CHAPTER 1 – INTRODUCTION TO CRIMINAL PROCEDURE

Introduction
a. Justice
i. Fairness, adherence to procedure
b. Truth
i. Facts, honesty
c. Liberty
i. Freedom
d. How do they relate?
i. Seek justice through truth in order to protect liberty
e. Obstacles?
i. Dishonesty

The Participants in the Criminal Justice System

f. Defendants
g. Defense Counsel
h. Prosecutors
i. Victims
j. Police and Other Law Enforcement Officers
k. Magistrates and Judges
l. Jurors
m. Corrections Officials
n. Public
o. Media

Stages of the Criminal Justice Process

p. Step 1: Pre-Arrest Investigation
q. Step 2: Arrest
r. Step 3: Filing the Complaint
s. Step 4: Gerstein Review
t. Step 5: First Appearance/Arraignment on Complaint
u. Step 6: Grand Jury or Preliminary Hearing
v. Step 7: Arraignment on Indictment or Information
w. Step 8: Discovery
x. Step 9: Pretrial Motions
y. Step 10: Plea Bargaining and Guilty Pleas
z. Step 11: Trial
aa. Step 12: Sentencing
bb. Step 13: Appeals and Habeas Corpus

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The Purpose of Procedural Rules
cc. Powell v. Alabama
dd. Patterson v. Former Chicago Police Lt. Jon Burge

Key Provisions of the Bill of Rights

The Application of the Bill of Rights to the States

ee. The Provisions of the Bill of Rights and the Idea of “Incorporation”
ff. The Debate over Incorporation
gg. The Current Law as to What’s Incorporated
i. Duncan v. Louisiana
hh. The Content of Incorporated Rights
ii. Retroactivity

CHAPTER 2 – SEARCHES AND SEIZURES

Introduction
i. Easy points: Look to state const.; they will often provide more protection than
federal one.
b. The Fourth Amendment
i. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
ii. Textually
1. There are 2 clauses:
a. (1) Unreasonable searches and seizures clause
i. Right of people to be secure in persons, houses, papers,
and effects,
ii. Against unreasonable searches and seizures
iii. Shall not be violated
b. (2) Warrants Clause
i. 3 Requirements for a warrant:
1. PC
2. Support by oath or affirmation
3. Particularly describes
a. Place to be searched; and
b. Persons or things to be seized.

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What Is a Search?
iii. Katz v. United States (1967)
1. Police placed recording device outside of phone booth. Fourth Amdt.
applies to persons not places. What a person knowingly exposes to the
public, even in his own home or office, is not subject to Fourth Amdt.
protection. A physical trespass on tangible things is not necessary.
Fourth Amdt. also protects reasonably expected privacy as to voice
recording.
2. Warrantless searches are disfavored and are “per se unreasonable
subject only to a few specifically established and well-delineated
exceptions.”
3. Twofold requirement for Fourth Amdt. protection (Harlan):
a. That a person have exhibited an actual (subjective) expectation of
privacy, AND
b. That the expectation be one that society is prepared to recognize
as “reasonable.”
iv. United States v. Jones (2012)
1. Police placed GPS device on ∆’s car and obtained information concerning
his movements. Although movement on public roads is exposed to the
public, property law concepts apply.
2. Trespass is still part of Court’s jurisprudence. Installing a device by
trespass on personal property triggers Fourth Amdt. protection.
3. Had there not been a physical trespass, Katz would apply.

Open Fields
a. Open field is any unoccupied or undeveloped area outside of the curtilage of a
home.
i. Does not necessarily have to be open or a field. Could be a densely
wooded area
ii. Entry does not violate the Fourth Amdt. Because no legitimate
expectation of privacy for activity conducted outside.
b. Curtilage The area surrounding a person’s home protected by a reasonable
expectation of privacy is known as the “curtilage,” i.e., the land “immediately
surrounding and associated with the home,” and is generally is a protected area.
Whether land is characterized as the “curtilage” area depends upon four factors.
See United States v. Dunn, 480 U.S. 294 (1987): 1) its proximity to the home, 2)
whether it is enclosed, 3) the nature of its uses, and 4) the steps taken to protect
it from observation.
i. Hester v. United States (1924)
1. Court held that “the special protection accorded by the Fourth Amdt. to
the person in their ‘persons, houses, papers, and effects’ is not extended
to open fields. The distinction between the latter and the house is as old
as the common law.”
v. Oliver v. United States (1984)
1. Warrantless search of field without warrant for marijuana.
2. Where open fields (unoccupied and undeveloped areas) may be viewed
by the public, there is no objective expectation of privacy. Both prongs of
Katz must apply to trigger protection

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 vi. United States v. Dunn (1987)
1. DEA witnessed ∆ placing chemicals in a barn on his private ranch. Ranch
was completely enclosed by a perimeter fence, and contained several
interior barbed wire fences, including one around the house
approximately 50 yards from the barn, and a wooden fence enclosing the
front of the barn, which had an open overhang and locked, waste-high
gates. Officers crossed several of the fences without a warrant. They did
not enter the barn but stopped at the locked gate and shined a flashlight
inside, observing a drug lab.
2. Issue: Whether the area near a barn, located approximately 50 yards
from a fence surrounding a ranch house is within the curtilage of the
house for Fourth Amdt. purposes.
3. Curtilage questions should be resolved with particular reference to four
factors:
a. The proximity of the area claimed to be curtilage to the home
b. Whether the area is included within an enclosure surrounding the
home
c. The nature of the uses to which the area is put (is it used in a
domestic way?)
d. The steps taken by the resident to protect the area from
observation by people passing by

Aerial Searches
vii. California v. Ciraolo (1986)
1. Police secured a private plane and few over ∆’s home at an altitude of
1,000 feet (within navigable airspace), allowing them to identify
marijuana plants that were not visible from the ground due to a 6-foot
outer fence and a 10-foot inner fence.
2. Court held that ∆’s expectation that his backyard was protected from
such observation was unreasonable and was not one that society was
prepared to honor.
3. Although the area was within the curtilage, the plane was within public
airspace and there was no physical intrusion.
viii. Florida v. Riley (1989)
1. Absence of two roof panels allowed the police to see, with naked eye,
weed growing on ∆’s property from a helicopter at 400 ft. (legal altitude).
2. Court said the surveillance did not constitute a search.
3. However, the Court stopped short of allowing all aerial inspections of
private property, noting that it was “of obvious importance” that a
private citizen could have legally flown in the same airspace.

Thermal Imaging of Homes

ix. Kyllo v. United States (2001)
1. Where the Gov’t uses a device that is not in general public use, to explore
the details of the home that would previously have been unknowable
without physical intrusion, the surveillance is a “search” and is
presumptively unreasonable without a warrant.

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Searches of Trash
x. California v. Greenwood (1988)
1. Because anyone can go though a person’s trash once it has been put out
on the street (outside the curtilage), there is no objective societal
expectation because of third party disclosure. Therefore, trash collectors
may turn one’s garbage over to the police at their request, and criminal
evidence found inside is not subject to Fourth Amdt. protection.

Observation and Monitoring of Public Behavior

xi. United States v. Knotts (1983)
1. Beeper placed in five-gallon drum containing chloroform before ∆ took
possession (no trespass).
2. A person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to
another.
xii. United States v. White (1971)
1. Conversation with undercover cop monitored via recording is not a
search because 3rd party creates risk and there is no objective
expectation of privacy. An agent operating without recording device
would not be a search; therefore, there is no reason for a recording or
transmission to be a search. Either way, ∆ assumed and risked the
trustworthiness of the undercover officer.
xiii. California Bankers Assn. v. Schultz (1974)
1. Court found that inspection of bank records are not searches under the
Fourth Amdt. because banks are parties to any transactions and thus
have knowledge of them.
2. Federal law required that banks file reports with the federal gov’t of
certain types of transactions.
3. A Fourth Amdt. challenge was rejected by the Court on the grounds that
people have no reasonable expectation of privacy as to this information
because it is known by others (3rd party), the banks that process the
transactions.
xiv. Smith v. Maryland (1979)
1. Pen register did not require warrant because ∆ voluntarily conveyed
numerical information to 3rd party (phone co.) and therefore had no
reasonable expectation of privacy.
a. Would be different if involving actual conversations rather than
just phone numbers.
b. In 1986, Congress enacted statutes controlling the use of pen
registers.

Use of Dogs to Sniff for Contraband

xv. United States v. Place (1983)
1. Court held that a canine sniff of closed luggage is not a search.
2. Canine sniff is sui generis. It does not require the opening of luggage. Dog
is trained so that the information obtained is limited to contraband.
xvi. Illinois v. Caballes (2005)
1. The use of a well-trained narcotics-detection dog – one that “does not
expose noncontraband items that otherwise would remain hidden from
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 public view,” – during a lawful traffic stop, generally does not implicate
privacy interests.
2. Probable cause for traffic stop = lawful seizure. Dog sniff provided
probable cause for later search.
3. Scope may be limited by purpose of the lawful seizure, and stop cannot
be prolonged beyond time needed to fulfill the purpose of that stop.
4. If stop is not prolonged beyond lawful seizure, there is no search. Dogs
may be used to sniff outside of a vehicle within the scope of the seizure.
xvii. Rodriguez v. United States (2015)
1. A police stop exceeding the time needed to handle the matter for which
the stop was made violates the Const.’s shield against unreasonable
seizures.
xviii. Florida v. Jardines (2013)
1. There is an implied license that allows persons (including LEO) to
approach a person’s front door to knock. Approaching a person’s front
door and performing a dog sniff exceeds the license because there is no
customary invitation to do so.
2. Decided under the Jones (trespass) standard.
3. Porch is part of the curtilage.
xix. Florida v. Harris (2013)
1. Issue: Whether that dog’s alert alone is sufficient to establish probable
cause for a search, or whether law enforcement must first establish the
reliability of such an alert.
2. If a bona fide organization has certified a dog after testing his reliability
in a controlled setting, or if the dog has recently and successfully
completed a training program that evaluated his proficiency, a court can
presume (subject to any conflicting evidence offered) that the dog’s alert
provides probable cause to search, using a “totality-of-the-
circumstances” approach.

The Requirement for Probable Cause

Introduction
xx. Classic definition of probable cause: The question is whether “the facts and
circumstances before the officer are such to warrant a man of prudence and
caution in believing that the offense had been committed.” (more probable than
not)
xxi. Probable cause requires a showing of “a fair probability” on each of the points
that the prosecution must establish in order for a warrant to issue. For
an arrest warrant, the government must prove a fair probability that a crime has
been committed and that the person to be arrested committed the crime. To
demonstrate probable cause sufficient to obtain a search warrant, the
government must establish a fair probability that the specified items sought are
evidence of criminal activity and that those items are presently located at the
specified place described in the search warrant application. Illinois v. Gates, 462
U.S. 213 (1983).
xxii. Two questions are important in understanding probable cause:
1. What is sufficient belief to meet the standard for probable cause?
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 a. Different scenarios
i. Personal observation
ii. Swears observation + inference + information from
someone else
iii. Informant
iv. Anonymous tip
2. Is it an objective or subjective standard?

What Is Sufficient Belief to Meet the Standard for Probable Cause?

xxiii. Illinois v. Gates (1983)
1. Police received anonymous tip that respondents were selling drugs. The
letter predicted future crimes and information was corroborated.
2. (Old) two-pronged Aguilar/Spinelli test:
a. Reveal the informant’s “basis of knowledge” and
b. Provide sufficient facts to establish either the informant’s
“veracity” or the “reliability” of the informant’s report
3. Court abandons this “rigid” two-pronged test and adopts a “totality of the
circumstances” approach to probable cause.
4. The decision whether, given all the circumstances set forth in the
affidavit before him, including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that the magistrate had
a “substantial basis for . . . concluding” that probable cause existed. We
are convinced that this flexible, easily applied standard will better
achieve the accommodation of public and private interests that the
Fourth Amendment requires than does the approach that has developed
from Aguilar/Spinelli.
a. Probability, not certainty.
b. However, conclusory statements are not enough. The officer
giving the affidavit must provide sufficient detail and substantive
basis.
xxiv. Maryland v. Pringle (2003)
1. Pringle was one of three men riding in a Nissan Maxima at 3:16 A.M.
There was $763 of rolled-up cash in the glove compartment directly in
front of Pringle. Five plastic glassine baggies of cocaine were behind the
back-seat armrest and accessible to all three men. Upon questioning, the
three men failed to offer any information with respect to the ownership
of the cocaine or the money.
2. To determine whether an officer had probable cause to arrest an
individual, we examine the events leading up to the arrest, and then
decide whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.
a. Court thought it entirely reasonable inference from these facts
that any or all three of the occupants had knowledge of, and
exercised dominion and control over, the cocaine.

Is It an Objective or a Subjective Standard?

xxv. Whren v. United States (1996): Subjective intent does not matter
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 1. ∆ argued that police used traffic stop as pretext to find drugs and did not
have probable cause. ∆ wants subjective standard.
2. Officers found ∆’s behavior suspect and saw drugs when they pulled him
over. ∆ made illegal U-turn and didn’t use blinker.
3. Regardless, actual motivation does not matter. The legality of a search is
determined by existence of probable cause for the stop.

What if Police Make a Mistake as to the Law?

4. Heien v. North Carolina (2014)
a. A police officer who stops a car based on a reasonable though
mistaken understanding of the law does not violate the Fourth
Amdt.
b. Reasonable cops may make mistakes of fact and law. P/C arose
after the seizure and ∆ consented to the search.

The Warrant Requirement

The Warrant Clause
xxvi. The Fourth Amendment requires expressly that “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.”

What Information Must Be Included in the Application for a Warrant? 3 Documents

xxvii. 3 Documents
1. Application
2. Affidavit
3. Warrant
xxviii. Elements of a Valid Search Warrant
1. Probable Cause
2. Oath/Affirmation
3. Neutral and detached magistrate
4. Particularity

What Form Must the Warrant Take?

xxix. Andresen v. Maryland (1976)
1. Certain crimes, such as fraud, often require extensive searches of records
such that there is no real way to limit the search to evidence of the crime.
2. Language may include some generalities, but must be limited by
context/relate to specific crimes.
xxx. Groh v. Ramirez (2004)
1. The warrant did not list or specify the evidence to be searched for. A
warrant must be particularized and properly filled out so that ∆ knows
what the search pertains to.
2. Objects of the search must be listed in the warrant or the
affidavit/application. However, affidavit/application would have to be
incorporated and presented at time of search.
xxxi. United States v. Grubbs (2006)

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 1. Fed’l LEOs obtained a search warrant for respondent’s house on the
basis of an affidavit explaining that the warrant would be executed only
after a controlled delivery of contraband to that location.
2. Anticipatory warrants are no different in principle from ordinary
warrants. They require the magistrate to determine (1) that it is now
probable that (2) contraband, evidence of a crime, or a fugitive will be on
the described premises (3) when the warrant is executed.
3. For a conditioned anticipatory warrant, it must be true that (1) there is a
fair probability that contraband or evidence of a crime will be found in a
particular place AND (2) that there is probable cause to believe the
triggering condition will occur. The supporting affidavit must provide
the magistrate with sufficient information to evaluate both aspects of the
probable-cause determination.

What Are the Requirements in Executing Warrants?

How May Police Treat Those Who Are Present When a Warrant Is Being Executed?
4. Ybarra v. Illinois (1979)
a. Court held that a person who happens to be present in premises
that are subject to a search cannot be searched just by virtue of
being there.
b. Court explained that a search “must be supported by probable
cause particularized with respect to that person.”
5. Michigan v. Summers (1981)
a. However, in Summers, the Court held that when there is a search
of a residence, those present at the time of the search may be
detained.
b. Court explained that allowing such detentions serves many
purposes:
i. Preventing flight by the individual in case incriminating
evidence is found
ii. Minimizing the risk of harm to the police
iii. Helping the police complete the search in the event that
questions arise.
6. Muehler v. Mena (2005)
a. Fourth Amdt. allows detention of an occupant in handcuffs while
a search is being conducted in a home, and
b. Officers do not have to have independent reasonable suspicion
before questioning a subject about their immigration status.
7. United States v. Bailey (2013)
a. This case involved the search of a place (an apartment dwelling)
and the seizure of a person. But here, though it is acknowledged
that the search was lawful, it does not follow that the seizure was
lawful as well.
b. The Summers rule is limited to the immediate vicinity of the
premises to be searched and does not apply here, where ∆ was
detained at a point beyond any reasonable understanding of the
immediate vicinity of the premises in question.

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Do Police Have to Knock and Announce Before Searching a Dwelling?
8. Wilson v. Arkansas (1995)
a. The common-law knock and announce principle forms a part of
the Fourth Amdt. reasonableness inquiry.
b. Police must announce their identity and their purpose before
attempting forcible entry.
c. Not a rigid requirement – a flexible one.
d. The doctrine requires executing officers to do four things: 1)
audibly “knock” or otherwise make their presence known at the
outer door, thereby giving notice to the occupants about the law
enforcement presence; 2) “announce” the identity of the
executing officers (e.g., “It’s the Police!”); 3) “announce” the
purpose of the executing officers (e.g., “We have a warrant!”); and
4) “delay” for a period of time sufficient to permit the occupants
to reach and to open the door.
9. Richards v. Wisconsin (1997)
a. Police officers’ no-knock entry into ∆’s motel room did not violate
Fourth Amdt; it was reasonable for officers executing warrant to
believe that ∆ knew, after opening door to motel room the first
time, that men seeking entry to room were police, and once
officers reasonably believed that ∆ knew who they were, it was
reasonable for them to force entry immediately given disposable
nature of drugs.
b. “In order to justify a ‘no-knock’ entry, the police must have a
reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence.”
10. United States v. Banks (2004)
a. 15-20 seconds was enough when police had reason to believe
suspects would destroy contraband.
b. In general, a delay of thirty seconds is sufficient in most
jurisdictions to meet the Fourth Amendment delay requirement.
The Supreme Court has upheld a delay of only 15 to 20 seconds,
however, where the premises occupant was suspected of selling
cocaine, which can be quickly destroyed.
11. Hudson v. Michigan (2006)
a. Violation of the knock-and-announce doctrine by executing
officers renders the search warrant defective as a constitutional
matter, but the federal exclusionary rule does not apply to law
enforcement officers’ knock-and-announce violations.

What If There Are Unforeseen Circumstances or Mistakes While Executing a Warrant?

12. Maryland v. Garrison (1987)
a. Officers believed 3rd story to be a single apartment when instead
it was two separate apartments.
b. Validity is determined by what officers disclosed or had a duty to
discovery and disclose to magistrate.
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 c. Was the officers’ failure to realize the overbreadth of warrant
objectively understandable and reasonable?
d. If so, mistake will not invalidate as long as officers stop or obtain
p/c to expand search.
13. Los Angeles County, California v. Rettele (2007)
a. Police were reasonably mistaken as to identities of homeowners
and ordered them out of bed before realizing mistake.
b. When officers execute a valid warrant and act in a reasonable
manner to protect themselves from harm, however, the Fourth
Amdt. is not violated.

Exceptions to the Warrant Requirement

Exigent Circumstances
Hot Pursuit
14. Warden, Maryland Penitentiary v. Hayden (1967)
a. Court held that where police were notified that armed robber
wearing light cap and dark jacket had entered house and clothing
matching description was found in washing machine in house by
officer without warrant before he knew that weapon had been
found in another part of house, even though clothing was ‘mere
evidence’ and had ‘evidential value only,’ it was subject to seizure
and was admissible in prosecution of petitioner who was arrested
in house.
b. Fourth Amdt. does not require police officers to delay in the
course of an investigation if to do so would gravely endanger their
lives or the lives of others.
c. The permissible scope must be at least as broad as may
reasonably be necessary to prevent the dangers that the suspect
at large in a house may resist or escape.
15. Payton v. New York (1980)
a. Struck down statute allowing cops to enter w/o a warrant
b. A warrantless entry of a home, to search, absent exigent
circumstances, is unreasonable.
c. It follows that a warrantless entry to arrest, as a search for the
person may ensue, is just as unreasonable.

Safety
16. Brigham City, Utah v. Stuart (2006)
a. Police may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is
seriously injured or imminently threatened with such injury.
17. Michigan v. Fisher (2009)
a. ∆ was screaming and throwing things in the house. A warrantless
search of a home is permissible where there is an objectively
reasonable basis for believing someone within the house is in
need of immediate aid.

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Preventing Destruction of Evidence
18. Kentucky v. King (2011)
a. Cops followed a suspected drug dealer to an apartment complex,
smelled marijuana outside, knocked loudly, and announced their
presence. As soon as they began knocking, they heard noises
coming from the apartment consistent with the destruction of
evidence. Cops announced their intent to enter, kicked in the
door, and found respondent and others. They saw drugs in plain
view during a protective sweep and found additional evidence
during a subsequent search.
b. Court held that warrantless entry to prevent the destruction of
evidence is allowed where police do not create the exigency
through actual or threatened Fourth Amdt. violation.
c. The need to prevent the imminent destruction of evidence is a
sufficient justification for a warrantless search.

Limits on Exigent Circumstances

19. Welsh v. Wisconsin (1984)
a. The warrantless, nighttime entry of petitioner’s home to arrest
him for a civil, nonjailable traffic offense, was prohibited by the
special protection afforded the individual in his home by the
Fourth Amdt.
b. Police received eyewitness reports that Welsh had been driving
under the influence of alcohol, and went to Welsh’s home to
investigate. The Court concluded that the police acted improperly
since they were unable to show that exigent circumstances
existed; there was no hot pursuit or continuing threat to “public
safety,” because Welsh had abandoned his car and returned home.
The only need for immediate action was that the police wanted to
test Welsh’s blood-alcohol level before the level dissipated. The
State’s interest in the evidence was minimal given that the State
had chosen to classify the offense as “noncriminal,” i.e., a
conviction carried no jail time.
c. Before gov’t may invade the sanctity of the home, the gov’t must
demonstrate exigent circumstances that overcome the
presumption of unreasonabless that attaches to all warrantless
home entries.
d. An important factor to be considered when determining whether
any exigency exists is the gravity of the underlying offense for
which the arrest is being made.
20. Missouri v. McNeely (2013)
a. Natural metabolization of alcohol in the bloodstream does not
present a per se exigency that justifies an exception to the Fourth
Amdt.’s search requirement for nonconsensual blood testing in all
drunk-driving cases, and instead, exigency in this context must be
determined case by case based on the totality of the
circumstances.
21. Birchfield v. North Dakota (2016)

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 a. Because breath tests are significantly less intrusive than blood
tests and in most cases amply serve law enforcement interests,
we conclude that a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk
driving.

Plain View
22. Coolidge v. New Hampshire (1971)
a. Under certain circumstances the police may without a warrant
seize evidence in ‘plain view,’ though not for that reason alone
and only when the discovery of the evidence is inadvertent. That
exception is inapplicable to the facts of the instant case, where the
police had ample opportunity to obtain a valid warrant, knew in
advance the car's description and location, intended to seize it
when they entered on petitioner's property, and no contraband or
dangerous objects were involved.
23. Horton v. California (1990)
a. Inadvertence is a characteristic of most legitimate plain view
seizures, but it is not a necessary condition.
b. “The fact that an officer is interested in an item of evidence and
fully expects to find it in the course of a search should not
invalidate its seizure if the search is confined in area and duration
by the terms of a warrant or a valid exception to the warrant
requirement.”
c. In order for a warrantless seizure of an object in plain view to be
valid, two conditions must be met:
i. The object’s incriminating character must be “immediately
apparent”
ii. The officer must have a lawful right of access to the object
itself
24. Arizona v. Hicks (1987)
a. Cops entered an apartment without a warrant to investigate shots
that had been fired and saw stereo equipment that they thought
might be stolen. They did not have p/c to support this. Cop moved
the equipment, found a product ID number, and radioed it in to
headquarters. It was found that the merchandise was stolen.
b. Court held that the plain view doctrine did not apply here. moving
the stereo was a search separate and apart from the search for the
shooter, victims, and weapons that was the lawful objective of his
entry into the apartment. The Court explained that since it was
not apparent that the item was contraband, the officers needed to
have p/c for their search.
25. Minnesota v. Dickerson (1993)
a. If an officer lawfully pats down a suspect’s outer clothing and
feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for
weapons.

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The Automobile Exception
The Exception and Its Rationale
26. California v. Carney (1985)
a. DEA watched ∆ and youth enter a motor home which was
believed to have been used by another person who was
exchanging marijuana for sex. When youth left, agents followed
and stopped him. At agents’ request, youth returned to motor
home, ∆ stepped out, and agent entered the motor home without
warrant, observing marijuana and drug paraphernalia. Agents
had probable cause.
b. The pervasive schemes of regulation, which necessarily lead to
reduced expectations of privacy, and the exigencies attendant to
ready mobility justify searches without prior recourse to the
authority of a magistrate so long as the overriding standard of
probable cause is met.
c. When a vehicle is being used on the highways, or if it is readily
capable of such use and is found stationary in a place not
regularly used for residential purposes-temporary or otherwise-
the two justifications for the vehicle exception come into play:
i. First, the vehicle is obviously readily mobile by the turn of
an ignition key, if not actually moving.
ii. Second, there is a reduced expectation of privacy
stemming from its use as a licensed motor vehicle subject
to a range of police regulation inapplicable to a fixed
dwelling. At least in these circumstances, the overriding
societal interests in effective law enforcement justify an
immediate search before the vehicle and its occupants
become unavailable.
27. Chambers v. Maroney (1970)
a. Now, with these warrantless seizures based on probable cause,
there is no practical difference between waiting for a warrant and
simply searching the car absent a warrant because a judge will
likely issue the warrant based on the probable cause. Therefore,
no warrant is needed for the police to search a car that has been
seized and brought to the police station based on probable cause.

Searches of Containers in Automobiles

28. California v. Acevedo (1991)
a. Police observed ∆ leave an apartment, known to contain
marijuana, with a brown paper bag the size of marijuana packages
seen earlier. He placed the bag in his car’s trunk. Agents stopped
the car, opened the trunk and the bag, containing marijuana.
b. Police, in a search extending only to a container within an
automobile, may search the container without a warrant where
they have probable cause to believe that it holds contraband or
evidence.
29. Wyoming v. Houghton (1999)

14
 a. Court held that police do not violate the Fourth Amdt. when they
search a passenger’s personal belongings inside an automobile
that they have probable cause to believe contains contraband.

Searching Automobiles Incident to Arrest

Searches Incident to Arrest

xxxii. Once a legal arrest occurs, the police may conduct a search incident to arrest. A
search incident to legal arrest is “reasonable” because the arrestee might have:
1) a weapon that she can use to harm the police or to effect an escape, and 2)
evidence in her possession that she might try to destroy.
1. Chimel v. California (1969)
a. C did not consent to a search of the home, but the police
proceeded to search with the assistance of C’s wife. They found a
number of coins and medals that were later presented as
evidence. Search took 45-60 minutes.
b. When an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to remove any weapons
that the latter might seek to use in order to resist arrest or effect
his escape.
c. In addition, it is entirely reasonable for the arresting officer to
search for and seize any evidence on the arrestee’s person in
order to prevent its concealment or destruction. And the area into
which an arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like rule.
d. There is ample justification for a search of the arrestee’s person
and the area “within his immediate control” – construing that
phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence.
e. There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs – or
for searching through all the desk drawers or other closed or
concealed areas in that room itself. Such searches may be made
only under the authority of a search warrant.
2. Knowles v. Iowa (1998)
a. Does issuing a citation allow for the full search of a vehicle? No,
searches incident to arrest require an arrest.
b. The purpose of the exception is to insure officer safety and
prevent destruction of evidence.
c. Officer safety is still at issue when citing traffic violators.
However, the threat is not nearly as great as in the instance of an
arrest. Police can lawfully ask drivers/passengers to step from the
vehicle to insure safety.
d. Once a citation is given for speeding, there is no other evidence of
speeding that can be found by searching the vehicle.
3. Arizona v. Gant (2009)
a. Police may search the passenger compartment of a vehicle
incident to a recent occupant's arrest only if it is reasonable to
believe that the arrestee might access the vehicle at the time of
15
 the search or that the vehicle contains evidence of the offense of
arrest.
b. An automatic search incident to an arrest of the passenger
compartment after the defendant is arrested, handcuffed and
secured in a patrol car is unreasonable. A reasonable search may
extend to items found in containers within the passenger
compartment, e.g., the glove compartment.
4. Riley v. California (2014)
a. Police generally may not, without a warrant, search digital
information on a cell phone seized from an individual who has
been arrested.

Inventory Searches
5. South Dakota v. Opperman (1976)
a. Police may constitutionally perform an inventory search of a
vehicle lawfully in police possession.
6. Illinois v. Lafayette (1983)
a. Police may constitutionally perform an inventory search of
personal effects of person during booking.

Protective Sweeps
7. Maryland v. Buie (1990)
a. Fourth Amdt. permits a properly limited protective sweep in
conjunction with an in-home arrest when the searching officer
possesses a reasonable belief based on specific and articulable
facts that the area to be swept harbors an individual posing a
danger to those on the arrest scene.
8. A protective sweep, aimed at protecting the arresting officers, if justified
by the circumstances, is nevertheless not a full search of the premises,
but may extend only to a cursory inspection of those spaces where a
person may be found. The sweep lasts no longer than is necessary to
dispel the reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the premises.

Consent
9. Schneckloth v. Bustamonte (1973)
a. When the subject of a search is not in custody and the State would
justify a search on the basis of his consent, the Fourth and
Fourteenth Amdts. require that it demonstrate that the consent
was in fact voluntary; voluntariness is to be determined from the
totality of the surrounding circumstances. While knowledge of a
right to refuse consent is a factor to be taken into account, the
State need not prove that the one giving permission to search
knew that he had a right to withhold his consent.
10. United States v. Drayton (2002)
a. “There was no application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no
blocking of exits, no threat, no command, not even an

16
 authoritative tone of voice. It is beyond question that had this
encounter occurred on the street, it would be constitutional.”
11. United States v. Matlock (1974)
a. Third Party Consent: Court held that one occupant of a residence
may give consent if the other is not present.
b. When a third party consents to a search of property, a court must
decide not only whether the consent was voluntarily given, but
also whether the third party had the authority to consent to the
search. In United States v. Matlock, 415 U.S. 164 (1974), a woman
consented to the search of a house that she shared with Matlock,
including their bedroom, where police found evidence that they
used against Matlock. The Court held that the woman could
consent to a search of the room because she had “common
authority” over the area. “Common authority” rests on mutual use
of the property by persons generally having joint access or
control for most purposes, so that it is reasonable to recognize
that any of the co-inhabitants has the right to permit the
inspection in his own right and that the others have assumed the
risk that one of their number might permit the common area to be
searched.
12. Georgia v. Randolph (2006)
a. A physically present co-occupant’s stated refusal to permit entry
renders warrantless entry and search unreasonable and invalid as
to him.
13. Fernandez v. California (2014)
a. ∆ refused and then was removed after wife appeared to be
battered and bleeding. Officers came later and wife consented to
the search.
b. When the objecting person is removed by police for “objectively
reasonable” reasons, a consenting co-occupant then may provide
sufficient authority to search.
c. Randolph does not extend to this situation, where wife’s consent
was provided well after ∆ had been removed from their
apartment.

Searches When There Are “Special Needs”

Administrative Searches
14. Camara v. Municipal Court of City and County of San Francisco (1967)
a. Cam refused a warrantless search of his residence by the Division
of Housing Inspection to make a routine inspection for possible
violations.
b. Balancing public interest in Fourth Amdt. is not limited to
criminal situations. Moreover, inspections of this kind jeopardize
“self-protection” interests of the property owner. Refusal to allow
inspection is a crime itself. However, under the present
(warrantless) system, occupants have no way of knowing the
limit or scope of an inspection, whether enforcement of code in
question actually requires a search, or whether the inspector is
17
 acting under proper authority. Occupants are thereby left to the
discretionary powers of officials in the field. Statutory safeguards
are no substitute for individualized review. A magistrate could
review these issues without reassessing basic agency decisions to
canvas an area. A warrant is required because these types of
searches are significant intrusions upon the interests protected
by the Fourth Amdt.
i. However, obtaining a warrant does not require probable
cause that the particular place to be inspected is in
violation of the code. The governmental goals of detecting
public hazards and ensuring compliance with minimum
safety standards requires that officials be able to consider
the relevant circumstances for inspecting an entire area,
not a specific building.
ii. Probable cause can shift with context: if a valid public
interest justifies the intrusion contemplated, then there is
p/c to issue a suitably restrictive search warrant.
15. New York v. Burger (1987)
a. Prohibitions on unreasonable searches and seizures applies to
commercial premises. However, the expectation of privacy is
lessened, especially if belonging to an industry historically subject
to governmental oversight. In this context, the warrant and p/c
requirements have a lessor application.
b. Criteria for a regulatory scheme to necessary to justify a
warrantless inspection:
i. “Substantial” governmental interest in regulatory scheme
pursuant to which search is made
ii. Warrantless search must necessarily further that
regulatory scheme
iii. Statute’s inspection program must provide a
constitutionally adequate substitute for the warrant
requirement. It must advise the owner of the commercial
premises that the search is being made pursuant to the law
and has a properly defined scope, and it must limit the
discretion of the inspecting officers.
16. City of Los Angeles v. Patel (2015)
a. Regulation required hotel operators to record and keep specific
information about their guests on the premises for a 90-day
period and to make them available to any officer of the police
department.
b. Hotels are not heavily regulated because they do not pose a
significant public safety risk. Even if they were, the three Burger
requirements are not met here.
c. Fourth Amdt. protections apply to commercial settings.
d. Special needs come up when the warrant and p/c requirements
are impracticable
e. Detection and deterrence. What is the primary purpose?
f. Scalia, dissent: The ordinance satisfies the Burger test: (1) there is
a substantial gov’t interest in deterring crime in the transient
18
 setting of motels; (2) warrantless inspections are necessary to
avoid the alteration of a guest register while a warrant is
obtained; and (3) limiting a search to an inspection of a record
that must be kept is a suitable alternative to a warrant.
c. The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause.” Grammatically, the two clauses of the
Amendment seem to be independent—and directed at entirely different actors. The former tells the
executive what it must do when it conducts a search, and the latter tells the judiciary what it must do
when it issues a search warrant. But in an effort to guide courts in applying the Search–and–Seizure
Clause's indeterminate reasonableness standard, and to maintain coherence in our case law, we have
used the Warrant Clause as a guidepost for assessing the reasonableness of a search, and have erected a
framework of presumptions applicable to broad categories of searches conducted by executive officials.
Our case law has repeatedly recognized, however, that these are mere presumptions, and the only
constitutional requirement is that a search be reasonable.
d. When, for example, a search is conducted to enforce an administrative regime rather than to investigate
criminal wrongdoing, we have been willing to modify the probable-cause standard so that a warrant
may issue absent individualized suspicion of wrongdoing. Thus, our cases say a warrant may issue to
inspect a structure for fire-code violations on the basis of such factors as the passage of time, the nature
of the building, and the condition of the neighborhood. Camara v. Municipal Court of City and County of
San Francisco (1967). As we recognized in that case, “reasonableness is still the ultimate standard. If a
valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably
restricted search warrant.” Id. And precisely “because the ultimate touchstone of the Fourth Amendment
is ‘reasonableness,’ ” even the presumption that the search of a home without a warrant is unreasonable
“is subject to certain exceptions.” Brigham City v. Stuart (2006).
e. One exception to normal warrant requirements applies to searches of closely regulated businesses.
“[W]hen an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to
a full arsenal of governmental regulation,” and so a warrantless search to enforce those regulations is
not unreasonable. Marshall v. Barlow's, Inc. (1978). Recognizing that warrantless searches of closely
regulated businesses may nevertheless become unreasonable if arbitrarily conducted, we have required
laws authorizing such searches to satisfy three criteria: (1) There must be a “ ‘substantial’ government
interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the
warrantless inspections must be ‘necessary to further [the] regulatory scheme’ ”; and (3) “ ‘the statute's
inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a
constitutionally adequate substitute for a warrant.’ ” New York v. Burger (1987).
a. Alito/Thomas, dissent: “Before entering a judgment with such
serious safety and federalism implications, the Court must
conclude that every application of this law is unconstitutional.”

Border Crossing
2. Special rules have always applied to searches conducted at or near the
United States border. At the border itself, customs and immigration
officials have the right to “stop” those who seek to enter the United
States, and to force them to prove their right to enter (by presenting
their passport and relevant immigration documents). Customs officials
have usually enjoyed the right to conduct limited searches of those who
enter the United States. The searches are designed to make sure that
entrants 1) are not carrying contraband, 2) do not have dutiable items
that they have failed to declare, and 3) are not carrying harmful or
dangerous items (e.g., agricultural products with dangerous parasites).
3. United States v. Flores-Montano (2004): search of gas tank at border
crossing does not require reasonable suspicion.

19
 a. It is axiomatic that the U.S., as sovereign, has the inherent
authority to protect, and a paramount interest in protecting, its
territorial integrity.
b. The reasons that might support a suspicion requirement in the
case of highly intrusive searches of persons simply do not carry
over to vehicles. Complex balancing tests to determine what is a
“routine” vehicle search, as opposed to a more “intrusive” search
of a person, have no place in border searches of vehicles.
4. United States v. Martinez-Fuerte (1976): checkpoint stops are
constitutional and the operation of such checkpoints need not be
authorized by warrant in advanced.
a. Checkpoints are seizures under the Fourth Amdt. and must be
reasonable but they do not require warrant, p/c, or r/s.
5. United States v. Ramsey (1977): 19 U.S.C. §482 allows officers to board
vessels and search any envelope that officers may have reasonable cause
to suspect there is merch imported contrary to law.
6. United States v. Montoya-Hernandez (1985): balloon smuggler case.
a. The detention of a traveler at the border, beyond the scope of a
routine customs search and inspection, is justified at its inception
if customs agents, considering all the facts surrounding the
traveler and her trip, reasonably suspect that the traveler is
smuggling contraband in her alimentary canal; here, the facts, and
their rational inferences, known to the customs officials clearly
supported a reasonable suspicion that respondent was an
alimentary canal smuggler.

Checkpoints
7. Police may stop a vehicle if they observe a traffic violation and may
demand to see the driver’s license and the vehicle’s registration
(probable cause)
8. This is different than with checkpoints (no probable cause) where cars
are stopped for a brief period, such as to see if the drier is intoxicated.
9. Michigan Department of State Police v. Sitz (1990): does the state’s use of
sobriety checkpoints violate the Fourth and Fourteenth Amdts? No, it
does not.
a. The governmental interest to reduce drunk driving related deaths
and injuries outweighs the inconvenience to drivers.
i. The average stop was approximately 25 seconds.
ii. Checkpoints are less intrusive and alarming
b. Three factors:
i. State interest
ii. Effectiveness of program
iii. Individual interest (degree of intrusion)
10. City of Indianapolis v. Edmond (2000): Because the checkpoint program’s
primary purpose was indistinguishable from the general interest in crime
control, the checkpoints violated the Fourth Amdt.
11. Illinois v. Lidster (2004)
a. Court upheld a roadblock conducted for the purpose of gathering
information about a recent hit-and-run crime. The Court
20
 distinguished its holding in Edmond on the basis that “special law
enforcement” concerns will sometimes justify highway stops
without individualized suspicion. Lidster found that 1) the public
interest was served by the seizure to assist in finding the
perpetrator of a specific and known crime, 2) the checkpoint fit
the specific investigative needs of police because it was set up at
about the same location and time of night as the crime being
investigated to increase the likelihood of getting useful
information from stopped drivers, and 3) the intrusion was
minimal, involving a brief wait in line, a request for information
and distribution of a flyer about the past crime. Delay of a few
minutes and a 10-15 second conversation with the officers.
b. The concept of individualized suspicion has little role here as this
directed at obtaining info about others, not the drivers
themselves, and stops are likely to be brief and not likely to ask
self-incriminating questions.

Schools
12. New Jersey v. T.L.O (1985): No w; no p/c. Searching students:
a. Reasonable suspicion  justified at inception; and
b. Reasonable scope 
i. Measure reasonably related to objective and
ii. Not excessively intrusive.
13. Safford Unified School District #1 v. Redding (2009)
a. Strip searches are categorically distinct from searches of outer
clothes or bags. Students have subjective and reasonable
expectation that they will not be subjected to strip searches at
school. The content of the suspicion failed to match the degree of
the intrusion. Some specific evidence was needed. Moreover,
there was no indication of danger to students. Therefore, the
search was excessively intrusive.

The Government Employment Context

14. City of Ontario v. Quon (2010)
a. PD issued pagers to its SWAT team that had a limited number of
text messages and a fee if overage. Q repeatedly went over the
limit, so they checked the transcripts to see if work related. Most
messages were personal, and some were sexually explicit. He was
disciplined and brought a Fourth Amdt. claim.
b. Court assumed that there was a reasonable expectation of privacy
in text messages, and that a search was conducted. Thus, the issue
came down to whether it was reasonable:
c. When conducted for a noninvestigatory, work-related purpose or
for the investigation of work-related misconduct, a gov’t
employer’s warrantless search is reasonable if:
i. It is justified at its inception; and
ii. The measures adopted are reasonably related to the
objectives of the search and not excessively intrusive.
d. Here, the Court held that the search was reasonable:
21
 i. Search was ordered in order to determine whether the
character limit on the City’s contract with pager company
was sufficient to meet the City’s needs – thus, it was a
“noninvestigatory, work-related purpose,” and “justified at
its inception.”
ii. It wasn’t excessively intrusive because although Q had
gone over his monthly allotment a number of times, PD
requested transcripts for only the months of Aug and Sept
2002. Also, messages sent while off duty were redacted.

Drug Testing
15. Employment Context  in private employment context there must be
some state or federal statute being acted on by the employer.
a. Skinner (1989): privacy expectations are reduced in “an industry
that is regulated pervasively to ensure safety.” Therefore, drug
testing of railroad workers involved in an accident is allowed and
the results can be used by law enforcement.
i. Public safety is a special need.
b. Von Raab (1989): compelling interest in preventing the
promotion of drug users in positions where they might endanger
integrity of the Nation’s borders.
c. Chandler (1997): No evidence of high-risk, safety-sensitive tasks.

School Context:
d. Vernonia School District 47J v. Acton (1995): Students
participating in athletic programs may be drug tested without a
warrant or suspicion.
i. Reasonable? Yes
1. Decreased expectation of privacy
2. Unobtrusiveness of search
3. Severity of the need met by the search
e. Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls (2002): Students who participate in
extracurricular activities may be subjected to drug testing
without a warrant or individualized suspicion.
16. Hospitals: Ferguson v. City of Charleston: Reasonable expectation of
privacy of patient is their tests won’t go to third parties (nonmedical).

Searches in Jails and Prisons

17. Florence v. Board of Chosen Freeholders of the County of Burlington
(2012): R/s is not required for a strip search of persons in jail who have
committed a minor offense.

Searches of Those on Probation and Parole

18. United States v. Knights (2001): A probationer’s home may be searched if
there is reasonable suspicion of criminal activity.
a. The balance of protecting citizens and observing probationers
“requires no more than reasonable suspicion under the Fourth
Amdt. to conduct a search of this probationer’s house.

22
 19. Samson v. California (2006): The person of a parolee may be searched
without reasonable suspicion because that is an understood condition of
their release (lesser expectation of privacy)
a. Parolees, like prisoners, are still under the control of the state.

Seizures and Arrests

Is a Warrant Needed for Arrests?
ii. United States v. Watson (1976)
1. If crime occurs in the presence of the officer, officer can arrest whether a
felony or misdemeanor.
2. If crime occurs outside the presence of officer, officer can arrest with
probable cause only if felony.

When Is a Person Seized?

iii. United States v. Mendenhall (1980)
1. A person is “seized” when, by means of physical force or show of
authority, his freedom of movement is restrained. It is determined by
whether a reasonable person under the circumstances would believe he
was not free to leave (objective test).
2. Whether consent is legitimate and voluntary is determined by the
totality of the circumstances  gov’t burden.
iv. Brendlin v. California (2007)
1. Passenger is also seized when the driver is seized.
v. California v. Hodari D. (1991)
1. Fleeing suspect threw away a rock of cocaine and then was
tackled/arrested. Was fleeing suspect “seized” when cop was chasing but
not yet had physical contact?
2. No; an arrest requires either physical force or, where that is absent,
submission to the assertion of authority.
3. The Mendenhall test (reasonable person would have believed he was not
free to leave) is only a necessary condition, not a sufficient condition of a
seizure effected through a show of authority.
For What Crimes May a Person Be Arrested?
vi. Atwater v. City of Lago Vista (2001): Fourth Amdt. does not prohibit arrests for
minor offenses. Probable cause applies to all arrests, w/o need to balance
interests.
vii. Virginia v. Moore (2008)
1. Cops heard over radio that ∆ was driving with a suspended license. They
pulled him over and arrested him. Subsequent searched revealed he was
carrying 16 grams of crack. State law prohibited the arrest for this
particular misdemeanor.
2. Atwater rule still applies. Officers did not violate the Fourth Amdt.

23
Stop and Frisk
The Authority for Police to Stop and Frisk
viii. Terry v. Ohio (1968): Whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others is in danger.
1. “We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or
others’ safety, he is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used to
assault him.”
a. Unusual conduct which leads him reasonably to conclude that
criminal activity may be afoot
b. Identifies himself as a policeman and makes reasonable inquiries
c. Nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others safety
d. He is entitled for the protection of himself and others in the area
to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used
to assault him.

The Distinction Between Stops and Arrests

ix. Under Terry, both stops and arrests are seizures within the meaning of the
Fourth Amdt. Arrests, however, must be based on probable cause, while stops
require only reasonable suspicion.
x. Court has made clear that if a person is detained for sustained interrogation,
then that is an arrest within the meaning of the Fourth Amdt. For example, an
arrest has occurred if police officers take a suspect to the station house for
questioning.
xi. No seizure  Terry stop  De facto arrests  Arrest
xii. Royer (1983): Taking a suspect from the public area of an airport into a small
room constituted an arrest.
xiii. Hayes (1985): Taking a suspect to the police station house for fingerprinting
was an arrest and had to be based on probable cause.
xiv. Davis (1969): Fourth Amdt. was violated when police fingerprinted and
questioned 25 African American men to match fingerprints found at a rape
scene.
xv. Place (1983): Detaining a person’s luggage for 90 minutes was a seizure under
the Fourth Amdt.
xvi. Sharpe (1985): Police detained the suspects between 30 and 40 minutes while
waiting for the arrival of a drug enforcement agent. Court ruled that it was a
stop, not an arrest. Court said, “if an investigative stop continues indefinitely, at
some point it can no longer be justified as an investigative stop.” But the Court
said that there is no “hard-and-fast time limit.”
24
What May Police Do When They Stop an Individual?
xvii. Michigan v. Long (1983): Police may “frisk” a car if there is a reason to believe
that there is a weapon in the car and that the person may gain access to that
weapon.
xviii. Hiibel v. Sixth Judicial District Court of Nevada (2004): An arrest for failure to
provide identification does not violate the Fourth Amdt. so long as the request
was reasonably related to the circumstances justifying the stop.
1. Police may ask person stopped to identify themselves.

What Is Sufficient for Reasonable Suspicion?

Reasonable Suspicion: General Principles
2. United States v. Arvizu (2002): To determine whether an officer has
reasonable suspicion we must look at the totality of the circumstances of
each case to see whether the detaining officer has a particularized and
objective basis for suspecting wrongdoing.
a. Signal triggered during shift change
b. Minivan tried to avoid checkpoint on a road that usually is used
by 4x4 vehicles  last place to turn before checkpoint
c. Driver did not behave as most drivers in the area would
d. Children’s knees high; appeared to be instructed to wave their
hands
e. Car registered in an area notorious for smugglers.

Reasonable Suspicion Based on Informant’s Tips

3. Alabama v. White (1990)
a. Court held that an anonymous tip which was partially
corroborated could constitute reasonable suspicion to support a
Terry stop.
b. Court relied on the totality of circumstances approach to
informants’ tips as supporting probable cause.
c. Court found that the factors of basis of knowledge and veracity
are also relevant in the reasonable suspicion context. But the
Court reasoned that these factors must be applied even more
permissively than under the Gates approach, since reasonable
suspicion is a less rigorous standard of proof than probable cause.
d. After White, a very important form of corroboration will be
evidence showing an informant’s substantially correct prediction
of future activity. It need only be substantially correct, since
reasonable suspicion is such a minimal standard.
4. Florida v. J.L. (2000): An anonymous tip that a person may be carrying a
gun does not justify a stop and frisk under the Fourth Amdt. unless there
is additional corroboration to ensure that the tip has “sufficient indicia of
reliability” to create reasonable suspicion justifying a stop.
5. Navarette v. California (2014): The traffic stop complied with the Fourth
Amdt. because, under the totality of the circumstances, the officer had
reasonable suspicion that the truck’s driver was intoxicated. The
behavior described by the 911 caller, viewed from the standpoint of an
25
 objectively reasonable police officer, amounted to reasonable suspicion
of drunk driving.
a. This sort of contemporaneous report has long been treated as
especially reliable.
b. Even a reliable tip will justify an investigative stop only if it
creates reasonable suspicion that “criminal activity be afoot.”

Reasonable Suspicion Based on a Person’s Trying to Avoid a Police Officer

6. Illinois v. Wardlow (2000): Nervous, evasive behavior was a pertinent
factor in determining reasonable suspicion for a Terry stop, and that
headlong flight was the consummate act of evasion.
a. Officers were justified in suspecting that ∆ was involved in
criminal activity based on his presence in an area of heavy
narcotics trafficking and his unprovoked flight upon noticing the
police.

Reasonable Suspicion Based on Profiles

7. United States v. Sokolow (1989): DEA agents learned that ∆ had paid cash
for his $2,100 airline tickets spend a short time in Miami, a drug source.
In addition, ∆ appeared nervous and was traveling under a false name.
a. Court held that although each of the ∆’s actions by itself might
have been innocent, the totality of all the circumstances together
with all of ∆’s actions were sufficient for DEA agents to have a
reasonable suspicion that ∆ was committing a drug crime.
B. Electronic Surveillance
a. Is Electronic Eavesdropping a Search?
b. Statutory Requirements
c. Warrantless Eavesdropping
i. United States v. United States District Court for the Eastern District of Michigan

CHAPTER 3 – THE EXCLUSIONARY RULE

Is the Exclusionary Rule a Desirable Remedy for Unconstitutional Police Behavior?

a. Pros:
i. Deterrence
ii. Judicial integrity
iii. Gov’t benefiting
b. Cons:
i. Guilty (and potentially dangerous) people go free on technicality or simple
mistake.
ii. Cost
iii. Influence judicial decisions
iv. Other remedies
c. Hudson v. Michigan (2006): Exclusionary rule does not apply to knock and announce
i. Court determined that the exclusionary rule was inapplicable and suppression
of the evidence was not warranted because, among other things: (1) violation of
26
 the “knock-and-announce” rule did not require the suppression of all evidence
found in a search; (2) the constitutional violation of an illegal manner of entry
was not a but-for cause of obtaining the evidence; (3) the interests that were
violated, preventing the gov’t from seeing or taking evidence described in a
warrant, had nothing to do with the seizure of the evidence; and (4) the social
costs of applying the exclusionary rule to knock-and-announce violations were
considerable, the incentive for such violations was minimal to begin with, and
the extant deterrences against them were substantial.

The Origins of the Exclusionary Rule

ii. Weeks v. United States (1914): The Fourth Amdt. must be enforced in fed’l
courts through the exclusion of evidence seized in violation of its requirements.
Unconstitutional seizures should find no sanction in the judgment of courts. The
protection of the Fourth Amdt. is of no value if exclusion of unconstitutionally
seized evidence is not required. This case was the first application of the
exclusionary rule.
iii. Wolf v. Colorado (1949): Court held that “in a prosecution in a State court for a
state crime, the Fourteenth Amdt. does not forbid the admission of evidence
obtained by an unreasonable search and seizure.”
1. Wolf was decided at a time when there was intense debate over whether
the Bill of Rights should be applied to the states and when a majority of
the Court was generally reluctant to apply Bill of Rights provisions to the
states.
iv. Mapp v. Ohio (1961): Full incorporation  Evidence obtained through an
unreasonable search and seizure (fake warrant) in violation of the Fourth Amdt.
is inadmissible in state criminal proceedings. Exclusionary rule now applies to
state and local authorities. Right of Privacy  Const. Origin.

When Does the Exclusionary Rule Apply?

v. Herring v. United States (2009)
1. Withdrawn warrant: not an absolute, individual right. Must balance
benefits of deterrence against the costs of keeping the evidence out.
2. Police misconduct must be intentional and flagrant.
3. Negligence not enough. Conduct that is not deliberate or systemic cannot
be deterred by keeping evidence out.
4. Where police act negligently, but not recklessly, and lead an officer to
reasonably believe an arrest warrant exists, the evidence obtained
pursuant to that unlawful arrest remains admissible.
5. To trigger the exclusionary rule, police conduct has to be sufficiently
deliberate such that exclusion could meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the
justice system.
6. In this case, the miscommunications were not routine or widespread;
they were not so objectively culpable as to require exclusion.
vi. Davis v. United States (2011):
1. Court reaffirmed that the exclusionary rule exists solely to deter
violations of the Fourth Amdt. and thus concluded that it does not apply
when police follow the law as it existed as of the time of the search, even

27
 though the law was changed while the case was pending on appeal
(search occurred after Belton but before Gant).
2. Ask: Is the purpose of the rule advanced by suppression?
3. Remember: Even when there is a Fourth Amdt. violation, the rule does
not apply when the costs of exclusion outweigh its deterrent benefits.
vii. Utah v. Strieff (2016): If the police illegally stop an individual and then learn that
there is an outstanding warrant, must evidence gained from a search incident to
the arrest be excluded?
1. Three exceptions to the rule involving the causal relationship between
the unconstitutional act and the discovery of evidence:
a. Independent Source Doctrine: allows trial courts to admit
evidence obtained in an unlawful search if officers independently
acquired it from a separate, independent source.
b. Inevitable Discovery Doctrine: allows for the admission of
evidence that would have been discovered even without the
unconstitutional source.
c. Attenuation Doctrine: Evidence is admissible when the
connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening
circumstance, so that “the interest protected by the constitutional
guarantee that has been violated would not be served by
suppression of the evidence obtained.”
2. Does the Attenuation Doctrine apply? (Brown v. Illinois):
a. (1) Look to the “temporal proximity” between the
unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the
unconstitutional search.
i. Here, discovery of drug contraband on ∆ occurred only
minutes after illegal stop (favor suppression).
b. (2) Consider “the presence of intervening circumstances.”
i. Here, warrant was valid, it predated officer’s investigation,
and was unconnected with the stop (favor admission).
c. (3) Examine “the purpose and flagrancy of the official
misconduct.”
i. Here, officer’s conduct was at most negligent. He (1) did
not observe what time ∆ entered drug house and (2)
should have asked ∆ whether he would speak with him,
instead of demanding him to do so (favor admission).

Who Can Object to the Introduction of Evidence and Raise the Exclusionary Rule?
viii. Jones v. United States (1960): Court took a broad view of who could object to the
introduction of evidence and raise the exclusionary rule. Court said that a
person who “was aggrieved by an unlawful search or seizure” had standing to
challenge it.
1. Court said that “in order to qualify as a ‘person aggrieved by an unlawful
search and seizure’ one must have been a victim of a search or seizure,
one against whom the search was directed, as distinguished from one
who claims prejudice only through the use of evidence gathered as a
consequence of a search or seizure directed at someone else.”
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 2. Court concluded that “anyone legitimately on premises where a search
occurs may challenge its legality by way of a motion to suppress, when
its fruits are proposed to be used against him.”
3. Court changed the approach in Rakas.
ix. Rakas v. Illinois (1978): Not about standing; a person’s Fourth Amdt. rights have
to actually be violated: personal or individual right – not vicarious. Only people
with a legitimate expectation of privacy in the place searched or thing seized
may challenge the search or seizure as unconstitutional.
x. Rawlings v. Kentucky (1980): Court held that a man could not raise the
exclusionary rule when contraband belonging to him was found inside a
woman’s purse when he and the woman were visiting premises that were
searched. Court concluded that the man did not sustain his burden of proving
that he had a legitimate expectation of privacy under the circumstances and
thus could not raise the exclusionary rule.
xi. Minnesota v. Carter (1998): When can visitors in a person’s home raise the
exclusionary rule?
1. (1) The purely commercial nature of the transaction, (2) the relatively
short period of time that respondents were on the premises, and (3) the
lack of any previous connection between them and the householder all
lead to the conclusion that their situation is closer to that of one simply
permitted on the premises. Respondents had no legitimate expectation
of privacy in the home.
xii. Minnesota v. Olson (1990): Overnight guests have a reasonable expectation of
privacy.
xiii. Brendlin v. California (2007): When can passengers in a person’s car raise the
exclusionary rule?
1. A passenger in a vehicle is seized along with the driver. Applies
Mendenhall test for seizure. The reasonable passenger would not feel
free to leave or end the encounter; therefore, a seizure has occurred.
Show of authority + submission. Brendlin submitted by remaining in the
car  objective belief of passenger.
2. A person is seized by the police and thus entitled to challenge the
government's action under the Fourth Amendment when the officer,
"`by means of physical force or show of authority,'" terminates or
restrains his freedom of movement "through means intentionally
applied.” Thus, an "unintended person ... [may be] the object of the
detention," so long as the detention is "willful" and not merely the
consequence of "an unknowing act." A police officer may make a
seizure by a show of authority and without the use of physical force, but
there is no seizure without actual submission; otherwise, there is at
most an attempted seizure, so far as the Fourth Amendment is
concerned.
3. When the actions of the police do not show an unambiguous intent to
restrain or when an individual's submission to a show of governmental
authority takes the form of passive acquiescence, there needs to be
some test for telling when a seizure occurs in response to authority, and
when it does not. The test was devised by Justice Stewart in United
States v. Mendenhall (1980), who wrote that a seizure occurs if "in view
of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” Later on, the

29
 Court adopted Justice Stewart's touchstone, see, e.g., Hodari D but added
that when a person "has no desire to leave" for reasons unrelated to the
police presence, the "coercive effect of the encounter" can be measured
better by asking whether "a reasonable person would feel free to
decline the officers' requests or otherwise terminate the encounter.”
4. The law is settled that in Fourth Amendment terms a traffic stop entails
a seizure of the driver "even though the purpose of the stop is limited
and the resulting detention quite brief." And although we have not,
until today, squarely answered the question whether a passenger is also
seized, we have said over and over in dicta that during a traffic stop an
officer seizes everyone in the vehicle, not just the driver.

Exceptions to the Exclusionary Rule

Structure of “Fruit” Analysis
xiv. ID tree (const. violation)
xv. ID fruit (evid. gov’t to introduce)
xvi. Fruit from tree (causal connection) (keep in mind independent source and
inevitable discovery)
xvii. Facts showing attenuation (is there some distance between the violation and
the evidence)
xviii. “Good faith” violation
xix. Knock/announce violation

Independent Source
xx. Derivative Evidence: The exclusionary rule also prohibits the introduction of
derivative evidence, both tangible and testimonial, that is the product of the
primary evidence, or that is otherwise acquired as an indirect result of the
unlawful search up to the point at which the connection with the unlawful
search becomes so attenuated as to dissipate the taint.
xxi. Segura v. United States (1984): Agents unlawfully entered ∆’s apartment and
remained there until a search warrant was obtained. But the Court held that the
evidence found for the first time during the execution of the valid and untainted
search warrant was admissible because it was discovered pursuant to an
“independent source.”
xxii. Murray v. United States (1988)
1. Officers surveilling ∆ and others and saw ∆ drive a truck and another
person drive a camper into a warehouse. When ∆s drove the vehicles out,
officers saw two individuals and a tractor trailer rig bearing a long, dark
container within the warehouse. ∆s later turned over the truck and
camper to other drivers, who were in turn followed and ultimately
arrested, and the vehicles lawfully seized. Both vehicles were found to
contain marijuana.
2. After receiving this info, officers converged on the warehouse and forced
entry. They observed numerous burlap-wrapped bales in plain view,
later found to contain marijuana. They left without disturbing the bales,
kept the warehouse under surveillance, and did not reenter until they
had a search warrant. In applying for the warrant, the agents did not
mention the prior entry, and did not rely on any observations made
during that entry.

30
 3. Petitioners contend that the independent source doctrine applies only to
evidence obtained for the first time during an independent lawful search.
4. Gov’t contends that it also applies to evidence initially discovered during,
or as a consequence of, an unlawful search, but later obtained
independently from activities untainted by the initial illegality. Court
sides with gov’t.
5. “The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used
before the Court but that it shall not be used at all. Of course this does
not mean that the facts thus obtained become sacred and inaccessible. If
knowledge of them is gained from an independent source they may be
proved like any others.” Silverthorne Lumber (Holmes, J.).
6. Police incentives: an officer with PC sufficient to obtain a search warrant
would be foolish to enter the premises first in an unlawful manner
because he would risk suppression of all the evidence on the premises,
both seen and unseen.
a. Officer would have to convince a magistrate and the later trial
judge that the info unlawfully obtained didn’t affect either the
decision to seek a search warrant or the magistrate’s decision in
issuing the warrant.
7. Apply independent source doctrine: While knowledge of the marijuana
was obtained during the first unlawful search, it was also obtained
through the second lawful search, so there’s no valid reason not to apply
the doctrine.
8. Seizure of tangible evidence: So long as the later, lawful seizure is
genuinely independent of an earlier, tainted one, there is no reason why
the independent source doctrine shouldn’t’ apply to tangible evidence.
a. Ct. App. said it was independent here, but dist. ct. didn’t
specifically determine that agents would have sought a warrant
but for the unlawful search (remand).

Inevitable Discovery
xxiii. Nix v. Williams (1984): The “Christian Burial” case. Tree: Fifth Amdt. violation?
 Fruit: the body and clothing. In the first trial, prosecution tried to admit
testimonial evidence based on what ∆ said in the car ride.
1. If the prosecution can establish by a preponderance of the evidence that
the information ultimately or inevitably would have been discovered by
lawful means, then the evidence should be admitted into evidence.
a. Excluding such evidence would put the police in a worse position
than they would have been in, which is contrary to the interests of
society.
2. No absence-of-bad-faith req’t: There is no requirement that the
prosecution must prove the absence of bad faith.
a. Such a requirement would place courts in a position of
withholding from juries relevant and undoubted truth that would
have been available absent unlawful police conduct.
b. Enormous societal costs.
c. Officers would be deterred by the threat of departmental
discipline and civil liability.
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 3. Exclusion doesn’t add to fairness at trial: Exclusion of physical evidence
that would inevitably have been discovered adds nothing to either the
integrity or fairness of a criminal trial.
a. Reliability of evidence in no way affected here.
b. Fairness can be achieved by placing the State and the ∆ in the
same position they would have been in but for the unlawful police
conduct.
4. Discovery inevitable here: Had ∆ not led the police to V’s body, the
volunteer search teams would have found the body.
a. Body was found in a culvert where the teams were told to look.
b. County would have been searched just like the others (map
obtained already).

Inadequate Causal Connection – Attenuation of the Taint

xxiv. Wong Sun v. United States (1963) (Fourth Amdt.): Police illegally broke into
Wong’s laundry and adjacent apartment. Police handcuffed Wong and held him
at gunpoint. Wong made incriminating statements. Wong was arrested, charged,
and released on his own recognizance. Subsequently, days later and in a
different place, he was questioned by an agent who informed Wong of his right
to remain silent and to consult with counsel. Wong again gave incriminating
statements. Court held that Wong’s statements to the police at the time of his
arrest had to be excluded as the fruits of his unlawful arrest. By contrast,
though, the Court said that Wong’s later confession was admissible because the
connection with the earlier illegal police activity “became so attenuated as to
dissipate the taint.”
xxv. Brown v. Illinois (1975) (Fifth Amdt.)
1. “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply
because it would not have come to light but for the illegal actions of the
police. Rather, the more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.”
2. “Sufficiently an act of free will” Test: (1) Question whether a confession
is the product of a free will under Wong Sun must be answered on the
facts of each case (threshold requirement)
a. (2) Miranda warnings are no dispositive but are an important
factor.
b. Also consider (3) temporal proximity between the arrest and the
confession, (4) presence of intervening circumstances, and (5) the
purpose and flagrancy of the official misconduct.
3. Statements not admissible under Wong Sun: State failed to sustain its
burden of showing that the statements were admissible under Wong Sun.
a. Separated from illegal arrest by less than 2 hours
b. No intervening event of significance
c. Illegality had a quality of purposefulness

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The Good Faith Exception to the Exclusionary Rule
xxvi. Herring v. United States (2009): Remember: Court held that the exclusionary
rule does not apply to negligent or good faith violations of the Fourth Amdt.
xxvii. United States v. Leon (1984): Should the Fourth Amdt. Exclusionary Rule be
modified so as to not bar the admission of evidence seized in reasonable, good-
faith reliance on a search warrant that is subsequently held to be defective
(unsupported by probable cause)?
1. Good faith exception: Evaluation of the costs and benefits of suppressing
reliable physical evidence seized by officers reasonably relying on a
warrant issued by a neutral and detached magistrate leads to the
conclusion that such evidence should be admissible in the prosecution’s
case-in-chief.
a. Reliance upon a warrant will normally establish that the officer
has acted in good faith.
b. Reliance must be objectively reasonable.
2. Exclusion appropriate: No basis for believing that exclusion of evidence
seized pursuant to a warrant will have significant deterrent effect on the
issuing judge or magistrate, as they have no stake in the outcome.
a. Exclusionary rule is designed to deter police misconduct rather
than to punish the errors of judges and magistrates.
b. There exists no evidence suggesting the judges and magistrates
are inclined to ignore or subvert the Fourth Amdt. or that
lawlessness among these actors requires application of the
extreme sanction of exclusion.
3. When exception won’t apply:
a. Magistrate or judge was misled by info in the affidavit that the
affiant knew was false or would have known was false but for
reckless disregard for the truth.
b. Magistrate wholly abandoned his judicial role
c. Where a warrant is so facially deficient that no reasonable officers
could reasonably presume it to be valid.

The Exception for Violations of the Requirement for “Knocking and Announcing”
xxviii. Hudson v. Michigan (2006): Court held that the exclusionary rule does not apply
fi police violate the Fourth Amdt. “knock and announce” requirement.

Suppression Hearings
d. Fed. R. Crim. Pro. 12(b)(3)(c) A motion to suppress evidence must be made pre-trial.
Attack probable cause, scope of search warrant, no warrant exception applies, etc.
e. Franks v. Delaware (1978): ∆ may challenge the truthfulness of statements made in
warrant applications. ∆ must make a showing that the officers who prepared the
warrant engaged in deliberate falsifications or reckless disregard for the truth. Mere
allegations of negligence or innocent mistake not sufficient.
f. United States v. Matlock (1974): Judges can rely on hearsay evidence at suppression
hearings.

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CHAPTER 4 – POLICE INTERROGATION AND THE PRIVILEGE AGAINST SELF-
INCRIMNINATION

Due Process and the Requirement for Voluntariness

The Requirement for Voluntariness
i. Hopt v. People of Territory of Utah (1884): Court said that “a confession . . .
should not go to the jury unless it appears to the court to have been voluntary.”
Court based its decision on English common law and not the Const., but made it
clear that involuntary confessions are unreliable and should not be admissible
as evidence.
ii. Bram v. United States (1897): Court first found that involuntary confessions
violate the privilege against self-incrimination under the Fifth Amdt. A
confession can never be received into evidence where the prisoner has been
influenced by any threat or promise.
iii. Brown v. Mississippi (1936): State has burden to show totality of the
circumstances.

Determining Whether a Confession Is Voluntary

1. Jackson v. Denno (1964): The prosecution has the burden of proving that
a confession is voluntary in order to admit it into evidence (However,
after Miranda, if the requirements of Miranda are met, the evidence is
presumed admissible).
2. Crane v. Kentucky (1986): Even if the judge deems the confession to be
voluntary and is admitted, a ∆ can still argue to the jury that the
confession was obtained under circumstances and conditions that make
it unreliable.

The Length of the Interrogation and Whether the Defendant Was Deprived of Basic Bodily Needs
3. Ashcraft v. Tennessee (1944): 36 hours of interrogation without sleep; 24
hours without food  involuntary/coerced
4. Payne v. Arkansas (1958): ∆ had fifth grade education 
involuntary/coerced

The Use of Force and Threats of Force

5. Arizona v. Fulminante (1991)
a. ∆ confessed to murder of stepdaughter to a fellow prisoner while
incarcerated on other charges.
b. Court held that the confession was coerced and that the state
failed to meet its burden of establishing, beyond a reasonable
doubt, that the admission of the confession was harmless error.
There was a credible threat of physical violence unless he
confessed.
c. Admission of a coerced confession did not automatically require
reversal of a conviction but was subject to harmless error analysis
because it involved a trial error that could be assessed in the
context of other evidence.

34
 d. Admission of defendant's confession was not harmless error
because it was unlikely that he would have been prosecuted at all
absent the confession, the admission of the confession led to the
admission of other evidence prejudicial to defendant, and the
confession influenced the sentencing phase of the trial.

Psychological Pressure Tactics

6. Spano v. New York (1963)
a. After several hours and several different officers trying to force a
confession, the police had a childhood friend talk to Spano and
claim that he (the friend) was going to get fired from his job if
Spano didn’t confess. Court concluded that Spano’s will was
overborne by official pressure, fatigue and sympathy falsely
aroused after considering all the facts in their post-indictment
setting.

Deception
7. Lynumn v. Illinois (1963): A suspect was told that if she cooperated and
answered the questions from the police officers, she would not be
prosecuted for participating in a marijuana sale. But she was told that if
she did not cooperate, she would face ten years in prison and have her
children taken away from her. She told the police that she would say
whatever they wanted. They told her to admit the marijuana sale, and
she did. The court held that it is clear that a confession made under such
circumstances cannot be deemed voluntary.
8. Leyra v. Dennis (1954): Court found that a confession was voluntary,
even though the police lied to the suspect and told him that his
accomplice had already confessed.
9. Frazier v. Cupp (1969): If you fall for deception by law enforcement, the
confession can still be voluntary.

The Age, Level of Education, and Mental Condition of a Suspect

10. Culombe v. Connecticut (1961): Court emphasized that the suspect was
illiterate and of low intelligence.
11. Crooker v. California (1958): By contrast, in finding a confession to be
voluntary in Crooker, noting that the suspect had completed a year of law
school.
12. Colorado v. Connelly (1986)
a. ∆ blurted a confession to police, who did not coerce him at all, but
it later turned out that ∆ was suffering from psychosis.
b. Coercive police activity is a necessary predicate to the finding that
a confession is not “voluntary” within the meaning of the DPC.
c. Confessant’s state of mind can never, alone, conclude the due
process inquiry although relevant.
d. Exclusionary rule inappropriate because no police conduct at
issue.
iv. Is the Voluntariness Test Desirable?
v. Coercive Questioning, Torture, and the War on Terrorism

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Fifth Amendment Limits on In-Custodial Interrogation: Miranda v. Arizona
Miranda v. Arizona and Its Affirmation by the Supreme Court
vi. Miranda v. Arizona (1966)
1. A suspect must be informed of his constitutional rights against self-
incrimination and assistance of counsel and give a voluntary waiver of
these rights as a necessary precondition to police questioning and the
giving of a confession.
2. Required Admonition of rights:
a. (1) Suspect must be informed in clear and unequivocal terms that
he has the right to remain silent.
i. Absolute prerequisite to overcoming the inherent
pressures of the interrogation atmosphere.
ii. Warning will show that one’s interrogators are prepared
to recognize his privilege should he choose to exercise it.
b. (2) Anything said can and will be used against the individual in
court
i. It is only through awareness of these consequences that
there can be any assurance of real understanding and
intelligent exercise of the privilege.
c. (3) Individual has a right to consult with counsel and have him
present during any questioning if the individual so desires.
i. Assistance of counsel can mitigate the dangers of
untrustworthiness
ii. Presence of a lawyer can guarantee that the accused gives
a fully accurate statement to the police.
iii. Failure to ask for a lawyer does NOT constitute a waiver.
d. (4) If the individual is indigent, a lawyer will be appointed to
represent him.
i. Without this additional warning, the admonition of the
right to consult with counsel would often be understood as
meaning only that he can consult with a lawyer if he has
one or has the funds to obtain one.
ii. Financial ability of the individual has no relationship to the
scope of the rights involved here.
e. Invocation of rights: If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease
f. If the interrogation continues without the presence of an attorney
and a statement is taken, a heavy burden rests on the gov’t to
demonstrate that the ∆ (1) knowingly, (2) voluntarily, and (3)
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel.
g. Whatever the testimony of the authorities as to ∆’s waiver, a
lengthy and incommunicado interrogation before a statement is
made is strong evidence that the accused did not validly waive his
rights.
3. Dickerson v. United States (2000): Congress cannot supersede Miranda by
legislation.
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 4. Chavez v. Martinez (2003): There cannot be civil suits for violation of
Miranda’s requirements.
a. 4 Justices: Fifth Amdt. requires a criminal case.
b. 2 Justices: Money damages are not necessary to enforce Miranda;
the exclusionary rule is a sufficient enforcement mechanism.
c. 3 Justice Dissent: Damage remedy should be allowed.
b. Is Miranda Desirable?

What Are the Requirements for Miranda to Apply?

When Is a Person “in Custody”?

1. Orozco v. Texas (1969): You can be in your home and still be “in custody.”
2. Oregon v. Mathiason (1977): A person who is free to leave is not in
custody and no Miranda warnings are required.
3. Beckwith v. United States (1976): Court held that a special agent of the
IRS, investigating potential criminal income tax violations, in an
interview with a taxpayer, not in custody, is not required to give the
warnings called for in Miranda.
4. Minnesota v. Murphey (1984): Court held that statements made in a
meeting with a person’s probation officer were not uttered in a custodial
context and no Miranda warnings were required.
5. Stansbury v. California (1994): Court held that “an officer’s subjective and
undisclosed view concerning whether the person being interrogated is a
suspect is irrelevant to the assessment whether the person is in custody.”
The Court said that “[o]ur decisions make clear that the initial
determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.
6. J.D.B. v. North Carolina (2011): Court held that age is relevant when
determining police custody for Miranda purposes. J.D.B. was a 13-year-
old student enrolled in special education classes whom police had
suspected of committing two robberies. A police investigator visited
J.D.B. at school, where he was interrogated by the investigator, a
uniformed police officer, and school officials. J.D.B. subsequently
confessed to his crimes and was convicted. J.D.B. was not given a
Miranda warning during the interrogation, nor an opportunity to contact
counsel. Court found that J.D.B.’s age should have been considered when
determining whether he was in police custody. The Court remanded the
cases and instructed the lower court to make a new finding on custody
while taking age into account.
7. Berkemer v. McCarty (1984): Misdemeanors and roadside stops
a. Not dependent upon offense – it would be unreasonable to expect
the police to make guesses as to the nature of the criminal
conduct at issue before deciding how they may interrogate the
suspect.
b. Traffic stop not custody – More like a Terry stop. Quite different
than stationhouse interrogation, detention of motorist pursuant
to a traffic stop is presumptively temporary and brief, atmosphere
is substantially less police dominated.
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 c. Point at which one’s “in custody” does NOT depend on the
officer’s subjective statement of mind, as the only relevant inquiry
is what a reasonable man in the suspect’s position would have
understood in the situation.

What Is an “Interrogation”?
8. Interrogation is not construed so narrowly as to mean only that
interrogation that occurs while in custody
a. Doesn’t have to be express questioning can be actions of police –
must reflect a measure of compulsion above and beyond what in
inherent with custody.
i. Intent can be looked for how it helps show that the cops
reasonably should have known the effect
ii. Any knowledge the police might have had about a
suspect’s unusual susceptibility to a particular form of
persuasion might be an important factor.
9. Objective Test (remember how intent comes in – if cops intended to do
this they likely knew or should have known its effects) – don’t have to
show intent, but when there is intent it will likely satisfy the standard.
10. Concern for types of interrogation practices other than express
questioning were a concern in Miranda
a. Line ups with coached witness
b. Reverse line ups (fictitious crime)
c. Psychological ploys
11. 4 Justices held a routine booking question exception
12. Another 3 held there should be a categorical exception
13. Identity exception – not incriminating
14. Custodial: Physical arrest or de facto where the ∆ does not feel free to
leave
15. Interrogation: More than just questions
16. Rhode Island v. Innis (1980): Court held that the Miranda safeguards
come into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. So, “interrogation”
under Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those normally
used for arrest) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.
17. Arizona v. Mauro (1987)
a. Mauro was in custody and said he did not want to answer
questions until a lawyer was present. Police then allowed Mauro’s
wife to enter the room with the police officer and Mauro. The
room was being recorded and Mauro did not know that.
b. Court held that Mauro was not interrogated. The tape recording of
the conversation between Mauro and his wife shows that
Detective Manson asked Mauro no questions about the crime or
his conduct. Nor is it suggested that Sergeant Allen’s decision to
allow Mauro’s wife to see him was the kind of psychological ploy
that properly could be treated as the functional equivalent of
interrogation.
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 18. Illinois v. Perkins (1990): Court held that conversations between suspects
and undercover officers are not afforded Miranda protection since they
are not done in a “police-dominated” atmosphere where compulsion to
confess is present. It is the premise of Miranda that the danger of
coercion results from the interaction of custody and official
interrogation, said Justice Kennedy. There was no danger of coercion in
this case.

What Is Required of the Police?

19. California v. Prysock (1981): Suspect was not told Miranda rights
verbatim, word by word from the opinion. The court held that a verbatim
recitation of the Miranda warnings is not required. Court held that it is
clear that the police in this case fully conveyed to respondent his rights
as required by Miranda. He was told of his right to have counsel present
prior to and during interrogation, and his right to have a lawyer
appointed at no cost if he could not afford one. These warning conveyed
to respondent his right to have a lawyer appointed if he could not afford
one prior to and during interrogation.
20. Duckworth v. Eagan (1989): Court wrote and held that it was not
necessary that the warning be given in the exact form described in the
Miranda decision, provided the warning as a whole fully informed the
suspect of his or her rights.
a. Together, these cases stand for, the warnings don’t have to be
verbatim, as long as it reasonably conveys the rights to
defendants.

What Are the Consequences of a Violation of Miranda?

21. Michigan v. Tucker (1974): Police questioned a suspect without properly
administering Miranda warnings and during this interrogation learned
the identity of a key witness. Court stressed that the interrogation
occurred prior to its decision in Miranda, but it nonetheless addressed
the broader issue as to the consequences of violations of Miranda’s
requirements. Court said that balancing the competing interests
warranted allowing the use of the witness at trial.
22. Oregon v. Elstad (1985): A suspect who has once responded to unwarned
yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda
warnings.
a. It is an unwarranted extension of Miranda to hold that a simple
failure to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the
suspect's ability to exercise his free will so taints the investigatory
process that a subsequent voluntary and informed waiver is
ineffective for some indeterminate period.
i. Admissibility of any subsequent statement should turn on
solely whether it was knowingly and voluntarily made.
ii. Since there was no actual infringement of ∆’s
constitutional rights in the first instance, subsequent

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 voluntary statement is not excludable as the fruit of the
poisonous tree.
b. A careful and thorough administration of Miranda warnings
serves to cure the condition that rendered the unwarned
statement inadmissible.
i. Psychological impact of the voluntary disclosure of a guilty
secret does not qualify as state compulsion and does not
compromise the voluntariness of a subsequent informed
waiver.
ii. Without coercion in either the first or subsequent
confession, little justification remains for excluding the
subsequent statement.
23. United States v. Patane (2004): Court said that tangible evidence could be
introduced even if it resulted from violations of Miranda
a. ∆ arrested for harassing his ex and was released with a TRO not to
contact ex. He tried to call his ex, who then told police. Two cops
went to ∆’s residence after finding out that ∆ was illegally
possessing a pistol (convicted felon). ∆ was arrested and officer
attempted to Mirandize him, but ∆ interrupted and said he
understood his rights. An officer asked about the gun to which ∆
told him it was in his bedroom.
b. No suppression of physical evidence: the self-incrimination clause
is not implicated by the admission into evidence of the physical
fruit of a voluntary statement, and thus, there is no justification
for extending the Miranda rule into this context.
i. Thus, exclusionary rule inappropriate
ii. Test of Fifth Amdt. is self-executing, so further expansion
of Miranda is unwarranted.
c. No constitutional violation: Mere failure to give Miranda does not,
by itself, violate a suspect’s constitutional rights or even the
Miranda rule.
i. Exclusion of the unwarned statements is a complete and
sufficient remedy for any perceived Miranda violation.
ii. Nothing to deter with failures to warn.
24. Missouri v. Seibert (2004): Mobile home arson/cerebral palsy case
a. Police arrested ∆ in the hospital 5 days later, and the arresting
officer was told not to Mirandize ∆. At the station, ∆ was
questioned for 30-40 minutes without Miranda warimngs while
an officer squeezed her arm and told her that “Donald was also to
die in his sleep.” ∆ was then given a 20-minute coffee break, was
Mirandized, and signed a waiver form. Subsequent questioning
explicitly referred to the first round of unwarned questioning and
was largely a repeat of the info that was obtained prior to
warning.
b. Warnings designed to be ineffective: It is likely that if the
interrogators employ the technique of withholding warnings until
after interrogation succeeds in eliciting a confession, the warnings
will be ineffective in preparing the suspect for successive
interrogation, close in time and similar in content
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 i. A suspect would hardly think he has a genuine right to
remain silent.
ii. Such warnings are likely to mislead and deprive a ∆ of
knowledge essential to his ability to understand the nature
of his rights and consequences of abandoning them.
c. Factors: Series of relevant factors to consider in determining
whether Miranda warnings delivered midstream could be
effective enough to accomplish their object:
i. Completeness & detail of the questions and answers in the
1st round of interrogation.
ii. Overlapping content of the 2 statements
iii. Timing and setting of the 1st and 2nd
iv. Continuity of police personnel
v. Degree to which the interrogator’s questions treated the
2nd round as continuous with the 1st.
d. Strategy here to undermine: Miranda: facts here reveal a police
strategy adopted to undermine Miranda warnings.
i. Reasonable to regard the 2 sessions as parts of a
continuum in which it would have been unnatural to
refuse to repeat at the 2nd stage what had been said
before.
25. 3 Steps for Applying Seibert
a. Determine how LEO deliberately employed the two round
interrogation method to side-step Miranda – remember the
uncertainty – this is required by Kennedy’s concurrence . . . may
not be required by the plurality.
i. If no, you are at an end and no violation occurs
b. If yes:
i. Apply the 5 factors to determine if the situation is more
like Elstad or Siebert
ii. If the court decides the situation is more like Siebert
1. Determine whether the interrogator took any
curative measures.

Waiver of Miranda Rights

ii. What Is Sufficient to Constitute a Waiver?
1. Knowing, intelligent, voluntary
2. Express:
a. Written
b. Oral
3. Implied:
a. Warnings
b. Understanding
c. Conduct
4. North Carolina v. Butler (1979) Must officers obtain an express waiver
from a ∆ of his Miranda rights as a necessary condition for the
admissibility of subsequent statements?
a. Agent gave ∆ an “Advice of Rights” form, which ∆ refused to sign –
there is controversy over whether the agents orally gave ∆ his
41
 rights. ∆ said, “I will talk to you but I am not signing any form.” ∆
proceeded to make inculpatory statements.
b. Not about form: The question is not one of form, but rather
whether the ∆ in fact knowingly and voluntarily waived the rights
delineated in Miranda.
i. Mere silence is not enough, however.
ii. But in some cases, waiver can be inferred from the actions
and words of the person interrogated.
c. ∆ gave waiver: No doubt that ∆ was adequately and effectively
apprised of his rights.
i. No reason why an express waiver need to a precondition
to admissibility.
5. Fare v. Michael C. (1979): Court said that the “totality of the
circumstances approach is adequate to determine whether there has
been a waiver even when interrogation of juveniles is involved.” This
includes considering the “juvenile’s age, experience, education,
background, and intelligence, and into whether he has the capacity to
understand the warnings given to him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”
6. Spring v. Colorado (1987): Court ruled that the police had no duty to
inform a suspect of the nature of the crime for which he or she is under
suspicion. The Court explained that “the additional information could
affect only the wisdom of a Miranda waiver, not its essentially voluntary
and knowing nature.”
7. Berghuis v. Thompkins (2010): a suspect must unambiguously raise his
Miranda rights after being made aware of them. By not invoking his right
to remain silent or the right to counsel and instead answering questions
put to him by the police, ∆ implicitly waived his rights.  Right to remain
silent must be expressly invoked.  an “implicit waiver” of the right to
remain silent is sufficient to admit a suspect’s statement into evidence.
8. Salinas v. Texas (2013): A witness’s silence in response to a law
enforcement official’s question is not sufficient to invoke the witness’s
right against self incrimination, even when the official believes the
answer may incriminate the witness.
a. A suspect’s failure to invoke right to remain silent is not
overridden by an officer’s belief that his question will incriminate
the suspect if answered by the suspect. The right still has to be
explicitly invoked.
b. Thomas concurrence: it was not a custodial questioning;
therefore, no Fifth Amdt. issue.
c. Breyer dissent: police questioning is what ties a suspect’s silence
to invocations of right to silence. By asking the suspect about the
shotgun, police were clearly trying to obtain an answer and the
suspect’s silence should have ended the interrogation.

How Is a Waiver After the Assertion of Rights Treated?

9. Michigan v. Mosley (1975): Right to remain silent
a. ∆ signed a card waiving his rights. ∆ indicated that he didn’t want
to talk about the robberies, and officer ceased questioning. Later,
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 a different officer intended to question ∆ about a separate
homicide and gave ∆ his rights and obtained his signature on a
card. After the second officer told ∆ that someone implicated him
in the homicide (lie), ∆ gave a full confession.
b. No broad per se rules: Police do not have to permanently refrain
from questioning the suspect following an invocation of rights,
nor can they resume after a momentary respite.
c. Standard: Admissibility of statements obtained after a person in
custody has decided to remain silent depends on whether his
right to cut off questioning was “scrupulously honored.”
d. ∆’s right respected: ∆’s right to cut off questioning was fully
respected in this case
i. Read his full rights
ii. Interval of 2 hours passed between interrogations
iii. Questioned about a separate and unrelated crime
10. Edwards v. Arizona (1981): Right to counsel
a. When an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been
advised of his rights.
i. Also, when an accused has expressed a desire to deal with
the police only through counsel, he is not subject to further
interrogation by the authorities until counsel has been
made available to him.
b. Exception: Nothing stops the police from listening to one who
voluntarily volunteered statements
c. ∆’s case: The 2nd round of questioning was initiated by the police,
and thus his statement did not amount to a waiver of the right to
counsel.
11. Minnick v. Mississippi (1990)
a. Counsel must be present: Requirement in Edwards that counsel
be “made available” refers to more than an opportunity to consult
with an attorney outside the interrogation room.
i. Cases following Edwards show that authorities may not
initiate questioning of the accused in counsel’s absence.
b. Holding: When counsel is requested, interrogation must cease,
and officials may not reinitiate interrogation without counsel
present, whether or not the accused has consulted with his
attorney
i. A single consultation does not remove the coercive
pressures that accompany custody
ii. Right to consult counsel prior to questioning also
comprehends a right to have counsel present during any
questioning
c. Exception: ∆ may still initiate a conversation himself.
12. Maryland v. Shatzer (2010): If a ∆ invokes his rights, and then
experiences a break of 14 days or more from Miranda custody the police

43
 have scrupulously honored his invocation, and may approach the ∆ for
questioning again.
13. Davis v. United States (1994): Test regarding invocation is an objective
test. Invocation has to be clear and unambiguous.

What Are the Exceptions to Miranda?

Impeachment
14. Harris v. New York (1971): even if there is a Miranda violation,
statements can come in for impeachment purposes.  keeping them out
would not be a deterrent because the prosecution is already barred from
using the statements in its case in chief.

Emergencies
15. New York v. Quarles (1984): “Public Safety”  where’s the gun?
a. Police may question a suspect without Mirandizing if the exigency
of the circumstances require  objective standard – Reasonably
Prompted by Public Safety Concern.  it doesn’t matter what the
officer’s subjective intent was.
b. Safety of the public is “something more” than an attempt to obtain
evidence and tips the scales.

Booking Exception
16. Questions asking for identifying information falls within the booking
exception.  physical evidence or observation of physical characteristics
are not testimonial (slurred speech in video recording).

The Sixth Amendment Right to Counsel and Police Interrogations

c. The Sixth Amendment Right to Counsel During Interrogations
i. The Sixth Amdt., which applies to the states through the DPC of the Fourteenth
Amdt, guarantees that “in all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense.”
ii. Applies to police interrogation that occurs after adversarial proceedings have
begun. Miranda’s Fifth Amdt. approach only applies to in-custodial
interrogation. Sixth Amdt. right to counsel applies to all efforts by police to
deliberately elicit statements from a person after formal criminal proceedings
have been initiated.  does not apply to questioning without counsel present
about other crimes  offense specific. Watch for the distinction on an exam
question  custodial interrogation prior to case or questioning after proceedings
have begun (from indictment to trial).
1. Massiah v. United States (1964): police tried to obtain additional
information from Massiah after proceedings had begun by having
another charged suspect ask Massiah questions while wearing a wire. 
no counsel present.
a. The core of this right is the opportunity for a ∆ to consult with an
attorney, have the attorney investigate the case, and prepare a
defense for trial.
b. The right extends to having counsel present at various pretrial
“critical” interactions between the ∆ and the state, including when

44
 law enforcement officers (and their agents) deliberately elicit
statements pertaining to the charge.
c. The right to counsel granted by the Sixth and Fourteenth Amdts
means, at least, that a person is entitled to the help of a lawyer at
or after the time that judicial proceedings have been initiated
against him whether by way of formal charge, indictment,
information, arraignment (i.e., entry of plea after charging
instrument is read to him), or preliminary hearing (i.e.,
evidentiary hearing to determine whether probable cause that
charge was committed by the ∆).
d. Although the core of the Sixth Amdt. right to counsel is a trial
right, ensuring that the prosecution’s case is subjected to the
crucible of meaningful adversarial testing, the right covers
pretrial interrogations to ensure that police manipulation does
not render counsel at trial entirely impotent, thereby depriving
the ∆ of effective representation by counsel at the only stage
when legal aid and advice would help him.
e. Thus, once adversary proceedings have commenced against an
individual, he has a right to legal representation when the gov’t
interrogates him.
f. Deliberate Elicitation: Under Massiah, the state may not actively
seek to elicit statements from the accused in the absence of
counsel.
i. Deliberate elicitation occurs when law enforcement
directly interrogates or when law enforcement makes use
of agents such as confidential informants.
ii. However, for Massiah to apply, the agents’ actions must
amount to more than mere listening – they must be
designed to elicit incriminating remarks.
g. Foundational Rule: Once an accused is represented by counsel,
the state may approach the suspect only through counsel.
h. Massiah Waiver: For a valid waiver of the Sixth Amdt. right to
counsel, the state must prove an intentional relinquishment or
abandonment of a known right of privilege. Brewer v. Williams
(1977).
i. Voluntary, intelligent, and knowing
ii. In determining whether a ∆ validly waived his Sixth Amdt.
right to counsel during a post-indictment questioning
(such as police questioning after indictment but before
appointment of counsel), a court consideres whether the
accused was sufficiently aware:
1. of his right to have counsel present during the
questioning and
2. of the possible consequences of a decision to forgo
the aid of counsel
iii. Admonishing a suspect with the Miranda warnings and
obtaining a waiver of right to counsel can be adequate to
show a valid waiver as to post-indictment questioning.

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 iv. A more searching and formal inquiry is required regarding
waiver of right to counsel at trial than during post-
indictment questioning, when an attorney’s role is much
more limited.
i. Offense Specific: The Sixth Amdt. right to counsel is offense
specific, and it cannot be invoked once for all future prosecutions.
i. It does not attach until a prosecution is commenced (that
is, at or after the initiation of adversary judicial criminal
proceedings, whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment).
ii. McNeil v. Wisconsin: Consequently, a Sixth Amdt. right to
counsel may attach to one charged offense, but he may be
questioned without counsel concerning a different offense.
iii. The Court applies the federal double jeopardy Blackburger
test in determining whether the two offenses are the same
offense.
iv. Under this test, offenses are the same only when the
statutory elements of one offense are necessarily included
in the elements of the other offense.
j. Massiah Fruit: As a general rule, the fruit of a Massiah violation
must be suppressed.
k. Admissible for Impeachment: When law enforcement obtains a
statement through a violation of a ∆’s Sixth Amdt. right to counsel,
the statement may be used at the ∆’s trial to impeach his prior
inconsistent testimony, but not in the gov’t’s case-in-chief.
i. As in the case of Fourth Amdt. and Miranda violations, in a
case involving a Massiah Sixth Amdt. right to counsel
violation, the interest safeguarded by the exclusion are
outweighed by the needs to prevent perjury and ensure
the integrity of the trial process.

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