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CRIM PRO OUTLINE

th
4 AMENDMENT: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, an
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.”

I. The Exclusionary Rule


A. Wolf v. Colorado- Court held “that in a prosecution in a State court for a State crime
the 14th Amendment does not forbid the admission of evidence obtained by an
unreasonable search and seizure.”

B. Weeks v. United States- held that “in a federal prosecution the 4th Amendment barred
the use of evidence secured through an illegal search and seizure.” (exclusionary rule…
exclude evidence obtained in violation of 4th Amendment)
-not binding on the states
1) Silver Platter Doctrine- Because the Court in Weeks only applied the
exclusionary rule to evidence seized under “federal authority” this left local police
free to conduct unreasonable searches and seizures and then deliver the evidence
to federal prosecutors “on a silver platter.”

C. Mapp v. Ohio- unreasonable search and seizure provision of 4th Amendment applies to
both State and Federal action…all evidence obtained by searches and seizures in
violation of the Constitution is inadmissible in a state court
-RATIONALE: “to hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment.”
-uses the Due Process Clause of the 14th Amendment to apply the exclusionary rule to the
states

II. What is a search?


A search can be defined as a governmental intrusion into an area where a person has a
reasonable and justifiable expectation of privacy.

A. Katz v. United States- points out that the 4th Amendment governs not only the seizure
of tangible items, but extends to the recording of oral statements
-reasonable expectations of privacy may be defeated by electronic as well as physical
invasion
-Harlan’s concurrence is the important part to this decision because it lays out the 2 prong
reasonable expectation of privacy test, which is (1) did the person have an expectation of
privacy (subjective) and (2) is expectation one that society deems “reasonable”
(objective)
-this test is the primary standard for determining whether police conduct constitutes a
search

B. United States v. White- court does not offer 4th Amendment protection to defendant
largely in part because he voluntarily confided in the informant, who could have then in
turn revealed that information to the police

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C. Smith v. Maryland- consistently with Katz, the court asks whether the person invoking
the protection of the 4th Amendment can claim a “justifiable,” a “reasonable,” or a
“legitimate expectation of privacy,” i.e., (1) did he have a subjective expectation of
privacy, and (2) was his subjective expectation one that society recognizes as
“reasonable” (objective prong)
-Court states that pen registers are different from listening devices because they don’t
acquire the contents of communications
-no expectation of privacy because when one dials a number they are conveying that
number to the telephone company to connect them, a.k.a. a person has no legitimate
expectation of privacy in info he voluntarily turns over to third parties (you’re assuming
the risk)
Dissent- calls took place from the privacy of the home and should be protected
-you have to “assume the risk” when using a phone, and therefore there is no realistic
alternative
-shouldn’t the expectation of privacy in a third party and the trust that they won’t disclose
what you tell them be protected by the 4th Amendment?

D. United States v. Karo- Court held that the “warrantless monitoring of a beeper in a
private residence, a location not open to visual surveillance, violates the 4th Amendment
rights of those who have a justifiable interest in the privacy of the residence.”
-here, the monitoring indicated that the beeper was inside the house, a fact that could not
have been visually verified
-the monitoring was less intrusive than a full-scale search, but it still reveals critical
information about the inside of the house

E. Dog Sniffing- it’s a search, but its undecided whether it’s a 4th Amendment search
-there is no legitimate expectation of privacy in contraband (this is another wrinkle in the
whole analysis)
-still provides protection to other items in bag that are not contraband because no one is
actually opening the bag
-the rationale justifying dog sniffing is “we have held that any interest in possessing
contraband cannot be deemed legitimate, and thus, governmental conduct that only
reveals the possession of contraband compromises no legitimate privacy interest.”

F. Open Fields Doctrine- This doctrine holds that areas outside the “curtilage” are
subject to police entry and search, as it is claimed that these areas are “held out to the
public” and are unprotected by the 4th Amendment.
-Hester v. United States enunciated the so-called “open fields doctrine”, which provides
that entry of an open field does not implicate the 4th Amendment
-uses the literal language of the 4th Amendment (‘persons, houses, papers, and effects’) to
justify their decision
-Oliver v. United States said this was good law after Katz
-a working definition is unoccupied, undeveloped piece of land
-curtilage is defined as the area to which extends the intimate activity associated with the
“sanctity of a man’s home and the privacies of life.”
-Dunn case lays out the 4 characteristics of curtilage: 1) proximity of the area claimed to

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be curtilage to the home, 2) whether the area is included within an enclosure surrounding
the home, 3) the nature of the uses to which the area is put, and 4) the steps taken by the
resident to protect the area from observation by people passing by
-In determining whether land is an open field or curtilage, ask yourself how intimate the
land is in respect to the home
-In addition, the 4th Amendment does not prohibit the warrantless search and seizure of
garbage left for collection outside the curtilage of the home (California v. Greenwood)
1) Fly Overs- The police may, within the 4th Amendment, fly over a field to
observe with the naked eye things therein (California v. Ciraolo)
-the dissent in this case made a good point by mentioning the Harlan test set out in
Katz

G. Kyllo v. United States-There is a strong expectation of privacy within one’s home and
so, obtaining information of an interior of a home by way of a sense enhancing
technology that could not have been otherwise obtained without a physical intrusion is
a[n] (unreasonable) search, at least where the technology in question is not in general
public use
-4th Amendment protects people, but gives them greater protection in certain places

III. What is a seizure?


A seizure can be defined as the exercise of control by the government over a person or
thing. It can also be characterized when “there is some meaningful interference with an
individual’s possessory interests in property.”

A. Objects subject to seizure- Officers can seize what they have PC to believe is criminal
evidence. 3 categories are: (1) contraband, (2) fruits of a crime, (3) instrumentalities used
in the commission of an offense (e.g., a weapon, an automobile for the get-away, etc.)
and (4) “mere evidence” (an item of value to the police solely because it will help in the
apprehension or conviction of a person for an offense (e.g., blood stained shirt)

IV. Probable Cause


PC “exists where the facts and circumstances within the officers’ knowledge and of
which they have reasonably trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that an offense has been or is being
committed by the person to be arrested.”
-Searches and seizures must generally be supported by PC, and if it is not, the search and
seizure is said to be unreasonable.

A. Spinelli v. United States- this case evaluates the validity of a search warrant based on
information provided by a confidential informant or an anonymous tip
-The two “prongs” of the test are that, when law enforcement seeks a search warrant
and a magistrate signs a warrant:
(1) The magistrate must be informed of the reasons to support the conclusion that
such an informant is reliable and credible (veracity)
(2) The magistrate must be informed of some of the underlying circumstances

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relied on by the person providing the information (basis of knowledge)…self-
verifying speaks to this
(3) Corroborating information
-This information provided to a magistrate will allow the magistrate to make an
independent evaluation of the PC that a crime has been or will be committed.
-court holds that the affidavit (document that sets forth police’s evidence) falls short
of the standard set forth in Aguilar
-case demonstrates how magistrates will stay away from bald assertions without some
type of corroboration

B. Illinois v. Gates (this is the leading rule in making PC determinations)- court


adopts a “totality of circumstances approach” instead of applying the “rigid” two
prong test to every piece of information or tip from an informant
-court states that the “veracity” or “reliability” and the “basis of knowledge” should
not be independent considerations, but rather “relevant considerations” in the totality
of circumstances analysis
-court believes this new approach results in a more “balanced assessment”
-new approach directs attention to the probability and common sense that criminal
activity is amist…gives more deference to magistrates to determine PC, “and the duty
of the reviewing court is simply to ensure the magistrate had a ‘substantial basis for
concluding’ that PC existed
Class: -law enforcement was able to corroborate the address, airline reservation, that
he was in FL, and there’s a hotel room under the name of the wife
-the test is totality of circumstances analysis and it includes factors other than
the ones mentioned in the Spinelli test…both prongs are important factors, but
there are other factors to be considered and they all must be weighed together…
stronger factors can compensate for weaker factors

-a lot of detail about supposed criminal activity is consideredf “self-verifying”


-under the veracity prong, a magistrate might be interested in how many times she’s
provided information, what is her motivation for providing such information

C. A Franks Hearing- a defendant may challenge the truthfulness of statements made


under oath in an affidavit supporting a warrant under limited circumstances
-defendant has to make a substantial preliminary showing that a false statement knowing
and intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if he does so, the 4th Amendment requires that a hearing be held
at the defendant’s request
-if the defendant succeeds at the hearing, PC will be deemed lacking, the search warrant
will be voided, and the fruits of the search excluded
-the standard of proof is the preponderance of the evidence (higher than 50%, higher than
reasonable suspicion, but lower than beyond a reasonable doubt)

D. Statistical Analysis Approach: bad approach because it plays the odds of catching a
criminal within a particular group

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-issue is should the majority of a group sacrifice their privacy interests to apprehend one
guilty party

E. Sliding Scale Approach to PC-sliding scale PC test does kind of a cost-benefit


analysis; what is the benefit of possibly catching the criminal weighed against infringing
on an innocent person’s privacy?
Considerations of PC:
(1) imminence and potential harm of threat
(2) strength of the evidence is also considered when doing a sliding scale analysis (is the
evidence trustworthy or kind of sketchy?)
(3) how much privacy is being invaded
(4) Intrusiveness of the search

V. Arrest Warrants
A. Payton v. New York- this case deals with a warrantless entry into a private home to
make a felony arrest
-points out that there is a greater burden on officials who enter the home without consent
-emphasizes that the 4th Amendment’s main goal is to protect the privacy of the home
-majority ruled that the officers needed arrest warrants
-court holds that an arrest warrant would have sufficed for entry into the suspect’s home
if there was reason to believe he was in the home
-Dissent: claims the 4th Amendment preserved the common law rules of arrest, which
allowed officers to conduct warrantless felony arrests
-points out that the CL requirements of felony, knock and announce, daytime, and
stringent PC protect privacy interests enough
-says the majority goes against a flexible CL rule that consisted of a “flexible
accommodation between the demands of personal privacy and the legitimate needs of law
enforcement.”
-argues the new rule will hamper effective law enforcement
Class: Watson case says officers don’t need an arrest warrant to make an arrest in public
-protecting persons more in particular places (4th Amendment)
-must have exigent circumstances in order to justify a warrantless arrest or search
-ruling is narrow and is: 4th Amendment as applied to the States by the 14th Amendment
prohibits warrantless, nonconsensual entry into a suspect’s home in order to make felony
arrests where no exigent circumstances exist
-an exigent circumstance is a circumstance in which the entry without a warrant into a
home is justified (because the evidence may be destroyed, in fresh pursuit, basically you
just don’t have time)

B. Proceedings after a warrantless arrest: a “Gerstein hearing”- an officer can make an


on-the-scene assessment of PC and arrest a person, but the court in this case held that the
4th Amendment requires a judicial determination of PC as a prerequisite to extended
restraint of liberty following arrest (to be made within 48 hours)

C. Executing an arrest: use of force- an unreasonable seizure occurs if the method of


making the arrest is unreasonable

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-can’t use deadly force of a fleeing felon unless officer has PC that suspect poses “threat
of serious physical harm” to officer or others if suspect is not immediately taken into
custody
-can also use deadly force if officer has PC to believe that suspect has committed a crime
involving the infliction or threatened infliction of serious physical harm

VI. Search Warrants


A. Lo-Ji Sales, Inc. v. New York- the “things to be seized” was entered after the seizure of
the books and videos…this is unconstitutional because this is supposed be done before
the search and seizure
-the magistrate left the warrant open to his and other officers’ discretion which is
reminiscent of the “general warrant” era, which is what the 4th Amendment set out to
avoid
-the warrant did not “particularly describe the things to be seized”
-the 4th Amendment does not provide that open-ended warrants can be completed while a
search is being conducted

B. Elements of a Valid Search Warrant


(1) PC
(2) Supported by oath and affirmation
(3) Neutral and detached magistrate
(4) Warrant Particularity (intended to prevent general searches; the evil that “motivated
the framing and adoption of the 4th Amendment,” Payton v. New York, and to prevent
“the seizure of one thing under a warrant describing another.”)

C. Richards v. Wisconsin- Wisc. SC held that officers are never required to knock and
announce when executing a search warrant in a felony drug investigation…US SC
disagrees with this decision, but affirmed their judgment because they felt that the
officers’ decision not to knock or announce under the particular circumstances was a
reasonable one
-it’s the duty of the court to determine whether the facts and circumstances of a particular
entry are justified in dispensing with the knock and announce requirement
-court states that a justified “no knock” entry would entail the police having a reasonable
suspicion that knocking and announcing would be dangerous or futile, or that it would
inhibit the effective investigation of the crime (court believes this strikes a fair balance
between law enforcement and individual privacy interests affected by no knock entries)
Class: “knock and announce” is connected to the 4th Amendment in that it’s part of the
reasonableness portion (making it incorporated into the Reasonableness standard of the
4th Amendment)
-not a high standard to overcome if you’re law enforcement
-“knock and announce” is not required when there is reasonable suspicion of…
-Scalia says there are 3 purposes of the “knock and announce” rule in Hudson v.
Michigan, which are avoiding violence, embarrassment, and protection of property. Not
necessarily a privacy issue.
More on “knock and announce”- Scalia wrote in Hudson v. Michigan that the interests
protected by this rule include: (1) protection of human life and limb by avoiding violence,

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(2) protection of property, (3) protection of privacy and dignity “that can be destroyed by
a sudden entrance”

D. Exigent Circumstances (allowing for warrantless searches)


Some exigencies that might justify a warrantless entry of a home include: fresh pursuit,
imminent destruction of evidence, need to prevent the suspect’s escape, or the risk of
danger to the police or to others

1) Warden v. Hayden- the exigent circumstance in this case is the potential of harm to
others because suspect was an armed robber
-you can’t look for other stuff, but if you find other stuff while looking, it’s legit
-generally speaking, acquiescence to law enforcement by not making an objection to their
entry is considered consent
-if she had said no, the police would have to show exigent circumstances to justify entry

E. Searches Incident to an Arrest

1) Chimel v. California- issue is whether the warrantless search of a man’s home when
the police have an arrest warrant is constitutionally justified as incident to that arrest
-RULE: incident to a lawful arrest law enforcement may conduct a warrantless search
within the area of the arrestee’s immediate control (outside of his immediate control, you
need warrant); the ‘within’ phrase is where the fuzziness is (address this on the test) (this
is an exception to the 4th Amendment)
-also stated, “that a lawful custodial arrest creates a situation which justifies the
contemporaneous search without a warrant of the person arrested and of the immediately
surrounding area”
-the rationale says this is OK because the officer has an interest in safety and to prevent
the concealment and destruction of any evidence
-DISSENT: prefers a reasonableness test
-says its impracticable to go get a search warrant when you have an arrest warrant
-“it seems to me unreasonable to require the police to leave the scene in order to obtain a
search warrant when they are already legally there to make a valid arrest”

2) Principle of Particular Justification- “the police must, whenever practicable, obtain


advance judicial approval of searches and seizures through the warrant procedure and the
scope of a search must be strictly tied to and justified by the circumstances which
rendered its initiation permissible.”
-if the police seek to justify a warrantless search, the burden is on them to demonstrate
the existence of a justification for dispensing with the warrant requirement
-if a justification exists, the scope of the permissible warrantless search must be no
broader than the justification for the warrantless conduct compels

3) United States v. Robinson- goes against “Terry” frisk, which says a search must be
limited to looking for just weapons
-the holding is that the lawful arrest establishes the authority to search and that in the case

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of a lawful custodial arrest a full search of the person is only an exception to the warrant
requirement of the 4th Amendment, but is also a “reasonable” search that Amendment

F. Automobile Cases

1) New York v. Belton- policeman smelled marijuana in car that he pulled over and pulled
the guys out of the car and arrested them (Supergold)
-rule is that when a policeman has made a custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile (passenger compartment is considered to be in the
“immediate control” of the arrestee…this includes allowing officers to search the
contents of containers (open or closed) found in the passenger compartment because the
lawful custodial arrest justifies the infringement of any privacy interest the arrestee may
have)
-this doesn’t seem to be consistent with Chimel because the justifications underlying
Chimel (safety of the officer and prevention of destruction or concealment of evidence)
don’t seem to be applied here
-even if court wasn’t within Chimel, the court says we’re going to rule the way we do
because they wanted a bright line rule that the car is always going to be in the
“immediate control” of the arrestee
-White’s dissent points out that the inside of the car can be searched and seized even
without PC…wants a case by case analysis
-another dissent points out the issue of the vague temporal issues indicated by this
decision in that its not clear how long after the arrest the passenger compartment may be
searched (we see this come true in the later case of Chambers v. Maroney)

2) Knowles/Atwater v. City of Lago Vista- Knowles seems like a victory for privacy
interests because it refused to allow a search incident to a citation, but it creates the
incentive for officers who want to search a car following a traffic stop to make a custodial
arrest. And because of Atwater, no constitutional limit exists on the kind of traffic
offenses for which a legislature can authorize custodial arrest

3) Thornton v. United States- pat down of dude walking away from his car
-court holds that Belton governs even when an officer does not make contact until the
person arrested has left the vehicle (“recent occupant” as opposed to “occupant” from
Belton) aka so long as an arrestee is the sort of recent occupant of a vehicle, officers may
search that vehicle incident to the arrest
-“recent occupant” means “temporally and spatially” close to vehicle
-Scalia says the Chimel concerns are not present in this case, but rather Belton searches
are justifiable where it is reasonable to believe evidence relevant to the crime of arrest
might be found in vehicle
-REMEMBER THERE HAS TO BE AN ARREST FOR THESE RULES TO TAKE
EFFECT
4) Whren v. United States- Petitioners argue that the traffic stop was a pretext to the
search of the car
-a traffic stop is permissible as long as a reasonable officer in the same circumstances

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could have stopped the car for the suspected violation
-as far as racial profiling is concerned, the Equal Protection Clause would be the grounds
for suit
-“subjective intent alone does not make otherwise lawful conduct illegal or
unconstitutional”

5) Chambers v. Maroney- gas station robbery


-there was PC for the stop
-references Carroll (the ready mobility of the automobile justifies a lesser degree of
protection of privacy interests)
-court justifies searching the car back at the police station because there was PC and the
idea that the car is readily mobile
-normally, there must be an exigent circumstance and PC to conduct a warrantless search
-validity of search comes less constitutionally defensible the longer the vehicle is held
-scope of search is based on PC

6) Coolidge v. New Hampshire- multiple search of car case and they never had a warrant
(but did have PC)
-bringing back the exigency requirement
-court says the exigency requirements set out in Chambers were not present here

7) California v. Carney- sex for drugs case


-avoids making the distinction between what are “worthy” and “unworthy” vehicles
-if something is mobile, the less protection of privacy one will have (inherently mobile)
-court rules that automobiles and mobile homes are subject to regulation and are therefore
subject to less privacy

8) Carroll v. United States- held that the ready mobility of the automobile justifies a
lesser degree of protection of privacy interests
-the ready mobility creates an exigent circumstance to search the car

9) United States v. Chadwick- Chadwick, Sanders, Ross, and Acevedo are cases we are
responsible for
-footlocker full with marijuana case
-no search warrant was obtained
-court held the search was invalid, as it was not incident to the arrest (occurred 1.15 hours
later); automobile exception doesn’t apply because the container was the focus of the
search, not the car
(1) the container would be considered an effect under the 4th Amendment
(2) containers have a greater interest in privacy than vehicles
(3) containers are less inherently mobile than cars
-court makes a mention of the subjective prong of the Katz test by stating that the
defendant manifested an expectation that the contents of the locker would be free of
public examination because it was double locked
-court also stated that there was no exigency so the warrantless search was unjustified
-“Once officers have reduced luggage or other personal property not immediately

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associated with the person of the arrestee to their exclusive control, and there is no longer
any danger that the arrestee might gain access to the property to seize a weapon or
destroy evidence, a search of that property is no longer an incident of the arrest.”

10) Arkansas v. Sanders- green suitcase with marijuana placed in cab case
(2) consistent with Chadwick because it states the containers (luggage in this case) have
greater interest in privacy than vehicles
(3) mobility issue is determined the moment the container has been seized (once its
seized, its not mobile and a warrant is required to search the contents of the container)
-automobile exception does not apply
-this case involves a container coincidentally in car when it was seized (just like
Chadwick) meaning the police had PC to search a particular container before it was
placed in an automobile
-“We therefore find no justification for the extension of Carroll and its progeny to the
warrantless search of one’s personal luggage merely because it was located in an
automobile lawfully stopped by the police.”
-HOWEVER, this case also points out some containers cannot have a reasonable
expectation of privacy because their contents can be inferred from their outward
appearance

11) U.S. v. Ross- police had PC that man was selling drugs out of the trunk of his car
-police found paper bag of heroin in trunk and searched it
-this is different from prior two cases
-difference is the other cases had PC in the container whereas here they have PC as to the
vehicle…as a result, the vehicle exception DOES apply and you can search to where the
vehicle extends
-this results in 2 lines of cases: 1) PC in the vehicle and warrantless search OK and
2) PC in the container and warrantless search NOT OK (even though there is more
evidence of contraband)
-as a result, the court says we have an anomaly and then comes California v. Acevedo

12) California v. Acevedo- Fed Ex marijuana case


-PC is in the container here so Chadwick-Sanders rule should apply
-overturns Sanders and partially overturns Chadwick
-if you have PC in the car OR container, you can conduct a warrantless search on the
entire car to the extent where PC extends (if the bag is placed in the trunk, search can
only be in trunk, and if its placed in the passenger compartment, you can only search
there, and not in the trunk)
-Scalia argues that the Warrant Clause has been elevated over the Reasonableness
Clause…should be asking whether the search was reasonable or not (deriving from the
CL)
-he says once you ask this question, it gets rid of the ambiguity seen in these cases (this is
an influential analysis, but not quite the law)
-look out for the distinction between users and non-users and the relation to PC to search
more

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V. Plain View Doctrine
Elements:
(1) officer observes the object from a lawful vantage point
(2) you have a right to the physical access of the object (within the parameters of PC or
the warrant)
(3) nature of the object in question as contraband is immediately apparent (you have PC
to believe its contraband)

1) Horton v. California- rules that inadvertence is not a necessary condition of a “plain


view” seizure
-“An example of the applicability of the plain view doctrine is the situation in which the
police have a warrant to search a given area for specified objects, and in the course of the
search come across some other article of incriminating character.”

2) Arizona v. Hicks- What constitutes a seizure for 4th Amendment purposes? A: a


meaningful interference with a possessory interest
-the moving of the turntable was a “search” according to Scalia because he went beyond
the exigent circumstances
-What constitutes a search? A:
-defendant had a reasonable expectation of privacy in the turntable (then apply Katz test)
-RULE: immediately apparent means raising the level of PC…had the officer had PC or
an exigent circumstance to search under the turntable, then he could have searched under
the turntable

VI. Consent
1) Schneckloth v. Bustamonte- a search conducted pursuant to consent is recognized as an
established exception to the requirement of a warrant or PC
-majority adopts a totality of circumstances test to determine voluntariness of consent
-“the 4th and 14th Amendments require that it demonstrate that the consent was in fact
voluntarily given, and not the result of duress or coercion”
-“Voluntariness is a question of fact to be determined from all the circumstances, and
while the subject’s knowledge of a right to refuse is a factor to be taken into account, the
prosecution is not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent.”
-consent must be voluntary, but doesn’t have to be knowing
-the burden of proof is on the government to prove the voluntariness of the consent

2) Georgia v. Randolph- Question: Can police search a home when one physically
present resident consents and the other physically present resident objects?
Conclusion: No. In a 5 to 3 decision, the Supreme Court held that when two co-
occupants are present and one consents to a search while the other refuses, the search is
not constitutional. Justice David Souter, in the majority opinion, compared the
reasonableness of such a search to a more casual interaction. Souter wrote, "it is fair to
say that a caller standing at the door of shared premises would have no confidence that
one occupant's invitation was a sufficiently good reason to enter when a fellow tenant
stood there saying, 'stay out.' Without some very good reason, no sensible person would

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go inside under those conditions." A police search in such circumstances, Souter wrote,
would therefore not meet the reasonableness requirement of the Fourth Amendment.
Class: Matlock case held that a warrantless search is valid if they receive consent from
someone that has “common authority” (they share the property and assumes the risk of
consenting to having the property searched)
-also defined as having mutual use between the residents
-the rationale of the Matlock rule is that co-occupants have “assumed the risk that one of
their number might permit a common area to be searched”
-the essence of the consent is either the assumption of risk of being a co-occupant or its
based on highly-shared social expectations
-read majority and Roberts’ dissent

3) Illinois v. Rodriguez- determination of consent to enter one’s home must be judged


against an objective standard: would the facts available to the officer at the moment
warrant a man of reasonable caution in the belief that the consenting party had authority
over the premises (this is the test; objective test applied to officer conducting the search
in question; this language is similar to PC language so Scalia is tying PC to
reasonableness standard again)
Class: consent is limited by object of search and nature of the extent of consent given

-a search is valid if you deceive the homeowner of who you are (Fed Ex man), but a
search is invalid if you deceive the homeowner of what you are looking for (how would
you determine PC)
-Given the consent given by the suspect, the reasonableness of the scope of the search
does not extend to opening containers.
-one is deemed to have satisfied the requirements of consent if the officer has:
1) Actual Authority, or
2) Does the officer reasonably believe the person has apparent authority? (Illinois v.
Rodriguez)

VII. Terry Doctrine


-don’t have to have PC, just use reasonableness test
-would a reasonably prudent man in the circumstances be warranted in his belief that his
safety or that of others was in danger based on specific reasonable inferences based on
the facts
-the scope is limited to searching for the weapons…how does the “plain touch doctrine”
apply to this scenario? A: if the drugs are “immediately apparent” then the PTD can
apply, but if they are manipulated, then no
-reasonable suspicion standard is less than PC; “some min. level of objective justification
that you can articulate to a magistrate”
-Terry Frisks must be done to search for weapons and can only be done on the outside of
clothing
-for the first time recognized an exception to the requirement that 4th Amendment
seizures of persons must be based on PC

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VIII. Administrative Searches
-Camara case deals with administrative searches
-the rule is more concerned with health and safety, not criminality
-PC standard is applied, but based on the analysis as a balancing test between
governmental interests and was it reasonable for the govt to invade individual’s privacy
-generally will be satisfied if it is determined it is reasonable if the government’s search
is non-discriminatory, neutral, and applicable to a wide range of people (uniform)
-all you have to do is show that the regulations your search is based on is uniform and
non-discriminatory (no particularization is needed from a warrant)
-since Camara, though, the Court has approved warrantless administrative searches of
“closely governmentally regulated industries”
-there is the Opperman case that says there is a special inventory exception to the warrant
requirement
-there is also the “special needs” exception, which could encompass inventories
-deals with non-criminal searches evaluated by a reasonableness balancing standard…
allows suspicionless searches where the program is designed to serve “special needs
beyond the normal need for law enforcement”

A. Border Searches- a person may be seized and his belongings searched without a
warrant and in the absence of individualized suspicion of wrongdoing pursuant to the
right of the sovereign to protect itself from the entry of persons and things dangerous to
the nation…it is left unanswered, however, under what circumstances a border search
may be deemed “unreasonable” because of the offensive manner in which it is carried out
-with “roving” border patrols, agents need reasonable suspicion of criminal activity to
detain car occupants briefly

B. Checkpoints for Booze and Drugs


1) Michigan v. Sitz- sobriety check point stop case
-do the checkpoints violate the 4th and 14th Amendment?
-uses the Brown v. Texas test which considers: (1) balancing the state’s interest in
preventing accidents caused by drunk drivers, (2) the effectiveness of sobriety
checkpoints in achieving that goal (is this a minor intrusive means?), (3) the level of
intrusion on an individual’s privacy caused by the checkpoints

2) City of Indy v. Edmond- distinguishes this case from Sitz by looking at the differing
purposes of the stops
-here, the primary purpose was to uncover evidence of ordinary criminal wrongdoing,
not safety like in Sitz, which contravenes the 4th Amendment by being an unreasonable
search and seizure
-still holds that the constitutionality of checkpoint programs depends on a balancing of
the competing interests at stake and the effectiveness of the program

IX. Terry Seizures v. De Facto Arrests


1) Dunaway v. New York- court states that the detention of the petitioner was “in

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important respects indistinguishable from a traditional arrest…petitioner was not
questioned briefly where he was found.”
-court refuses to apply a “reasonable suspicion” standard, and instead maintains that PC
remains the standard to perform an arrest
-seizing the petitioner and transporting him to the police station for interrogation, without
PC, was a de facto arrest
How do you determine the time that draws the line between Terry and de facto arrests?
I. Duration
1) Officer must exercise due diligence during search
2) The reasonable amount of time that is necessary to effectuate the search
3) The intrusiveness must be reasonable to effectuate the search
II. Moving the Subject
1) Moving the subject against his will is de facto arrest
2)

2) Florida v. Royer- police concededly lacked PC


-Broyles is thinking there could be PC here because of the one-way ticket, paid in cash,
under an assumed name
-court ruled it was a de facto arrest
-intrusiveness of the search was a problem the court had (moving the suspect to the
interrogation room)
-remember to look to the totality of the circumstances to determine if police activity is
characteristic of a de facto arrest
-“an investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop”…this rationale is also seen in United States v. Place

3) Penn. v. Mimms- can order a person (driver and passengers) out of the car on a Terry
stop because the privacy interests are minimal
-rules that an officer is allowed to ask a driver to step out of his vehicle without further
justification as the interest in police safety is “legitimate and weighty”
-court held that the driver’s interest to stay in his car is de minimis because he’s not
having to expose much more than he’s exposing sitting in his car

United States v. Sharpe- holding the camper on the side of the road for 20 minutes was
not considered a de facto arrest because the court believed the police did not
unnecessarily prolong the suspect’s detention and that the police acted diligently and
reasonably in pursuing their investigation

X. Seizure vs. Non-Seizure Encounters


1) United States v. Mendenhall- a person is “seized” only when, by means of physical
force or a show of authority, his freedom of movement is restrained
-dissent argues there was no reasonable suspicion justifying the police in stopping the
woman

2) United States v. Drayton- greyhound bus case


-court does not believe the 2 young men were seized

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-“if a reasonable person would feel free to terminate the encounter, then he or she has not
been seized”
-court takes into account the situation and concluded that there was “nothing coercive or
confrontational” about the encounter in that there was no show of force, no brandishing
of weapons, no blocking of exits, etc

3) California v. Hodari D.- was the defendant “seized” by the police while he was being
chased?
-No, because a mere “show of authority” is insufficient to constitute as a seizure; there
has to be an application of physical force
-as a result, defendant’s discard of the crack rock was not a fruit of the seizure when he
threw it while running (because he hadn’t been “seized”)

4) Illinois v. Wardlow- court ruled that “nervous, evasive behavior” can be factor in
determining that a police officer has reasonable suspicion to conduct a Terry frisk as
“Terry recognized that officers could detain individuals to resolve the ambiguity” of
suspicious-looking behavior
-reaction is the key thing to examine in flight situations
-Wardlow says you must have high crime area +

Extension of Terry
5) Maryland v. Buie- “protective sweep” case
-must have reasonable suspicion that their danger is possibly at risk
-this is an expansion of the Chimel rule
-must have a reasonable suspicion that there is a person hiding that could endanger the
officers or others during the course of an arrest
-allows officers to search other areas of the home for their protection…this is justified by
the fact that the officers are on the suspect’s “turf”
-RULE: incident to an arrest officers can, as a precautionary measure and without PC or
reasonable suspicion, look in closets and other spaces immediately adjoining the place of
arrest from which an attack could be launched
-it can only be a cursory inspection of those places where a person may be found

6) US v. Place- personalty can be subject to Terry seizures, but only long enough to clear
up any ambiguity as to the criminality of the personalty
-still must have reasonable suspicion
-still has to be limited in scope
-however, they held the man and his luggage for too long so the search was said to be
unreasonable

7) Michigan v. Long- upheld a Terry “frisk” of the passenger compartment of an


automobile
RULE: the search of the passenger compartment of an automobile, limited to those areas
in which a weapon may be placed or hidden, is permissible if the police officers possess a
reasonable belief based on “specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant” the officer in believing that the

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suspect is dangerous and the suspect may gain immediate control of weapons

XI. Remedies for 4th Amendment Violations


A. Standing
-If B’s home is unlawfully searched and items are seized that implicate A in criminal
activity, A is not permitted to seek exclusion of that evidence at his trial based on the 4th
Amendment violation. A’s rights were not directly violated.
-the questions of standing is merged with the question of whether the challenged action
infringed an interest protected by the 4th Amendment, which translates into whether a
particular defendant’s reasonable expectation of privacy was intruded upon
-standing to enforce 4th Amendment protections appears to be limited to persons who
either own or have some other close connection to the place searched

1) Alderman v. United States- you have to be the person who the search and seizure was
conducted upon, not the person aggrieved solely by the introduction of damaging
evidence…can’t vicariously raise a violation of someone else’s rights

2) Rakas v. Illinois- possessory interest is a factor of whether there is an expectation of


privacy
-car is involved so there is a lower expectation of privacy
-defendants didn’t have a possessory interest in the items searched so they don’t have
standing to challenge the constitutionality of the search and seizure
-general rule: in order to claim standing you must have a possessory interest or
ownership interest in or a close connection to the place searched in order to constitute a
reasonable expectation of privacy
-the fact that someone is “legitimately on the premises” (as expressed in Jones) in the
sense that they were in the car with the permission of its owner is not determinative of
whether they had a legitimate expectation of privacy in the areas of the car that were
searched (failed the Katz test in a sense)

3) Minnesota v. Carter- since Defendants were not overnight social guests but temporary
out of state visitors, they were not entitled to claim the protection of the 4th Amendment
against the government intrusion into the apartment
-the relationship here was more of a commercial nature rather than a social one (one
reason they didn’t have an expectation of privacy); “An expectation of privacy in
commercial premises is different from, and indeed less than, a similar expectation in an
individual’s home.”
-another reason is because they weren’t there for very long and they didn’t have a close
relationship to the homeowner
-because they had no legitimate expectation of privacy, the court did not even have to
answer whether the police’s observation was a “search”

4) Rawlings v. Kentucky- standing for a purse being searched that wasn’t his
-he had no connection nor a reasonable expectation of privacy in the purse
-what about the argument of him putting his property into that of another? Court doesn’t
buy it

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-it might matter if they were married though
-is there an assumption of risk here?
-bailment argument through consent to allow container in purse?
-court points out that Defendant had only known the owner of the purse for a few days so
that suggests that Defendant may have had a better case had he known the owner of the
purse a little better

5) Minnesota v. Olson- society recognizes a guest’s expectation of privacy in the host’s


home

XII. Exclusionary Rule Revisited


A. Generally Speaking
-Mapp says the exclusionary rule is a right under the Constitution because its so closely
related to the right afforded in the Constitution (“right without a remedy” language)
-ER exists to keep judicial proceedings clean (maintaining judicial integrity) and general
deterrence
-the primary justification for the exclusionary rule is deterrence of constitutional
violations

Arguments FOR the Exclusionary Rule


-general deterrence: excluding evidence obtained in violation of the law will deter
officers in the future from obtaining evidence in shady ways
-promotes professionalism, results in more search warrants being sought
-preserves judicial integrity

Arguments AGAINST
-excludes reliable evidence
-promotes cynicism, encourages dishonesty by the police to say the evidence is clean, etc,
etc

B. The “Good-Faith” Exception to the Exclusionary Rule


-applied in a circumstance in which evidence may be introduced during a criminal trial
even though it concededly was obtained as a result of an unreasonable search and seizure

1) United States v. Leon-


RULE: evidence obtained pursuant to a search warrant that’s facially valid, but is later
determined to be invalid, results in the exclusionary rule not applying if a “reasonably
well-trained officer” believes in good-faith (objectively) that the warrant was valid
-3 places where the court will say no reasonable officer would have relied on the warrant:
1) where the police mislead or show reckless indifference for the truth then the Leon
“good-faith” exception will not apply
2) where the magistrate fails to maintain the neutral and detached quality (like in Lo-Ji)
3) where the warrant is so obviously deficient that no officer could reasonably rely on it
(where the affidavit clearly lacks PC or the place or things to be seized are not stated with
particularity)
-must weigh the costs and benefits of preventing the use in the prosecution’s case-in-

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chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant
issued by a detached and neutral magistrate that ultimately is found to be defective
-“indiscriminate application of the exclusionary rule may well generate disrespect for
the law and administration of justice”
-rationale: deterrence of sketchy searches is the goal and there is nothing to deter if
officers act in good faith on a warrant they believe to be legitimate
-determine good-faith by using an objective test on the officer in conjunction with a
totality of the circumstances evaluation

2) Massachusetts v. Sheppard- Court permitted the introduction of evidence obtained


from a search conducted pursuant to a warrant that violated the 4th Amendment
particularity requirement
-magistrate had told officer that the necessary changes had been made to the warrant and
the court said the officer acted in objective good faith by believing the magistrate

3) Arizona v. Evans- clerk had not removed the arrest warrant from the computer system
-officer reasonably relied on the information and arrested the man without a warrant
-exclusionary rule was created to deter police misconduct, not mistakes by court
employees

4) Good-faith exception does not apply in the following instances:


(a) Where the police misled (either deliberately or in reckless disregard for the truth) the
magistrate in their application for the warrant
(b) Where the warrant was so obviously invalid (either because PC is lacking or it fails to
particularize the place to be searched or the things to be seized) that no officer could
reasonably rely on it
(c) Where the magistrate abandoned his neutral and detached posture

5) Additional Level Added to 4th Amendment Analysis


(a) Warrant defective because of a lack of PC or no particularity?
(b) Were the searching officers acting reasonably in relying upon the warrant?

XIII. Fruit of the Poisonous Tree


-extension of the exclusionary rule
-“tree” is the violation
-“fruit” is the evidence
-applies to 4th, 5th, and 6th Amendments
-failure to give Miranda warnings is not a “poisonous tree”

A. 4 Steps in Analysis-Totality of Circumstances Analysis


1) ID the poisonous tree (unlawful police activity)
2) ID the fruit of the poisonous tree (evidence)
3) Causation
4) Attenuation (has the “taint” been “dissipated”)

B. Brown v. Illinois Attenuation Factors

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1) the length of time that has elapsed between the initial illegality and the seizure of the
fruit in question (the longer the period, the more likely attenuation will be found)
2) the flagrancy of the initial misconduct (dissipation of bad-faith violations takes longer
than with good-faith violations. Also, where the violation is unintentional and minor, the
necessity for deterrence is less compelling)
3) the existence or absence of intervening causes of the seizure of the fruit (the more links
in the chain between the illegality and the secondary evidence, the more attenuated the
connection. Events representing an individual’s free choice, such as consent to a search,
are likely to be viewed as breaking the connection.)
4) the presence or absence of an act of free will by the defendant resulting in the seizure
of the fruit

C. Cases
1) Wong Sun v. United States-
4 Pieces of Evidence
(a) the arrest of Blackie Toy was the unlawful poisonous tree, so the statements made by
him were inadmissible…not enough time had passed between the unlawful arrest and the
statement (“…verbal evidence which derives so immediately from an unlawful entry…”)
-court is looking to see if the chain of causation is too attenuated (if it is, I think the
evidence is admissible)

(b) Heroin taken from Yee- police hopes to use this evidence against Toy, but they can’t
because its too closely related to the poisonous tree (the unlawful arrest)

(c) Statement from Wong Sun- he was unlawfully arrested, but his statements were not
the fruit of this poisonous tree because he came back to the police station voluntarily 3
days later. As a result, his statements were sufficiently attenuated because it was an act of
“intervening free will.”

(d) Heroin seized from Toy used against Wong Sun- Wong Sun can’t claim
vicarious/prudential standing just because Toy’s rights were…

-have to look at what evidence is being introduced, who it’s being offered against, and
who’s rights were violated in obtaining it (can’t claim fruit is poisonous as to you if
someone else’s rights were infringed upon)
-its harder to get live witness’ testimony suppressed

2) Brown v. Illinois- court rejected a proposed bright-line rule that Miranda warnings
automatically untaint subsequent confessions (man was arrested without PC)

3) United States v. Ceccolini- live-witness testimony involves enough free will to


dissipate taint (unlike an inanimate object)
-the witnesses’ exercise of free will in deciding to testify was a significant intervening act
that broke the chain on causation from the initial illegality

D. Independent Source Doctrine

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1) Murray v. United States- police’s unlawful entry into the warehouse was the poisonous
tree
-court holds that the warrant was based on PC apart from their unlawful entry into the
warehouse, and so the “independent source” rule applies
-“where an unlawful entry has given investigators knowledge of facts x and y, but fact z
has been learned by other means, fact z can be said to be admissible because it derived
from an “independent source”
-basically, if there is an independent source for the evidence, the evidence will not be
excluded

E. Inevitable Discovery Doctrine


-doctrine comes from the Nix v. Williams case
-independent source doctrine could not be applied, so the court came up with this
doctrine
-saying that F of PT doctrine is subject to an “inevitable discovery” rule; if it were
otherwise, the Government would be put in a worse position that if no illegality had
occurred
-the burden of proof required to prove inevitable discovery is preponderance of the
evidence
-also must show that there is a basis in fact, (that is) readily verifiable, for the conclusion
that discovery would have occurred

XIV. Confessions
A. Introduction
1) Confession must be voluntarily given
a) looking at the totality of the circumstances
-to suppress a confession, defendant must show police coercion, the will of the
suspect was overborne, etc
-Brown v. Mississippi stands for the holding that a statement obtained by police that was
not the product of voluntary choice by the suspect could not be admitted at trial
-the Due Process portion of the14th Amendment (Civil War Amendment) is at issue in
these cases
-the 6th Amendment’s right to counsel is also at issue

B. Krauthammer Article on Torture- ticking time bomb theory, which says torture should
be allowed if there is a nuclear bomb in New York and the torture could likely be used to
elicit the necessary information
-torture is evil, but if you’re a person in a position of power, you may have a moral duty
to use whatever means necessary to save the lives of millions of people (utilitarian
model)
-argument against torture is the activity is so brutalizing as to destroy ourselves in order
to secure our future
-argument for: make moral decisions not in the abstract, but in certain situations (anti-
moral absolutism; self-serving morality)

C. Police Interrogation Without Torture

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1) Lisenba v. California- Due Process Clause at play here (issue of fairness in the use of
evidence, unfairness must infect the trial and it exists when a coerced confession is used
as a means of obtaining a verdict of guilt)
-surprising decision here because despite the police’s lawless practices, the court still
held that the confession should be admitted because the confession was considered
voluntary
-court looks at the totality of the circumstances
-what about the fact that he was questioned for a total of 42 hours? Broyles seems to
think this fact could be used to argue that the confession was involuntary
-is the person’s will being overborne? That’s the big question to evaluate in these type of
cases
-look at the coercive setting, the vulnerability of the suspect, etc

2) Spano v. New York- in these confession cases, 2 interests of society must be


considered: the interest in prompt and efficient law enforcement, and the interest in
preventing the rights of its individual members from being abridged by unconstitutional
methods of law enforcement;
-have to remember to look at the characteristics of the accused and the details of the
questions when using a totality of the circumstances approach. Also, was the suspect’s
will overborne
-court lists several factors it considered in its totality of the circumstances evaluation…
suspect was questioned by several men, questioned for 8 straight hours, questioning was
done outside of business hours, slowly mounting fatigue, etc
-in conclusion, the court felt the suspect’s will had been overborne
-officers’ intent to elicit a confession is an important consideration

D. Conclusion
-Challenging a confession under the voluntariness standard therefore requires a showing
that (1) the police subjected the suspect to coercive conduct and (2) the conduct was
sufficient to overcome the will of the suspect (given his particular vulnerabilities and the
conditions of the interrogation), thus inducing an involuntary statement

XV. Police Interrogation: The Self-Incrimination Clause


A. The Language
“No person…shall be compelled in any criminal case to be a witness against himself….”
–U.S Const. amend. V.

B. Cases
1) Escobedo v. Illinois- “No system of criminal justice can, or should, survive if it comes
to depend for its continued effectiveness on the citizens’ abdication through unawareness
of their constitutional rights.”

2) Chavez v. Martinez- “mere coercion does not violate the text of the Self-Incrimination
Clause absent use of the compelled statements in a criminal case against the witness”
-“a violation of the constitutional right against self-incrimination occurs only if one has
been compelled to be a witness against himself in a criminal case”

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-5th Amendment claim is an evidentiary one
-court uses the plain language rule
-only when the statement is used against you in court is there a violation

3) Schmerber v. California- compelled blood test does not invoke 5th Amendment
protection
-lie detectors would though because they potentially elicit responses which are
testimonial in nature

C. Miranda v. Arizona
4 Miranda Rights
1) right to remain silent
2) anything you say can and will be used against you
3) right to attorney
4) if you can’t afford an attorney, you’ll be appointed one

Analysis
1) Is the person in custody?
2) Was there an interrogation?
3) What was the substance of the Miranda warnings that were actually given?
4) Was there an appropriate waiver on the person’s rights?

Standards to the Analysis:


1) Whether a reasonable person in the circumstances would believe they were free to
leave (this is the test). If a person doesn’t believe they are free to leave, then they are in
custody for Miranda reasons. Where the person is arguably in custody is a key factor, as
well as the duration of the stop.
2) Conduct or words by the police that the police are likely to know will elicit a response;
also means “questioning initiated by law enforcement”
3) As long as what the police say reasonably conveys the substance of those rights (don’t
have to give the exact words); trickery is not allowed
4) Prosecutor’s burden to demonstrate a knowing and voluntary waiver of the rights

General Miranda Rule


“The prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” These safeguards
must be used to insure that the statements are truly the product of free choice.

Notes About Miranda


-questioning that elicits these admissions share such salient features as a police-
dominated atmosphere that results in self-incriminating statements without full warnings
of constitutional rights
-points out that the 5th Amendment privilege is available outside of criminal court
proceedings and serves to protect persons in all settings in which their freedom of action
is curtailed in any significant way from being compelled to incriminate themselves

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-must knowingly and voluntarily waive your Miranda rights
-adopted by the Court to limit the abuses of incommunicado interrogation and minimize
its inherent coercion

4) Illinois v. Perkins- undercover officer in prison


-the rationale behind Miranda is to protect people from coercive situations and alleviate
the dangers associated with compelled confessions
-but here, no such situation exists
-determine coercion from the suspect’s perspective (this is an important step in the
analysis) …in this case, the coercive atmosphere was lacking because suspect thought he
was among friends
-court holds that Miranda warnings are not required when the suspect is unaware that he
is speaking to a law enforcement officer and gives a voluntary statement…this is because
the essential ingredients of a “police dominated atmosphere” and compulsion were not
present

D. De-Constitutionalization of Miranda
1) Harris v. New York- can impeach defendant with confession obtained in violation of
Miranda (simply a violation)

2) NJ v. Portash- truly coerced statements, they can’t be used for any purpose including
impeachment purposes

3) Doyle v. Ohio- silence can’t be used against the defendant as an impeachment device

4) New York v. Quarles- holds that the concern for public safety outweighs the need to
adhere to the “literal language of the rules enunciated in Miranda”; “The need for
answers to questions in a situation posing a threat to public safety outweighs the need for
the prophylactic rule protecting the 5th Amendment’s privilege against self-
incrimination.”
-this is the public safety exception
-“public safety” exception is evoked when a “reasonable person” finds it “immediately
necessary”
-more specifically, must ask if police’s actions are investigatory and objectively
reasonable to protect the public from immediate danger (consider if an exigency is
present)…don’t consider the officer’s state of mind
-like the impeachment exception, the public safety exception does not apply to
involuntary or coerced statements

5) Oregon v. Elstad- RULE: once Miranda rights are read, anything said after that is
admissible despite the fact there were some things said before Miranda rights were read
(ordinarily); also if you have a statement that’s taken in violation of Miranda and then a
subsequent statement after Miranda, the first statement does not TAINT the second one.
This first statement must also be voluntary. If it’s coerced, then the second statement is
inadmissible.

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6) Dickerson v. United States- “prophylactic” something used to protect a constitutional
right
-stare decisis says this case has to be followed
-Scalia argues in his dissent through Marbury v. Madison; 3501 is not invalid because
violating Miranda does not violate the Constitution; he thinks the voluntary test should
govern
-Miranda is the means of protecting the constitutional right of not incriminating
yourself…legislation is the means of protecting constitutional rights, not prophylactic
laws made in court
-2 basic arguments: 1) Miranda rights are so closely related to the constitutional right of
not incriminating yourself, and 2) voluntariness of confession
-know the various arguments associated with Miranda (E&E)
-holds that Miranda is a constitutional decision of the Supreme Court, and it cannot be
overruled by an Act of Congress

7) Missouri v. Seibert- test on p. 626


-intentional circumvention of Miranda rights case
-try to dissipate the taint by giving her a 20 minute break between interrogations
-3 step analysis:
(1) determine whether law enforcement deliberately employed the 2-round interrogation
strategy to side-step Miranda,
(2) determine if the situation is more like Elstad or Seibert by applying 5 factors
i) the completeness and detail of the questions and answers in the first round of
interrogation
ii) the overlapping content of the 2 statements
iii) the timing and setting of the first and second
iv) the continuity of police personnel
v) the degree to which the interrogator’s questions treated the second round as
continuous with the first
Then, if after applying these factors, the facts are more like Seibert than Elstad, it should
follow a 3rd step…
(3) determine if the interrogator took any curative measures
-can look to see if police took curative measures

E. Final Miranda Analysis


-Miranda warning must be given when there is custodial interrogation, so you first have
to determine if the suspect is in custody. If there is not a formal arrest, its whether a
reasonable person under the totality of the circumstances would have felt at liberty to
terminate the interrogation and leave. With interrogation, any words or actions on the part
of the police that they should know are likely to elicit an incriminating statement (kind of
a foreseeability test, look at the susceptibility of the suspect, knowledge of the suspect,
etc). Was the police officer aware of the suspect’s characteristics? Substance and
adequacy of the warnings: they don’t have to follow the exact script, they just have to
reasonably convey to the suspect the main 4 points within Miranda. 3 examples are: (1)
“if you cannot afford a lawyer, one may be appointed to you”…this is inadequate because
it is “will” not “may” (2) “just shut up until your lawyer comes”…this is adequate, (3) at

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the end of the warnings officer said, “honesty never hurts”…this is inadequate because it
undermines your right to silence. The waiver of Miranda rights: the rule is the statement
is admitted if the interrogator shows that the suspect “knowingly and voluntarily” waived
their rights. The burden is on the prosecutor. What if the suspect says, “I’m not saying
anything.” Can interrogation resume at any point? Yes, but only if (1) the police have
scrupulously respected his right to remain silent (2) its determined the subsequent waiver
was truly knowing and voluntary or (3) the suspect himself recommences talking.

XVI. 6th Amendment Right to Counsel


-6th Amendment Right: “deliberately elicit” incriminating statements (looking at the
intent of the “reasonable” police officers)
-this is a different standard from 5th Amendment/Miranda standard (where the
particularities and susceptibilities of the suspect are considered to determine if an
interrogation has occurred; officer must also know or reasonably have known the suspect
had these particularities)
-2 major things to look at in a 6th Amendment context: (1) initiation of judicial
proceedings (once this has happened, 6th Amendment protection kicks in) and, (2) is there
is deliberate elicitation?
-can waive your 6th Amendment right to counsel and it’s a “knowing and voluntary”
standard just like Miranda
-6th Amendment right to counsel is very specific to what is discussed in the indictment so
if agent calls Defendant up and Defendant talks about a burglary that’s ok if the
indictment deals with drug charges
-there is no “public safety” exception with the 6th Amendment
-F of PT does apply to right to counsel (unlike Miranda)

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