Criminal Procedure OUTLINE 2L

Spring

I. INTRODUCTION
 Outline of Criminal Process
(1) Investigation/detection (4th Amendment)
(2) Encounter (4th Amendment)
(3) Search (4th Amendment)
(4) Interrogation (5th Amendment)
(5) Arrest (4th Amendment and 5th Amendment)
(6) Custodial Interrogation – Miranda World (5 th Amendment)
(7) Indictment (6th Amendment)

II. FOURTH AMENDMENT

 PROTECTION FROM GOVERNMENTAL ACTION ONLY
 Persons, houses, papers and effects AGAINST unreasonable searches and seizures
o Non-resident aliens in foreign lands – NOT PROTECTED BUT Aliens living in US are
PROTECTED – US v. Verdugo, p31
o Search – interest in maintaining personal privacy
o Seizure – interest in retaining possession of property
 Whenever there is some meaningful interference with an individual’s possessory
interests in that property
 No warrants shall be issued without probable cause (presumed unreasonable without it)
o Warrants MUST be particular
 Description of place to be searched AND
 Persons or things to be searched
A. REASONABLE EXPECTATION TEST aka ‘KATZ’ TEST
Katz v. US, p35 – public phone booth
(1) Government conduct MUST offend the citizen’s subjective manifestation of an
expectation of privacy interest AND
a. The only way would be able to know if they expect privacy is if they manifest it
(2) The privacy interest invaded must be one that society is prepared to accept as
‘reasonable or legitimated’
 PROTECTED INTERESTS:
(1) Physical disruption and inconvenience
(2) Personal information (privacy)
(3) Control over and use of his or her property
B. APPLYING KATZ’S TEST
 SUBJECTIVE MANIFESTATION
i. Public Areas – No protection
ii. Abandonment – denying ownership – No protection
 OPEN FIELDS
i. do NOT have to be ‘fields’ nor ‘open’
ii. CURTILAGE TEST FACTORS (protected):
(1) Proximity of the area claimed to be CURTILAGE to the home
(2) Whether the area is included within an enclosure to the home
(3) The nature of the uses to which the area is PUT

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(4) The steps taken by the resident to protect the are from observation by people
passing by
a. US v. Hatfield, p47 – a visual inspection of that property from outside
the CURTILAGE does NOT constitute a search
 ACCESS BY MEMBERS OF PUBLIC
i. Consensual Electronic Surveillance – person wearing a wire has NO privacy
ii. Financial Records
iii. Pen Registers – keeps tracks of the numbers you dial
iv. Pagers
v. Trash - CA v. Greenwood, p51 – trash bag case – anyone can go through your
garbage at anytime – not an abandonment case (fails 2 nd prong)
vi. Public Areas- CT v. Mooney, p53 – Homeless person; US v. White, p53 – bathroom
peeking case
vii. Aerial Surveillance – any flying party could see
viii. Manipulation of Bags in Public Transit – Bond v. US, p56 – PROTECTED!
 INVESTIGATION THAT CAN ONLY REVEAL ILLEGAL ACTIVITY
i. Canine Sniffs – NOT a SEARCH – US v. Place, p58
1. Traffic stops NOT a search as long as NOT detained any longer than a usual
traffic stop – IL v. Caballes, p61
2. Must get a warrant after positive alert from canine sniff
3. Outside a House is a search (higher expectation of privacy)
ii. Chemical Testing for Drugs – NOT a search, maybe a seizure
1.
Urine analysis test is a SEARCH – Skinner, p63
 TECHNOLOGY TO ENHANCE INSPECTION
i. Thermal Detection Devices – Kyllo v. US, p64 – presumptively unreasonable SEARCH
= viewing interior of home which would
1. NOT be available otherwise without physical intrusion
2. at least when public can NOT use technology
 if ONLY capable of seeing illegal activities then NO RIGHT TO
PRIVACY
ii. Electronic Tracking Devices – No expectation of privacy about your movements in
public view –US v. Knotts, p71
1. Information about inside of the home that could NOT be achieved without
physical intrusion is a SEARCH - US v. Karo, p72
iii. Other Sensory Enhancement Devices – GPS a search depending on how its used
(how long)
 INVESTIGATIVE ACTIVITY CONDUCTED BY PRIVATE CITIZENS

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i. Private Activity - Can NOT violate 4th Amendment unless acting for the government
1. As long as there are NO clear indices of government encouragement,
endorsement and participation – Skinner v. Railway Labor, p77
a. Did the government direct, invest, incentive, require the individual to
conduct the search
b. Did the actor believe at the time that he was acting under the authority
of a government agent? And was that belief reasonable?
c. Did the government know or have reason to know that the individual
was going to conduct a search?
ii. Government AFTER Private and Legal Searches
1. If a private citizen had already trespassed then revealed it to police NOT a
search - Burdeau v. McDowell, p77
2. Walter v. US,p77 - A partial invasion of privacy can NOT automatically justify
a total invasion
 FOREIGN OFFICIALS - usually NO PROTECTION
 JAILS, PRISON CELLS AND CONVICTS - usually NO PROTECTION
 PUBLIC SCHOOLS AND PUBLIC EMPLOYEES – sometimes have PROTECTION
C. WARRANT CLAUSE
 IMPORTANCE/PURPOSE OF WARRANT CLAUSE
o So Called Per Se - Failure to get a warrant based on the facts makes the search
presumptively unreasonable
 EXCEPTIONS: Searches of cars, consensual searches, searches incident to
arrests
 Requiring a warrant BEFORE the search limits:
(1) Unnecessary or unjustified searches
(2) Specificity requires only searches in the things in which the government has a valid
interest in it
(3) Excessive governmental intrusions
o Johnson v. US, p85
 OBTAINING A SEARCH WARRANT: PROBABLE CAUSE
i. Confidential Informants
1. AGUILAR’S TEST
(1) Application must set forth any underlying circumstances necessary for a
judge to independently judge validity of informant’s conclusion
(2) Corroborated by applicant to support credibility and reliability
2. SPINELLI’S TEST, p90
(1) The affidavit MUST contain the reliability of the informant AND/OR the
information that was acquired was credible
(2) Whether on the totality of circumstances the evidence shows probable
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3. GATES’ TEST, p97 (Overruled SPINELLI) – Totality of Circumstances FACTORS:

 Nature of the information
 Whether there has been an opportunity for the police to see or hear the
matter reported
 The veracity and the basis of knowledge of the informant
 Whether there has been any independent verification of the matters
reported through police investigation
ii. Citizen Informants
1. Paid informants presumptively unreliable
2. Identified informants presumptively reliable
iii. Accomplices - accomplice confessions is itself sufficient to establish probable cause
– NO corroboration is required – US v. Patterson, p113
iv. Quality of Information
1. PC for SEARCH v. PC for ARREST
a. Fair probability the area or object searched contains evidence of a crime
b. Fair probability the person arrested committed the crime
(1) If multiple suspects, probable cause extends to all of them – MD v.
Pringle, p121
(2) Probable cause does NOT require crime to be committed nor actual
crime – Devenpeck v. Alford, p124
v. Collective Knowledge – responding back up officers can assume PC is fulfilled
vi. Staleness of Information – information can NOT be stale (case by case analysis)
D. SPECIFICITY AND REASONABLENESS OF PROBABLE CAUSE
i. Things that CAN be Seized – Fruits and instrumentalities of crime as well as mere
evidence – Warden v. Hayden, p129
 LOCATION OF EVIDENCE: PROBABLE CAUSE
i. MUST establish a connection between crime and the place NOT the person and the
place = nexus – US v. Lalor, p132
 SEARCHES OF NON-SUSPECT 3RD PARTIES
i. Valid warrants may be issued to search ANY property where there is a probable
cause to believe evidence of a crime will be found – Zurcher v. Standford Daily,
p132
 DESCRIBING THE PLACE TO BE SEARCHED
i. If police would NOT have known the level of particularity without conducting the
search then the warrant is reasonable particular – MD v. Garrison, p136
ii. Wrong address does NOT make invalid automatically – Lyons, p137
iii.Must be some correct information in the warrant about address – US v. Ellis, p138
 PARTICULARLITY FOR ARREST WARRANTS

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i. Must describe the suspect sufficiently (i.e. to a point that any reasonable law
enforcement officer who does NOT have particular information can find the place)
– US v. Doe, p140
 DESCRIBING THE THINGS TO BE SEIZED
i. Must describe things to be seized so officers don’t over extend the search AND
officers must maintain scope of warrant – Andresen v. MD, p441
ii. Computer Searches – do NOT have to respect file names
 REASONABLENESS AND WARRANTS
i. Forced medical operation is an unreasonable search – Winston v. Lee, p146
 ANTICIPATORY WARRANTS
i. Probable cause that at some future time(but NOT presently) certain evidence of
crime will be located at a specified place – US v. Grubbs, p147
1. Probable now that
2. Evidence of a crime will be on the premises
3.
when warrant is executed
 ‘SNEAK AND PEEK’ WARRANTS
i. MUST show that there is a reasonable belief that providing immediate notification
of the execution of the warrant may have an adverse result (exigent
circumstances)
E. EXECUTING THE WARRANT
 Efficient searches are required
 Duration must be reasonable
 KNOCK AND ANNOUNCE REQUIREMENT
i. Officers executing a warrant MUST knock and announce their presence before
attempting to enter a dwelling
ii. Refused Admittance - Officers may break open any outer or inner door or window,
if he is refused entry AFTER giving notice – to execute a warrant
(1) Explicit refusal gives police right to go in using force
(2) No answer – have to wait a reasonable amount of time
1. Depends on location
2. Depends on time of day
 EXCEPTIONS TO THE NOTICE REQUIREMENT
i. No ‘Breaking’ - if the door to a residence is already open, the police are NOT
required to announce their presence before entering
o Police can trick the homeowner into opening the door – no violation
ii. Emergency Circumstances – officers will be permitted to make an unannounced
entry if announcement would create a
(1) Risk of destruction of evidence OR
(2) Risk of harm to officers or others
 Wilson v. Arkansas, p150

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iii. Drug Cases – de facto law – Richards v. Wisconsin, p152 – always a high risk of
destruction AND high risk of armed and dangerous drug dealers – NOT ENDORSED
BY US SUPREME COURT
iv. No Knock – police must have reasonable suspicion that knocking and announcing
their presence
(1) Under the particular circumstances
(2) Would be dangerous or futile
(3) OR that would inhibit the effective investigation of the crime
v. No Knock Warrants – advance authorization excusing the knock and announce
requirement – US v. Banks, p156
 Burden to prove unreasonable turns on defendant
 VIOLATION OF KNOCK AND ANNOUNCE ≠EXCLUSION OF EVIDENCE
o Violation of it does NOT justify exclusion of evidence found in the subsequent
search of premises
 TIMING AND SCOPE OF EXECUTION
i. When is search COMPLETE – officers must terminate a search when all the materials
described in the warrant are found
 ENLISTING PRIVATE CITIZENS TO HELP SEARCH
i. Unwilling Assistance - MUST show probable cause to force an unwilling party to
assist
ii. Willing Assistance - officers may NOT exceed the scope of warrant by permitting
unauthorized invasions by 3rd parties with NO connection to the warrant
 Must be related to the objectives of the authorized intrusion
 SCREENING MAGISTRATE
(1) Neutral and detached – rubber stamps can NOT be
(2) Competent
(3) Do NOT have to have legal training
F. REASONABLE SEARCHES
 WARRANTLESS ARRESTS
o Section 120.1 – Authority to Arrest Without a Warrant
(1) Reasonable cause to believe that suspect has committed:
(a) Felony;
(b) Misdemeanor AND the officer believes the suspect
(i) Will NOT be apprehended UNLESS immediately arrested
OR
(ii) May cause injury to himself or others or damage
property UNLESS immediately arrested OR
(c) A misdemeanor in presence of officer
o Officer MUST ALWAYS have PROBABLE CAUSE to arrest a suspect
o Arrests in Public – officers do NOT need a warrant to arrest someone in public –
US v. Watson, p171
 MUST have prompt post arrest assessment of probable cause by judge
– Gerstein v. Pugh, p179
 WITHIN 48 HOURS – County of Riverside v. McLaughlin, p179

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 Can be UNREASONABLE even if less than that if done for bad
faith
 REMEDY: Damages
o Arrests in the Home – NEED A WARRANT TO ARREST IN HOME – Payton v. New
York, p184
 REMEDY: exclusion!
 Arrest warrant did NOT protect the privacy interests of 3 rd party
homeowner – Steagald v. US, p189
o Deadly Force – may NOT be used to prevent the escape of a felon UNLESS:

(1) Necessary to prevent the escape AND

(2) Officer has probable cause to believe that the suspect poses a
significant threat of causing death or serious physical injury to the
officer or others - Tennessee v. Gardner, p174
 Scott v. Harris, p175 – FACTORS OF HIGH SPEED CAR CHASES:
(1) severity of the crime
(2) poses a threat to the public or officers directly
(3) trying to get out of an arrest by coming towards the officers or
merely fleeing
o Excessive Force – do NOT have to use least intrusive degree of force – was the
force used reasonable – Forrester v. San Diego, p177
 STOP AND FRISKS
Visual inspections  Reasonable Frisks (Limited  Probable Cause Searches
Suspicion Scope) Required
[weapons]
Simple encounters  Reasonable Stops (Limited Probable Cause Arrests (Seizures)
Suspicion [dispel Scope) Required
or confirm
suspicion]
o When an officer is justified in believing that an individual whose suspicious
behavior he is investigating at close range is armed and presently
dangerous to the officer or others he can stop and frisk – Terry v. Ohio,
p193
 ONLY INTEREST THAT JUSTIFIES A FRISK IS LAW ENFORCEMENT
SAFETY - Can NOT be used to search for evidence
 IN ORDER TO STOP SOMEONE THEY MUST HAVE REASONABLE
SUSPICION CRIMINAL ACTIVITY IS ABOUT TO TRANSPIRE - can
NOT arrest; can ONLY investigate their suspicion
o If police get information from an informant that someone is armed and
dangerous, can AUTOMATICALLY go in and get it - Adams v. Williams, p202
o AUTOMATIC right to order the driver out the car – PA v. Mimms, p204
 Extended to passengers – MD v. Wilson, p207

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o Stop v. Encounter – seizure (stop) means that a reasonable person would
believe they were FREE TO LEAVE – US v. Mendenhall, p212
o Grounds for Reasonable Suspicion
 Anonymous Tips – must be corroborated by some specific indicator
of reliability (in relation to crime) – Florida v. JL, p234
 Particularized Suspicion – US v. Cortez, p241
(1) Totality of the circumstances – you can’t separate them
must find if there is an objective basis for the common
sense conclusions (i.e. nature of crime; etc.)
(2) Must raise a suspicion that the particular individual stopped
is engaged in wrongdoing
 Officer’s suspicious conclusion can be based on their knowledge
and training (i.e. a factor in totality of circumstances) – US v. Arvizu,
p243
 Officers can NOT use generic explanations for their reasonable
suspicion - US v. Rodriguez, p251
 Irrational inference of crime ≠ reasonable suspicion (i.e. racial
profiling) - US v. Manzo-Jurado, p251
o Limitations of Stops and Frisks
 Frisks are justified ONLY for protective searches; evidentiary
searches are PROHIBITED – MN v. Dickerson, p261
 Frisks ONLY allowed when based on reliable knowledge which
provides reasonable belief that the suspect is armed and may be
dangerous – US v. Rideau, p263
 Officers can extend the protective search to a limited examination
of an area from which a person, who the police reasonably believe
is dangerous, might gain control of a weapon ONLY! – Michigan v.
Long, p264
 Limitation on that protective search - Ybarra v. Illinois, p266
– searching other persons can sometimes be a problem
 Protective sweep could be justified by an officer’s reasonable
suspicion that the area swept harbored an individual posing danger
to the officer or others – may extend ONLY to a cursory inspection
of those spaces where a person may be found (only for safety) –
MD v. Buie, p268
 Limited to where dangerous confederates (people) could
be – can only search for weapons in those areas where
they are found
o Brief and Limited Detentions
 Forced movement to a custodial area for identification and
inquiring permission to search ALLOWED – Florida v. Royer, p269
 Police have a right to ask for ID – Hibel, p272
 SEARCH INCIDENT TO ARREST
o Spatial Limitations - when police have probable cause for the arrest and have
a warrant for it (or don’t need one) they have an AUTOMATIC right to search
incident to arrest – Chimel v. CA, p288

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 Extended to area that could be in possession or under control of suspect

– Rabinowitz Rule, p289
o Temporal Location – just because the suspect would NOT have gotten the
weapon does NOT make it a 4th amendment violation – US v. Lucas, p291
 Washington v. Chrisman, p293 – the absence of an affirmative
indication that an arrested person might have a weapon available or
might attempt to escape does NOT diminish the officer’s authority to
search for evidence and weapons within the grab area
 Rawlings v. Kentucky, p296 – when search and arrest are close to each
other in time it does NOT matter what happens first; can NOT use the
evidence found in the search to justify the arrest
 Chambers v. Maroney, p296 – cant search another place where the
suspect was NOT arrested
o Search of Person - No matter what the arrest is for, a full search of a the person
is an exception t o the warrant requirement – US v. Robinson, p297
o Search of Cars – AUTOMATIC RIGHT to search the passenger compartment and
ALL containers, even if the suspect has NO possible way to reach in the car for it
at the time – NY v. Belton, p309
 If the defendant at the time of the search might reasonably get access
to the passenger compartment in the car, it can be searched – Chimel; if
there is reasonable suspicion there is something bad in the car, it can be
searched under the car exception – AZ v. Gant, p312
 Thornton allows police to search individuals whenever they were a
‘recent occupant’ of the car to be searched
 PRETEXT & PLAIN VIEW
o An officer’s motive does NOT invalidate the stop as long as the actions of the
officer was reasonable considering the facts – Whren v. US, p325
 TRAFFIC STOP CAN NOT BE PRETEXT IF NO REASON TO BELIEVE A
TRAFFIC VIOLATION EXISTED – US v. Mariscal p333
o Extraordinary pretext – planned traffic stop to search for drugs NOT a violation –
US v. Ibarra, p330
o A mistake of fact does NOT automatically negate the validity of the stop; but a
mistake of law does – US v. Flores-Sandoval, p334
o Plain View – there is NO search if the police looks from an area where they have
a right to be – Horton v. CA, p336 – Subjective mindset of officer does NOT
matter as LONG as:
(1) Lawful right to access the area where it is located
(2) Lawful right to access to the object
(3) Incriminating nature of the object must be IMMEDIATELY apparent
 CARS & EXIGENT CIRCUMSTANCES

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o Cars – police may search an automobile without a warrant, so long as they have
probable cause to believe it contains evidence of criminal activity – Carroll v. US,
p342
 Probable cause to search the car allows a warrantless search because its
movable – Chambers v. Maroney, p343
 Mobile homes are HOME NOT cars – CA v. Carney, p347
 Probable cause to search the car EXTENDS to everything in it, including
close containers – CA v. Acevedo, p351
 Passenger Extension - if probable cause justifies the search of the
vehicle, it justifies the search of every part of the vehicle and its
connects that may conceal the object of the search (including the
passenger’s belongings NOT their person) – Wyoming v. Houghton,
p357
o Exigent Circumstances (Warrant Exception)
(1) Hot pursuit
a. suspect must know he is being pursued
b. Reasonable to believe he is being pursued by police
c. Reasonable for police to believe that the suspect knows
(2) Public safety exception (as well as suspect themselves – Michigan v.
Fisher)
(3) Police safety exception
(4) Risk of destruction of evidence
 Nature of the offense with which the suspect is being charged is
a factor that has to be addressed in assessing whether exigent
o EXIGENT CIRCUMSTANCES FACTORS = Dorman Factors, p367
(1) Gravity or violent nature of the offense*
(2) Suspect reasonably believed to be armed*
(3) Probable cause **
(4) Reason to believe suspect on the premises**
(5) Likelihood of escape, if there is a delay
(6) Peaceful circumstances of the entry*
*considerations for knock and announce
**most frequently cited
 Court refused to make an AUTOMATIC exigent circumstance for
dangerous crimes – Mincey v. Arizona, p370
 Officers can NOT create an exigent circumstance BUT there will not be
an impermissible creation of exigency UNLESS the creation itself is an
illegal search or seizure – US v. Timberlake, p374
 If you had prior opportunity to obtain a warrant you can NOT
use the exigent circumstance exception
 SPECIAL NEEDS = ADMINISTRATIVE SEARCHES
o Administrative Searches - a warrant is require for an administrative safety
inspection of a home BUT the warrant does NOT need to be based upon some

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probable cause of a violation of the safety code – Camara v. Municipal Court,
p381
(1) Must have a pre-existing regulatory scheme of administrative agency
(2) Scheme must be focused on legitimate public safety or interest (need)
(3) House has to subject to the scheme
(4) Inspection must be limited in scope to the objectives of that scheme
 ONLY time warrant clause applies - Searches of home and searches
of persons
 Businesses have a reasonable expectation of privacy too – See v.
Seattle, p382
 If open to the public then NOT 4th amendment issue -
Donovan v. Lonesteer, p383
 Lessened expectation – NY v. Burger, p384
(1) Closely related to a Substantial governmental interest
(2) Inspection necessary to further regulatory scheme
(3) Program provides an adequate substitute for a warrant
o Must advise the owner the search is being made
pursuant some law (notice)
o Must limit the discretion of inspecting officers
 Administrative searches can NOT be done solely for the instrument
of criminal law enforcement – US v. Johnson, p394
(1) If the subjective intent is to gather evidence for a criminal
prosecution then the administrative inspection will be
UNREASONABLE
(2) Just because there is LESS INTRUSIVE alternative does NOT
make it unreasonable
o Schools - Students do have some 4th Amendment interests when they go into
schools BUT there are significant administrative (public) interests of school
officials (therefore diminished expectation of privacy – NJ v. TLO, p395
 Must be reasonable in its objectives and NOT excessively intrusive in
light of age and sex in addition to the nature of the infraction – Safford
v. Redding, p396
 Vernonia – suspicion less drug testing of athletes was constitutional
(extended to all extra folks)
 previous rule – school must demonstrate some identifiable drug
abuse problem among a sufficient number of those subject to
the testing, such that testing that group of students will actually
redress its drug problem – Board of Ed of Pottawatomie v. Earls,
p411
o Employees - Previous Rule from Von Raab – doesn’t matter if history of a
problem exists or NOT when the danger is too high – Chandler v. Miller, p406
 Special needs searches are NOT allowed to be pretext for criminal
investigations – Ferguson v. Charleston, p419
o Roadblocks, Checkpoints, and suspicionless seizures

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 REQUIREMENTS OF ROADBLOCKS
(1) Stops MUST be general
(2) Limited Police Discretion
 Drug check points = Can NOT be a pretext to criminal investigation –
Indianapolis v. Edmond, p431
o Inventory Searches - Must show that the inventory search is a part of some pre-
existing regulation procedures; can NOT allow too much discretion to officers –
South Dakota v. Opperman, p443
o Border Searches - Detention at the border is justified if the person is reasonably
suspected to be smuggling contraband – US v. Montoya de Hernandez, p458
 CONSENT
o Any search is reasonable if it is conducted pursuant to voluntary consent
o Totality of circumstances TEST – US v. Price, p468
o Do NOT have to inform them of their right to refuse search – Schneckloth v.
Bustamonte, p462
 Requesting permission + affirmative response = voluntary – US v.
Drayton, p463
o FACTORS TO BE ADDRESSED IN VOLUNTARY CONSENT CASES: - US v. Gonzalez
Basulto, p465
(1) Custodial status
(2) Coercion
(3) level of cooperation
(4) Awareness of right to refuse
(5) Defendant’s intelligence and education
(6) Defendant’s belief that evidence will be found
o Refusal can NOT be the sole conclusion of reasonable suspicion – US v. Carter,
p481
o Third Party Consent - Anyone who has a reasonable expectation of privacy in
that area can give consent to search that area
 Co-tenants are allowed to give consent of joint access/control – US v.
Matlock, p469
 Landlords can NOT – mistakes of law NOT reasonable – Stoner
v. CA, p470
 Apparent authority - Entry is valid if officers had reasonable belief that
the person had authority to consent – IL v. Rodriguez, p469
 A physically present co-occupant’s stated refusal prevails and
warrantless searches are unreasonable against them – GA v. Randolph,
p471
 If one previously says no, but isn’t present and the person
present says yes – REASONABLE

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 Scope of Consent - Citizens are free to define the scope but must be
clear; also can withdraw consent BUT can NOT do so retroactively – US
v. Blake, p478
 Withdrawing Consent – must be CLEAR and EXPLICIT – US v. Dyer, p481
G. REMEDIES FOR FOURTH AMENDMENT VIOLATIONS
 EXCLUSIONARY RULE
o Evidence obtained in violation of the 4th Amendment MUST be excluded from
trial
 Weeks v. US, p495 – applied to federal
 Wolf v. Colorado, p496 – did NOT extend to states
 Mapp v. Ohio, p498 – extended to states
 NOT CONSTITUTIONALLY REQUIRED!!!
 ALTERNATIVES TO EXCLUSION
o Civil damages recovery – 42 USCA 1983
o Criminal Prosecutions of Offending Officers
o Administrative Solutions
 LIMITATIONS ON EXCLUSION
i. Good Faith – reasonable reliance on decisions of judges – searches conducted
pursuant to a warrant that is later found to be invalid
o US v. Leon, p511 – Exclusion allowed ONLY if:
 Mistake of fact (NO MISTAKE OF LAW!)
 Officers were dishonest or reckless in preparing affidavit
 Or could NOT have objectively reasonably believed probable cause
existed
ii. EXCEPTION TO GOOD FAITH: if officer includes material information in the
application that he knew or had reason to know it was false (i.e. untrue or omitted
statements in the application)
o Applies to some warrantless searches - are they deterable?
o Herring v. US, p533
 Police MUST be sufficiently deliberate that exclusion can deter it
 AND sufficiently culpable that such deterrence is worth the price
 STANDING
o Automatic Standing – a defendant (any one on the premises as well) has
automatic standing to challenge the legality of the search that produced the
crime he is charged with – Jones v. US, p541
 OVERRULED Jones - NOT extended to any person the premises; must
prove personal legitimate expectation of privacy to have standing –
Rakas v. Illinois, p542
 Overnight guests have standing – Minnesota v. Carter, p548; business
visitors do NOT – Minnesota v. Olson, p191
1. Social Purpose v. Business Purpose (against legitimate
expectation)
2. Duration of Interaction
3. Connection to the owner and the location

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o Disassociation - when a person voluntarily denies ownership =NO standing
because NO privacy rights – US v. Boruff, p556
o Co-Conspirator - NO AUTOMATIC STANDING! – US v. Padilla, p557
 CAUSAL CONNECTION: ILLEGAL ACTIVITY AND EVIDENCE
o Wong Sun and Brown v. Illinois, p558 – Causal Connection requires:
(1) Meet the 5th amendment standard of voluntariness
a. Miranda warning is NOT sufficient to break the causal chain
b. MULTIPLE FACTORS:
i. Flagrancy – intentional misconduct?
ii. Temporal proximity (attenuation) – time between the
violation and the finding of the evidence
iii. Intervening evidence (Miranda warning)
(2) Sufficiently an act of free will to purge the primary taint
 Combination of but for and proximate cause – causal
connection
o WAYS THE CAUSAL CONNECTION MAY BE CUT
(1) Dunaway , p561 – Miranda Warnings
(2) Wong Sun, p562 – if released and then re arrested and then Miranda
warned
(3) Kaupp, p562 – consent is NOT sufficient
(4) Rawlings, p563 – reactions to discovery of evidence rather than illegal
detection
(5) Harris, p563 – Payton requires an arrest warrant to arrest someone in their
home
o INDEPENDENT SOURCE – Evidence will NOT be excluded if it is obtained
independently and without reliance on any illegal police activity (burden
=preponderance of evidence) – Murray v. US, p572
o INEVITABLE DISCOVERY DOCTRINE – Government must show that the illegal
obtained evidence would have been discovered through legal means
REGARDLESS – Nix v. Williams, p577
 Does NOT always apply if beyond the scope of an inventory search –
US v. $, p580

III. FIFTH AMENDMENT

o No shall one be forced to be a witness against themselves – incorporated
o Only applies to people who are being forced to be witnesses against themselves
 REMEDY: Exclusionary rule applies; sometimes immunity
 WHAT IS PROTECTED?
o Non Testimonial Evidence - Being forced to give blood is NOT witnessing
because it is NOT evidence of a testimonial or communicative nature –
Schmerber v. CA, p622
 BRENNAN says 5th amendment is focused on preventing the cruel
trilemma (3)
(1) Go to jail (tell the truth and implicate yourself)
(2) Go to jail (lie and then be prosecuted for perjury)
(3) Go to jail (refused to answer questions and be held in contempt)

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 Sobriety test NOT testimonial – PA v. Muniz, p265
o Production of Documents
 Any documents or testimony that are VOLUNTARILY CREATED are NOT
protected (i.e. business documents) - Fisher v. US, p629
 Production itself may be communicative - US v. Doe, p631
(1) May communicate that you are aware the document exists
(2) May communicate the document is authenticated
(3) Aware of the contents of the documents
 Collective entity rule – official records and documents of an organization
that are held by an agent in a representative rather than personal
capacity can NOT be subject to personal privilege against self
incrimination – do NOT have to testify even with collective entity –
Curcio v. US, p635
o Required Records - Shapiro v. US, p638
(1) Government can require the a corporation to keep records pursuant to a
process
(2) Non-participation of police in the regulatory scheme
 CONFESSIONS AND DUE PROCESS
o confessions obtained by inducements, promises and threats are INADMISSIBLE
– Hopt v. Utah, p651
 A confession can NOT be induced by any direct or implied promises
however slight will be suppressed
 False promises are NOT allowed
 False documentary evidence is NOT allowed – can lie about
what you have
 True promises are ALLOWED
o Involuntary confessions are NOT allowed – Bram v. US,p651 & Brown v.
Mississippi, p652
 Right to an attorney is included - Spano v. NY, p656
o Coercive police activity is a necessary predicate to finding that a confession is
NOT voluntary within the meaning of due process – Colorado v. Connelly, p667
 LIMITATIONS ON CONFESSIONS
o Prior to custodial interrogation the following rights must be told to him in clear
and inequvicable terms: - Miranda v. Arizona, p671
(1) Right to remain silent
(2) Any statements can be used against him
(3) Right to attorney
(4) If indigent can have attorney assigned to
 Can ONLY be waived by a
(1) Voluntary
(2) Knowing
(3) intelligently
 NOT implicated in non-custodial circumstances – Custodial
Interrogation
(1) questioning initiated by law enforcement

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(2) After the person has been taken into custody
(3) Or otherwise deprived of his freedom action in any significant way
o Congress did NOT overrule Miranda - §3501 does NOT overrule Miranda;
Congress does NOT supersede Constitutional holdings of the Supreme Court –
Both are allowed but 3501 is limited and does not deal with self incrimination –
Dickerson v. US, p691
 §3501 – admissibility is based on voluntariness (making a Miranda
warning a factor rather than a requirement)
 EXCEPTIONS TO THE MIRANDA RULE OF EXCLUSION
o Impeachment Purposes - UnMirandized statements can be used to impeach the
defendant because you are making a voluntary statement you are NOT be
compelled to incriminate yourself – Harris v. NY, p700
o Subsequent Confessions - A confession made after Miranda defective
confession will be admissible UNLESS: - Missouri v. Seibert, p706
(1) Officers were in bad faith in NOT giving the warning before the 1 st
confession AND
(2) 2nd confession proceeded directly from the first
o Physical Fruits - NOT excluded NOT testimonial – US v. Patane, p714
o Emergency Exception - overriding considerations of public safety can justify an
officer’s failure to provide Miranda warnings and that unwarned confession
obtained under such circumstances are admissible in the governments case in
chief - NY v. Quarles, p719
 VARIOUS MIRANDA ADMISSIBILITY RULES
(1) Statements taken during custodial interrogation without Miranda – admitted for
impeachment purpose ONLY
(2) Statements made after invocation – admitted for impeachment purposes ONLY
(3) Involuntary confession – excluded from both case in chief and impeachment
(4) Fruits of involuntary confession - excluded from both case in chief and impeachment
(5) Silence (after Miranda) – is NOT admissible as part of an adverse interest
(6) Silence (outside custodial interrogation) – may BE admissible as part of an adverse
interest
(7) Fruits of Miranda violation are ADMISSIBLE even in the case in chief – UNLESS it was
in
(1) bad faith
(2) or 2nd confession
(8) Bad faith Miranda violations do NOT bar physical evidence from being admissible
 Miranda Custody – in totality of the circumstances that a reasonable person would
NOT believe they are free to go
o FACTORS FOR MIRANDA CUSTODY:
(1) Law enforcement initiated engagement
(2) Police present and identified
(3) Told the suspect that he was a suspect
(4) Miranda warnings given
(5) Suspect physically confined
(6) Told he couldn’t move

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(7) Handcuffs
(8) Intimidation threats or trickery
(9) Took place in public, home or police station
(10)Resulted in suspect arrest
(11)Transported by the police
o NON FACTORS
(1) Officers subjective and undisclosed view
(2) Age
(3) Personal characteristics – except maybe mental capacity
(4) Prisoners – NOT in Miranda custody just because he is in prison – has to be
taken out of the general population and interrogated by police away from
them
(5) Terry Stop
o INTERROGATION
(1) Confession to wife NOT forced by police - NO
(2) Undercover police agents – NO
(3) Snitches – NO
(4) Use of incriminating evidence – YES (trilemma)
(5) Booking Questions Exception – designed purely for administrative purposes
 WAIVER OF MIRANDA RIGHTS
(1) Voluntary – free and deliberate choice
(2) Knowingly – full awareness of both the nature of the right abandoned and the
consequences of doing so
(3) Intelligently
 WAIVER POST INVOCATION OF RIGHTS
o Scrupulously honoring – silence is NOT enough to be an invocation – must allow
a cooling off period after invoked right – US v. Rambo, p753
 INVOCATION
o Must be affirmative and unequivocal (without invocation it is assumed to be
waived) - Davis v. US, p754
(1) Must NOT interrogate anymore
(2) Unless suspect initiates
(3) Must wait 14 days then they can talk to suspect

IV. SIXTH AMENDMENT

 RIGHT TO COUNSEL - once a person is formally charged by an indictment or
information, his constitutional right to counsel begins, at least when counsel previously
has been retained (onset of the adversarial proceeding)
o A right to counsel’s aid before and during the trial, his out of court
conversations and admissions must be excluded if obtained without counsel’s
consent or presence – Massiah v. US, p767
(1) Information deliberately elicited
a. If NOT deliberate then 6th amendment does NOT require exclusion –
Brewer v. Williams, p771
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(3) After suspect has been [indicted]
(4) In absence of counsel
 Once 6th Amendment is attached its attached for the rest of the
proceeding while 5th Amendment can be avoided by not putting one in
custody or interrogating them
o Undercover Officers - by intentionally creating a situation likely to induce the
suspect to make incriminating statements without the assistance of counsel –
US v. Henry, p780
o Continued Investigation - Can continue investigation on wholly unrelated crimes
after invocation of 6th amendment rights BUT if they make statements about the
crimes he has been charged with are INADMISSIBLE - Maine v. Moulton, p784
 Can NOT go back and attempt to get a waiver AFTER invocation –
Michigan v. Jackson, p788
 Overruled Michigan – you can go back and ask about a waiver
IMMEDIATELY – Miranda warning being sufficient to provide
information of their 6th amendment rights and waiver of 5th amendment
rights will follow 6th amendment rights being waived - Montejo v. LA,
p788
 Whether a suspect invokes his right to counsel there is no way
to know which one he has invoked BUT an officer can approach
him almost immediately and seek a waiver of his 6 th amendment
– but has to wait 14 days in order to approach him about a
waiver of his 5th amendment

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