unwilling to apply absolute prohibition of 4A or
5A’s warrant and PC requirements on ground that doing so would nullify legislative attempts to
regulate business activity
34
 iv. Weeks (1914) – rejected absolute immunity for personal papers and books; permitted as long
as valid warrant
v. Gouled (1921) – returned to special protection, government must have interest in such papers
that under principles of law stated it would have right to take it into its possession to prevent
injury to public from its use
1. Mere evidence rule – government cannot seize items to which it did not have a legal
claim independent of need to use it as evidence in criminal trial, CAN seize fruits,
instrumentalities, and contraband b/c can’t legitimately possess them
2. Mere evidence added to zone of privacy
3. Extend protection to include any private property to which government could not lay
legal claim
4. Forfeiture statutes  forfeit property to government when they are used to commit a
crime
vi. Marron (1927) – 4A did not bar seizure of ledger of account and utility bills because they were
used to carry on criminal enterprise, characterized as search incident to arrest
vii. Shapiro (1948) – neither 4A nor 5A prevented seizure of business records via subpoena
(relevance standard, no search) even if records are to be used against individual rather than a
corporation, as long as records are regulatory in nature and are required to be kept by
government; if records are mandated by government they become public in nature and may be
subpoenaed
1. Took corporate papers out of zone of privacy, corporations are not individuals and do
not have a 5A right
2. Now only personal private papers + mere evidence left in zone of privacy

35
 Caselaw
Entick (1765), Boyd (1886),
Gouled (1921)
Hale (1906), Shapiro (1965)
What May Be Seized
Only fruits,
instrumentalities,
contraband “Mere
evidence” rule—gov’t
cannot seize items to
which it did not have a
legal claim independent of
need to use it as ev. in
criminal trial
“Public” business records.
If records are mandated by
a legislative enactment,
they have become “public”
in nature-Shapiro. Can use
against corporate entity or
individual
Why
4th and 5th Amendments prevent
seizure of private property by a
warrant or subpoena. Mutually
reinforce e/o to create a “zone of
privacy” and prevent seizure of
certain types of property. Avoid
“compelling” people to give
evidence against themselves.
See above. Prohibiting seizure of
corporate papers would nullify
legislative attempts to regulate
business activities.

Schmerber (1966) (driver’s blood All non-testimonial 4th Amendment is satisfied w/ a

test alcohol content) Hayden
(1967) (Clothing, eliminate mere
evidence rule b/c distinctions do
not make sense**Now, 4th just
requires valid warrant based on
PC**)
Fisher and Andreson (1976) (tax
and corporate papers) Doe
(1984) (sole proprietorship—
more personal private papers)
Zurcher (1978)
evidence (e.g. blood,
fingerprints, suspects
“visage” from a lineup,
clothing).
Defendant’s business
papers. (Overturn Boyd)
Third party’s papers,
Defendant’s private
papers>
warrant or a subpoena. 5th
Amendment only protects
testimonial evidence
5th Amendment only protects
against compulsion of
incriminating, testimonial
evidence.
Andreson: Seizure never implicates
5th b/c no compulsion
Fisher: Subpoenas not violate 5th
b/c contents created voluntarily,
and act of production non-
testimonial (UNLESS production
proves D knows papers
exists/authenticates docs and this is
element of P’s case)
BUT: Hubbel (2000): Gov’t must
know location of papers before
subpoenaing them. Prevent gov’t
“fishing expeditions.”

e. Electronic Surveillance
i. Berger v. NY (1967) – struck down NY’s eavesdropping statute but strongly implied
nonconsensual eavesdropping is C so long as authorities seek proper judicial authorization
ii. In 2010, only 18.8% of interceptions disclosed incriminating information, only 1.2% were
arrested and only .2% were convicted; cost per tap is over $33k
iii. Title III of Omnibus Crime Control and Safe Streets Act (1968): permits nonconsensual wire or
oral eavesdropping, but only when authorized by warrant plus. Must make 4 findings to issue
Title III warrant:
36
 1. PC that one of offenses in Title III (all felonies) has/is/will be committed, at least district
court judge, not justice of peace
2. PC that particular communications concerning that offense will be obtained through
interception, what crime, where conversations will take place, what they’ll be talking
about
3. Cause to believe that “normal investigative procedures” have been tried and failed, or
reasonably appear to be unlikely to succeed if tried, this must be last resort
4. PC that facilities subjected to surveillance are connected with offense or person named
iv. Eavesdrop order can only authorize surveillance for 30 days and must:
1. Identify target (if known), location of intercept, type of communications to be
intercepted, and the offense – particularity
2. State that the order shall be executed as soon as practicable, state time period during
which communication is authorized and whether interception will automatically
terminate when get described communication
3. Command that interception shall be conducted in such a way as to minimize
interception of communications not otherwise subject to interception (but see Scott)
4. In judge’s discretion, can require periodic reports as to what has been intercepted and
why further interception is necessary
5. At least district court judge
6. Last resort
v. Electronic Communications Privacy Act (1986): Amended Title III to include regulation of
electronic communications (email, conversations on telephones)
1. Unlike Title III, sanction for violation does NOT require exclusion, relies on civil and
criminal penalties in statute
2. BUT: when communications are intercepted in violation of 4A, ER applies
vi. Scott (1978): pursuant to warrant based on PC that described 9 people probably involved in
drug ring, tapped phone for 30 days. Listened to every call but only 40% related to narcotics.
Officers admitted they made no attempt to minimize.
1. Holding: Subjective motivations in listening to non-pertinent calls were irrelevant, and
officers’ failure to minimize was reasonable; found it unnecessary to address
government’s argument that if minimization provision had been violated, only
conversations obtained in violation of this provision should have been suppressed.
2. Defense: argument pretext argument exception (Whren), very intrusion action, can use
subjective mind of cops as evidence
3. Prosecution: just exclude nonpertinent calls, they’re nonpertinent anyways
4. What if police heard about another crime? “Plain hear”
vii. Kahn (1974): Eavesdrop warrant authorizing tap of Kahn’s phone to listen to conversation of K
and “others as yet unknown” suspected of gambling did not violate particularity requirement
because Title III minimization would prevent abuse during execution of warrant.
1. Note: “plain hearing,” maybe different interpretation now that Scott has vitiated
minimization requirement?
viii. Torres (7th Cir. 1984) (Posner): Upheld warrants for video surveillance of apartments used to
manufacture bombs. Video requested because government believed suspects would play radio
loudly, speak in code and carry out assembly of bombs in silence. Took 34 entries to install and
remove equipment. Over 130 hours of videotape and pics of defendants making bombs; not a
Title III case, but said meeting Title III requirements (and requiring reports every 5 days) was
sufficient to authorize video surveillance. Could be issued under court’s common law authority
to issue warrants

37
 ix. Dalia (1979): Manner of installation can be left to discretion of law enforcement officials,
subject to statutory requirements (Title III contains none) and reasonableness requirements of
4A.

STEP THREE: If there is no valid warrant, was an exception to the warrant requirement met?
Current View of the Court: The reasonableness clause should govern analysis of searches, and absence of a warrant is
merely one factor to consider in a reasonableness analysis. If at first you don’t succeed, try another exception!
1. Hot pursuit? Discovery of evidence occurs in the course of looking for a suspect and takes place BEFORE felon
is apprehended. (See “Was arrest conducted properly?” as hot pursuit is exception to warrant requirement)
a. Need PC, exception to warrant requirement
b. Rationale: apprehend suspect and protect police
c. Criteria: PC felon (Welsh), PC in home, must be in hot pursuit (McNeely)
d. Scope: Anywhere suspect or weapon may be until caught (Hayden)
e. Warden v. Hayden (1967) – upheld warrantless entry and arrest of armed robbery suspect because
obtaining an arrest warrant might have allowed him to escape or endanger people.
i. Police who are validly in a dwelling to effect an arrest may search that dwelling for weapons
(at least when felon is thought to be dangerous) up until the time the suspect is apprehended
or it is clear he is not home.
ii. Found jacket and trousers matching description of those worn by robber in washing machine in
basement before suspect was discovered upstairs
f. Welsh: Hot pursuit does not apply to misdemeanors/if crime is not serious enough (DUI was only $300
fine, wanted BAC)
2. Search incident to arrest? Warrantless search takes place AFTER or CONTEMPORANEOUSLY with a valid
custodial arrest. You can always search the person after a valid custodial arrest if you have probable cause.
a. Rationale: protect police and evidence (waiting until you get to station is NOT a valid search incident
b/c rationale does not apply); argue looking for evidence of crime OR police safety
b. Criteria: Valid arrest (PC)/contemporaneous with arrest because warrantless search justified by
completed arrest. Cop can do search without formally saying “you’re under arrest” first; just cannot get
PC to arrest through or as result of the search. (but see Long if involves car)
c. Scope: Person + arm span (Chimel) + confederate + protective sweep (Buie) + cursory search (Segura) +
evidence search if PC evidence would be destroyed? + Gant
d. 2 exceptions: non-custodial arrest, minor crime (traffic citation) (Knowles) and can’t do full search of
cellphone even with valid arrest (Riley)
e. Arm span – Premises
i. Chimel v. CA (1969): Police came to C’s home to arrest him for alleged burglary. Police asked
permission to look around, and even though C objected they looked through the entire house.
1. Holding (Stewart): During a search incident, cops may only search within the arrestee’s
person and arm span, area within his immediate control from within which he might
gain possession of a weapon or destructible evidence
2. Search of entire house NOT okay; White worried about pretextual arrests designed to
avoid SW requirement. No point to get SW if police can conduct warrantless search of
whole premises incident to arrest.
f. Confederates + Protective Sweep (expansion of Chimel) – Premises
i. MD v. Buie (1990): Police got warrants for arrest of Buie and Allen; put B’s house under
surveillance. Saw B but not Allen over next 3 days. Decided to execute warrant, called house to
verify B was home. Arrested Buie in his home after he emerged from his basement. Officer
went to check if anyone else was in basement and saw and seized a red running suit that one of
robbers had worn during an armed robbery. Held: As incident to arrest, police may as a
precautionary matter:
38
 1. Without any suspicion at all look in closets and other spaces immediately adjoining
place of arrest from which attack could be immediately launched
2. Conduct a “protective sweep” of any other areas of premises when they have RS that a
confederate might be there
3. Defense: Had AW for Allen but should have obtained SW in 3 days they were observing
house; pretextual search Stewart was worried about
g. Destruction of Evidence/Cursory Search while waiting for SW – Premises
i. Vale v. LA (1970): arrest warrant for D to pay his increased bond. Set up surveillance at his
house and watched a drug deal go down. Arrested V on his front porch and did 3 minute
cursory search of house. V’s family later came home and cops did full search of the house.
1. Holding: Search not valid, goods ultimately seized not in process of destruction, need
SW to search entire premises of a home if worried about destruction of evidence  this
type of cursory search not allowed
2. Some courts have allowed post-arrest searches of houses if police have RS that evidence
might otherwise be destroyed (Hoyos, 9th Cir. 1989).
ii. Segura (1984): When officers effect a home arrest and have PC to believe evidence is in the
home they may, without a warrant, wait inside to ensure nothing is removed pending arrival of
a warrant; securing the premises from within is no more an interference with possessory
interests in the contents of the home than a perimeter stakeout.  If PC evidence in house, can
do cursory search, plant cops while they get warrant
h. Seizing evidence viewed from outside premises while executing an arrest
i. WA v. Chrisman (1982): Cop saw underage kid carrying gin; kid said his ID was in his dorm
room, officer followed him to dorm room. Leaned against door and saw roommate, Chrisman,
become nervous, and noticed seeds and small pipe. Officer entered room, confirmed seeds
were marijuana, and seized seeds and pipe. C handed over more drugs.
1. Holding: assuming underage kid validly arrested at time officer asked for ID, valid search.
 need valid arrest to trigger search incident
a. Some state constitutions provide greater protections – on remand WA said it
was illegal under state C
2. Defense: drugs had nothing to do with crime of arrest
3. Prosecution: PVD, valid arrest in apartment, PC to believe evidence of crime
4. Defense: not allowed to enter room, don’t have valid intrusion
i. What is “contemporaneous”?
i. Chadwick (1977): a dog alerted the agents to presence of drugs in footlocker (which is not a
search – Place). Footlocker in suspects’ trunk. While trunk still open, agents arrested all 3
suspects and took footlocker to another building where it was searched 90 minutes later.
1. Holding: Not a valid warrantless search incident because not contemporaneous with
arrest and agents had no reason to believe footlocker contained explosives or other
inherently dangerous items or that it contained evidence which would lose its value
unless opened immediately.
j. Searches of cars incident to arrest
i. Belton (1981) OLD RULE: cop may search passenger compartment of car through search
incident (including searching zippered pockets of jackets in backseat), but cannot search trunk
ii. Gant (2009): Searches of cars incident to arrest occur only when they are contemporaneous
AND
1. Interior of car is ACTUALLY accessible to occupants who might obtain weapons or
destroy evidence OR
a. This prong rarely met because police almost always handcuff arrestees before
searching the car
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 2. “Reasonable to believe” that vehicle contains evidence of the offense of arrest
a. Less than PC? Implies that SI requires less than Carroll-Chambers
b. Takes away ability to search a car after traffic violation. Limit officers’ discretion.
But you can search any part of the car – including the trunk for evidence.
iii. [Exception to custodial requirement] MI v. Long (1983): Even if occupant of car is not arrested,
police can search passenger compartment of car, limited to those areas that weapon might be
placed or hidden if they have RS that suspect is dangerous/may gain immediate control of
weapons.
k. Searches of Effects Incident to Arrest
i. Riley v. CA (2014) – warrant is required to search cellphone of arrestee absent exigent
circumstances indicating that failure to do so at time of arrest will endanger the police or
evidence on phone. Implicates serious privacy concerns and can protect against phone getting
wiped (you can seize phone, turn it off, remove battery, etc.).
1. Search of cell phone much more likely to reveal private facts than search of car and
because phone might contain evidence even of trivial offenses
2. Court unwilling to equate search of phone with other searches of person incident to
arrest – modern cell phones implicate privacy concerns far beyond those implicated by
the search of a cigarette pack, wallet, or purse
3. Also see Birchfield (above) – warrantless blood test after arrest on DUI charges violated
4A (serious privacy concern) but warrantless breathalyzer testing okay, less intrusive
ii. Maybe SI not valid/applicable where suspects have high reasonable expectation of privacy
1. Holzman (9th Cir.): suggesting that wallet may be searched incident to arrest only for
crimes like credit card fraud
2. Schmerber: Permitting blood test incident to arrest only if there is a clear indication that
search will produce desired evidence
3. Finley (5th Cir.): cell phone can be searched incident to arrest if D arrested for
possession with intent to distribute
l. Searches of Persons Incident to Arrest
i. A search incident of a person CANNOT take place unless there is PC to arrest  if no PC (but
RS of danger) try stop and frisk, which might produce PC necessary for SI
ii. Must have valid custodial arrest based on PC
1. Knowles (1999) – police cannot conduct search incident to arrest if police issue a
citation for speeding and choose NOT to arrest violator, need custodial arrest
2. Gustafson v. FL (1973) – Upheld search incident to arrest for driving without a license;
departmental regulation determines when an arrest is custodial, when police may took
arrested person into custody; Stewart’s concurrence questioned validity of custodial
arrest for minor traffic violations
3. Robinson [can do full search of person incident to valid traffic arrest] (1973) – R
stopped for driving with a revoked license and arrested (police had known for 4 days
before stopping R and of his 2 prior drug convictions – suggests pretext). All 3 occupants
got out of vehicle. Following regulation, officer announced R was under arrest and did
full search. He felt an object in R’s pocket and didn’t know what it was/its size. Pulled
out the object, which turned out to be a crumpled cigarette package. Didn’t know what
was inside package, but knew it wasn’t cigarettes. Looked inside and found heroin.
a. Holding: Heroin admissible under search incident because it took place incident
to valid arrest.
b. (1) Legit arrest
c. (2) Looking at cigarette package
i. Defense: not searching for evidence of crime of arrest
40
 ii. Prosecution: Officer safety
d. STATES: Several state courts have held invalid searches of an arrested person’s
personal effects which have been handed over or are unlikely to contain a
weapon (Hawaii and California); in tension with Gant
e. You cannot search a car incident to traffic violation (Gant), unless RS suspect is
dangerous/may gain immediate control of weapons (Long), BUT you CAN search
person if you have arrested them (Robinson)
4. Atwater v. Lago Vista (2001) – custodial arrest for even minor criminal offenses do not
violate 4A; any other rule would come at price of systematic disincentive to arrest in
situations where arresting would serve an important societal interest; pretext minimized
by police’s desire to avoid hassle.
a. Dissent O’Connor: Worried about abuse/potential for pretextual actions, if PC to
believe fine-only offense has been committed, officer should issue citation unless
able to point to specific and articulable facts which reasonably warrant
additional intrusion of full custodial arrest  just do custodial arrest for
everything, than can do search
5. VA v. Moore (2008) – Police took M into custody, but this violated state law that
prohibited arrests and only permitted issuance of citation for the violation.
a. Holding: As long as police have PC for traffic arrest, fact that they violated state
law is irrelevant to 4A analysis
b. Deciding other way would mean 4A protections vary from state to state and
possibly within states; would require exclusion when state law only considered
tort and administrative remedies
iii. Mistakes: Evidence from illegal search incident is admissible so long as mistake is reasonable
1. Hill – police had warrant to arrest Miller, mistakenly thought Hill was Miller. Despite
invalidity of Hill’s arrest, court upheld search incident to arrest because mistake as to
identity was reasonable
3. Stop and frisk?
a. Rationale: Protect police (Terry)
b. Criteria: RS of DANGER
c. Scope: Pat down + seizure of weapon + Long + plain feel
d. Terry (1968) – Sole justification for frisk is protection of officer/others nearby, must be confined in
scope to an intrusion reasonably designed to discover weapons on someone who is presently
dangerous. Not okay to frisk just to prevent destruction of evidence. (p. 302)
e. Sibron (1968) – officer observed S confer with several addicts over 8-hour period but overheard none
of the conversation and saw nothing pass between them, frisked and looked into S’s pocket after S
made a motion to do so.
i. Holding: Frisk invalid; cop had no reason to fear harm after he accosted S, so no reason to reach
into S’s pocket and find drugs.
f. Dickerson (1993) – Two officers observed D leave apartment building which they believed was crack
house since they had received complaints and served warrant there looking for drugs; D walked toward
them, made eye contact, and began walking in opposite director. Stopped D in alley and frisked him,
found no weapons but lump in nylon jacket. Felt like lump of crack cocaine in cellophane after
manipulating it. Reached into pocket and found small plastic bag of crack.
i. Holding: Cocaine not admissible. Plain feel doctrine established but not met here.
ii. Plain Feel doctrine: Police can seize items other than weapons during frisk when by sense of
touch they have PC to believe it is contraband, BUT cannot manipulate the items. If you have to
manipulate it, you CANNOT seize it.
iii. Slobogin: Now cops will just say they immediately knew it was crack.
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 iv. Whenever cops find drugs from frisk, always argue Dickerson and manipulation problem and cf.
to Hicks with removing stereo
4. Carroll-Chambers search? When SI and stop and frisk doctrines do not allow warrantless search of car, Carroll
doctrine often fills gaps. Permits warrantless search of mobile car if cops have PC that evidence is in car while
in the field + low expectation of privacy; containers inside the car may be opened and searched, but not
outside the car
a. Rationale: Prevent flight of evidence
i. Stuntz (p. 313): because of hindsight bias, PC hearing associated with warrantless searches is
not as demanding as PC associated with warrant-based searches. It makes sense that warrants
are required for houses and footlockers but not cars if first 2 are seen as more intrusive.
b. Criteria: PC (evidence in car) + mobility (provides exigency) + low expectation of privacy (when in the
field)
c. Scope: Anywhere there is PC, in field OR station
d. Carroll (1925) – Two officers pulled over car with people they knew engaged in selling bootleg whiskey
and headed along road known for its bootleg traffic. Officers searched entire car, including behind car’s
upholstery, found 68 bottles of liquor.
i. Holding: Search could not be upheld on SI grounds because crime was only a misdemeanor. But
search valid because (1) officers and PC and (2) statutes always distinguished between searches
of dwellings (warrants normally required) and searches of mobile things, where not practicable
to secure a warrant because of its mobility, can be quickly moved out of jurisdiction
ii. Cops may do warrantless search if: (1) Ready mobility (there must be some exigency) (2) Low
expectation of privacy in the field, and (3) officers have PC while in the field that contraband
is in the car
iii. Under Carroll, intrusive searches are allowed; police may search anywhere they have PC. BUT,
police cannot search every vehicle, must be some exigency
1. Coolidge (1971) – invalidated warrantless search of car parked at home despite PC
because police knew they were going to conduct search 2.5 weeks earlier
2. Labron (1996) – if a car is readily mobile and PC exists to believe it contains contraband,
the 4A permits police to search the vehicle without more
e. Chambers v. Maroney (1970) [why not require seize car and then seek warrant?] – which is greater
and lesser intrusion is debatable, for C purposes, no difference between seizing and holding car before
presenting PC issue to magistrate and carrying out immediate search without a warrant. Given PC to
search, either reasonable under 4A.
i. Police stopped car with PC to believe occupants had just robbed gas station. Drove car back to
station and searched it there without warrant, even though there was time to obtain one.
ii. Holding: C because there is little difference in practical consequences of doing search at station
and immobilizing it in the field until one is obtained. Police should be able to make search they
could have made in field if they decided not to because of safety or convenience.
iii. Delayed automobile search rule – warrantless Carroll search can be completed either in the
field OR later at the station house, but PC of crime must develop in the field
1. Unlike SI contemporaneous requirement
2. Texas v. White (1975) – upheld delayed automobile search despite absence of any
extenuating circumstances at time it was stopped; searched at stationhouse
a. Dissent (Marshall and Brennan): had joined Chambers in belief that it applied
only when field search would be dangerous for the officers
3. Class (1986) – officer’s removal of papers to observe a VIN in lawfully stopped car is C
because drivers have no reasonable expectation of privacy in the VIN given the
important role played by the VIN in pervasive governmental regulation of the
automobile
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 4. [PC of crime must develop in the field] Golembiewski (8th Cir.) – Ds arrested for passing
school bus, car taken to station. Write down VIN number, run it at station. At station,
cops realize car is stolen. Held: Cops could not search car for evidence of theft without a
warrant because PC for crime of theft did not develop in field. No longer risk of mobility
because car at station; car must be “readily mobile” to activate Carroll  upheld under
inventory search
f. Carroll-Chambers does NOT apply to movable containers/luggage/personal effects seized OUTSIDE the
car
i. Chadwick (1977): Luggage found in trunk, taken out of car and searched 90 minutes later.
Cannot conduct delayed search of footlocker without warrant because substantially greater
expectation of privacy in luggage. Need search incident (Long) or warrant (SI did not apply, see
above).  but maybe different result after Acevedo
1. Stuntz and Slobogin both think that footlockers are no more private than cars and
should be treated same regardless of where they are found. Court will probably rule this
way once they get the right case.
ii. Weird discrepancy that footlockers outside of car cannot be searched without a warrant but
once inside they can be searched pursuant to Carroll-Chambers
g. Ross (1982): containers inside car may be opened and searched pursuant to Carroll-Chambers
i. Once police have PC to search a car and the exigency component of the Carroll doctrine is met,
they may conduct a search that is as thorough as a magistrate could authorize in a warrant,
may search everywhere there is PC to believe evidence may be found, including trunk, glove
compartment and upholstery, containers
ii. CA v. Acevedo (1991) – cops can search footlocker inside trunk of car during a Carroll-
Chambers search even if search is delayed/wait until it is put into car; warrant will be routinely
forthcoming in overwhelming majority of cases
1. Combined with Chambers, would seem to call for different result in Chadwick, since
footlocker eventually searched was seized from a car
iii. Houghton (1999) – containers of passengers in car suspected of containing evidence may be
searched, although person of passenger may be off limits without PC to arrest the passenger
iv. Court seems to imply that seizure is less invasive than search
h. [Mobile homes are cars] CA v. Carney (1985) – upheld search of mobile home parked in downtown lot
after receiving uncorroborated information that Carney was exchanging weed for sex. DEA agent
observed hosue for 75 minutes, saw youth go in and out, tracked down youth who said C had given
him weed for sex. Agents went to motor home, knocked, C stepped out and agents searched home,
found weed. C formally arrested.
i. Holding: Carroll does not turn on other uses to which a vehicle might be put, but on ready
mobility and setting of the vehicle that objectively indicates that vehicle is being used for
transportation.
5. Inventory search? Allows warrantless search after lawful impoundment within scope of written police policy
that is NOT a pretext for investigation (but investigation can be toothless because of broad police policies)
a. Rationale: Protect police from claims of theft and danger; prevent vandalism; determine owner of
stolen/abandoned car; noninvestigative government interests outweigh minimal intrusion involved in
car inventory
b. Criteria: Lawful impoundment; policy; not pretextual
c. Scope: Wherever policy permits
i. But Carroll-Chambers still more helpful because you cannot search behind upholstery in an
inventory search
d. SD v. Opperman (1976) – police impounded O’s locked, unoccupied car after issuing 2 parking tickets
warning that car was parked illegally. At impound lot, officer observed through car’s windows a watch
43
 and other items of personal property, unlocked car and inventoried contents. Found bag of marijuana
in glove compartment. Search upheld. Inventory searches are permissible if:
i. (1) Pursuant to lawful impoundment
1. Variety of reasons cars can be impounded, vary from state to state (p. 315: it has been
involved in more than one parking or stopping violation, driver has insufficient
insurance, car has an invalid registration due to nonpayment of fee; car is involved in an
accident and has improper registration; vehicle is evidence in criminal case; occupants
are arrested or otherwise taken into custody
ii. (2) Of a routine nature essentially like that followed throughout the country; and
iii. (3) Not mere pretext concealing investigatory police motive (but not much teeth)
1. FL v. Wells (1990) – inventory search of ashtray and locked suitcase in trunk conducted
by police department with no inventory policy unC; but virtually any such policy would
be adequate for 4A purposes
2. Bertine (1987) – PD regulations give officers arresting occupant of car which is not
evidence of crime 3 options: allow third party to take custody, with owner’s consent
arrange to take car to nearest public parking facility, or impound and conduct full
inventory of car, including search of closed containers. B arrested, officers chose to
impound without giving him other options. Found drugs and large amount of cash in
backpack. Officer listed drugs but cash only noted on form filled out by someone else;
large amount of cash and other items not noted. Inadvertently kept his house keys for 2
days. Officer testified that officer may go into whatever arouses his suspicions per
policy.
a. Holding: Search upheld.
b. BUT Kuster (Iowa 1984) – stated in dictum that policy which permits
impoundment even when arrestee is not in or near vehicle and vehicle is at D’s
residence or parked somewhere else indicating little need for safekeeping is
invalid.
e. If an inventory search produces PC to believe other evidence is in the car, a further search may be
permissible without a warrant
i. Michigan v. Thomas (1982) – search of air ducts of car permissible after weed found in glove
compartment
ii. FL v. Myers (1984) – inventory search authorized second fuller search 8 hours later
f. Inventory doctrine also applies to arrested persons who will be incarcerated
i. IL v. Lafayette (1983) – upheld full inventory searches of arrested persons who will be
incarcerated.
6. Administrative or special needs search? All based on reasonableness inquiry – balancing the need to search
against the invasion that the search entails
a. Searches in which government’s primary goal is facilitative or paternalistic, NOT prosecutorial or
retributive
b. Regulatory in purpose, not seeking evidence of criminal activity
c. Any evidence found usually results at most in fines or civil sanctions
d. Often conducted by officials rather than police
e. Critiques of administrative/special needs searches
i. Why should criminals/suspects of ordinary crime get more protection under 4A than
supposedly innocent people subjected to administrative searches?
ii. Goes against original intent – generalized warrants colonists were worried about carried taxes
and fines, not criminal penalties
f. Camara-See: Healthy and safety inspections of homes and businesses. Reasonableness: balance the
need to search against nature of invasion
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 i. Rationale: no other way to protect health and safety, inspections are not personal in nature so
limited invasion vs. need to protect health and safety
ii. Criteria: Generalized suspicion + warrant if no consent
1. Modified/diluted PC requirement for health and safety inspections
a. PC to issue warrant to inspect exists if reasonable legislative or administrative
standards for conducting an area inspection are satisfied with respect to
particular dwelling
b. Warrant can issue so long as government illustrates generalized administrative
plan, “neutral generalized suspicion” based on passage of time, nature of
building, condition of entire area, not on individual characteristics/specific
knowledge of condition of particular dwelling
c. If no consent, warrant must contain:
i. Whether enforcement of municipal code requires inspection
ii. Lawful limits of the search
iii. Whether inspector is acting under proper authorization
iii. Procedure:
1. Agency gives notice of impending inspection in writing or in person
2. Consent is sought
3. If no consent, seek warrant based on Camara criteria
iv. Scope: sufficient to meet purpose
v. Camara v. Municipal Court (1967) – safety inspectors need diluted warrant to enter a home if
nonconsensual; Dissent (Clark) – just require identification, area warrant requirement would
create boxcar warrants (never happened)
vi. See v. Seattle (1967) – same diluted warrant requirement/proceure to health and safety
inspections of businesses
g. Biswell-Dewey: Pervasively regulated industry exception
i. Rationale: substantial state interest in regulating the industry (business owner implicitly agrees
to warrantless searches by engaging in highly regulated industry); surprise is important (notice
would frustrate purpose of the inspection)
ii. Criteria: statutory delineation of purpose and criteria. Exception only applies when:
1. Government has substantial interest in activity being regulated
a. E.g. mines, firearms dealers
2. Warrantless searches are necessary for effective enforcement
3. Inspection program/statutory scheme provides a “constitutionally adequate
substitute for a warrant” by identifying and limiting purpose and scope of the
inspection
a. E.g. requiring an inspection of all mines, defined frequency of inspections and
provided precise standards
b. Statutory delineation of purpose, criteria and scope of search
iii. Scope: sufficient to meet purpose
iv. Biswell (1972) – upheld warrantless entry of pawnshop to inspect records and guns, contrasted
See, where health and safety conditions to be inspected were relatively difficult to conceal or to
correct in short time, and here where to be effective and serve as credible deterrence,
unannounced, even frequent inspections are essential.
1. Government’s interest in warrantless inspections >> diminished privacy interest (highly
regulated industry = lower expectation of privacy)
v. Donovan v. Dewey (1981) – exception only applies when legislature has reasonable determined
that warrantless searches are necessary to further a regulatory scheme and regulatory
presence is sufficiently comprehensive and defined that owner of commercial property cannot
45
 help but be aware that his property will be subject to periodic inspections undertaken for
specific purposes.
1. Approved warrantless inspections of mines conducted under Federal Mine Safety and
Health Act using 3-prong test
2. Satisfied test because (1) notorious history of serious accidents, (2) need surprise, and
(3) Act required inspection of all mines, defined frequency of inspection (times/year),
and provided precise standards with which a mine operator is required to comply
vi. Colonnade Catering (1970) – upheld warrantless entry of liquor store to inspect bottles
vii. Burger (1987) – NY law required junkyard owners to obtain license and maintain police book to
deter car theft. Failure to maintain license or keep records resulted in criminal penalties. Can
inspect records or vehicles subject to act any time. During business hours, police asked B for his,
had neither. Officers searched lot, copied down VIN numbers, discovered stolen stuff. B
arrested and charged.
1. Holding: Search C, statute also C under Dewey.
a. Con: Criminal penalties means this was not an administrative search; also,
statute does nothing to limit police discretion so it should be unC.
viii. Marshall v. Barlow’s Inc. (1978) – when refused entry, OSHA inspectors making health and
safety inspections under statute more detailed than Burger must obtain Camara type warrant,
based on neutral sources such as dispersion of employees in various types of industries across a
given area, and desired frequency of searches in any of lesser divisions of the area, accident
experience and number of employees exposed in particular industries.
ix. City of LA v. Patel (2015) – struck down city ordinance permitting police officers to inspect hotel
registries for purpose of determining whether hotels were being used for criminal purposes.
1. Accepted assertion that inspections were not aimed at conducting criminal
investigations but at same time rejected argument that hotels are closely regulated
businesses because of the licensure, tax, sanitation and other laws they must follow;
would make every business qualify
2. Government officials must seek precompliance review which can consist of simple
administrative subpoena before searching nonconsenting business owner’s property 
looking at hotel registry part of administrative plan, but then would have to search
every hotel/be neutral in picking hotels
3. But suggested registry could be seized pending subpoena if police are concerned that
tampering might otherwise occur
4. Absent opp for precompliance review, ordinance creates an intolerable risk that
searches authorized by it will exceed statutory limits, or be used as pretext to harass
hotel operators and their guests.
h. Special Needs Searches of persons or personal effects
i. Rationale: Non-law enforcement need would be frustrated by warrant and PC
ii. Criteria: Reasonableness; motivation CANNOT be to obtain evidence that will be used for
criminal prosecution
1. You must be in a special needs situation BEFORE engaging in balancing
iii. Scope: whatever is reasonable
iv. NJ v. T.L.O. (1985) – 14 yo TLO caught smoking at school (violation of rule), denied
smoking/that she ever smoked, searched purse, found pack of cigarettes, also noticed a
package of cigarette rolling papers; searched purse further and found marijuana, pipe, empty
plastic bags, substantial amount of $1 bills, index card that appeared to be list of students who
owed TLO, and 2 letters that implicated TLO in drug dealing

46
 1. Holding: Balanced TLO’s legitimate expectation of privacy and personal security
against government’s need for effective methods to deal with breaches of public
order. Search of TLO was reasonable because
a. Action was justified at its inception (Not ordinary crime control)
i. Search by school official will be justified at its inception when there are
reasonable grounds for suspecting that search will turn up evidence that
student has violated or is violating law or rules of school
b. Action was reasonably related in scope to circumstances which justified
interference in first place (balancing state interest vs. intrusion)
i. Measures adopted are reasonably related to objective of search and not
excessively intrusive in light of age and sex of student and nature of
infraction
2. Question was whether search was reasonable in the school context – accommodation
of privacy interests of students with substantial need of teachers for freedom to
maintain order does not require strict adherence to requirement that searches be based
on PC
3. Why not ordinary crime control? Primary purpose is to enforce rules, not criminal
statutes; teachers not trained in PC
4. Dissent: Gates said PC is common sense concept, teachers could handle it
5. DP Junkie Concern:
a. Rule can overlap with crime  could take to juvenile court
b. Can use as pretext
6. How would you analyze facts under PC?
a. Cigarettes  PC to believe violated rules
b. Find rolling papers (PVD), maybe PC to continue search?
c. Marijuana, bills, ledger – evidence of crime
v. Commentators’ Approaches (LEAST RESTRICTIVE = LRA)
1. Sundby: “Compelling Interest and use of Least Intrusive Means.” - (Suspicion-less) -
Distinguish between responsive intrusions (based on particularized suspicion) and
initiatory government intrusions (investigatory – i.e. Camara)
a. Suggests that responsive intrusions should be analyzed under warrant clause
and usually require warrant based on PC; initiatory investigative intrusions in
the absence of any suspicious behavior should be analyzed under reasonableness
clause and permitted only when they effectively implement a compelling state
interest in least intrusive manner
i. E.g. government can demonstrate lack of immediate action will endanger
public safety
b. Camara-See and Biswell-Dewey fit this scheme
2. Slobogin: Use “Exigency and Proportionality Principles” to govern investigative
searches. - (Suspicion based)
a. Require ex ante review by neutral 3d party (typically a warrant) in all non-exigent
circumstances
i. Does not necessarily need to be magistrate, could allow trained lay
official at schools; still allows a second opinion, “administrator warrant”
b. Proportionality: more intrusive the search, more justification you need, avoid
pretext; level of suspicion authorizing search or seizure, whether or not it is
based on warrant, must be roughly proportionate to level of intrusion
occasioned by the search
c. Agrees with Camara but thinks implied consent of Biswell-Dewey is BS
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 3. Stuntz: “Implicit Bargaining Model” - (suspicion based)
a. Determine extent of 4A rights by imagining government and an innocent party
bargaining over rights
b. Consider whether innocent student would have consented to search if principal
was threatening suspension, etc. Compare search with whatever else principal
would do if search not available
c. Also, individual would likely not be too resistant to inspections for safety and
would be more willing to give up individual rights for government help
4. Stuntz: Politics Model - (Suspicion-less)
a. Only works with large group (road blocks). When searching large groups, don’t
worry about 4A; instead trust political process to provide an adequate remedy
for overzealous police action in groups
b. BUT: Not all parties have equal representation in political process, only works
with large groups; maybe people don’t care if certain minority groups have their
rights violated
vi. School searches of students
1. TLO: school setting requires modification of suspicion; schools in loco parentis, so
warrantless searches okay
a. Drug tests of student athletes (Veronia) and students who want to participate in
extracurriculars (Earls) is okay, as long as not reporting to law enforcement;
rejected requirement that school demonstrate some identifiable drug abuse
problem among a sufficient number of those subject to testing
b. BUT search cannot be too intrusive: Safford v. Redding (2009) – cannot strip
search student on RS that she’s distributing drugs
c. Strip searches in jails are okay
i. Florence (2012) – jail personnel can strip search a person prior to
detention in general population, even if only charged with minor
violations or already paid obstruction of justice fine
vii. Searches of Welfare Recipients: receipt of welfare can be conditioned on surrendering 4A
rights
1. Wyman v. James (1971) – J receiving welfare. Denied her caseworker second home visit
and assistance terminated. Sued under § 1983 that a visit was an illegal search, and she
had no other income. Record showed J was not always cooperative, kid might have been
abused, consented to home visit once before. Federal regs for welfare program did not
require home visit or interview with dependents. Observations during home visit could
lead to welfare fraud and child abuse charges.
a. Holding: Warrantless home visitation did not violate 4A; 5 justices said visit was
not a search because not forced or compelled; 6 said that even if it was a search,
it was reasonable
b. Issue that it was a home, but consider nexus between government money and
childcare
c. (1) Special needs situation justified at its inception? Yes, not ordinary crime
control, might be committing welfare fraud (like civil DUI charge); Defense: child
abuse is ordinary crime control, similar to narcotics
d. (2) Balancing: intrusiveness (somewhat intrusive, not searching through things,
had already allowed them to do it once, Stuntz’s bargaining) vs. government
interest (protect welfare, prevent abuse)
e. political process model wouldn’t necessarily work – targeted group is powerless,
too much discretion
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viii. Searches of Public Employees for work-related infractions: government job can be conditioned
on surrendering 4A rights – no warrant or PC required
1. O’Connor v. Ortega (1987) – upheld warrantless search of doctor’s desk and file
cabinets on less than PC because public employers’ investigations of “work-related
infractions” by employees are a special needs situation akin to TLO
2. City of Ontario v. Quon (2010) – upheld audit of police officer’s text messages sent on
department issued pager over 2-month period to determine why he was continuously
exceeding character limits; disciplined for excessive personal use.
ix. Searches of probationers/parolees: Parolees have severely diminished expectations of privacy,
makes for lesser intrusion
1. Griffin (1987) – upheld warrantless search of probationers’ homes for evidence of
probation violations on less than RS as a special needs situation
2. Samson (2006) – even when search of probationer/parolee is not special needs (i.e. not
conducted to determine whether probationer status still warranted but rather search
for evidence of crime), can be conducted without any suspicion
a. Require intense supervision given high recidivism greats > their severely
diminished expectations of privacy (CA, have to accept condition that they can
be searched at any time)
b. Special needs does not apply in this situation (criminal evidence is main goal),
but Terry balancing does apply, and allows essentially suspicionless searches in
this setting
i. Balance need to search or seize against the invasion which the search
and seizure entails
x. Drug Testing Allowed in limited circumstances, drug testing is a special needs situation and
does NOT require a warrant
1. Skinner v. Railway Labor (1989) – DOT mandated blood and urine testing of employees
involved in certain train accidents and authorized breath and urine tests of employees
who violate certain safety rules based in part on 2 studies that showed connection
between alcohol and accidents.
a. Holding: C under special needs analysis; (1) Not ordinary crime control, trying to
keep railways safe; (2) minimal intrusion
b. Prosecution: State has compelling interest in deterring recklessness on the
railways, and intrusion here is minimal. No other way to detect and deter drug
usage, government’s program is least dramatic means of achieving state’s
objective. Under proportionality approach, there is sufficient suspicion to
authorize the type of minimal intrusion involved. ¼ of workers are problem
drinkers, further increasing level of generalized suspicion is that test only given
to those involved in accident
c. Defense: Does not deter because takes place after accidents, no one thinks they
are going to be involved in accident when they go to work; presence of alcohol
doesn’t mean they were impaired at time; does not effectively achieve any valid
state objective
2. National Treasury Employees Union v. Von Raab (1989) – U.S. Customs required
urinalysis of all employees applying or being promoted to either drug
interdiction/enforcement, carry firearms, or handle classified material. Monitors
listened to them pee. 5/3600 tested positive.
a. Holding: Okay for drug interdiction/enforcement and carry firearms group,
remanded for classified material group to determine extent to which its
members were likely to gain access to sensitive information
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 3. Veronia: Upheld random drug testing of student athletes (see above)
4. Earls (2002): upheld requiring drug testing of all students who want to participate in
extracurricular activities (see above)
xi. Drug Testing NOT Allowed when not special needs and does require a warrant
1. Chandler v. Miller (1997) – struck down GA statute that required state political
candidates to submit to test for illegal drugs. Distinguished from Von Raab that political
officials are less likely than customs officers to be involved in drug interdiction and more
subject to daily scrutiny that may reveal drug abuse; characterized state’s interests as
symbolic rather than special, given failure to show any evidence of drug abuse by
officials
a. Government interest – don’t want high when making policies
b. Political model – if you don’t like it, politicians can change law
c. Harder to change law in other situations through democratic decision-making
(Wyman)
2. Ferguson (2001) – state hospital policy authorized employees to conduct drug tests on
pregnant mothers and turn results over to police; stated purpose was to help women
a. Holding: Assuming no PC or consent, violates 4A; not special needs because
immediate objective was to generate evidence for police
b. Dissent (Scalia): even assuming women thought tests were only for medical
purposes, tests did not implicate 4A at all
xii. DNA Testing: Every federal circuit that has addressed the constitutionality of DNA databases
has held that they do NOT violate 4A; differ in regards to why
1. Terry balancing – because convicted felons have diminished privacy expectation,
government’s need for DNA info justifies suspicionless extraction of DNA samples
2. Others treat as special needs situation (b/c Ferguson, Edmond, Lidster require that
individualized suspicion is required unless special needs), like checkpoints (Edmond,
Lidster); form of information gathering that may eventually aid law enforcement officers
3. Maryland v. King (2013) – swabs to obtain DNA are 4A searches, but adopted
Terry/Samson balancing to conclude that they can be conducted on all people arrested
for a “serious offense,” even if they do not suspect the swab will produce evidence of a
crime. Liken process to fingerprinting, long been seen by lower courts as natural part of
administrative steps incident to arrest.
a. Pure balancing approach – not special needs
b. Government’s interest in information gathering (identifying arrestees,
determining whether they are repeat offenders/flight risk) outweighed slight
intrusion associated with buccal swab, and DNA only used for ID and does not
reveal genetic traits and destroyed if arrestee acquitted
c. Felons have diminished expectations of privacy (Samson)
d. Dissent (Scalia): DNA more likely than fingerprinting to match an arrestee to
another crime. Not special needs, ordinary crime control.
e. Political process model would suggest universal DNA testing
f. Sundby – would fail least restrictive alternative
xiii. NSA Surveillance: NSA has to get warrant from a “secret court” but only needs to show PC that
evidence MIGHT be discovered
1. Can NSA interception of everyone’s conservations be justified by special needs?
a. Strong government interest in stopping terrorism and not ordinary crime control
b. Assuming you search everyone, this is okay (Political Process Model)

50
 2. In re Sealed Case (2002) – Federal Intelligence Surveillance Review Court relied on
special needs analysis in upholding NSA wiretaps even when foreign intelligence
gathering not primary purpose, but only a “significant” one
3. Standing to Challenge?
a. Clapper v. Amnesty International (2013) – only Ds who are prosecuted using
intercepted information and electronic service providers have standing to
challenge the statutes, not just human rights activists/lawyers based on
likelihood of interception of their personal communications
i. Threat was speculative, not “certainly impending”
xiv. NOT ALLOWED under special needs: Clinton Administration’s Tenement Sweep Program
1. Five-prong proposed policy in response to heightened crime in Chicago/deal with gang
shooting problems
a. Taking steps to get control of the lobbies; installation of guards and metal
detectors
b. Weapons sweeps of common areas of buildings, including mail boxes and
stairwells
c. Sweeps of vacant units
d. Sweeps where consent has been given, including consent as condition of lease by
vote
e. Exigent circumstances frisks and searches of apartments
2. Was struck down before could be implemented

Argument Ordinary CC Distinction Makes No Sense

Criteria:
1. No police
2. Facilitative motivation (primary) – deterrence
3. Suspicionless/no discretion/group-based
4. Primary focus civil violation  but not necessarily
5. Deterrence more important, not retribution

Special Needs – primary motivation not ordinary crime control

1. Suspicion-based search + seizure
a. TLO, Ortega
b. Slobogin – unless exigency, need second opinion; proportionality – how intrusive is the search? (TLO,
proportionality principle would require PC)
c. Stuntz – implicit bargaining
i. What power do students have to bargain? Ask for PC, get suspended; bathroom/hallway
monitors; students no longer want PC, want RS so government will back off
2. Suspicionless search + seizure
a. Camara, Biswell, Patel, roadblocks
b. Sundby – compelling interest and least restrictive alternative
c. Stuntz – political process
i. Populous will put stop to it through political process
ii. Policy must be even-handedly applied – otherwise, rich has political power vs. poor no power

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Interrogation
I. Miranda v. Arizona and 5A Approach
 Historically: exclusion was only meant to provide protection in heresy or political cases, reaction to
inquisitorial “oath ex officio.” Early approaches often turned on evidentiary principles (Hopt), disappeared as
courts relaxed their admissibility requirements. Exclude unreliable and admit reliable confessions, courts
sensitive about police misbehavior.
o Most interrogations during colonial times were in front of magistrate in open court, don’t really know
what framers would think about extra-judicial interrogations
o BEFORE very concerned with reliability, NOW, less concerned about reliability and more about police
misbehavior
 Outgrowth of SCOTUS’s dissatisfaction with DPC “totality of the circumstances” approach set forth in Brown
because too vague, case-by-case analysis too burdensome, permitted state courts to skew decisions by
“finding facts;” and dissatisfaction with 6A (Massiah) approach because only applies after criminal prosecution
and most interrogations occur before
o Brown v. MS (1936) – DP clause violated when confessions admitted, obtained after whipping and
threats of hanging; analyzed under totality of circumstances (nature of police conduct + characteristics
of accused) – even if reliable, still excluded for coercive tactics
o Massiah (1964) – police could not question indicted D unless counsel was present or had been waived
– Problem b/c 6A isn’t triggered until prosecution. Police interrogate beforehand
o Escobedo (1964) – right to counsel applied in some pre-indictment situations; when D becomes focus
of criminal investigation (but didn’t work)
 5A: “No person...shall be compelled in any criminal case to be a witness against himself”
 Miranda v. AZ (1966) (Warren): When an individual is taken into custody or otherwise deprived of his freedom
by the authorities in any way, he must be provided the following warnings. An individual can knowingly and
intelligently waive his rights, but burden is on prosecution.
o Right to remain silent
o Anything he says can and will be used against him in a court of law
o Right to presence of an attorney
o If he cannot afford one, one will be appointed
o Once suspect shows he intends to exercise 5A privilege, any statement taken after invoking privilege
cannot be other than product of compulsion, subtle or otherwise. If interrogation continues without an
attorney, burden rests on government to demonstrate that D knowingly and intelligently waived his
privilege against self-incrimination and right to retained or appointed counsel. Always high standards
of proof for waiver of C rights.
 Pros of Miranda:
o Bright line rule (but not really, lots of exceptions – when are you in custody/being interrogated?
Warnings given in bureaucratic way, police can work around the warnings)
o DP junkies: without warnings you are faced with a “cruel trilemma” where Silence = penalized (implies
guilt), confessing or lying (perjury)
 BUT only guilty people are subjected to this
o Limitation on police action – reminds both police and D of rights and proper procedure
o Lets people know that police think they are in custody
o Does not bar voluntary statements
 Cons of Miranda:
o Plain language of 5A does not authorize this. Miranda is impermissible judicial activism (Grano p. 387)
o A confession is not testimony, witnesses testify, 5A says nothing about confessions, only about
compelling person to testify at trial

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 o 5A had nothing to do with street crime, only about abusing political power, magistrate could use
person’s silence against them, application beyond political trial is misreading of history
o Does not seem that effective, people do not always understand the warnings and counsel might be
ineffective anyways – 80% people waive rights and talk
 But it reminds cops of D’s rights
o ANY statement excluded without warnings – goes far beyond scope of 5A protections
o Police might still violate Miranda and/or its spirit
 Impact of Miranda (p. 381): We are so willing to protect against coercion that we are willing to lose the
confession (and possibly conviction) if we do not believe that there was no coercion
o 80% people given warnings waive their rights
o 60% confession rate – does not seem very effective
o BUT probably has curtailed physical abuse and shortened duration of interrogation
o Miranda centered on idea that custody is inherently coercive (Grano disagrees)
 5A only excludes/protects against compelled testimony
o Schmerber: upheld admissibility of compelled blood test because nontestimonial
o Neville: Driver says to cop without slurring he won’t take breathalyzer, goal was to elicit
nontestimonial breath, not statement, don’t violate Miranda
 Muniz (drunk D, booking questions and birthday question): Whenever cops want content of speech, it is
testimonial; but if cops are only after the fact of speech itself or objective characteristics of speech (D
slurring), NOT testimonial
 Dionisio: D forced to give voice exemplar; content of voice nontestimonial

Interrogation Analysis
STEP ONE: Is the 5A implicated?
1. Custody? Miranda warnings are only triggered by custodial interrogation because custody is inherently
coercive. If no custody, only argument is DP.
a. Custody: Where the suspect has been deprived of his freedom in any way. Arrest or functional
equivalent of arrest.
i. Would a reasonable person have believed they were in custody? (Berkemer)
ii. Stansbury (1994) – subjective views of officer and person being questioned are irrelevant.
Custody is an objective inquiry.
b. Custody is NOT: general, on the scene questioning (Bailey)
c. NO CUSTODY
i. Mathiason (1977) – 25 days after a burglary, police left his card at M’s apartment asking him to
call because he had something to discuss. Asked where M wanted to meet, officer suggested
state patrol office. Went into office, closed door, told he was not under arrest but that
truthfulness would be considered and his fingerprints were at scene. M confessed within 5
minutes and was then advised of his rights. Told he could go and DA would decide if to press
charges.
1. Holding: Not in custody.
2. Prosecution: 5 minute detention, Royer (15 min. custody), Delgado (not in custody)
3. Defense: couldn’t feel like he could walk out of room, door shut, afraid he would be
back in prison if he didn’t cooperate, worried about violations of parole conditions,
particularly coercive situation given record, only 5 minutes because he confessed
immediately Royer, Dunaway
ii. Yarborough v. Alvarado (2004) – no custody when 17 yo suspect brought to station by his
parents and questioned for 2 hours by female officer while parents waited outside. Called a

53
 suspect, was asked if he wanted a break twice and was not told he could leave until after he
confessed.
d. NO CUSTODY if cops’ actions are similar to Terry stop: In public, brief
i. Berkemer v. McCarty (1984) – officer stopped car on suspicion of drunk driving. M failed
balancing test, officer asked him whether he had been drinking, M stated he had consumed 2
beers and smoked several joints of weed, speech slurred, M arrested. Not in custody prior to
arrest.
e. NO CUSTODY when police were not looking for D and he just happens to confess.
i. Bailey v. State (Ga. App. 1980) – officer approached someone he knew to get info about a
shooting. B confessed and showed officer the weapon.
1. Holding: Admissible, no Miranda warnings needed.
ii. MN v. Murphy (1984) – no custody when a probationer confessed to rape during a routine,
required meeting and then allowed to leave
f. Prisoners are less likely to be “in custody” than normal people
i. Howes v. Fields (2012) – no custody when suspect was escorted from his prison cell to an
interview room where 2 armed state officers questioned him for 5-7 hours in late night hours,
ignored his requests to stop the interview, did not allow him to take antidepressant and kidney
medications, and used profanity in telling him that if he did not cooperate he would have to go
back to his cell, but also told suspect several times he could leave when he wanted to, did not
physically restrain or threaten him, and allowed him to go back to his cell after interview
1. Prisoners are not shocked by fact of arrest, will not talk simply to obtain release, and
know questioners probably have no power over their disposition
g. NO CUSTODY without state action
i. City of Grand Rapids v. Impens (MI 1982) – Miranda not implicated where off-duty sheriff
working as security guard approached suspects and asked them to come to office where D
confessed to shoplifting. Encounter lasted 15 minutes. – No state action, State won because
guards are not state actors
1. Slobogin – might have been different if showed a police badge
h. Age matters for custody determination
i. J.D.B. (2011) – 13 year old taken from his class, closeted in room with 2 officers and 2 school
administrators, questioned for 30-45 minutes; case remanded to take into account D’s youth in
determining whether he was in custody
1. Dissent: Majority decision undermines Miranda’s goal of establishing bright-line rules
for police and that any difference in coercion experienced by immature suspects could
be taken into account under DP analysis
i. Less likely to be in custody if you are questioned in your home
i. Beckwith (1976) – no custody when 2 IRS agents “interviewed” B for 3 hours at his house at
8am
j. Likely Custody (Analogizing to Arrest Cases)
i. Dunaway: ARREST when police didn’t have enough PC for arrest but D consented to come to
station for questioning. Officers never said he was under arrest, never warned him not to flee,
did not display weapons, and did not put him in handcuffs. At station, D given Miranda and
interrogated.
1. Holding: D was arrested by time interrogation began; statements excluded
ii. Kaupp: ARREST when officers went to home of 17 y/o boy at 3am and told him “we need to go
and talk,” took him barefoot and in his underwear to station where he made incriminating
statements

54
 iii. Royer: ARREST when D stopped on basis of drug courier profile at airport; detectives took him
and luggage to large storage closet room 40 feet away. Under arrest when taken to room;
wouldn’t have been arrested if he had been questioned in open concourse.
k. Consider:
i. More likely to find custody if: D is at an unfamiliar place (like a stationhouse); multiple officers;
police restrict D’s actions (handcuffs, cannot go to bathroom unsupervised or use a phone);
placing D in back of squad car; held at gunpoint
ii. Less likely to find custody if: D is in familiar place, like home; D’s told he is not under arrest; D
initiates contact with police (comes to station); police indicate detainment/convo will only be
temporary; on the scene questioning
2. Interrogation?
a. Interrogation: coercion above and beyond that inherent in custody itself; trickery is NOT coercive
b. Innis (1980): After arresting suspect and reading him his Miranda rights, suspect invoked his right to
counsel. On way to police station, officers (3) remarked that it was a shame they couldn’t find the
weapon because they didn’t want kids to find it. The suspect then volunteered to show them where
the gun was.
i. Holding (Stewart): No interrogation.
ii. Interrogation refers to express questioning AND any words or actions on the part of the police
that the police should have known would reasonably be likely to elicit an incriminating
response
iii. Interrogation only extends to words or actions that a reasonable officer should have known
were reasonably likely to induce/elicit an incriminating response from suspect
1. FN8: Knowledge that police officer has about unusual susceptibility of defendant might
be important (some subjectivity)
2. FN7: Test is NOT whether action was designed to elicit incriminating info, BUT if test was
designed to do so, it is likely that it will be an action that police should have known it
was reasonably likely to elicit incriminating info
iv. Dissent (Stevens): Test should be if statement or conduct designed to elicit incriminating
response; these were.
c. Trickery is not coercive, therefore trickery is not interrogation
i. Innis: Didn’t matter that cops made emotionally charged statements
d. Talking to family members does NOT add to coercion beyond that inherent in custody itself
i. Mauro (1987): After defendant requested an attorney, the police taped a conversation that
took place with his wife. Wife insisted on talking to husband despite detective’s suggestion not
to; allowed wife to speak to husband only if officer in room. D made rational statements,
couldn’t make insanity plea. Held: No interrogation and no state action
e. Miranda is NOT implicated by undercover agents. Trickery is okay as long as formal charges have not
been initiated.
i. Perkins (1990): Police placed 2 undercover agents in P’s cell to find out if he had committed an
unrelated murder. While planning escape together, one of undercover cops asked P if he had
every “done” anybody, and P described the murder.
1. Held: No violation of Miranda, but use of deception might have violated DP. No
custodial interrogation.
2. Didn’t know he was an officer  trickery but no coercion
STEP TWO: If 5A implicated, did warnings need to be given?
1. De minimus variation?
a. Warnings do not have to be given exactly as set out in Miranda; can be replaced by procedures “fully
as effective” as the warnings (Miranda)

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 b. Prysock (1981): Cop told parents and juvenile in roundabout way of their right to counsel; mom initially
confused about whether she had to pay for attorney.
i. Defense: Said “represent,” could mean only represent at trial.
ii. Holding: Fully effective equivalent of the warnings was given, including 4 th warning.
c. Eagan (1989): E made admissions after signing form that read “We have no way of giving you a lawyer,
but one will be appointed for you, if you wish, if and when you go to court.”
i. Defense: Innuendo, only get lawyer if you go to trial
ii. Holding: Fully effective equivalent of warning.
d. Warnings do not have to be clearest formulation possible.
i. Powell (2009): Despite admitting the warnings were NOT clearest possible formulation of
Miranda, SCOTUS upheld statement of rights that ended with statement that suspect had “the
right to use any of these rights at any time you want during the interview” and right to counsel
“before” questioning
e. Remember – don’t have to give right to cut off questioning
2. Public safety exception? Police officers may ask questions without giving Miranda warnings when reasonably
prompted by concern for public safety
a. Quarles (1984): While chasing down an armed suspect in supermarket, officer handcuffed and asked
where gun was before Mirandizing.
i. Holding (Rehnquist): Threat to public safety outweighs the “prophylactic rule protecting 5A’s
privilege against self incrimination.” Exigency justifies the exception.
ii. Introduces balancing exception. Implies that we are not SO worried about coercion that we are
willing to lose BOTH a confession and subject the public to danger.
1. Miranda: Protection against coercion > lost confession
2. Quarles: Protection against coercion < lost confession + threat to public
3. Muniz: Protection against coercion < lost confession + booking info
4. If we do this balancing, what other exceptions? Public safety could be extremely broad.
iii. In FN5 says that testimony might still be excluded if DPC violated (physical beatings)
b. Scope of public safety exception unclear, but lower courts have interpreted it fairly expansively
i. Brady (9th Cir. 1987): Police investigating a report that a man had been beating a woman.
Stopped car after witness identified him. Officer ordered B out of car, frisked him. Officer said
he was concerned because the area was a rough neighborhood and he saw a suspected gang
member carrying a knife in the crowd. Asked B if he could search the trunk, B answered
ambiguously. Asked if there was gun in trunk, B said yes.
1. Holding: PS exception applied. Apparently danger to PS does not have to be imminent,
just needs to be implicated.
2. Runs counter to Belton’s bar on searching the trunk, but might be okay under Gant (RS
to believe evidence of arrest in trunk)
3. Booking exception? Booking info, such as name, physical characteristics are important to obtain and
nontestimonial, so do not need to Mirandize before booking procedures. Everyone who comes to station
house gets asked these questions, minimized coercion
a. Muniz (1990): M brought into stationhouse on suspicion that he was drunk driving. Booking questions
were admissible, slurring and lack of coordination were non-testimonial. Drunk comments made during
sobriety test were not prompted by interrogation, so admissible. But, question about his 6 th birthday
was testimonial because the government used it for content.
b. Cf. Neville v. SD, refusing breathalyzer and using breath will be used against you b/c nontestimonial,
but cannot coerce blood test
4. Nontestimonial evidence?
a. Rationale: 5A only prohibits compelled testimony.

56
 b. O’Connor said that Miranda requires exclusion of verbal statements, but a gun is nontestimonial
(dissent in Quarles)
c. Patane: Held that physical evidence that results from violation of Miranda is NOT excluded under fruit
of poisonous tree analysis based on nontestimonial rationale (if fruit of Miranda violation is physical
evidence, NOT excluded, see Exclusionary Rule)
d. Knapp: Court cited Patane in vacating lower court judgment in case where physical evidence was
discovered by police who did not warn suspect in deliberate effort to obtain evidence, no bad faith
exception
e. Muniz: Admitted D’s statement “I’m dizzy” because no compulsion, slurring nontestimonial, but wrong
answer to when was your 6th birthday excluded because it involved content of speech

STEP THREE: If warnings were given, was there a valid waiver? Miranda made clear that waiver in absence
of warnings is presumptively invalid. Waiver must be KNOWING and INTELLIGENT (Miranda) and VOLUNTARY (DPC)
o Fare (1979): When a warned suspect does not invoke his right to counsel, the standard for determining
whether subsequent statements are admissible depends on the totality of the circumstances
1. Invocation of right to counsel during interrogation? If not, go to 3(c)
a. Invocation of rights must be CLEAR AND UNEQUIVOCAL
b. Davis (1994): Ds must articulate desire for counsel sufficiently clear so that a reasonable officer in the
circumstances would understand the statement as a request for an attorney. Police do not need to ask
clarifying questions when a request is ambiguous.
c. Invocation:
i. Smith (1984): “Uh yeah. I’d like to do that” in response to “You have right to consult with a
lawyer”
d. NO Invocation:
i. Of attorney:
1. Davis (1994): “Maybe I should have a lawyer”
2. Kendricks (1984): “I think I might need a lawyer” is ambiguous
3. Fare (1979): request for probation officer is not invocation because probation officer not
legally trained
a. Asking for minister probably not invocation
4. Barret (1987): If suspect says he is not willing to make a written statement without
counsel but will make an oral statement without a lawyer, admissible
5. McNeil (1991): Questions by judge during arraignment regarding whether a suspect
wants a lawyer does NOT trigger Edwards/qualify as invocation
ii. Of silence:
1. Berghuis v. Thompkins (2010): Suspect must unambiguously assert right to silence to
stop interrogation
2. If there was invocation, initiation by suspect? If so, go to 3(c)
a. Edwards (1981): When D invokes his rights, interrogation must stop (avoid police badgering of
suspects). BUT interrogation can continue if D reinitiates contact with police. Three step analysis:
i. (1) Was the right to counsel invoked?
ii. (2) If yes, who initiated the contact after invocation – the police or the suspect?
iii. (3) If the suspect initiated, did the suspect relinquish her rights?
iv. Any statements made after initiation must be voluntary – no negotiation techniques
b. Minnick (1990): If right to counsel is invoked and D does not initiate new contact with police, D is
entitled to counsel during interrogation, not just prior to it.
c. If D invokes right to attorney, police can re-initiate contact if there is a “break in custody”

57
 i. Shatzer (2010): There is break in custody when suspect returns to her normal life – that lasts 2
weeks or longer after invocation. Such a break can also occur even in prison if suspect returned
to general population
ii. BUT 3 days is NOT enough
1. Roberson (1988): R arrested on scene of just completed burglary and said he wanted a
lawyer. 3 days later, while in jail another officer (who did not know R had invoked his
right) interrogated R and obtained incriminating statement about burglary. Not
admissible. Didn’t invoke right to counsel time, but doesn’t matter; invocation applies
to interrogation in vicinity of crimes
d. Once Edwards applies, it does not take much for D to re-initiate: But not asking for drink of water
i. Bradshaw (1983): After being arrested for selling liquor to a minor, B said he wanted an
attorney “before this goes much further.” Officer immediately stopped questioning him. A few
minutes later, B asked what was going to happen to him. Officer said he did not want B talking
unless he wanted to do so without attorney he requested. B said he understood and they
discussed where B was going and what chargers were. Officer then suggested B take a
polygraph to help himself; B said he was willing to do anything to clear up the matter. Next day
he received warnings again, signed waiver and took test. Examiner told B he did not believe
him, and B admitted he was the driver.
1. Holding: B initiated contact and his subsequent statements were voluntary.
2. Prosecution: No unequivocal invocation in first place; if did invoke, B initiated, this is
different than asking for drink of water
3. Defense: Didn’t give another set of warnings between polygraph and questioning
ii. Wyrick (1982): A post-warning agreement to undergo a polygraph test also authorized non-
coercive questioning immediately after test, with no additional warnings required
e. Edwards does NOT apply if D only invokes his right to silence
i. Mosley (1975): D invoked his right to silence about robberies. Two hours later, a different
officer confronted him about an unrelated murder, gave him a second set of warnings, and
elicited incriminating statements about the murder.
1. Holding: Police had “scrupulously honored” D’s right to cut off questioning
2. Slobogin: Police “scrupulously honor” a D’s right to remain silent by waiting a period of
time and re-warning the suspect (Suspect is not saying they can’t go at it alone – as with
right to counsel – so police do not have to give up entirely)
ii. Moran v. Burbine (1986): B arrested and arraigned on burglary charges. Police soon he realized
he was implicated in highly publicized, brutal murder. Detective went to B, informed him of his
rights and B refused to sign a waiver (invoked his right to silence). Unknown to B, his sister got
him a PD. That night police received a phone call from PD, lied and said they would not be
questioning him for five hours. Detectives began interrogation of B after informing him of his
right; B confessed to murder.
1. Holding: Waiver voluntary, and police behavior did not “shock the conscience.” B never
invoked right to counsel so Mosley, not Edwards, governs.
2. Difference between this and Mosley – SAME officers questioning him, but different
crime
3. No DP violation because not asking crimes he was formally charged with – did not
violate DPC lying about attorney b/c did not shock the conscience
iii. Undecided: If after D invokes right to silence, can police reinitiate about same crime?
3. Was waiver voluntary in totality of the circumstances? DP Analysis, also see 5(a) (Fare)
a. If only right to silence was invoked, police must scrupulously honor that right (Mosley)
b. Tague (1980): Waiver is not established merely by showing the D was given Miranda warnings and
thereafter made incriminating statements
58
 i. Need some indication that D understood his rights, unclear what would satisfy this
c. Valid Waiver: It does not matter if D did not fully understand his rights
i. Butler (1979): After FBI arrested B and read him his rights, they took him to stationhouse and
determined he had 11th grade education, could read, and read Bureau’s Advice of Rights form.
He said he understood his rights, but refused to sign the waiver. Said he would speak to agents
but not sign anything.
1. Holding: Waived.
2. Stuntz: Because he did not think he was confessing, no confession or perjury dilemma
3. White: Deception that distorts meaning of Miranda warnings
4. Defense: Not knowingly, voluntarily and intelligently waived, thought if he didn’t sign
oral statements couldn’t be used against him
5. Prosecution: D misunderstood, distorted it himself
6. Defense: Police should have rectified confusion
ii. Police do NOT need to inform D of the entire anticipated subject matter of the interrogation
1. Spring (1987): D arrested only for stolen firearms and waived Miranda. Agents asked
him if he had ever shot anyone and he made incriminating statements about murder.
Held: Valid waiver.
iii. “Implicit” Waiver: Police gave warnings, D understood the warnings and answered the
questions without having unequivocally invoked his rights.
1. Must affirmatively invoke right to remain silent
2. Berghuis (2010): Suspect received and understood his warnings, indicated no desire to
talk, said virtually nothing during 3 hour interview and made only one incriminating
statement (“yes” answer to question asked 2 hours and 45 min into interview about
whether he has asked God to forgive him for his crime).
a. Holding: Implicit waiver occurred.
3. Consider:
a. 45% suspects given warnings mistakenly believe that oral statements cannot be
used against them
b. In effect, this reverses the burden on police that Miranda sought to establish
d. SCOTUS has not addressed whether officers need to inform suspects they have right to cut off
questioning
e. Doyle (1976): D’s post-warning silence cannot be used against him at trial but SCOTUS did not address
need for an associated warning
i. BUT, if not in custody, silence can be used against him
1. Salinas (2013): D not in custody but was asked questions for about an hour. When asked
if his shotgun would match shells found at crimes cene, he looked down at floor and
remained silent
2. Holding (3): Silence could be used against him because he did not formally invoke 5A or
explain why he wanted to remain silent; (2) concurred with result on ground that silence
– whether or not invoked as right – may always be used against Ds as C matter
3. Dissent: Pre-custodial use of silence should be prohibited if one can infer from
surrounding circumstances exercise of 5A privilege
f. “Evidence that the accused was threatened, tricked, or cajoled into a waiver will show D did not
voluntarily waive his privilege” (Miranda) – certain amount of trickery permissible, but what is that
line?
i. Reid Techniques: About 50% of officers who conduct interrogations have been instructed in the
“Reid techniques,” which involve both minimization (rationalization + impersonation) and
maximization (fabrication + negotiation) tactics.

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  Most courts have held that police can use these techniques. (Miller v. Fenton, 3rd Cir.
1986). Techniques include:
 Attempting to show sympathy by telling D that anyone would have done the
same thing
 Reduce feelings of guilt by minimizing the seriousness of the offense
 Condemning others for the crime
 Flattery
 Exaggerating the crime in hopes of obtaining a denial that indirectly implicates D
 Noting the benefits of telling the truth
 Pointing out futility of not talking (by point out enough evidence already exists to
convict D)
 Playing co-defendants against e/o
 Hard to classify negotiation techniques as coercive b/c true! FN4 p. 421
ii. Commentators:
 Stuntz: Primary goal of privilege against self-incrimination is to avoid the “confession-or-
perjury” dilemma. Important that D’s have a third option/ “safe harbor”—5th
Amendment only protects against compulsion.
 Slobo: Court’s don’t explicitly acknowledge but seem to agree w/ Stuntz
 Forcible Tactics: Not okay because convince D he no right to remain silent, so D
has no choice but to confess or lie
 Deception Tactics: Allowed under S’s regime. Avoids C-P dilemma by either
convincing the suspect that truthful statements will not have incriminating
consequences or make him forget temporarily that they will.
 White: NOT THE LAW. More concerned about police use of deception, so suggests per
se rules that forbid certain tactics such as:
 Deception that distorts the meaning of Miranda warnings
 Deception that distorts the seriousness of the matter under investigation
 "A pretended friend is worse"
 Repeated assurances that the suspect is known to be guilty
 False Confessions?:
o Research indicates that almost all false confessions have occurred in lengthy
interrogations (over 6 hours) or when subject is particularly vulnerable (young,
mentally disabled etc.) Welsh. S. White
o Kassin & Wrightsman: Two dynamics are likely to produce false confessions:
 “Coerced Compliant” where suspect believes confessing is the only way to
escape a stressful situation
 “Coerced Internalized” where an innocent person temporarily internalizes
the police message of guilt
COERCIVE/IMPERMISSIBLE NOT COERCIVE/PERMISSIBLE TRICKERY
NEGOTIATION: Maximization, if cops mention things RATIONALIZATION: minimization, Miller, “It
will go better for you if you confess could’ve been an accident,”
o White: Deception that distorts seriousness of
matter under investigation
o Stuntz: Maybe confusing, but not saying if
you confess you’re going to get off
IMPERSONATION: Minimization, pretended friend
o White: not permissible
o Stuntz: confession or perjury dilemma not
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 here, D feels comfortable, no coercion
FABRICATION: Maximization, fake evidence, victim
may have just died, not coercive because if it’s true
it’s not coercive, being false doesn’t add to coercion,
some courts have said too far (Xerox), but lying
about scene of crime not coercion

STEP FOUR: If answer is no to any of first three questions, was the 6A implicated?
Massiah (1964): Decided 2 years before Miranda and never overruled. M arrested and indicted for possession of
cocaine; police wired friend and got incriminating statements on him. Held: M was denied basic protection of right to
counsel at critical stage (between indictment and trial). Thus, prosecution could not use incriminating statements
against M at trial.

Difference between 5A and 6A, TRICKERY IS NOT PERMITTED UNDER 6A. Also, D does not have to be in custody for
6A to attach. (Fellers)
 Rationale for maintain a separate 6A right:
o Tomkovicz: Would be like bugging D attorney’s office; inserting undercover into attorney-client
relationship. American criminal justice system is adversarial. Allowing products of “indirect and
stealthy” approaches during “pre-trial skirmishes” to come in at trial undermines adversarial nature.
Without right to counsel, state can build its case on deception.
o Uviller: Rejects idea that purpose of C is to even out the “inherent balance” of the criminal justice
system. Thinks 6A/Massiah decision is dumb. Hard to imagine lawyers enhancing fairness in
interrogations, no coercion and police could not use perfectly good confession of someone who was
GUILTY. Crime control crusader approach.
1. At the time of questioning, had prosecution commenced for the crime in question?
a. Formal charges, arraignment, first appearance, PC hearing, indictment, preliminary hearing (Brewer v.
Williams)
i. Arraignment is usually first but can take place as late as 48-72 hours after arrest
ii. 6A does NOT reach as far back in criminal process as 5A; problem because most interrogations
happen BEFORE criminal prosecutions begin
b. Kirby (1972): Right to counsel does not exist at PRE-INDICTMENT lineup. 6A only implicated when
“adverse positions of the government and D have solidified” and D is faced with “prosecutorial forces”
c. Rothgery (2008): 6A triggered by arrested person’s initial appearance in front of a judicial officer, even
if no prosecutor involved and charges are later modified
d. As long as criminal prosecution has begun, 6A is triggered. D does NOT have to be in custody but still
need interrogation
e. BUT: only applies to the SPECIFIC OFFENSE for which D was formally charged
i. Moulton (1985): M and C indicted on 4 counts of receiving stolen property; bugged C, got M to
reveal self-incriminating details about stolen property, thefts that led to the property and other
crimes he committed.
1. Holding: M’s statements NOT admissible at trial on 4 stolen property counts, but other
statements would be admissible if M was prosecuted on witness tampering or other
charges.
2. Defense: Stolen property = theft, need identical crime
ii. Cobb (2001) 15 months after D was indicted for burglarizing neighbor’s home and invoked his
right to counsel on that charge, he confessed to killing the woman and child who lived there.
1. Holding: Invocation of counsel did not prevent interrogation on murder charge because
they were not the same offense as the burglary.
a. Rejected “inextricably intertwined” argument
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 2. If so, was there deliberate elicitation (with or w/o warnings), like re-initiation? If yes, go to 4(c)
a. Think of deliberate elicitation as “interrogation” under 5A
b. Henry (1980): Deliberate elicitation occurs when officers intentionally create a situation likely to
induce incriminating statements without assistance of counsel (vs. 5A Innis, words or actions that
police should know are reasonably likely to elicit an incriminating response from the suspect)
i. Deliberate elicitation where cellmate initiated conversation and was paid for giving info to cops
c. Wilson v. Kuhlman (1986): After being formally charged, W was placed in cell with police informant.
Informant instructed NOT to ask W about crimes but keep his ears open. W made spontaneous
admissions about the crimes.
i. Holding: NO violation of Massiah.
ii. Distinguish from Henry? Paid
d. Put cell overlooking crime scene  like family members case, not police that triggered statements
e. Fellers (2004): Police politely conversed with indicted D without Miranda warnings for about 15
minutes. Held: Even though not in custody, statements excluded because 6A triggered.
3. Was there a valid waiver? Same as 5A valid waiver, except trickery not permitted.
a. 6A applies even in absence of coercion. If undercover agent deliberately elicits info from D once
criminal prosecution has begun, 6A has been violated because no knowing, intelligent waiver
b. Patterson (1988): Waiver of 6A identical to 5A waiver in a NON-COVERT situation – need to explicitly
invoke or risk waiving it
c. A suspect subjected to post-accusation questioning who receives Miranda warnings and who then
makes statements under circumstances indicating a valid waiver under Miranda has also validly waived
6A right to counsel
d. Edwards rule allowing waiver by Ds who initiate post-invocation contact applies to formally charged Ds
as well
i. 1. Formal charging
ii. 2. D initiates
iii. 3. Voluntarily made?
e. Montejo (2009): D must request counsel at interrogation, not arraignment to invoke 6A (cf. McNeil),
thus a request for counsel at arraignment, as opposed to during interrogation, is irrelevant to 6A
analysis of any ensuing interrogation
f. Brewer v. Williams (1977): Christian burial speech. 6A violated when D, mental patient directed cop to
where victim’s shoes and blanket were on 160 mile car ride after D gave him “Christian Burial speech”
because D had been arraigned.
i. Prosecution: Not questioning (Innis), playing on sympathy
ii. Defense: If Edwards triggered, cannot question unless D initiates it
iii. Prosecution: Saying will go by body is initiation, many minutes elapsed after Christian burial
speech
iv. If re-initiation, was waiver voluntary, given D’s mental state?
1. Playing on morality not vulnerability
2. Escaped from mental hospital, detective knew
3. Used beliefs in religion – special vulnerability
STEP FIVE: If 5A or 6A was violated, should any evidence derived from confession be excluded?
1. Was the confession obtained by means meant to break the suspect’s will (DP violation)? If so, evidence is
probably inadmissible.
a. DPC is violated when police use physical violence or other deliberate means calculated to break the
suspect’s will (Elstad)  totality of circumstances
b. Most relevant to admissions that were not made during custodial interrogation or after formal
charging
c. DPC Violated:
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 i. Physical beatings (Brown, 1936)
ii. Fulminante (1991): D was incarcerated on weapons charge but suspected of murdering his
stepdaughter. D had small statute and had previously asked for protective custody in prison.
Police informant threatened D that he would not protect him from other prisoners unless D
confessed to murdering his stepdaughter.
1. Holding: Close call but violated DPC.
2. 5A not implicated, no custodial interrogation, 6A not implicated because had not been
charged for molestation/murder yet
d. DPC Not Violated:
i. Unless police take advantage of mental incapacity, no DP/5A concerns, no coercion
1. But what about reliability? 5A and DP only prohibit coercion, says nothing about
reliability
ii. No state action: State must CAUSE the statement
1. Connelly (1986): DPC not violated and statements admissible when D was a schizo who
approached police and spontaneously confessed to murder. D suffered from
hallucinations and said voices had told him to confess. Cops did nothing to break
suspect’s will or compel the statements.
e. DPC Analysis focuses not only on what police did, but on vulnerabilities of D
i. Prof. Grano: Only significant vulnerabilities should be considered in DPC analysis
1. Rationale: Don’t want D to be able to feign the vulnerability. Should only consider what
a cop would clearly know from looking at suspect.
2. Proposes that DPC violated if a “person of ordinary firmness” (1) committed to not
confessing, (2) regardless of innocence or guilt, and (3) taking into account age, physical
condition, and relevant mental abnormalities (but not personality traits, temperament,
intelligence, or social background) would find interrogation techniques overbearing
3. Slobogin: Court doesn’t explicitly acknowledge it, but seems to agree with Grano
2. If not, the evidence is probably admissible unless the fruit is a confession and the violation of interrogation
rights was for the express purpose of obtaining the evidence.
a. NOTE: Even the illegally obtained confession itself is admissible for impeachment purposes, unless the
illegality was a DP violation, as in (1)

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 Identification Procedures
I. Identification Procedures: Encompasses investigative techniques that attempt to match physical
characteristics of a suspect with those of the perpetrator of a crime.
o Scientific: Comparing a person’s fingerprints, hair, blood or handwriting
o Eyewitnesses: Rely entirely on perception and recall of eyewitnesses through lineups, show-ups,
photographic displays.
 Even when there is strong evidence of innocence, juries are often swayed by eyewitness testimony
 Show-ups are most suggestive, because the only person seen by eyewitness is the suspect. But,
immediacy can sometimes offset suggestive features.
o In-court identifications are particularly prone to inaccuracy.
 Photo array is more likely than a lineup to produce misidentifications, because photos do not
show lots of details (e.g. height), and are usually mug shots, which suggest criminal culpability.
 Sequential photo show-ups are most reliable, because they avoid making witnesses use a
process of elimination.
 Across studies, 46% of witnesses chose the perpetrator correctly, 33% declined to chose and 21%
chose innocent foils.
 Some states do not allow testimony describing the “foibles” of eyewitness identification. Unclear
whether this actually helps.
 To reduce ID inaccuracy, the law can try to prevent police practices that supply what perception and
memory cannot (See checklist on p. 482–83)
o Psychological and Research: 3 Issues: Perception, Memory, Retrieval
 Perception of the Original Event:
 Perceptual Selectivity: Failure to observe details of an event, especially those that assume great
significance; the human brain can perceive only a limited number of simultaneous stimuli in the
environment at any time
 Time Perception: People overestimate length of an event when stressed
 Poor Observation Conditions: Crimes in which the primary evidence is an eye-witness are
generally brief, fast-moving events, bad lighting, far distances and distracting noises also have an
impact
 Stressful Situation: Perceptual ability decreases significantly in anxiety-producing situations
 Expectancy: Witnesses unconsciously reconstruct what has occurred from what they assume
must have occurred; a tendency to perceive the expected
 Personal Needs and Biases: Witnesses see what they want to see
 Cross Racial Identification: People are worse at identifying people from a different race
 Weapons focus*: More likely to focus on guns than face
 Encoding and Storage in Memory:
 Memory Decay Over Time: The more time that elapses, the poorer a person’s memory is of the
event
 Filling Gaps in Memory: Memory is an active constructive process that often introduces
inaccuracies by adding details not present in the initial representation or in the event itself.
o Difficult for witnesses to distinguish what they initially saw from what they learn later
o Need to eliminate inconsistencies, unconsciously change mental representations so that
it all “makes sense”
 False feelings of confidence: Confidence is often negatively correlated to accuracy; troubling that
a witness’s confidence often grows over time (as memory gets worse)
 Retrieval of Information from Memory:

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  Inadequacy of Information from Memory: Inadequacy of verbal descriptions to convey physical
appearance of offender; inverse relationship between accuracy and completeness of a
description
 Suggestion in the composition of an identification test: Lineups seen as multiple choice
recognition tests, with the implicit suggestion that the criminal is included in the lineup; problem
that witnesses tend to look at the photo array before the lineup (photographs are particularly
dangerous!)
 Suggestion in the administration of an identification test: Police may make subtle, or not so
subtle, indications to the witness as to which person is the “correct” choice.
 Social psychological influences: Witnesses want to be correct and avoid looking silly; want to find
a target for their feelings of hostility; motivated to behave like those around them (i.e. why a
second witness might confirm)
o Techniques for Reducing Identification Inaccuracy:
 Avoid witness exposure to identifying information about suspect before a lineup
 Conduct lineup ASAP
 Ensure fillers match the witness’s description of the perp. and are not noticeably different
 Inform witness that administrator does not know suspect’s identity
 Inform witness perp. may not be in the lineup
 Require witness to follow recognition with a confidence statement
 Measuring and recording how long it took for witness to announce recognition
 Presenting targets sequentially
II. Due Process Restrictions on ID Procedures: SCOTUS has held that DPC imposes some loose restriction on
conduct of identification procedures. Reliability is lynchpin of 5A DPC.
o Rule: A completely suggestive and unnecessary procedure is okay under DPC as long as the 5 factors
from Manson indicate that it is reliable.
1. Opportunity of witness to view the criminal at the time of the crime
2. Witnesses’ degree of attention
3. Accuracy of his prior description of the criminal
4. Level of certainty demonstrated at the confrontation
5. Time between crime and confrontation
o Stovall (1967): Court held it was reasonable to take S handcuffed to hospital so stabbed witness could
identify him. Even though he could have used photo array, cops said this ok. Suggestive ID procedures
permissible only if necessary under Totality of Circumstances.
o Neil v. Biggers (1972): Court emphasized that it is the likelihood of misidentification that violates D’s
right to DP, suggesting that even an unnecessarily suggestive ID procedure would not violate DP if
Totality of Circumstance made ID seem reliable
 Nighttime rape, victim twisted to ground, perp had knife, daughter came in and screamed,
dragged for 2 blocks at knifepoint to woods and raped; full moon; incident lasted 15-30
minutes. Victim initially gave vague description. 8 months without a positive ID despite many
lineups. Police did show up with D; he was in handcuffs and arrested for another crime. Victim
identified him. At trial she said she had “no doubt” D was perp. Held: Victim’s out of court ID
was admissible.
o Manson v. Brathwaite (1977): Undercover cop and informant went to door of apartment to buy drugs.
Man opened door 12-18 inches, door opened and closed 2 times. Woman also at door. Natural light,
but twilight. 2-3 minutes elapsed. Cop drove to station, described man to other cops, another cop
thought description matched D. Placed D’s photo on cop’s desk. 2 days later, cop looked at photo,
identified D as man at apartment 3 months later, D arrested. Cop made in-court ID during trial. No

65
 photo array or lineup done. Informant gave conflicting description of man at apartment, was high at
time.
 Holding (Blackmun): Despite fact that process was unnecessarily suggestive (could have easily
done a line-up/photo array), did NOT violate DPC because ID was reliable.
III. Right to Counsel-6ARegulation of Identification Procedures
o Crews: Even if out-of-court ID is excluded, subsequent in-court ID by the same witness is still admissible.
o Old standard: Wade (1967): Accused is entitled to counsel at a lineup procedure (but not at a scientific
procedure) because it is a “critical stage” at which the “vagaries of eyewitness identifications are well-
known.” D’s counsel must be notified and present absent an “intelligent waiver.”
 Critical stage requires a two-fold inquiry:
 Does significant prejudice result from this stage?
 Can this prejudice be alleviated by counsel?
o Moore (1977): Established a right to counsel at pre-trial show-ups
 BUT: Limited to identification proceedings that take place AFTER adversarial proceedings have been
initiated by formal charge/another mechanism. Kirby (1972)
o Ash (1973): Right to counsel does NOT apply at all to photo-arrays. Rationale: Unlike lineups (where
prosecuting authorities can take advantage of the accused), accused are not present during photographic
display. Establish “trial like confrontation” test, emphasizing the importance of allowing prosecutors to
strike hard blows (not necessarily fair ones). Likely overruled Wade
 Dissent: Who is going to report irregular procedures? Fundamental premise underlying all the Court’s
decisions holding the right to counsel applicable at “critical” pre-trial proceedings is that a stage is
critical if the presence of counsel is necessary to protect the fairness of the trial itself.
o McMillan (Wisc. 1978): State did not violate 6th Am. when it showed an eye-witness (post-charge) a video-
audio tape of a lineup, w/o notifying the defendant or defense counsel.
o Bierey (8th Cir. 1978): At a lineup (8 months later) B was the shortest of the five and the distractor who most
closely resembled B had facial hair, unlike B. B’s counsel at lineup was not allowed to interview witnesses
before lineup or review their descriptions of the robbers prior to the lineup. Counsel just has to be present,
does not really have to do anything.

IV. Fourth and Fifth Amendment Concerns: Primary issue is when can the government force an individual to
participate in such a procedure.
o Dionisio (1973) Grand jury subpoenaed 20 ppl to obtain voice identification. Even though D was allowed to
have an attorney present, he refused to read. Held: Neither fifth or fourth amendment was violated. No right
to counsel b/c not at a critical stage
o Hayes (1985): Police had no specific evidence against H, went to his house w/o a warrant to get his
fingerprints. Told him they would arrest him if he did not go with them, so he agreed and fingerprints
matched. Held: Fingerprints were NOT admissible.
 White’s Dicta: Strongly suggest that decision did not prohibit a brief field detention for fingerprinting
where there was only RS (Brennan and Marshall disagreed) OR bar judiciary from authorizing the
seizure of a person on less than PC and taking him to station for fingerprinting.
 But see: Davis (1969): Held that defendant who, along with “scores” of other people, was detained
and fingerprinted w/o a warrant during a rape investigation was unconstitutionally seized.
The Exclusionary Rule – would exclusion in this case deter the police?
History: Rationale and Alternatives
SCOTUS is moving away from exclusionary rule. If and when they overturn Mapp, we are left with no argument for
exclusion under the 5A and only a very weak/limited application under the 4A. (Weeks, Rochin)
1. Boyd (1886): Exclusionary rule based on both 4A and 5A. This linkage no longer tenable.

66
 a. 5A justification no longer valid: see Fisher and Andresen – compelling act of production of evidence not
incriminating, no protection for nontestimonial evidence
b. Majority of seized evidence is nontestimonial: fruits, contraband, instruments
2. Weeks (1914): Exclusionary rule based on 4A. Exclusion only appropriate where D has superior property
interest in evidence than police; in Weeks, evidence was papers
a. Weeks’ reasoning does not exclude most seized evidence; no property interest in fruits or contraband,
and no superior interest in instrumentality because forfeited property interest when used it in crime
(connection to forfeiture statutes)
3. Wolf (1949) (overturned) – exclusionary rule based on courts’ ability to supervise fed courts, applied in all FED
cases but not incorporated into states
4. Rochin (1954): Exclusion incorporate to states only when police action “shocks the conscience.” Drugs
suppressed when D forced to take emetic to get drugs out of stomach. Based on DP, maybe could be new
rationale if Mapp overruled.
5. Mapp v. Ohio (1961): Overturned Wolf. Incorporated exclusionary rule into states. M was convicted of
possessing “lewd and lascivious” books and pictures. Officers arrived at her house after receiving a tip that
someone was hiding out in the home who was wanted for questioning. M lived on the top floor and first told
them to get a warrant. Came back three hours later w/ more officers and forcibly entered the home when she
did not answer right away. M’s attorney had arrived but officers would not let him in. Officers pretended to
have a warrant, M took it and then struggled with officers until she was handcuffed. Officers then searched
the house and found obscene materials. Applied ER to states b/c
a. Trend towards exclusion (26 states)
b. Need for uniformity among states
i. But states should be laboratories!
c. Exclusion does NOT unduly hinder law enforcement (point to FBI as a model)
i. Counter: FBI are not typical police/investigating typical crimes, generally engaged in long
investigations, white collar crime
d. Imperative to maintain judicial integrity (avoid “unclean hands”)
i. Counter: Hurts judiciary’s reputation to let guilty people go free, other countries apply
balancing tests instead
e. KEY: No other effective way to enforce the 4th Amendment!
i. Other remedies are futile. MAIN RATIONALE IS DETERRENCE
6. Constitutional Status of Exclusionary Rule:
a. ER is a “judicially-created remedy designed to safeguard 4A rights generally through its deterrent
effect, rather than personal C rights of the party aggrieved” (Calandra)
b. Loewy:
i. 5A and 6A rights are procedural rights afforded to accused and are violated whenever illegally
obtained evidence is used to convict so exclusion is always mandated
ii. 4A rights are substantive rights applicable to everyone, so exclusion should only occur if
necessary to deter abuses of evidence-gathering process
7. Impact of the Rule:
a. Prof. Oaks: ER does NOT deter police
i. Police can avoid the rule by making sure much of their conduct never leads to prosecution; do
not fear detection (code of silence and police willingness to lie); exclusion primarily penalizes
the prosecutor—not the cop; unlikely to instill moral obligation to follow the law; self-
protection by police will not be deterred by rule; poor channels of communication between
courts and cops; any rule announced is unclear; peer and department norms of behavior are
more powerful than judicial norms
b. BUT subsequent research has suggested the rule has some impact. Prof. Kamisar found that since
Mapp, PDs have been much more diligent in instituting training programs concerning C law
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 c. Prof. Lowenthal: Since rule has become functionally identified with Fourth Amm., removal of the rule
could be interpreted as “implicit condoning” of violations.
i. “Lost Convictions”- primary cost identified with ER
1. Between .4% and 2.35% of all criminal cases dismissed b/c of suppression on 4th Amm.
grounds, with most studies finding below 1% (and most dismissed cases involve “minor”
crimes)
2. Unclear effect on plea bargains, but most suppression hearings are litigated before or
independently of plea negotiations
ii. Other Costs:
1. Excludes credible evidence, no remedy for innocent, can encourage police and judicial
misconduct, create disrespect for judicial system, discourages alternative remedies and
takes too many resources, may encourage misconduct by police and judges who believe
that the price of suppressing evidence is too high.
8. Suggestion: Only allow exclusionary rule for minor crimes
a. Bolt (Ariz. 1984) “The accused should be allowed to invoke the exclusionary rule only where the
illegality committed against him is more grave than the crime he has committed against others.” So,
never for rape or murder
b. Most other countries that apply exclusion do this
9. Alternatives for the Exclusionary Rule:
a. Criminal sanctions against the offending officer
b. Damages actions against the individual officer
i. Bivens (1981): Provides a cause of action for violations of constitutional rights by federal
employees
ii. BUT: Individual officers can assert an objective “good faith” defense (Fitzgerald). If ignorance of
the law is reasonable, GF applies
c. Damages against the federal government or employer
i. Federal Torts Claims Act permits suit against federal government for actions by federal law
enforcement officers
ii. Monell (1978): § 1983 allows actions against municipal law enforcement agencies NOT the
states
iii. BUT: While good faith is not a defense, plaintiff must show that the employee’s conduct was
based on an official policy or custom. “Clearly established”
iv. Will: States and state officials acting in their official capacities cannot be sued under § 1983.
v. Canton: Allows suit for failure to train
d. Impact of Damage Actions:
i. Low success rate: typical success rate for Ps in damages suits is 20-30%. Reasons →
ii. GF and policy-or-custom defenses; no punitive damage awards when gov't is the D; Difficult to
get good att’ys for suits, given the type of P, the dearth of credible witnesses, and minimal
damages involved; jury bias against the P due to P's race, SES, or prior record; Jury sympathy for
the police; Huge cost of litigating a damages suit; Officers indemnified by dep’t, and dep’t
doesn't do anything unless cop is routinely sued
iii. Disadvantages of Damages:
1. The cop will be indemnified by dept. Damages only affects dep’t, not the individual cop.
2. Damages might just become "a cost of doing business" [LAPD]
3. Litigation is expensive, P unlikely to bring a suit and may not want to implicate
themselves by suing
4. Might be too effective and encourage police not to do any investigation
5. Advantages of Damages:

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 iv. If peer behavior and dep’t norms are most powerful, boss reprimanding cops after a huge
chunk gets taken out of his budget then cop might listen
1. Encourages good training programs; dep’t has incentive to train when dep’t sued
2. Solves Oaks' recognition that exclusionary rule hurts prosecutor more than cop
3. Increases integrity: damages doesn't flaunt fact that we're letting guilty person go free
4. Damages gives recourse to an innocent person who was illegally searched/seized
5. Small local dep’t [unlike LAPD] won’t consider damages just “cost of doing business”
6. Suggestions to improve damages as an alternative:
 Prof. Davidow: Liquidated damages. If cop acts in bad faith, he has to pay out of pocket -
no indemnification. But if cop acts in good faith, then dep’t pays.
 Provide public defenders for damages suits
 Administrative penalties on individual officers imposed by the police department and/or a civilian
oversight committee
o Police Commissioner Model: Vests authority in police commissioner appointed by the
government
o Ombudsman Model: Leaves investigation, adjudication and discipline functions within police
dep’t but provides external civilian review (Davidow)
o Civilian Input Model: Independent agency the power to receive and investigate complaints but
allows dep’t to discipline
o Civilian Monitor: Independent agency investigates and recommends punishment
o Civilian Punishment Model: Authorizes outside agencies to investigate and impose
punishments**No state does this
o Rationale for Administrative Review: Skeptical that police actually discipline themselves
 BUT: Police are hostile to external review
 Injunctions against the offending police department or municipality
 Very difficult to obtain b/c of standing
 Rizzo (1976): Plaintiffs presented evidence of > 40 incidents in which the Philly police
allegedly violated the constitutional rights of citizens during 1969-1970. Held: No Article III
case or controversy. Claims for prospective relief must be based on “real and immediate
injury,” not just a vague pattern of illegality.
 Lyons: LAPD suit, same standing
 issue when tried to challenge chokehold policy. No possibility that he would be choked
again.

Limitations on Exclusionary Rule: COST BENEFIT ANALYSIS (Calandra 1974): Weight the benefits of excluding
evidence (deterrence of police misconduct) against cost of excluding evidence (letting guilty go free). Often, benefit of
excluding evidence is ZERO. Court has condoned use of illegally seized evidence in 5 situations.
1. When Evidence is sought to be introduced in a proceeding other than criminal trial
a. Calandra: Evidence obtained in violation of 4A can be used in grand jury proceeding to obtain an
indictment, cost high and virtually no benefit (deterrent on police), incentive to disregard 4A just to
obtain indictment substantially negated by inadmissibility of illegally seized evidence in subsequent
proceedings.
b. Janis (1976): Police illegally seized illegal gamble records, IRS brought civil suit alleging money was
owed to government in partial satisfaction of tax assessment for proceeds earned through
bookmaking. Rule does not forbid use in civil proceedings of evidence seized by criminal law
enforcement agent in “separate sovereign.”
c. INS v. Lopez-Mendoza (1984): Illegally arrested in home; D admitted he was not US citizen and entered
country illegally. In civil deportation proceeding, sought to exclude statement. Held (O’Connor): Rule
does not apply in civil deportation proceedings, especially in light of INS’s comprehensive enforcement
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 scheme. (Note: no evidence that any officers had been punished for at least 4 years at time case was
decided).
i. Rationale: Exclusion would require court to close eyes to ongoing illegal activity of D
remaining in country.
ii. Note: Verdugo-Urquidez (1990): Based on plurality’s interpretation of word “people” in 4A
context, few courts have interpreted it to mean previously deported/illegal aliens do not have
4A rights
d. Plymouth Sedan (1965): civil proceeding seeking forfeiture of automobile, illegally seized; ER applied
because nothing illegal about owning a car, D possessed a superior possessory interest in the Sedan; an
illegally seized car cannot be subject to forfeiture. Surrender of item would work substantial hardship.
2. Obtained in good faith
a. Leon (1984): Police got warrant from a magistrate based on tip from confidential informant. Warrant
later determined to have violated Gates test.
i. Holding: No exclusion because exclusion would not deter police, rationale not there. High cost
(1-7% people go free b/c of exclusion) and no benefit (magistrates will be deterred by desire
to avoid being overruled)
1. No exclusion pursuant to warrant that is reasonably relied upon
a. Not facially deficient
b. Not clearly lacking in PC
c. Not based on info which the affiant knows is false
d. Issued by neutral, detached magistrate
2. DP Junkie: Encourages police to seek warrant, BUT has not increased number of
warrants being sought
b. Benefits of Rule: Incentivizes getting warrants, magistrates scrutinize more heavily
c. Costs of Rule: All need to decide is not CLEARLY lacking in PC  creating new standard? Just need not
clearly lacking?
d. Davis (2011): Good faith exception applies even when officer acts in accordance with case law that is
subsequently overruled
e. Only facially deficient when entirely fails to list items (Groh), some mistakes okay
i. Sheppard (1984): Detective drafted affidavit to support and application for search of suspect’s
residence (had PC to believe Sheppard bludgeoned woman to death). Showed affidavit to 2
prosecutors + police sergeant who both said it was legally sufficient. Sunday, couldn’t find
warrant app form so found one for “controlled substances.” Brought to magistrate’s home
who said necessary changes would be made. Judge made some modification but messed up a
few (did not include affidavit or delete part that said “controlled substances” but application
attached). Officers used warrant to search home.
1. Holding (White): Good faith exception applied.
ii. Groh (2004): If officer prepares the warrant and warrant fails to list items to be seized, and
does not cross-reference warrant or affidavit listing items then 4A is violated AND warrant is
so “facially deficient” that no reasonable officer could rely on it in good faith, even if failure
to list or cross reference is accidental.
f. Applies when errors are made by someone other than cop, absent systematic flaws
i. Giancarli (S.D. Fla. 1985): Officer telephoned magistrate to get warrant, warrant forgot to
swear in officer before taking down facts. Sworn in after officers searched the house.  need
sworn oath to prosecute for perjury
1. Holding: Good faith applied; exclusionary rule about deterring COPS.
ii. Evans (1995): Officer arrested D on stale warrant. Held: GF reliance on computer record did
not require exclusion.

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 1. Herring (2009): Suppression should only occur if record-keeping error is “flagrant,
knowing or reckless,” but in all other cases the minimal deterrent effect of exclusion is
outweighed by substantial costs of exclusion.
iii. Unclear whether GF applies when cop relies on other cops
1. If one cop sends out an APB that’s wrong and cop relies on it – some courts have said
no exclusion
2. Whitley (1971): affiant may not resuscitate affidavit through suppression hearing
testimony; existence of PC must be determined from warrant app and affidavits,
exclusion required when Cop A gives Cop B false info and B arrests
g. Police liability for perjury  need sworn statement to prosecute for perjury
i. Briscoe v. LaHue (1983): police officers have absolute immunity against false testimony suits
brought under 1983 but can be criminally prosecuted for knowingly making false statements
under oath
ii. Franks v. Delaware (1978): D can challenge veracity of officer-affiant’s statements to
magistrate issuing the warrant; can’t challenge veracity of affiant’s informant’s, and only
entitled to hearing if he alleges that affiant’s statements were made deliberately or with
reckless disregard for the truth and with these statements deleted, warrant is lacking in PC; if
hearing granted, D must show by preponderance of evidence that false statement was made
deliberately or with reckless disregard for truth
1. Can save warrant by throwing out lies, very hard to win, only really hurts prosecutor
3. Used Solely for Impeachment
a. Only applies if defendant takes stand – only happens about 30% of time
b. Privilege against self-incrimination does NOT include right to commit perjury; you can use
statements made in violation of Miranda to impeach
i. Harris (1971): Using a CBA analysis, court held that state may use statements obtained in
violation of Miranda (but are otherwise voluntary – NO DPC violations) to impeach a D’s
statements about the charges against him
1. Cost: Let D go and let him lie with impunity
2. Benefit: ZERO. Cops still deterred by exclusion from case-in-chief
ii. Prof. Loewy: procedural right (Miranda right to counsel) is violated when illegally obtained
evidence is introduced at trial for any purpose; attempting to determine effect of exclusion on
the police, as Court did in Harris, is inappropriate.
c. Silence: can never use post-warnings, may be used pre-warnings for impeachment purposes
i. Doyle (1976): Post-warning silence cannot be used by prosecution in any way; cannot use
silence after arrest
1. Ex Re. Burt (3d Cir. 1973, pre-Doyle): B said that he had been threatened by Shorty and
2 got in a fight and gun went off. Key witness, Adams, said B killed Shorty and raped her.
B refused to talk. Prosecutor questioned him about his silence on cross-exam. Held: All
questions were permissible, police did not do anything that would be deterred by
exclusion.
a. Purpose of cross examination: show that guy fabricated story after arrest; he
would have told someone if killing was accidental
b. 5th Am argument: if his silence is going to be used against him, he may not
choose to exercise his 5th am rights -- coercing defendant to not testify
i. Defense: D waived 5th am right when he took the stand (SCOTUS hasn't
given us an answer on this yet)
c. SCOTUS has said (Doyle) - due process, post-warning silence cannot be used by
prosecution in any way
i. But pre-warning silence can be unless prohibited by local evidentiary law
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 ii.Jenkins (1980): silence before warnings are given may be admissible for impeachment
purposes depending on its relevance
iii. Recall: D’s silence can be used against them if they were NOT in custody (Salinas, Berkemer)
d. Statements made in violation of 6A can be used to impeach
i. Ventris (2009): After Ventris charged with felonies, police planted an informant in V’s cell. V
admitted to murder and stealing. AT trial, V blamed robbery on co-defendant. Informant was
allowed to testify at trial. V raises 6th Am. violation (already formally charged).
1. Holding: Statements could be used to impeach unless coerced.
a. 6th Am violation doesn't occur in cell, it occurs at trial
2. Slobogin: False testimony from informants frequently factors into wrongful conviction
cases
3. Cost: D gets on stand, lie, escape conviction
4. Benefit: Already excluding in case in chief, police know that, sufficient deterrence
5. Cost of not applying rule: reliability problem police know they can’t get evidence in case
in chief but at least try, get impeachment evidence
6. Defense: argue cross exceeds scope direct
e. Evidence obtained in violation of 4A can be used to impeach D ONLY
i. Havens (1980): Witness testified that H sewed drugs into t-shirt. H denied
involvement/having been involved in smuggling cocaine on direct. Prosecution introduced
illegally seized t-shirt into evidence to impeach. Held: Permissible b/c questions and evidence
were within scope of direct examination.
1. Cost: Letting Ds get away with lying, avoid conviction
2. Benefit: Not significant, police not going to now go after illegal evidence to possibly be
used to impeach in trial, D would have to take stand and lie, little deterrent effect.
3. Defense (cost): could deter innocent people from taking the stand; what if evidence
planted in luggage
4. Defense (benefit): if police don’t have PC, still go after evidence because it cold have
some use, no deterrence, get evidence just in case; nothing to lose in carrying out illegal
search and seizure
5. Defense argument: Exceeded scope of direct.
ii. Prof. Loewy: Substantive right violated when police obtain the evidence, and so CBA of rule’s
applicability is permissible.
1. 5th and 6th Amendments deal with procedure - CBA shouldn't apply b/c it's compelled
testimony
2. 4th Amendment deals with substance
iii. James v. IL (1990): witness other than D cannot be impeached with illegally seized evidence;
witnesses are more likely to be influence by threat of perjury and that allowing impeachment
would chill D’s right to present evidence and provide too great incentive to police to violated
4A
4. Defendant Lacks Standing
a. A defendant only has standing to contest the illegal action if his or her rights were violated. SCOTUS
has adopted an individual rights perspective – grant standing only to person affected directly by
police conduct
i. D cannot exclude evidence illegally seized from a third party
ii. D cannot challenge admissibility of a confession or ID made by another person, even if DPC
was violated. Reject “target standing” (protect defendants against unconstitutional police
activity designed to obtain evidence against them)
iii. Does not matter if police acted in bad faith

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 1. Payner (1980): Federal agents burglarized third party’s apartment to obtain evidence
against D because they knew that D would not have standing to contest the search.
Held: Upheld.
a. Clearly an illegal search, but D's rights weren't the ones violated. The bank
official's were.
iv. No automatic standing. Being a co-conspirator is not enough (Padilla)
v. There is also derivative standing – something only happens b/c of illegal arrest to someone
else (Wong Sun) – “but for the previous illegalities perpetrated against him, the police would
not have discovered the witness”
b. Old rule: “Legitimate expectation of privacy”
i. Jones (1960): D had standing where he was “legitimately on the premises” during the search.
Reasoning overruled but holding not overturned. Jones was staying at a friend’s apartment
while his friend was out of town for several days. Had standing to challenge even though
owner not present.
c. Prof. Loewy: Since substantive rights focus on how police obtained evidence, standing should be based
on deterrence in 4A
i. Only person who has rights under procedure is defendant; deterrence argument is broader
with substance
d. CURRENT RULE: D DOES NOT HAVE STANDING UNLESS HIS REASONABLE EXPECTATION OF PRIVACY
WAS VIOLATED
i. Rakas (1978): Established “reasonable expectation of privacy test.” Occupants of vehicle
(petitioners) ordered out of car and officers found rifle shells and sawed-off rifle. Petitioners
moved to suppress evidence even though they did not own the vehicle or items seized and
were simply passengers.
1. Passengers did not have standing to challenge the illegal search and suppress
contraband b/c it did not belong to them. Reduced expectation of privacy in cars; but
could challenge the stop
2. Defendants could have said gun was theirs and they had legitimate presence in the car
 Ds have no standing b/c they make no showing that they had any legitimate
expectation of privacy in glove compartment or area under seat of car in which they
were passengers
a. Did Rakas have apparent authority or real authority?
i. Apparent authority is enough to consent to a search, then it should be
enough for a right to exclude
b. House is different than a car; passenger has a different level of authority in a car
c. BUT Brendlin: Passengers in car have standing to challenge stop because you
have standing to contest a “seizure” of your person
i. This should be a standing to seize issue - if seizure of car was illegal, then
everyone in the car has standing to object to seizure; everything found in
the car after that is inadmissible
d. Con of Rakas: Prosecutors have to contradict themselves – need to argue no REP
to get rid of standing, but need possessory interest in criminal trial
ii. Dimmick v. State (Alaska 1970): police interrogated one co-D knowing they were doing so in
violation of Miranda in order to get unchallengeable info about second co-D.
1. How is this inconsistent with court’s approach to exclusionary rule? Point is to deter
police from doing bad things, exclusion would have deterred police if D had standing.
iii. More extreme version – eliminate standing requirement altogether, CA adopted for several
years in 4A cases
iv. To determine whether an individual has standing consider:
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1. Does D have right to exclude others from the property/consent? (Rakas, FN 11)
a. Jones: Had a right to exclude others from his friend’s apartment; changed from
property interest analysis to legitimate presence test  anyone legitimately
presence on premises where search occurs may challenge its legality by way of a
motion to suppress
b. Alderman (1969): Those who engage in conversation have standing to contest
the way in which police overhead it. Homeowner can contest search even if not
home.
c. Olson (1990): O had standing to contest a warrantless search of house to effect
his arrest, even though the only connection to house was that he spent the
previous night on the living room floor and at the time of his arrest had just
returned to get his clothes.
2. Was D legitimately present during the seizure AND a possessory interest in the item
seized?
a. Probably only helps get standing in a house (FN 11, dicta)
b. Jones, Rakas, FN 11
3. Did D have continuing access to area searched AND possessory interest in the item
seized? For purposes of standing you can have property interest in contraband.
a. Jeffers (1951): D had standing to contest seizure of contraband in an apartment
that he had keys to but was rented by 2 aunts who did not know about narcotics.
i. Implies that you can have possessory interest in contraband
b. Mancusi (1968): Union official had standing to contest search of office he shared
with other officials because he had an expectation of privacy in the area
searched.
4. Did D validly bail his items to a third party?
a. Rawlings (1980): R did not have standing to contest search of C’s purse (where
he put his drugs). But suggested that if he had executed a valid bailment, this
might have been okay. Also if he had kept drugs in his pocket could challenge the
search as result of illegal detention. Search of purse was separate entity, not
searching the house.
i. Illegal detention that led to search of purse was illegal detention of Cox,
Rawlings does not have standing to challenge that
ii. He had continuing access (Olsen) because he'd been slepeing on the
couch.
iii. But purse is separate; he has standing to contest search of house but not
search of purse. (Rakas hypothetical, person in kitchen can't contest
search of basement)
iv. Fruit of poisonous tree argument:
1. Were able to search purse b/c Cox's detention, not Rawlings.
Rawlings only has standing to object to the detention of himself,
not Cox. Always look at who's rights are violated.
b. Padilla (9th Cir. 1992): Owner of car (Simpsons) has standing when he lent his
car to driver and driver (Arcinwas illegally stopped/searched  not owner of car
but had possession; valid bailment; legitimate presence
i. Would owners? Maybe, right to exclude from own car but they weren’t
present, relinquished access, legitimately bailed it
1. Alderman – standing to contest illegal wiretap of home even if
not home and wasn’t Alderman’s, can contest because it was their
house
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 ii. Xavier Padilla – nowhere near car, doesn’t own car, but maybe continuing
access + possessory interest, controlled operation; didn’t have legitimate
presence, right to exclude/consent unsure
iii. Jorge + Maria Padilla – don’t own, didn’t bail, didn’t organize, but
continuing access + possessory interest, was going to pick up car from
driver at some point (Jeffers)
iv. Cartel (not any of the people) own the dgus
e. Prof. Loewy procedural/substantive rights distinction hybrid approach
i. B/c procedural right is meant to protect against use of illegally obtained evidence to obtain a
conviction, only person whose right is implicated should be able to assert it; allowing an
accused to assert someone else’s procedural rights does not vindicate its purpose.
ii. Substantive right’s focus – way in which police obtained evidence suggests that standing
analysis in 4A and brutality cases should be based on deterrence rationale
5. Exception to Fruit of the Poisonous Tree – attenuation, independent source, inevitable discovery
a. Certain evidence, although itself legally obtained, can be excluded if it was the “fruit” of a previous
illegality (violation of 4, 5, or 6A)
i. Fruits: confessions, lineup identification, or evidence obtained through a search incident
1. BUT: Person of defendant cannot be suppressed (Ker 1886). If D is illegally arrested he
cannot argue that prosecution is illegal because the arrest was illegal. Witnesses can
rarely be suppressed.
ii. Trees: Arrest without PC, illegally obtained confession, arrest in violation of warrant
requirement, illegal identification procedures
b. Rationale: Deter police misconduct
c. Three Exceptions: (1) Attenuation (2) Independent Source (3) Inevitable Discovery

For Fourth and Sixth Amendment Violations:

1. Is “fruit” in fact NOT the result or fruit of an illegality, but rather the product of a legitimate independent
source? If so, no exclusion. Cf. Murray, Segura, Harris
a. Murray (1988): PC to search  warrantless search of warehouse for weed  warrant based only on pre-
search evidence, only described info which had originally led police to suspect warehouse had drugs in it.
Held: Evidence admissible assuming initial entry invalid; warrant was based on PC before warrantless
search
i. Defense: Might encourage warrantless searches as “checks” and then lie to magistrate when
obtaining the warrant
b. Segura (1984): Arrest of D ,PC to search/arrest  illegal warrantless entry (if this hadn’t happened,
evidence could be hidden/destroyed, not inevitable discovery, but then D has to make argument D
would’ve disobeyed law)  cursory search/security sweep  arrest Colon  warrant based search 19
hours later, seizure of apartment at time
i. Holding: Evidence from both searches admissible.
ii. Warrant based search – independent source, legal warrant, didn’t use cursory search evidence to
get warrant; if PC to arrest and search, can seize premises while getting warrant
iii. Slobogin: Court did not address first search but probably admissible
c. Harris (1990): Intentional Payton violation/warrantless arrest of H (need a warrant to go into someone’s
home to arrest them)  warning  H made incriminating statement in his apartment  taken to station
 waived rights and signed statement.
i. Holding: Statements in apartment NOT admissible but stationhouse statements were okay.
Attenuation because OUTSIDE the home. Arrest in public inevitable/independent source, would
have interrogated anyways  but maybe confession not inevitable
1. 4th Amendment violation, so we apply Brown
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 2. Taylor – no attenuation after 6 hours
3. Harder to make inevitable discovery argument regarding statements; easier with warrants
ii. Officers admitted to policy of conducting warrantless arrests to avoid NY’s counsel-during-
interrogation rule
d. Hudson (2006): NO exclusion for “knock and announce” violations. Weak causal link between fruit and
violation, b/c violation does not directly cause any subsequent discovery of evidence and because injuries
better redressed with damages (inevitable discovery); exclusion only meant to protect one’s interest in
preventing government from seeing or taking evidence
e. Crews (1980): Illegally took Crews into custody for about one hour to take his picture, after trying to take
Polaroid of him incognito. (WTF). Three assault victims identified him in photo array and then a lineup, and
then again at trial.
i. Holding: Photo and line up IDs not permissible but in-court identification allowed.
ii. 4th Amendment Violation – Attenuation argument?
iii. Could’ve assumed right person in court after choosing so many times...but defendant still fucked
1. The picture colors the witnesses’ memories
2. Court: Independent source for the in-court identification
iv. Prosecution: Can’t suppress Defendant, need victims/witness totally independent of the arrest, in
court ID is independent source of victims seeing him
1. Witnesses came forward independently
f. Rullo (D. Mass. 1990): Cops chased R b/c he ran away when they asked him to stop after seeing what they
thought was drug transx, R fired gun. R dropped gun and kept fleeing. When they found him, beat him
until he told them where gun was. One cop who was there when they started beating but then left and
miraculously found gun before hearing its location. Held: Gun excluded.
i. Beating  statement  gun
ii. Prosecution: found gun independently, inevitable discovery (Nix); remedy would be damages,
exclusion doesn’t give compensation for beating; Patane – there’s no bad faith exception, still gets
in because nontestimonial
iii. Defense: Physical coercion, if you beat, don’t get anything in, want to deter physical beating, DP
violation – don’t care whether it’s testimonial or not
2. If not, would it inevitably have been discovered through a legitimate independent source had the illegality not
occurred (Williams)? If so, no exclusion.
a. Rule: If prosecution can establish by preponderance of the evidence that information ultimately or
inevitably would have been discovered by lawful means, the deterrence rationale has so little basis that
evidence should be received.
i. Prosecution does NOT have to prove absence of bad faith. Unless DPC violation occurs, it does not
matter if violating cop acted in bad faith because inevitable discovery must come from a
completely unconnected source.
ii. Requiring bad faith would put police in worse position than they would have been if no unlawful
conduct had transpires; fails to take into account societal cost of excluding truth in administration
of justice
b. Nix (1984): Christian burial saga. Search parties were 2.5 miles from body when D gave up where body
was. Inevitable discovery satisfied b/c search teams would have found body, had that location mapped out
to search. Did not matter that cop violated 6A to get suspect to tell him where body was. It was more likely
than not body would’ve been found.
c. Strieff (2013): Illegal stop led to discovery of an outstanding warrant for traffic violations and a subsequent
search incident to arrest that produced drugs. Held: Warrant was independent source, so drugs
admissible.  would have eventually found drugs because outstanding warrant would have eventually
been found

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 i. Illegal stop on less than RS (don’t worry about Sotomayor b/c if this is flagrant, will exclude)  find
outstanding traffic wt (preexisted illegal stop, independent of illegal stop/computer in which traffic
warrant exists is independent source)  arrest/custodial arrest/search incident to arrest (Knowles,
doesn’t involve custodial arrest, don’t get to do search incident – would this traffic violation be one
you can take D into custody for?)  drugs  arrested
ii. Con: Encourages police to illegally stop individuals in hope that an outstanding warrant would
authorize the search (over 7.8k(?) outstanding warrants nationally as of 2014)
1. Pretext argument? Whren exception for particularly intrusive action (shooting someone
dead), or for blatant discrimination (social policy violations), or when pretext isn’t based on
individualized suspicion (generalized, like road blocks)
3. If not, is there attenuation between the illegality and the fruit? If so, no exclusion
a. Brown v. Illinois (1975): Flagrantly illegal arrest  1st Miranda at station  1st confession 2 hours after his
arrest  2d Miranda  2d confession. Held: Second confession excluded. Miranda warnings alone
cannot sever causal chain and arrest was done illegally on purpose. Establish 3 factors to consider when
looking for attenuation.
i. Flagrancy of the Illegality:
1. Brown: Purposely arrested B at his apartment without warrant or PC
ii. Temporal proximity of Fruit to the Illegality/Spontaneity (confessions)
1. Brown: 2 hours NOT enough
2. Taylor (1982): T was arrested for robbery based on informant’s tip, and after booking
(fingerprints + lineup) was put in jail for 6 hours. Gave him Miranda warnings and his
girlfriend showed up. Held: 6 hours in jail NOT enough.
a. Hard to prove attenuation if D is in jail from time of illegal arrest to confession.
b. Defense: Entire time pressure being put on D, opposite of attenuation
c. Prosecution: 3x long as Brown, probably good faith/thought they had PC (acting on
informant), gf/friend is intervening event (3 different Miranda warnings also
intervening events), alleviates coercion/attenuates illegal arrest and confession
3. Wong Sun (1963): D voluntarily confessing 3 days later is enough.
a. Illegal arrest of Toy  Toy’s confession  search of Yee’s house (narcotics and
(HYPO) Yee’s testimony)  illegal arrest of Wong Sun  Wong Sun’s confession
i. Toy’s confession is the direct fruit of an illegality; must be excluded
ii. Wong Sun’s confession – he doesn’t have standing because the violation was
of Toy’s rights, not Wong Sun’s; no exclusion
iii. Narcotics found in Yee’s house?
1. Standing – search of Yee’s house; illegal arrest was violation of Toy’s
rights
2. Wong Sun’s narcotics – legitimately bailed the narcotics; continuing
access to the apartment
3. The only illegality was vis-à-vis Toy; Toy has derivative standing;
Wong Sun does not have actual standing, but for the illegal arrest, the
drugs wouldn’t have been found
iv. Yee’s testimony (HYPO) – different standard for witness testimony (Cecolini:
harder to determine a but for causal link; witness may have chosen to testify
of his/her own free will)
1. Sometimes can exclude witnesses, but need much more direct causal
link
b. Wong Sun’s confession was also spontaneous because D came to station on his own.
i. Too attenuated
ii. Even though he has standing following his illegal arrest
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 iii. Intervening Events
1. Brown: Miranda alone not enough to attenuate
2. Taylor: Talking to GF and family members in jail, and getting multiple Miranda warnings in
jail NOT enough (But see Mauro)
a. Rawlings: Detention at home for 45 minutes is sufficient; illegal arrest is treated
differently from other trees

Watch out for Standing and FOTP to overlap

 Wong Sun: illegal arrest of Toy  Toy makes incriminating statements of himself, Yee and WS  went to
Yee’s house and found narcotics  go to WS’s house and illegally arrest WS  WS confessed 3 days later
o Toy’s statements: Toy can exclude them; WS does NOT have standing
o Narcotics in Yee’s house: Toy can exclude them b/c of derivative standing (but for illegal arrest of Toy,
police wouldn’t have been led to Yee’s), WS does NOT have standing (because didn’t have standing for
Toy’s arrest/statements)
o Testimony by Yee against both Toy and WS: NEITHER can suppress – Ceccolini, suppression of
witnesses is difficult
o WS’s confession: WS has standing, but confession is ADMISSIBLE because it’s attenuated under Brown:
proximity, he spontaneously confessed 3 days later

Suppression of Witnesses: Possible but very difficult. Must be justified by a closer, much more direct link (Ceccolini,
1978), can suppress if identity of witness is found through illegal means  look for illegal arrest that occurred for sole
purpose of obtaining a witness

For Fifth Amendment Violations

1. Is fruit the result of physical coercion designed to break the suspect’s will (i.e. a “real” 5A/DP violation)? If
so, exclusion should probably occur regardless of whether discovery through legitimate means was inevitable
or whether attenuation exists (Rullo, Elstad).
a. Watch out for standing
b. Rullo: Beating to get statement of where gun is, exclude, even though gun was non-testimonial b/c
DPC (real, robust coercion)
i. 5th Amendment Violation? Compelled testimony due to beating; where the gun was
ii. Due Process Amendment Violation? The baseball bat; method used to break suspect’s will
1. Against exclusion: May be no link between the statement and finding the gun; the cop
who found the gun left before suspect made statement (independent source); the police
were doing a massive search for the gun (inevitable discovery); public safety exception
(Ennis, Quarles) but PSE is an exception for mere Miranda violation, NOT real 5th
Amendment
c. Fuliminate: Confessed to get protection in jail. DPC violation.
d. FN in Quarles: Even if PSE, evidence excluded if DPC is violated
2. If not, and the fruit is an incriminating statement, were Miranda warnings given before the statement was
made? If so, no exclusion (Elstad) unless police acted in bad faith (Seibert).
a. Rule: Miranda requires that the unwarned admission must be suppressed; admissibility of any
subsequent statement should turn solely on whether it is knowingly and voluntarily made unless bad
faith.
b. Elstad: Confession without Miranda when D arrested in his home  incriminating statement without
Miranda warnings  D taken to station and given Miranda warnings  2d confession. Held: Assuming
first statement inadmissible, 2d confession ADMISSIBLE.
i. Rationale: Miranda is not a real violation of 5A like DPC b/c it’s procedural.
1. Note: Could also argue that D wasn’t in custody during first confession
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 2. No attenuation analysis (Brown doesn’t apply) if the illegality is lack of Miranda
ii. Failure to administer warnings merely creates presumption of compulsion; warnings are
prophylactic violation, statements made in violation of Miranda can still be voluntary
iii. Counter to 1st confession: no inherent coerciveness of custody (what Miranda is designed to
mitigate)
iv. Counters to 2nd Confession: D thought cat was out of the bag, idea that Miranda isn’t a real 5A
requirement goes against Dickerson and idea that Miranda incorporated to states as part of Bill
of Rights
c. Seibert (2004): Unwarned statement  within minutes same cop gave Miranda  confession. Held:
2d confession NOT admissible b/c the cop acted in bad faith and was clearly trying to take advantage of
Elstad’s holding to get around Miranda by not warning suspect.
i. If you can show bad faith
1. Factors to look for: same location, short time period, same cop gave both warnings
3. If not, and the fruit is a tangible item, was the 4A followed in obtaining the item? If so, no exclusion (cf.
Patane).
a. Rationale: 5A only protects testimonial evidence; Cf. O’Connor’s Quarles dissent
b. Patane: Unwarned statement  Miranda  gun. If fruit of Miranda violation is physical evidence,
evidence is NOT excluded.
i. No bad faith exception: Knapp – physical evidence admissible when police did not warn
suspect in deliberate effort to obtain the evidence
ii. The ONLY way physical evidence derived from a confession will be inadmissible is if the
confession is obtained through “actual coercion or other circumstances calculated to
undermine the suspect’s ability to exercise his free will.”

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