Criminal Procedure Outline 09/27/2009

I. Opening thoughts
A. The legislature
1. Power to define what conduct is criminal. Power to expand or
reduce the CJ system, and thereby change the police presence
a.
i.
1.
a.
1.
B. Police
1. Police have great discretion about what they will investigate,
they have the power to not seek further, to not press charges
2. Unlike most hierarchy, the most discretion is at the bottom,
w/beat cops. More discretion than those at the top
C. Lawyers, prosecution & defense
1. Seek justice, not convictions
D. Judicial Review
1. Instruct police by regulating admissibility.
II. Packer Article
A. The tension b/w the Crime Control Model v. Due Process Model
1. Crime Control Model
a. Do justice swift, accurate, conviction of crime.
Efficiency, effectiveness, expeditious. Deals with
probabilities.
2. Due Process Model
 a. Do justice by proving legal guilt. Must prove beyond a
reasonable doubt.
i. Presumption of innocence
ii. Do it the right way, not worried about losing
iii. The model is adversarial and judicial.
III. Exclusionary Rule
A. Exclusionary rule: if police obtain evidence in violation of the 4th
amen., cannot use that evidence at trial.
B. The exclusionary rule is the primary remedy for 4th amen.
violations; applied through motions to suppress.
C. The purpose of the rule is to deter the police, by removing any
incentive to disregard the rule.
D. Mapp v. Ohio all evidence obtained by S&S in violation of the
constitution is inadmissible in both state and fed. court against
those whose privacy interest wer violated. Rationale  deterrence,
judicial integrity, provides a remedy.
1. Argument against the exclusionary rule: “the criminal is to go
free b/c the constable has blundered.”  Cardoza
2. Argument for the rule:
a. “Our government is the potent, omnipresent teacher.
For good or for ill, it teaches the while people by its
example…If the government becomes a law breaker, it
breeds contempt for the law; it invites every man to
become a law unto himself; it invites anarchy.”  Clark,
quoting Brandeis in Olmstead.
b. Nothing can destroy a government more quickly than its
failure to observe its own laws, or worse, its disregard
of the charter of its own existence.  Clark, maj.
3. Mapp sets the federal minimum, does not set the ceiling.
4. Mapp: the 4th amen. is applied to the states through the 14th
amen.
5. Mapp applied the exclusionary rule to the states.
6. Does exclusion encourage perjury?
7. Dissent: (Harlan)
a. States should make up their own minds.
b. Fairness at trial
 i. “I do not see how a trial becomes unfair simply
b/c a state determines that evidence may be
considered by the trier of fact, regardless of how
it was obtained, if it is relevant to the guilt or
innocence of the accused.
ii. All due process guarantees is fairness at trial.
iii. CA: could come at a very high cost, a murderer
gets away on a technicality.
iv. CA: the gov. is breaking the law.
1. CA: they don’t have the right to commit the
crime.
E. Exceptions to the exclusionary rule
1. These allow tainted evidence to come in.
IV. Searches
A. Katz
1. “what a person knowingly exposes to the public…is not subject
to 4th amen. protection. But what he seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.”  Stewart, maj.
a. The 4th amen. applies to persons, not things/places.
2. “Warrantless searches are per se unreasonable, subject only to
a few specifically established and well-delineated exceptions.”
Stewart, maj.
3. Harlan (concurrence):
a. That a person has exhibited an actual (subjective)
expectation of privacy, and
b. That the expectation be one that society is
prepared to recognize as reasonable.
4. Privacy is the trigger for the 4th amen., not trespass.
5. When 4th amen. applies  need a warrant, unless an exception
applies.
B. Open fields
1. No 4th amen. protection for open fields
a. There is no reasonable expectation of privacy
b. It does not matter that police are trespassing, the 4th
amen. applies to people, not places.
C. Curtilage
1. The area surrounding the home where reasonable privacy
expectations receive 4th amen. protection. The area where the
intimacies of life take place.
a. Dunn Four factors:
i. Proximity of the area to the home,
ii. whether the area is included w/in an enclosure
surrounding the home,
iii. the nature of the uses to which the area is put,
and
1. whether it is used for the intimacies of life
iv. the steps taken by the resident to protect the
area from observations by the people passing by.
2. Ariel surveillance
a. CA v. Ciraolo (although the backyard was w/in the
curtilage and a fence shielded the yard from street
view, aerial surveillance from 1,000ft. did not constitute
a search – could be observed w/ the naked eye, flight at
that altitude is routine… no reasonable expectation).
b. FL v. Riley (surveillance of partially enclosed
greenhouse by helicopter at 400ft.)
i. Ct. says there was a subjective expectation: w/in
curtilage and had taken precautions.
Nonetheless, the helicopter was w/in lawfully
navigable airspace where members of the public
travel w/ sufficient regularity, and it did not
interfere w/ the regular use of the curtilage, such
there was no reasonable expectation of privacy
(and therefore no “search”).
ii. The burden of proof was on the ∆ to show that
flights didn’t occur. O’Connor says that this would
be a factor, in her concurrence.
iii. Dissent points out public observation is not
commonplace from that vantage. No proof
showing that aircraft actually did fly over.
 iv. Note: physical invasion of the curtilage is still
likely to be a “search.”
D. Bond v. US (physical manipulation of exterior of bag on bus was a
“search”).
E. Dogs
1. US v. Place (sniff test by narcotics dog): not a “search.” The
olfactory frisk is sui generis in that the means are less intrusive
and the content revealed is surgically precise (only reveals the
presence or absence of contraband) and so invades no privacy
interest.
a. The dog sniff only reveals crime, and there is no 4th
amen. protect of crime.
b. But, what about Harlan: personal sense of security, not
the criminal, and then balance that with the utility to
law enforcement.
2. Caballes
a. A dog sniff is not a 4th amen. search, so don’t need
probable cause.
F. U.S. v. White, by J. White, (electronic surveillance via informant ≠
“search”)
1. Testimony obtained by an informant is not protected by the 4th
amen.  no warrant required  if informer could have
testified, then the agents could testify as to what was said
2. This technique of deceiving an informant into thinking that the
confidant should be trusted is important for drug trafficking
cases.
3. In the same way that expectations/misplaced trust of
colleagues or undercover agents is not protected, recorded
transmissions of those conversations are also not protected [a
sort of implicit “knowing exposure” conception] In fact, a bug
is more accurate and reliable than testimony.
4. Basically: the police can do what they want in this context of
‘bugging’ as long as they find a ‘willing accomplice.’
5. Harlan dissent:
 a. “Since it is the task of the of the law to form and
project, as well as mirror and reflect, we should not
merely recite the expectations and risks w/out
examining the desirability of saddling them upon
society. The critical question is whether under our
system of government, as reflected in the Const. we
should impose on our citizens the risks of the electronic
listener or observer w/out at least the protection of a
warrant requirement”
b. The question must be answered by assessing the nature
of a particular practice and the likely
i. extent of its impact on the individual’s sense
of security; balanced against
ii. the utility of the conduct as a technique of
law enforcement.
1. Concerned with impact on sense of security,
free social intercourse, and the chilling effect
on public discourse.
G. Knowing exposure to the public defeats any reasonable expectation
of privacy.
1. Greenwood trashbags on curb case
a. The trash bags were knowingly exposed. They were
accessible to the public and were conveyed to a third
party.
b. Dissent: trash harbors evidence telling of the intimate
activity associated with w/the sanctity of a man’s home,
and the privacies of life. The contents were concealed.
Katz’s “what a person seeks to preserve as private,
even in an area accessible to the public, may be
constitutionally protected.” Relinquishment does not =
relinquishment of privacy interest.
H. Tracking
1. Knotts (tracking device in chemical drums)
a. There is no reasonable expectation for privacy of travel
(b/c its visually available)
2. Karo
 a. Used a beeper to track
b. You can use the beeper information when it is in a
public place, can’t use the info when it was in the
house.
c. The tainted info which was included in the warrant
affidavit would invalidate the warrant for the search of
the house if it proved to be critical to establishing the
probable cause. But here, there was sufficient
untainted evidence to support probable cause.
d. Dissent: when people are on a public highway, but are
attempting to conceal things, should be afforded 4th
amen. protection.
I. Kyllo thermal imaging case
1. The home is the place of heightened security.
2. Scalia: Any information obtained w/technology that could not
otherwise have been obtained w/out physical intrusion (into a
const. protected area) is a “search,” at least where the
technology in question is not in general public use.
3. In the home all details are intimate details, court declares a
bright line at the entrance to the house. Merely b/c it is
external doesn’t mean it is knowingly exposed.
4. Dissent: no info revealed about the interior of the home (only
external); no reasonable expectation. Emphasizing privacy in
the home reduces mobility and favors the rich.
J. Privacy & cameras/pictures
1. Public exposure of our faces, and cameras and pictures being
taken.
2. What about terrorism?
a. Cases imply that maybe, where the issue is terrorism,
we might not protect so much
V. Seizures
A. Police never need justification to seize contraband, or the fruits or
instrumentalities of crime (although there might be a 4th amen.
expectation of privacy regarding the search for those things).
B. If not a 4th amen. seizure, then no justification needed.
C. Justification:
 1. Probable cause
2. warrant
3. Consent
D. Seizure of a person (arrest)
1. Arrests require 4th amen. justification
2. Arrests in public usually only require PC, usually don’t require a
warrant
3. As a general rule: police may approach anyone, and ask a few
questions. (mere encounter rule). That does not invoke the
4th amen. Also, if people consent, no 4th amen. issue.
E. Bus cases
1. Bostick
a. O’Connor, maj.: “so long as a reasonable person would
feel free to disregard the police and go about his
business, the encounter is consensual = not trigger 4th
amen.”
b. A seizure occurs when a reasonable person would
believe that he or she is not free to leave/terminate the
encounter.
i. O’Connor, maj.: Only when an officer, by means
of physical force or show of authority, has in
some way restrained the liberty of a citizen may
we conclude that a seizure has occurred (subject
to a Terry stop & frisk exception, Terry stop just
needs reasonable suspicion)
1.
c. Test for seizure:
i. When a reasonable (innocent) person would
feel free to decline the officer’s request or
otherwise terminate the encounter. (totality
of the circumstances)
1. If it is not an arrest police do not need
justification (aka PC)
ii. The court expects ∆ to deny consent.
2. Drayton Kennedy, maj.
 a. No requirement to inform individuals of a right to refuse
consent. (aka no requirement of informed consent)
i. the mere display of badge or presence of firearm
(so long as not brandished) is insufficient
ii. There were no threats or intimidation, and there
was an open exit.
iii. Totality of the circumstances.
1. Lack of informed consent could be a factor in
the totality of the circumstances.
b. Note: suspicionless seizure will invalidate the
subsequent search (incident to arrest)
3. Mendenhall
a. Provides factors the presence of which might suggest
that a given police-citizen encounter constitutes a 4th
amen. seizure:
i. The threatening presence of several officers
ii. The display of a weapon by an officer
iii. Physical touching
iv. The use of language or tone of voice indicating
that compliance with the officer’s request might
be compelled.
4. Brower
a. Case where the ∆ had a stolen car, police set up a road
block around a bend so he would crash.
b. Violation of the 4th amen. requires an intentional
acquisition of physical control.
5. Hodari D
a. Case where ∆ was fleeing, threw the crack while
running, was he seized by the show of authority, the
officer chasing him? 
b. A suspect who attempts to run away from police is not
“seized” when police pursue him. An arrest (“seizure”)
requires either:
i. Physical force, or
ii. Submission to the assertion of authority.
VI. Probable Cause
A. PC: known facts and circumstances + inferences therefrom are that
would be sufficient to warrant a man (officer) of reasonable
prudence in the belief that contraband or evidence of a crime will be
found.
B. PC is the std. for justification of gov. interference, it appears in the
warrant clause, it is required for all warrants.
1. PC is also required for all arrests. (although not all arrests
require warrants).
C. Measurement spectrum of probability of crime
1. Suspicion  PC  Certainty.
D. The default rule is that both warrant and PC are required, although
there is an attack on this, which is that the unreasonable search
and seizure clause is independent of the warrant requirement.
1. Argument: the search and seizure clause does not require a
warrant in every place, it just requires that searches and
seizures be reasonable, and warrants are only required when
they would have been required back in 1979 (when the 4th
amen. was passed).
E. PC evaluation:
1. Antecedent/magistrate v. post-hoc/judge
a. Post-hoc  the ringing bell problem
2. Antecedent PC evaluation  Warrant
a. Rationale:
i. Jackson, in Johnson v. U.S.
 1. “The point of the 4th amen., which is not
often grasped by zealous officers, is not that
it denies law enforcement the support of the
usual inferences which reasonable men draw
from evidence. Its protection consists in
requiring that those inferences be drawn by a
neutral and detached magistrate instead of
being judged by the officer engaged in the
often competitive enterprise of ferreting out
crime. Any assumption that evidence
sufficient to support a magistrate’s
disinterested determination to issue a search
warrant will justify the officers in making a
search w/out a warrant would reduce the
amendment to a nullity and leave the
people’s homes secure only in the discretion
of police officers.”
F. Nathanson: An officer’s conclusory statement that establishes no
basis for the conclusion will never be enough to establish PC.
1. Have to provide factual details, no bare bones conclusory
statements.
G. Draper guy walking fast, anonymous tip
1. There was strong corroborating evidence, the officers observed
the informant was correct in what the ∆ was wearing, what
train, that he would be walking fast.
2. This illustrated a case where there was PC based upon an
anonymous tip. Prosecution will always analogize to Draper.
H. Illinois v. Gates (anonymous letter to the police + subsq.
surveillance used to get warrant)
1. Reject two-prong test of Spinelli, which required (1) the
affidavit must adequately reveal the basis of knowledge, i.e.
the means by which the informant came by the information,
and (2) facts sufficiently establishing either the veracity of the
affiant’s informant or the reliability of the informant’s report in
this particular case.
 2. “Adopt a totality of the circumstances approach for probable
cause, in which the two prongs are merely important factors.
Probable cause is a fluid concept, and the magistrate is to
make a practical, common-sense decision whether there is a
fair probability that contraband or evidence of a crime will be
found in a particular place. (and the duty of the reviewing
court is simply to ensure that the magistrate had a substantial
basis for concluding that PC existed).”
3. **Totality of the circumstances approach:
a. The magistrate is to:
i. Make a practical, common-sense decision
whether
ii. Given all the circumstances set forth in the
affidavit,
iii. Including the “veracity” and “basis of
knowledge” of persons supplying hearsay
information,
iv. There is a fair probability that contraband or
evidence of a crime will be found in a particular
place.
1. Weakness in one element can be made up by
strength in another.
4. The sufficiency of an anonymous tip may depend upon the
detail of info. and the congruence of the tip w/ facts
independently observed (i.e. suspicion engendered in tip may
ripen into PC if enough facts in the tip are corroborated by
police). Draper, guy in trenchcoat that walked fast.
a. Reviewing courts are to pay “great” deference to
a magistrate’s determination of PC (need only a
substantial basis for finding PC), but where police act
w/out a warrant there is no deference to the lower ct.’s
determination. Remember, no warrant = presumptively
unreasonable.
I. Ornelas
1. Rule for warrantless searches:
a. PC should be reviewed de novo, w/
 b. Due weight given to inferences drawn from those facts
by local judges and local law enforcement. (police
officer may draw inferences based on his own
experience).
i. Std: reasonable police officer
ii. Note 1 p.441: This instruction is not simply
inconsistent with true de novo review; it is
inconsistent in a way that gives the prosecution a
leg up. A deferential std. of review like “clear
error,” the std. initially applied by the court of
appeals in Ornelas, gives weight to the judgments
of the trial court, but not to those of the officers
involved in the case. By rejecting a “clear error”
standard in favor of a “de novo with due weight”
standard, the Court in effect declared that police
officers should receive as much deference as trial
judges. Taken as a whole, then, Ornelas may
make appellate review of suppression rulings
appreciably more hospitable to law enforcement.”
2. Note: If there is a warrant, the magistrate’s determination is
entitled to deference and is reviewed for clear error.
3. So, PC review for warrantless searches is stricter than searches
w/ a warrant. (where great deference is given to the
magistrate  from Gates). This provides an incentive to law
enforcement to get a warrant.
a. “due deference” probly = “great weight”
i. argument against this:
 1. J. Jackson in Johnson v. U.S. p.421: “The
point of the 4th amendment, which often is
not grasped by zealous officers, is not that it
denies law enforcement the support of the
usual inferences which reasonable men draw
from evidence. Its protection consists in
requiring that those inferences be drawn by a
neutral and detached magistrate instead of
being judged by the officer engaged in the
often competitive enterprise of ferreting out
crime. Any assumption that evidence
sufficient to support a magistrate’s
disinterested determination to issue a search
warrant will justify the officers in making a
search without a warrant would reduce the
Amendment to a nullity and leave the
people’s homes secure only in the discretion
of police officers.”
2. So: Jackson: that default to the police
officer, that deference to the officer, is not
allowed by the 4th amendment. The
magistrate is a necessary bulwark. He really
likes the warrant process.
J. Pringle
1. Yes PC; car passenger often engaged in common enterprise as
the driver
a. Implication: court found it reasonable to infer that any
or all three of the occupants of the vehicle had
knowledge of, and exercised dominion and control over,
the coke.
b. Exclusion: if the informer singles out the guilt person,
then the PC is particularized. Di Re.
K. Ybarra (guy gets frisked in the bar, when the officers were at the
bar b/c they suspected the bar owner was dealing heroin)
 1. PC: requires a reasonable ground for belief of guilt, and that
belief of guilt must be particularized with respect to the person
to be searched or seized. Particularity is required, mere
propinquity is not enough.
2. Person must be independently suspected of criminal activity –
individualized/particularized suspicion needed w/regard to the
person to be searched or seized.
VII. Warrants
A. Required for a warrant:
1. PC
2. Supported by oath or affirmation
3. Particularly describing the place to be searched, or the persons
or things to be seized.
4. Determination of PC must be decided by an official detached
from law enforcement (aka neutral magistrate) (cannot be
A.G., also cannot have fee deferential e.g. $0.50 for approval
and $0.25 for denial.)
B. As long as the affidavit is done under penalty of perjury, can be
phoned in, faxed in, etc. Magistrate does not have to be there.
C. Particularity requirement:
1. A description should be particular enough to permit an officer
w/ reasonable effort to ascertain and identify the place
intended. If it is so ambiguous that police can’t discern, then
search cannot proceed. If there is clarifying info. then the
search may be permitted.
2. Where there’s a mistake, the validity of the search depends on
whether the officers’ failure to realize the overbreadth of the
warrant was objectively reasonable.
3. The ‘things to be seized’ requirement limits the scope (spatially
and temporally) of a search (subject to the plain view
exception).
D. Anticipatory Warrant (“triggering condition”)
1. As long as there is PC, don’t need the triggering condition on
the face of the warrant.
2. Grubbs
a. Scalia, maj., requirements for PC for an anticipatory
warrant:
i. “It must be true not only that if the triggering
condition occurs ‘there is a fair probability that
contraband or evidence of a crime will be found in
a particular place’ (taking quote from Gates); but
also 
ii. That there is PC to believe the triggering condition
will occur.
1. Scalia: the mere possibility that triggering
condition will not happen is not enough to
destroy PC.
2. Prof: If the time period of the warrant is
unknown, then might have to worry about
the warrant becoming stale. PC is a
perishable commodity.
a. But there is nothing in the 4th amen.
about putting a date on the warrant.
b. Requirement to display/show warrant to property
owner?
i. Nope.
1. The requirement of particular description
does not protect an interest in monitoring
searches.
a. Scalia: “the absence of a
constitutional requirement that the
warrant be exhibited at the outset of
the search of indeed until the search
has ended, is…evidence that the
requirement of particular description
does not protect an interest in
monitoring searches.”
2. Souter, Concurrence: “the right of an owner
to demand to see a copy of the warrant
before making way for police is undetermined
today.”
 3. Pro and cons to showing the warrant:
a. Pro: might enlist their cooperation, protect from
property damage, and it could limit the scope of the
warrant, the person could simply go grab the gun.
b. Con: so as not to alert them to what they are looking
for, so they don’t destroy the evidence
VIII. Reasonableness
A. Execution of the warrant
1. The 4th amen. requires “reasonableness” in the execution of
the warrant.
2. The need for “force” balanced against the intrusion on
individual liberty.
3. Timing: more dangerous for police to execute a warrant at
night.
4. Warning: will give people a chance to collect themselves, will
depend on type of offense,  knock and announce rule
5. The 4th amen. requires “knock and announce”
a. The purpose is to give the reasonable, innocent person
time to get to the door before they break it, to put on
some clothes
b. Banks: “The obligation gives way when officers have
reasonable suspicion that knocking and announcing
their presence, under the particular circumstances,
would be dangerous or futile, or…would inhibit the
effective investigation of the crime by, e.g. allowing the
destruction of evidence.” Souter, maj.
i. Totality of the circumstances: The reasonable
time given to ∆ to open the door will be
determined by the specific circumstances, i.e. are
they going there for cocaine or a grand piano?
ii. Limits on reasonableness:
1. the thing searched for
2. Law enforcement interest
3. Individual’s interest
a. His door
b. His dignity
 6. Police actions in executing the warrant must be related to the
objectives of the authorized intrusion.
7. Can detain while the search is being conducted, for the officer’s
safety. The detainment is limited though (limited by
reasonableness?) e.g. think Mena, the case where the
handcuffed for 2-3 hrs. and questioned the girl about her
immigration status.
8. Wilson, Police actions in executing the warrant have to be
“related to the objectives of the authorized intrusion”. (police
brought in the media, & the presence of the 3rd parties was not
in aid of the execution of the warrant – opening up the Wilson’s
house to media scrutiny was outside the objectives of the
search)
9. Perp walks, the reasonableness of which is analyzed, under the
umbrella of 4th amen. seizures.
10. Exceptions to the warrant requirement
a. Exigent circumstances
b. Plain view
c. Automobiles
d. Arrests & searches incident to lawful arrest (SITLA)
e. Stop & frisk
i. These are seizures
f. Consent
i. All of these exceptions seem to be merging into
“reasonableness”
ii. These exceptions provide some limits that
arguably are not there if it is just
“reasonableness”
iii. Reasonableness with regard to the execution of
the warrant:
1. Analysis of reasonableness balancing
government interest against the
intrusiveness on the individual.
2. Another aspect of reasonableness:
 a. Police conduct must be related to the
object of the search, no more, no
less.
11. Exigent Circumstances
a. Hot pursuit of fleeing felon, destruction of evidence,
immediate aid, community caretaking, danger to officer
or third parties
i. The right to search is limited to the exigent
circumstance that prompted the search.
1. After the exigence ends, then the officer
needs to stop and get a warrant (or find
another exception)
2. Destruction of evidence: objective
opportunity that evidence of a crime or
contraband will be destroyed if police wait to
go get a warrant.
3. Community caretaking/aid: allow a
warrantless entry and search(to the extent
justified by that exigent circumstance
justifying the entry) when there is reasonable
evidence of an emergency need.
a. Brigham City v. Stuart: we do not
inquire into the officer’s subjective
intent, we do not care, so long as
there are objective indicators of the
need for help).
1. “an officer’s action is reasonable
under the 4th amen., regardless
of the individual officer’s state
of mind (includes inner motive
of officer) as long as the
circumstances, viewed
objectively, justify the action.
The officer’s subjective
motivation is irrelevant.”
 b. Mincey, Stewart: Limitation: the exigency defines the
boundaries of the search: “A warrantless search must
be strictly circumscribed by the exigencies which justify
its initiation” (both physically and temporally)
Furthermore, the exigency must be objectively
reasonable.
c. Tests:
i. In Mincey: Balancing the government interest vs.
intrusion on individual
ii. In Welsh v. Wisconsin (guy driving drunk &
walked home): Balancing intrusion on him vs. the
gravity of the underlying offense.
d. Illinois v. McArthur (guy with drugs in house, wife tells
on him, officer watches him while he goes inside to get
cigarettes.)
i. The exigency would have justified an entry, the
step the officer took here while a warrant was
secured was reasonable.
ii. “Rather than employing a per se rule of
unreasonableness, we balance the privacy-related
and law enforcement concerns to determine if the
intrusion was reasonable.”
iii. Facts:
1. PC existed
2. Likelihood evidence would be destroyed
3. Intrusion was tailored and restrained
4. There were temporal limits on intrusion
5. Doorway is a public space, since they could
lawfully keep him outside, it follows they
could accompany him inside
6. Here it was a jailable offense and intrusion
less serious, making it different from welsh
iv. B/c exigency, destruction of the evidence, would
have justified an entry, the lesser step offier took
here while warrant was secured was reasonable
12. Plain View
a. Definition: An officer who has probable cause to believe
that an item is contraband or evidence of a crime may
seize it, without a warrant, if the object is in plain view
and the officer is operating lawfully from a place where
he has a right to be and can gain physical custody over
it.
i. This doctrine requires officers to operate from a
place where they lawfully had a right to be to
seize the object.
b. Arizona v. Hicks (moved the stereo) Scalia
i. The search was not related to the exigent
circumstance, it required additional justification.
ii. Moving the equipment (which exposed concealed
portions of the apt.’s contents) constituted an
independent “search” unrelated to the authorized
entry (i.e. outside the scope of the search for
weapons) and so constituted a new invasion of
privacy. The plain view exception does not give a
general license to just rummage around.
c. NY v. Class (looking for VIN # and found gun in car)
i. The officer was allowed to be in the car b/c of the
state statute requiring the VIN to be visible…
d. Horton Stevens
i. Key point of plain view: The scope of the search
is defined by the object of the search.
ii. Requirements for warrantless plain view seizure:
1. The officer lawfully arrived at the place from
which the evidence was viewed
2. The item must be in plain view and its
incriminating character must be immediately
apparent.
3. The officer must have a lawful right of access
to the object itself.
 iii. The officer need not have inadvertently
discovered the evidence in order to invoke the
plain view doctrine (scope of search is already
adequately circumscribed by warrant or
exigency).
e. Automobiles
i. Carroll & Chambers = As a general matter, the
search of a car could be based solely on PC to
believe that the car contained evidence or
contraband, and did not require a warrant. This
included any and all integral parts of the car.
(such as the glove compartment and trunk).
ii. Chadwick & Sanders = Containers: the
automobile exception does not apply to containers
within the car. Gov. interest outweighed by
privacy interests.
iii. Ross: (had PC that person was selling drugs out
of trunk; searched closed brown paper bag in
trunk):
1. The scope of a warrantless search of an
automobile is not defined by the nature of
the container in which the contraband is
secreted but rather by the object of the
search and the places in which there is
probable cause to believe that it may be
found. This ruling created a dichotomy b/w
“container-specific” probable cause (where
Chadwick applied) and “car-general” PC (in
which case Ross applied).
iv. CA v. Acevedo, Blackmun (had PC re: brown
paper bag in trunk)
1. Ct. abandons distinction b/w containers found
during general search and during targeted
search (the privacy expectation and exigency
is not any different in either case).
 2. Adopt a single a single standard (from Ross,
see standard above): search is circumscribed
by probable cause. The police may search
an automobile and the containers w/in it
where they have PC to believe
contraband or evidence is contained.
3. Scalia Concurrence: two 4th Amend. clauses
are separate, such that warrants are not
actually prescribed for searches and seizures.
Searches and seizures are governed by the
reasonableness standard. CL should define
reasonableness.
4. Note: although ct. overruled Sanders, it did
not overrule it did not overrule Chadwick
(footlocker), likely b/c it is a locked, personal
container.
a. I think: Chadwicki still applies where
PC only exists as to a container in the
car, then the container maybe held by
police but not searched, but then
again, it might only apply to
‘footlocker’ type containers, they can
be locked.
v. Acevedo: No warrant is required to search the car
or containers within it, so long as the officer has
PC to believe that there is evidence or contraband
in the vehicle. The object of the search limits the
scope of the search.
vi. Ross: “probable cause to believe that a container
placed in the trunk of a taxi contains contraband
or evidence does not justify a search of the entire
cab.” This is reaffirmed by Acevedo.
vii. String of pearls theory.
1. If you guess right in the first instance, you
will probly be able to string together some
more exceptions to search for what you want.
viii. Houghton, Scalia (PC to search car extends to
passenger’s purse?)
1. Rather than applying Acevedo, the ct. says
that the 4th Amen. inquiry into unreasonable
searches and seizures requires looking at:
a. Scalia’s Two-Step
1. Whether the action was
regarded as an unlawful
search or seizure under the
CL when the Amend. was
framed, or (alternatively, if
CL is inconclusive)
2. Evaluate the search and
seizure under traditional
standards of reasonableness
by balancing the competing
interests:
i. Intrusion on the
individual
ii. legitimate gov.
interests.
2. Acevedo is not limited to the driver’s
belongings. Individualized PC is not
necessary in this context (disting. searches of
the person). Hold: Police officers w/ PC to
search a car may inspect passengers’
belongings found in the car that are capable
of concealing the object of the search.
3. Balancing: there is a reduced privacy
expectation in cars and they are subject to
pervasive gov. regulation. Gov. int. is
substantial b/c passengers likely share a
common enterprise.
4. The automobile search exception does not
extend to containers attached to a person (at
least clothing pockets).
 5. Mentioned by Prof but not in the text of the
case: Pringle, common enterprise with the
driver.
6. Dissent, Stevens, footnote 3: the court has
never used this two prong test before, wants
rule requiring a warrant or individualized PC
to search passenger belongings.
7. This rule has been extended to RVs, cars on
blocks, etc. Starts small, gets broader.
ix. The inventory exception: when an officer makes a
custodial arrest of an occupant, the police can
conduct an inventory search of the auto. Limited
by Gant.
1. Means: officers that make a custodial arrest
have more power. Provides an additional
incentive to arrest. Goin to impound car =
can make inventory search
B. Arrests
1. Custodial Arrests (note Scalia’s two-step in analyzing
“reasonableness”)
a. Custodial arrests require only probable cause. Unlike
searches, they do not also require exigent
circumstances to support warrantless action. [This
means, theoretically, privacy is valued greater than
liberty, which has obvious socioeconomic implications.]
b. *Modern statutes generally authorize arrest for
misdemeanors w/out a warrant where the offense is
committed in the officer’s presence (& for lim. crimes
such as DV outside the officers presence or where
certain exigencies exist, such as a fleeing suspect). For
felonies, generally they authorize warrantless arrests
based on probable cause.
c. *There must be a jud. determ. of whether arrest met
PC std. w/in 48 hours of arrest (no unreasonable delay).
McLaughlin.
d. *No warantless arrests in the home are permitted.
However, only an arrest warrant is req’d: an arrest
warrant founded on PC implicitly carries w/ it the limited
authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is w/in.
(Note an arrest warrant cannot justify the search of the
home of someone other than the arrestee.)
e. An arrest occurs when a reasonable, innocent
person would not feel free to terminate the
encounter and go about his business. O’Connor in
Bostick.
f. Arrests made in public do not need a warrant, as long
as they are based on PC
i. Misdemeanors: PC to believe that crime has been
committed in officer’s presence, and that is the
person who did it.
ii. Felony: just needs to be based on PC.
g. U.S. v. Watson
i. Reaffirms fed. 4th amen. law
ii. “The ancient CL rule that a peace officer was
permitted to arrest without a warrant for a
misdemeanor or felony committed in his presence
as well as for a felony not committed in his
presence if there was a reasonable ground for
making that arrest.”
h. Atwater (seatbelt violation; arrest for minor criminal
offense requires warrant?) Souter
i. If an officer has PC to believe that an individual
has committed even a minor misdemeanor
offense in his presence, he may arrest the
offender w/out violating the 4th Amend. Court
conducts Scalia’s two step approach (from
Houghton):
ii. Souter conducts Scalia’s Two-Step Approach:
1. Would this arrest be allowed at CL?
 2. If inconclusive  balance intrusion on
individual vs. legit. gov. interests
3. =
a. Need for
1. This arrest would have been
allowed at CL.
2. Need for a bright line rule to
guide police conduct
(administrability) outweighs
Atwater’s liberty int.
iii. Ct. declines to create distinction b/w jailable and
non-jailable offenses.
iv. Puts discretion w/ police, no antecedent
justification required for arrests.
i. Whren, Saclia: A police officer’s motive for making a
traffic stop (and accompanying brief detention) does not
affect the constitutionality of the stop, so long as there
was probable cause to believe that the traffic violation
occurred. No subjective motive of officer. Except:
Court will inquire into the officer’s state of mind if the
arrest was conducted in an extraordinary manner
unusually harmful to an individual’s privacy or physical
interest.
j. Steagold P.517
i. An arrest warrant will not validate the search of a
third party’s home. [can they still go in the home
and just not search for anything other than the
person they are supposed to arrest?]
k. Maryland v. Buie
i. When police go in to make an arrest, they may
make a protective sweep in order to identify
people who may be a threat to officer safety.
2. Searches incident to lawful arrest (SITLA)
a. Chimel v. CA (arrest warrant executed at home, subsq.
searched entire house w/out warrant) REACHING
PRINCIPLE.
 i. When an arrest is made, it is reasonable for the
arresting officer to search the arrestee’s person
and the area w/in his immediate control –
construing that phrase to mean the area from
w/in which he might gain possession of a weapon
or destructible evidence.
1. This is justified by
a. the need for officer safety and
b. exigency (preservation of evidence).
ii. This is consistent w/ the rationale that the scope
of a search must be strictly tied to and justified by
the circumstances which rendered its initiation
permissible.
iii. Here, the search of the house was unreasonable
(rule prevents general rummaging).
iv. “reachable distance” is still good law, just reined
in by Gant, the issue is:
1. what is it tethered to?
a. Where the arrestee was at the time of
the arrest? Or
b. Where the arrestee was at the time of
the search?
b. The SITLA exception poses greater problems in car
cases.
c. US v. Robinson:
i. SITLAs do not depend on the gravity of the crime
or upon the officers subjective fear, and
ii. SITLA of person is absolute (always reasonable
where arrest is lawful).
iii. The right to arrest gives the officer the right to
frisk
iv. If the officer comes to believe, while patting
down, that there is contraband on the person,
does not limit the scope of the search.
d. MD v. Buie:
 i. Officer may as a precautionary matter and
without probable cause or reasonable suspicion,
look in closets and other spaces immediately
adjoining the place of arrest from which an attack
could be immediately launched. (To look in
additional areas, there must be articulable
suspicion that the area swept harbors an
individual posing danger.) Ct. emphasized the
sweep may extend only to a cursory inspection of
spaces where a person may be found.
e. NY v. Belton:
i. When an officer has made a lawful custodial
arrest of the occupant of an automobile, he may,
as a contemporaneous incident of that arrest,
search the entire passenger compartment of that
automobile―including examining the contents of
any containers found there.
f. Thornton v. US
i. The Belton rule controls even when the officer
does not make contact until the person arrested
has left the vehicle (i.e. even if arrest is made
outside vehicle).
ii. Same concerns regarding safety and destruction
of evidence. The danger flows from the fact of
the arrest rather than the proximity or uncertainty
involved.
iii. Only need be a “recent occupant” for the car to be
subject to SITLA.
iv. Scalia concurrence: state int. is far less
compelling where there is no threat to safety or of
evidence loss (as here). Would limit Belton to
where it is reasonable to believe evidence
relevant to the crime of arrest might be found in
the vehicle.
g. Gant, Stevens
i. “Under this broad reading of Belton, a vehicle
search would be authorized incident to every
arrest of a recent occupant notwithstanding that
in most cases the vehicle’s passenger
compartment will not be within the arrestee’s
reach at the time of the search. To read Belton
as authorizing a vehicle search incident to every
recent occupant’s arrest would thus untether the
rule from the jurisdictions underlying the Chimel
exception.”
ii. “A rule that gives police the power to conduct
such a search whenever an individual is caught
committing a traffic offense, when there is no
basis for believing evidence of the offense might
be found in the vehicle, creates a serious and
recurring threat to the privacy of countless
individuals.”
iii. Two limiting principles:
1. Officer safety
2. Evidence (protection from destruction)
iv. “Police may search a vehicle incident to a recent
occupant’s arrest only
1. if the arrestee is within reaching distance of
the passenger compartment at the time of
the search [interest in officer safety], or
2. it is reasonable to believe the vehicle contains
evidence of the offense of arrest [interest in
evidence].”
v. Gant reins in Belton, brings it back to Acevedo,
since SITLA restrained to (1) officer safety, and
(2) evidence; but this would hardly happen, b/c
when person is arrested they are placed in the
cop car. Limits to reachable distance, & limited
evidence to that evidence pertaining to the arrest,
so it limits pretextual searches. Gant strips
Belton.
3. INVENTORY EXCEPTION (sort of a net that catches what is
missed in SITLA)
a. CO v. Bertine (inventory exception):
i. inventory procedures serve to protect an owner’s
property while it is in the custody of the police, to
insure against claims of lost, stolen, or vandalized
property, and to guard the police from danger.
b. Knowles v. Iowa (speeding stop, issued ticket and
searched; search incident to citation?)
i. While a concern for officer safety may justify a
minimal additional intrusion of ordering the driver
and passengers out of the car, neither of the twin
rationales of SITLA can justify a search incident to
a citation. The brevity of a traffic stop poses a
minimal threat.
ii. Note, however, that the discretionary arrest
power of officers allows an officer to circumvent
this limitation by arresting, searching, and then
rescinding/releasing if nothing is found.
c. Virginia v. Moore
i. Facts:
1. The officers arrest him for driving w/ a
suspended license. Under state law, they
should not have arrested him, under that
state law, it was not an arrestable offense.
2. In the process of arresting him, they found
evidence of cocaine.
ii. Issue: Whether the evidence obtained in this
arrest, b/c it violates the 4th amen. to the
Constitution?
iii. Answer: it does not violate the 4th amen.
Atwater: Can arrest on PC.
iv. What is the impact, that it is not a lawful arrest
under Virginia law.
 1. Virginia does/did not apply any exclusionary
rule to uphold the more limited restriction on
arrests. Mapp only applies to Federal/4th
amen.
v. Scalia: the arrest perhaps was not lawful, but it
was constitutional, and there is no suppression
under Mapp. In Virginia, the remedy is sue the
cop, not exclusion.
d. Inventory exception only occurs when they are going to
impound the vehicle, which is expensive, so should
maybe be self-limiting.
4. Reasonableness
a. Increasingly privacy is not protected by the warrant and
probable cause requirements, but rather it is rooted in
the constitutional command that searches/seizures be
reasonable. It is a more contextual inquiry, balancing
the gov’t interest (law enforcement needs) against the
privacy intrusion. Reasonableness is used to define the
probable cause required.
b. Stop & Frisks
i. Terry v. Ohio – J. Warren
1. Facts:
a. two men have pattern of pacing and
looking in window, meet third man;
officer approached and, after getting a
mumbled response, patted down
suspects)
2. Quotes:
a. ** “Regardless of how effective the
[exclusionary] rule may be where
obtaining convictions is an important
objective of the police, it is powerless
to deter invasions of constitutionally
guaranteed rights where the police
either have no interest in prosecuting
or are willing to forgo successful
prosecution in the interest of serving
some other goal.”**
b. The officer ** “must be able to point
to specific and articulable facts
which, taken together w/ rational
inferences from those facts,
reasonably warrant that intrusion”
** in light of the particular
circumstances. The facts must be
judged against an objective
standard: would the facts available
to the officer at the moment of the
search or seizure warrant a man of
reasonable caution in the belief that
the action taken was appropriate?
c. **“there must be a narrowly drawn
authority to permit a reasonable
search for weapons for the protection
of the police officer, where he has
reason to believe that he is dealing
with an armed and dangerous
individual, regardless of whether he
has probable cause to arrest the
individual for a crime. The officer
need not be absolutely certain that
the individual is armed; the issue is
whether a reasonably prudent man in
the circumstances would be warranted
in the belief that his safety or that of
others was in danger. And in
determining whether the officer acted
reasonably in such circumstances, due
weight must be given, not to his
inchoate and unparticularized
suspicion or “hunch,” but to the
specific reasonable inferences which
he is entitled to draw from the facts in
light of his experience.”
1. DO NOT LOOK AT THE
SUBJECTIVE INTENT OF THE
OFFICER
3. A “stop” amounts to a “seizure” (restrains
freedom to walk away), and a “frisk” amounts
to a “search.” Nonetheless, this entire rubric
of police conduct – necessarily swift action
predicated upon on-the-spot observations of
the officer on the beat (proactive policing) -
is not subject to the warrant requirement.
Instead, it is subject to the proscription
against “unreasonable” searches and
seizures. This requires balancing the gov.
int. against the intrusion. [1st Doctrine to
dispense w/ both the warrant requirement
and PC requirement.]
4. Balancing: safety of officers (and others)
justifies a limited protective search. Must be
circumscribed by the exigencies which justify
its initiation. Thus it must be limited to that
which is necessary for the discovery of
weapons which might be used to harm the
officer or others nearby, and may realistically
characterized as something less than a full
search.
5. In determining whether the search and
seizure were unreasonable must look at
whether
a. the officer’s action was justified at its
inception, and
b. it was reasonably related in scope to
the circumstances which justified the
interference in the first place.
6. Holding:
a. Where an officer reasonably concludes
in light of his experience
b. That criminal activity may presently
be afoot and
 c. Persons w/ whom he is dealing may
be armed and presently dangerous
d. He is entitled, for the protection of
himself and others in the area,
e. To conduct a carefully limited search
of the outer clothing in an attempt to
discover weapons which might be
used to assault him.
f. [Thought they were making a specific,
well-delineated exception to Katz]
7. Won’t individual int. always be trivialized
where balanced against the gov. int.?
8. Terry has been expanded beyond its
rationale, i.e. beyond violent crimes or
instances where officer safety could be
jeopardized, e.g. drug couriers and even
property. Implicates serious problems of
racial discrimination and profiling. Supports
police discretion.
9. Note: still must pay careful attention to
scope, to Terry’s rationales, and to balancing:
when investigative detentions escalate
beyond a Terry stop (i.e. beyond a level of
intrusiveness – either physical, temporal,
locational, etc. – warranted by Terry), they
will require greater justification than
reasonable suspicion (i.e. PC). May look at
police diligence.
10. The court did not think that they would open
the door to lawless or unconstitutional police
behavior. The dissent disagreed.
11. Dissent (Douglas)
 a. He believes that PC is required, and
that reasonableness is within this. He
thinks it is outrageous to have a lower
than PC. There will be no antecedent
justification, no review by a neutral
third party. This gives officers more
power to interfere in personal privacy,
more than a magistrate would have.
12. Concur (Harlan)
a. The right to make this kind of seizure
arises only from the circumstances
forcing the encounter. He is
concerned that once the force
encounter justifies, we must give
officer’s the right to frisk for their own
safety.
13. This rule can grow when police are just
interested in investigation, or when they
don’t have PC.
14. Court that reasonableness was a tiny step:
Can default to reasonableness only in the
case of violent crime that is presently afoot.
a. However, the problem is, Terry
progency did not stay limited to
crimes that were dangerous, also did
not stay limited to preventing crime.
ii. Robinson
1. Officer felt a package, not concerned that it
was a weapon. Reached in anyway, turned
into being a cig. Carton containing heroin.
The search did not have to do with the arrest.
2. Robinson still good law, but for how long?
3. Mincey is still good law  if have the time, go
get the warrant.
iii. Professor:
 1. Prof: it is one thing to let go of the warrant
requirement, but it is quite another to
dispense w/PC. But that is what Terry does.
2. Scale:
a. Innocuous conduct  suspicious
conduct  PC  BRD crim conduct
3. What Terry establishes the police’s right to
interfere in our personal conduct based on
reasonable suspicion.
4. The more we slide away from PC, the less
protection for innocent conduct.
5. Also, reasonableness will be become
subjectivized
6. Reasonableness will only kick in, under terry,
only when encounters are forced.
iv. Standard of “Reasonable Suspicion”
1. Must look at the totality of the circumstances
to determine whether sufficient indicia of
reliability were present. Reasonable
suspicion does not require the same quantity
or content of information as PC, nor does it
need to be as reliable.
a. FL v. JL (anonymous tip alone
sufficient to justify stop and frisk?),
Ginsberg
 1. Anon. tip alone seldom
demonstrates the informant’s
basis of knowledge or veracity.
There are situations where,
suitably corroborated, an
anonymous tip will have
sufficient indicia of reliability to
provide reasonable suspicion.
But a physical description is not
enough; the tip must
demonstrate knowledge of
criminal activity. (maybe think
Draper, guy with trenchcoat)
2. “Such an exception would
enable any person seeking to
harass another to set it motion
an intrusive, embarrassing
police search of the targeted
person simply by placing an
anonymous call falsely reporting
the target’s unlawful carriage of
a gun…The 4th amen. is not so
easily satisfied.”
b. Illinois v. Wardlow (patrol through
neighborhood, fled on sight, stop and
frisk), Rehnquist
1. Officer may, consistent w/ 4th,
conduct a brief investigatory
stop when the officer has
reasonable, articulable suspicion
that criminal activity is afoot.
Reasonable suspicion is less
demanding than a probable
cause and requires considerably
less than a preponderance, the
officer must be able to articulate
more than an inchoate and
unparticularized suspicion or
hunch of criminal activity.
2. Characteristics of the location
are relevant but alone cannot
justify. Evasive behavior such
as headlong flight is also a
factor (disting. mere refusal to
cooperate). Inferences about
human behavior permitted. RS
is less than PC but more than a
hunch. Here, high crime area
plus unprovoked flight satisfies
the standard.
3. Dissent/concurrence, Stevens:
i. This fleeing away could be
entirely reasonable
conduct, lots of reasons,
avoiding bullets, etc.
4. Professor: What Wardlow does
 i. If it is an arrest, it needs to
be based on PC, but a stop
can be based on less, on
reasonable suspicion, and
in Wardlow they say:
Suspicious conduct can be
determined through the
eyes of the officer, this is
based on a less strict std.
than the one required for a
warrant (PC).
c. *Note: Although individualized
suspicion is necessary, there is no
suspicion required of a specific crime.
v. Terry
1. Terry was the right to prevent armed violent
crime, but, it did not stay that way. Terry’s
progency extended it, especially broadened
into drug crimes.
2. Drug courier profile
a. When does a Terry stop turn into an
arrest. B/c, an arrest still needs PC,
but Terry stops need only reasonable
suspicion.
1. No bright line rule
i. Factors:
ii. Brevity of the encounter
iii. The intrusiveness of the
stop
iv. Whether police were
behaving diligently
b. It is common now to couple a Terry
stop with dogs, since that is not a
search, it does not require warrant w/
PC, can use other means in addition
to the Terry stop in establishing PC.
 3. Pretextual investigations
a. There is no pretext doctrine in 4th
amen. law enforcement. The
Supreme Court has consistently said
that not going to look at the motives,
just need objective PC.
IX. Police discretion and profiling
A. Racial Profiling:
1. p. 594 “occurs whenever a law enforcement officer questions,
stops, arrests, searches, or otherwise investigates a person b/c
the officer believes that members of that person’s racial or
ethnic group are more likely than the population at large to
commit the sort of crime the officer is investigating.”
a. Profiling: just drop out the ‘racial’ part of the definition.
B. Race as an element of suspicion is at the heart of the debate
concerning racial profiling.
1. As opposed to using race as a characteristic of a specific crime
a. e.g. “The burglar was black”
2. p.597 U.S. Dept. of Justice
a. But, what about Brown v. City of Oneonta?
i. Under the definition, then no, not racial profiling.
(this was the case, where vic. said that a young
black man had robbed her, so they checked out
every single black male student at the local
college, then for every nonwhite male.)
1. This was a questionable use of the police
power.
C. Racial profiling definition from the Portland police: the
inappropriate use of relying on race to make a stop?
D. Exclusion of evidence?
1. Can’t prove improper motive, b/c don’t inquire into the motives
of officers.
2. Suppression of evidence for unreasonable searches?
a. Second principle of Gant: you can keep and use the
evidence of the arrest offense, but nothing else.
 i. If you pull people over for a traffic offense, but
other items obtained by search will be
suppressed.
1. This has the potential to limit inappropriate
use of profiling in traffic stops
a. Tremendous potential to limit
misconduct, but the court has not
stated where they stand on this issue.
E. Equal Protection
1. p.599
a. subjective intentions play no role in PC-4th amen.
analysis. This is a subject for the Equal Protection
Clause.
i. Court says that we will not go here in Whren.
2. People v. Kail
a. Prostitute and bike bell
F. Chicago v. Morales
1. Statute was void for vagueness (Due Process)
a. Two independent grounds for void for vagueness:
i. Lack of notice;
ii. When they authorize arbitrary and potentially
discriminatory enforcement
X. Special Needs (regulatory or administrative searches; roadblocks)
A. *The ct. has used a similar int. balancing approach
(reasonableness) to uphold administrative inspections, regulatory
searches, and other kinds of gov. action involving “special needs”
beyond those found in the typical law enforcement context.
B. *Ct. had by now decoupled the two clauses of the 4th Amend.
Danger that this doctrine will be used as a pretext for general
rummaging which would vitiate the 4th Amend., which is designed to
reduce police/government discretion.
C. *Intrusiveness depends not just on the type of search but also how
it is executed (level of restraint, etc.). The court is looking for
limiting principles.
D. > Reasonableness standard has been applied to e.g., principal
searching purse of student; P.O.’s search of probationer’s home;
employer’s work-related search of employee’s desk and files.
E. Scale: Warrant+PC  PC  reasonable suspicion  reasonableness
F. Roadblocks
1. Indianapolis v. Edmond, O’Connor (vehicle checkpoint for drug
interdiction; each checkpoint stopped predetermined number of
vehicles; uniform standards until particularized suspicion
develops; no discretion to stop out of sequence, duration of
stop is couple of minutes tops)
a. The exception for individualized suspicion is narrow.
Conducting suspicionless checkpoints cannot be justified
by an int. in ordinary criminal wrongdoing. Exceptions
have only been recognized where in special contexts
(health/safety/immigration) where the interest and the
practice were closely related.
b. Checkpoint programs can never be justified by a
general int. in crime control (i.e. detecting evidence of
ordinary criminal wrongdoing, as here.
c. **(on test) Some exigencies could permit an
exception, e.g. emergency such as an imminent
terrorist attack or a fugitive likely to flee by a particular
route.
i. ”Of course, there are circumstances that may
justify a law enforcement checkpoint where the
primary purpose would otherwise, but for some
emergency, relate to ordinary crime control. For
example, appropriately tailored roadblock to
thwart an imminent terrorist attack or to catch a
dangerous criminal who is likely to flee by way of
a particular route. The exigencies created by
these scenarios are far removed from the
circumstances under which authorities might
simply stop cars as a matter of course.”
d. Look to primary purpose to sift abusive gov. conduct
from that which is lawful. Balancing.
 e. There is no pretext doctrine, do not look into the
subjective intent of the officers, but programmatic
purpose may be looked into.
f. “We decline to suspend the usual requirement of
individualized suspicion where the police seek to employ
a checkpoint primarily for the ordinary enterprise of
investigating crimes. We cannot sanction stops justified
only by the generalized and ever-present possibility that
interrogation and inspection may reveal that any given
motorist has committed some crime.”
G. Illinois v. Lidster (hwy checkpoint to ask about recent hit and run,
used to issue a DUI) (used for other than general crime control
purposes), Breyer
1. Reasonableness balancing: look at context –
a. Gravity of public concerns served by the seizure
i. Here, serious crime investigation.
b. Degree to which the seizure advances the public int.
i. Stop must be appropriately tailored to advance
the pub. int.
c. Severity of interference w/ individual liberty
i. Look at both subjective and objective components
of intrusion.
2. Is this case distinguishable from a general int. in crime control?
3. Note: the gov. has broad authority to conduct border searches.
H. Non-Police Searches
1. The court has found that special needs exist in the public
school context, so that searches are only subjected to a
reasonableness standard, under all the circumstances. Ct.
upheld even a suspicionless drug testing of school athletes,
taking into account: the decreased expectation of privacy, the
relative unobtrusiveness of the search, and the severity of the
need met. (Suspicionless drug testing is not always upheld –
the special need must be substantial.)
2. Ferguson v. Charleston (pub. hospital, urine tests for maternity
patients suspected of using cocaine, adopted policy of
cooperating/reporting for criminal prosecution, policy made no
reference to a change in the prenatal care of patients/newborns
based on info), Stevens
a. Here the urine test was a “search.” There was no PC,
no RS, and no consent. To determine whether it “fits
w/in that closely guarded category of permissible
suspicionless searches,” must employ balancing of the
intrusion against the asserted special needs.
b. Disting. cases where drug tests upheld for purposes of:
employees involved in train accidents; customs service
employees seeking sensitive positions, h.s. athletes.
Conversely, not upheld where done for elective state
office positions.
c. Here there is a greater expectation of privacy, a greater
intrusion (dissemination to 3rd party), and law
enforcement is the primary (immediate) purpose (not
int. in welfare of patients or newborns). Therefore, no
special needs justifying suspicionless search.
d. The involvement of the police and prosecution at every
step of this program makes the programmatic purpose
look like it is for general crime control.
e. “While state hospital employees, like other citizens,
may have a duty to provide the police with evidence of
criminal conduct that they inadvertently acquire in the
course of routine treatment, when they undertake to
obtain such evidence from their patients for the specific
purpose of incriminating those patients, they have a
special obligation to make sure that the patients are
fully informed about their constitutional rights, as
standards of knowing waiver requirement.”
f. Kennedy, concurrence: The search is unconstitutional
b/c it was intended to be used for law enforcement
purposes. There was police involvement at all stages.
g. Dissent, Scalia:
 i. They knew it was a urine test.
ii. They consented, that was enough.
iii. Moreover, the only thing the policy did in terms of
law enforcement, was anticipate what would have
to happen if Drs. found evidence of cocaine. The
state has a reporting requirement, the Drs. would
have had to report it anyway.
iv. Alternatively, the presence of law enforcement
does not render the special-needs doctrine
inapplicable.
1. Majority’s response: Yes, there is the
reporting requirement, but after the report,
there is a lot of police discretion. Here, under
the policy, there is arrest and charging when
cocaine is found. Also, every step of this was
basically designed around law enforcement,
around arrest and prosecution.
a. “the immediate objective of the
searches was to generate evidence for
law enforcement purposes”
3. Businesses: various admin searches of closely regulated
businesses have been upheld as “reasonable” under the 4th
Amend. – w/out PC or warrants.
a. Reasonableness in this context requires:
i. a substantial gov. int. informing the regulatory
scheme,
ii. warrantless inspections must be necessary to
further the scheme, and
iii. the inspection program must provide an adequate
substitute for a warrant (inform proprietors and
lim. the scope).
XI. CONSENT SEARCHES
A. *Consent eliminates all 4th Amend. protection; law enforcement
needs no justification.
B. In order for the consent to be effective, it must be voluntary.
1. What does “voluntary” mean?
 a. There are a number of possible meanings:
i. Willing act
ii. Meaningful choice
iii. Done in the absence of coercion***(Our 4th & 5th
amendment law embraces this definition)
1. Confession law (5th Amendment)
2. The kind of coercion we are talking about is
coercion by the government, not actors that
the government cannot control (external
circumstances)
a. Does all explicit display of
force=coercion
1. Do people confess or comply
because of a display of force?
 Is wearing a badge a display
of force?
b. The test for voluntariness is a "totality of all the
circumstances" (Page 673) Shneckloth v. Bustamonte,
Stewart
i. Includes evidence of the accused and the
circumstances of the interrogation
1. Example: Biderman's Chart of Coercion
a. Factors of Coercion:
1. Isolation
2. Monopolization of perception:
eliminates all other distractions
3. Occasional indulgences
4. Devaluing the individual:
individual is dependent on the
interrogator for their freedom
5. Humiliation
6. Threats
7. Etc…
c. Voluntariness is a question of fact to be viewed in the
totality of all the circumstances
C. Schneckloth v. Bustamonte
1. Before the search is there any probable cause that crime may
be afoot?
a. Doesn't matter, the officer had already obtained
consent!
i. Is asking consent an extension of the mere
encounter rule?
1. Yes, if the person on the street says no, then
the officer will have to ask someone else or
continue to observe.
2. But does a refusal add to probable cause?
2. Governmental interest vs. individual
a. Governmental interest: government has a strong
interest for people to consent
i. Argument is that the innocent will comply and feel
safer
3. D contends that because the burden of proof is on the gov't;
and that the gov't should have to prove that they advised the
individual of their right to consent.
a. D says it can't be voluntary unless he had knowledge of
the right to refuse
4. Individuals should be aware of their rights
a. Does this reserve protection for the educated and the
wealthy?
5. Miranda?
a. Miranda was meant to apply to situations in which are
inherently coercive
b. This is not an inherently coercive situation!
6. Waiver (671-672) (Consent to a search is not a waiver, waiver
only applies to 5th amen., right to counsel and fair trial
aspects, not to 4th amen., there ‘the relinquishment of a
known right’ is not applicable here  no need to ‘know’ of the
right to refuse consent)
a. D claims that to establish waiver the police must show
an intentional abandonment of a known right.
i. How can you abandon this right, if you didn't
know it?!
 b. Waiver does not apply to 4th Amendment
searches! These are rights that are extended to secure
a fair trial.
i. 4th Amendment is meant to protect privacy from
arbitrary intrusion
7. Dissent (Marshall)
D. Ohio v. Robinette
1. What is the theory of coercion raised here by the D?
a. D didn't know that he was free to leave (terminate the
encounter) unless he gave consent.
2. Police do not need to inform the accused that they are free to
go before they ask for consent to search.
3. Is this a seizure? Should Miranda be read? We are close to this
line between search and seizure.
o - The touchstone of the 4th Amend. is reasonableness, which
is determined in objective terms by the totality of the
circumstances. Applied voluntariness standard from
Schneckloth. There is no duty to inform detainees that they
are free to go, just one factor.
E. Schneckloth v. Bustamonte (consent to car search, found stolen
checks)
1. “Voluntary consent” does not require a ‘knowing’ choice (i.e.
need not be informed of rt. to refuse and subjective knowledge
of rt. is not required). No duty to inform.
2. Inquiry looks at whether it is an essentially free and
unconstrained choice or whether his will was overborne (by
duress or coercion). It is a question of fact to be
determined from the totality of the circumstances
(knowledge is just one factor, as well as any subtly coercive
police questions, and possibly vulnerable state of the
individual).
3. There are competing concerns here b/w the importance of
consent searches to law enforcement and the danger of
coercion. (Harlan’s balancing from White.)
 4. The court distinguishes the fair trial context (which requires a
knowing and intelligent waiver) b/c it says the 4th Amend.
exists to protect privacy rather than a fair trial [although isn’t
there an obvious connection?]. It also distinguishes the
Miranda context of custodial interrogations, which is inherently
coercive.
5. Dissent, Marshall: argues duty to inform is not impractical in
this ‘informal’ context and would not undermine law
enforcement (which is in fact true). Also note socioeconomic
implications.
F. 3rd Party Consent Doctrine: holds that police may be permitted to
search based on someone other than the suspect provided that the
3rd person has common authority over the area searched. This
includes consent of a 3rd party whom the police reasonably believed
had common authority over the premises, even if such authority
didn’t exist. Police need not be correct to be reasonable, which is
all that is demanded.
1. Georgia v. Randolph
a. Facts:
i. The wife consented to a search of the house, but
the husband objected to the search.
ii. The officer asked the husband to search the
house. He says no. The officer then asks the
wife, and the wife says yes, and leads him to the
husband’s bedroom, where the drugs are.
b. “We hold that, in the circumstances here at issue, a
physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search
unreasonable and invalid as to him.”
c. “if a potential ∆ with self-interest in objecting is in fact
at the door and objects, the co-tenant’s permission
does not suffice for a reasonable search, whereas the
potential objector, nearby but not invited to take part in
the threshold colloquy, loses out”
d. Remember Matlock:
 i. “the consent of one who possesses common
authority over premises or effects is valid as
against the absent, nonconsenting person with
whom that authority is shared”
1. Me: I think still good, except for the caveat
that now, if the other co-occupant is present
and refuses consent, then the consent of the
one co-occupant is not good enough.
e. Dissent:
i. “The very predicate giving rise to the question in
cases of shared information, papers, containers,
or places is that privacy has been shared with
another. Our common social expectations may
well be that the other person will not, in turn,
share what we have shared with them with
another-including the police-but that is the risk
we take in sharing…”
1. this is similar to U.S. v. White, the
wiretapping with the false friend. We take
the risk by sharing our stuff, that they will
share the stuff with others.
f. “The normal 4th amen. rule is that items discovered in
plain view are admissible if the officers were
legitimately on the premises; if the entry and search
were reasonable as to Mrs. Randolph, based on her
consent, it is not clear why the cocaine straw should not
be admissible as to Mr. Randolph, as discovered in plain
view during legitimate search as to Mrs. Randolph”
i. saying that most of the time, in order to get the
evidence to apply to the other occupant, they
would use another exception to the warrant
requirement.
g. Note: Consent is the last of the exceptions to the
warrant requirement.
G. EXCEPTIONS TO EXCLUSION
 o Rights depend on remedies. If no adverse consequences flow
from the violation of a const. right, gov. officials will violate
the right as often as they wish. And if no relief flows to the
victim of a const. violation, victims will not press their claims
in court; the rt. will be unenforced.
o Reasons/Purpose of Exclusion:
deterrence of police misconduct;
judicial integrity (reflection on judiciary) (an affront to
judicial integrity when courts use tainted evidence);
 no other effective remedy.
o *Exceptions to exclusion:
 1) Good Faith (objective) Reliance on a subseq. invalid
warrant;
 2) Standing;
 3) Fruit of the Poisonous Tree (pay attn. to scope: FOPT
extends scope of exclusion, but where FOPT ends,
exclusion is limited, i.e. the limits to FOPT are
exceptions to exclusion);
 limits on exclusion
 attenuation
 inevitable discovery
 independent source
 4) Impeachment.
1. Good Faith reliance on a warrant
a. US v. Leon, White (issue: impose excl. where officers
acted in reasonable reliance on defective warrant?)
i. The 4th Amend. doesn’t compel exclusion; it is a
judicially created remedy designed to safeguard
the right through its deterrent effect.
ii. Exclusion is a separate inquiry from the violation,
and requires a balancing of the costs and benefits.
Costs: impedes truth finding (trustworthy tangible
evidence obtained in reliance and neutral
magistrate), reduces convictions of the guilty.
Basic concepts of CJ would be offended if
exclusion applied where officers i) acted in good
faith, or ii) the transgression are minor. Benefits:
the magnitude of the benefit conferred on the ∆
(this is a shift, before, it was the reasonable
innocent person).
iii. The exclusionary rule is designed to deter police
misconduct, rather than to punish the errors of
judges and magistrates.
1. Deterrence will not be effective if the
evidence was gathered negligently.
iv. Great deference to magistrate’s determination is
warranted.
v.
vi. The application of exclusion is only warranted
where it will have a deterrent effect (i.e. where
there’s police misconduct and not simply
magistrate error). Where police conduct is
objectively reasonable and w/in the scope of the
warrant, exclusion is not warranted.
vii. “The officer’s reliance on the magistrate’s PC
determination and technical sufficiency of the
warrant must be objectively reasonable,”
1. Limits (where exclusion should still apply):
a. Knowing or reckless falsity of
affidavits
b. Magistrate rubber stamping (lack of
neutrality)—the magistrate wholly
abandoned his role
 c. Where warrant was issued w/out PC
(warrant so lacking in indicia of PC as
to render official belief in its existence
unreasonable)
d. Warrant is facially deficient (fails to
particularize)
1. e.g. warrant without containing
an address
viii. Dissent, Brennan: notes that admitting illegally
obtained evidence is akin to (or an extension of)
the initial violation.
ix. Note: Leon has applied to erroneous arrest
warrants. It has not been expanded to
warrantless searches, however, or to errors by
police officers themselves (at least where not
objectively reasonable.
x. Minor transgression doctrine:
1. “When law enforcement officers have acted in
objective good faith or their transgressions
have been minor, the magnitude of the
benefit conferred on such guilty ∆s offends
basic concepts of the crim.just. system.”
xi. Notes:
1. no suppression in a grand jury hearing. The
grand jury gets to hear all the evidence, even
if its tainted.
2. No suppression in habeas corpus litigation
3. No suppression in civil tax proceedings
4. No suppression where the accused lacks 4th
amendment standing
5. No suppression of FOPT
6. No suppression if the evidence is attenuated
or has an independent source
7. Suppressed evidence may be used to
impeach a witness
b. Herring, Roberts
 i. Facts:
1. Police officer wants to arrest this guy, calls
around to see if there is an outstanding
warrant on him, due to negligent book-
keeping.
ii. Good-faith reliance on an arrest warrant, so the
evidence is not excluded.
iii. “If the police had been shown to be reckless in
maintaining a warrant system…exclusion would be
justified…In a case where systematic errors were
demonstrated, it might be reckless for officers to
rely on an unreliable warrant system”
iv. Reasoning: this is not a recurrent, systemic
problem, this is just an isolated incidence.
v. Ginsberg dissent:
1. “The rule also serves other important
purposes: it enables the judiciary to avoid the
taint of partnership in official lawlessness,
and it assures the people–all potential victims
of unlawful government conduct–that the
government would not profit from its lawless
behavior, thus minimizing the risk of
seriously undermining popular trust in
government.”
a. So, the other important functions of
the exclusionary rule:
1. Judicial integrity.
vi. Cost benefit analysis of exclusion:
1. Cost: ∆ gets to walk away from the charges
2. Benefit: takes ∆ off the street, prevents
crime, deterrence.
2. STANDING EXCEPTION
a. No suppression to third parties as far as the evidence
pertains to them.
b. The party who seeks suppression of evidence must have
had their 4th amen. interest violated by police
misconduct.
c. > Rakas v. Illinois, Rehnquist (who can invoke
exclusion?)
i. - A defendant can seek to exclude evidence based
on an illegal search only if the search infringed his
own reasonable expectation of privacy (not
someone else’s). This meant there was no
“standing” where the search was of a 3rd person’s
property.
d. > MN v. Carter, Rehnquist (cop investigating informants
tip, sees bagging operation through apt. window, stops
car when two men leave, return to search apt.)
i. In order to claim the protection of the 4th Amend.,
a defendant must demonstrate that he personally
has an expectation of privacy in the place
searched, and his expectation is reasonable.
ii. In some circumstances a person may have legit
expectation of privacy in the house of someone
else, (e.g. overnight guest in MN v. Olson).
iii. This does not extend to anyone legitimately on
the premises (Jones v. US).
iv. Here, they are merely transient guests making an
impersonal transaction:
1. Factors: (commercial nature, short period of
time, no previous connection b/w people;
fleeting and insubstantial).
v. Scalia, concurrence: only a person whom has
made the house his home is entitled to 4th amen.
protection.
vi. Kennedy concurrence: social expectation controls.
Almost all social guests have a legit expectation
of privacy (five members of the court agree w/
this).
 vii. Breyer concurrence: concluded that there
wasn’t a 4th Amend. “search.” The officers actions
were analogous to the airplane cases, in that he
was standing outside the curtilage of the home,
where many normal passersby had a clear
vantage, when he observed the cocaine bagging
(despite partly drawn blinds). Thus, there was no
reasonable expectation of privacy.
viii. Ginsberg, dissent: all social guests should
share the host’s shelter against unreasonable
S&S. These were social guests.
e. 4th Amend analysis:
i. search/seizure?  if yes, then
ii. warrant?  if no, then
iii. exceptions?  if no, then
iv. reasonableness?  if no, then
v. exclusion?  if yes, then
vi. exception to exclusion?
f. *Note: police can abuse the standing exception b/c if
police aren’t charging the occupiers (but are obtaining
info against another), then there’s no way to challenge
the police conduct.
3. FRUIT OF THE POISONOUS TREE
a. *Exceptions to FOPT:
i. independent source;
ii. inevitable discovery;
iii. attenuation.
b. “The exclusionary rule prohibits introduction into
evidence of tangible materials seized during an unlawful
search, and of testimony concerning knowledge
acquired during an unlawful search. Beyond that, 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.” Murray (Scalia).
i. Derivative evidence: evidence that leads to other
evidence, e.g. a diary that leads to other
evidence.
ii. J. Holmes:
1. The point of the exclusion rule is not just that
the evidence is not used at trial, it is that
evidence is not used at all. However, if the
gov. would have found out about it anyway,
then can use it, want to prevent the gov.
from gaining from its wrongdoing, but do not
want to put them in a worse position than
would be in but for the wrongdoing.
c. > Wong Sun Brennan (went to laundromat based solely
on snitch; the suspect (Toy) fled into house, cops broke
down door to pursue and Toy immediately snitched on
another (Yee), whose house the agent’s then entered to
make arrest (found heroin); immediate interrogation
informs on Wong Sun, who is arrested and apt.
searched; interrogation of all three a few days later
resulted in confessions; arrest was illegal for lack of PC;
evidence is the fruit of a poisonous tree?)
i. The original informer had no indicia of reliability,
and his info was insufficiently particular or
specific. B/c the officer did not sufficiently
identify himself at the laundromat, Toy’s mere
flight did not corroborate the info (ambiguous),
and so there was no PC.
ii. Although exclusion extends to the indirect
(verbal) as well as direct (physical) products of an
illegal invasion, the knowledge gained from them
may be proved by independent sources.
Furthermore, the connection b/w the lawless
conduct of the police and the discovery of the
challenged evidence may become ‘so attenuated
as to dissipate the taint.’
iii. Ask whether the evidence at issue has been come
at by exploitation of the primary illegality or
instead by means sufficiently distinguishable to
be purged of the primary taint.
iv. Here, the verbal evidence derives so immediately
from an unlawful entry and unauthorized arrest
that it is an illegal fruit (no intervening act of free
will). Thus Toy’s statements must be excluded.
Furthermore, the drugs that were obtained (from
Yee) as a result of his statements must also be
excluded because they were come at by
exploitation of the illegality. His later confession,
although likely not a fruit, is insufficient w/out
extrinsic corroboration.
v. Wong Sun’s confession, made after being
released, was not a fruit b/c the connection b/w
the arrest and the statement had become so
attenuated to dissipate the taint. Furthermore,
Yee’s drugs are admissible against Wong Sun b/c
he has no standing to challenge them.
vi. Confessions: confessions require corroborating
evidence.
d. *The basic concept underlying FOPT is causation. But-
for cause has two correlates: independent source and
inevitable discovery. Proximate cause has one:
attenuation.
e. Hudson v. Michigan (Scalia)
i. Attenuation: “attenuation can occur, of course,
when the causal connection is remote.
Attenuation also occurs when, even given a direct
causal connection, the interest protected by the
constitutional guarantee that has been violated
would not be served by suppression of the
evidence obtained”
1. So, now, “attenuation” not only includes
“remoteness” but also a balancing test.
f. > US v. Ceccolini (testimony four months after search):
sufficiently attenuated to dissipate the taint – the
degree of free will necessary to dissipate the taint will
very likely be found more often in the case of live-
witness testimony than other kinds of evidence.
g. > Murray v. US Scalia (informants + surveillance;
lawful seizure of truck; subsq. warrantless entry into
warehouse; applied for warrant w/out revealing entry;
seizure of drugs from warehouse)
i. Independent Source: acts to balance int. by
putting police in the same (not worse) position
than they would have been had the illegal
search/seizure not taken place.
ii. Ind. source covers both cases where a separate
piece of evidence was learned by other means
and cases where the same evidence was acquired
from an independent source (it need not be
discovered for the first time independently).
 iii. The warrant search here was independent of the
illegal warrantless search (the officers did not use
unlawfully obtained info to secure warrant – had
ind. PC). Although this would not necessarily be
true if the agents sought the warrant only b/c of
what they saw during the illegal search.
h. Note: inevitable discovery looks at whether the
evidence hypothetically would have been discovered
even if the taint had not occurred. (E.g. illegal
confession, found body case.)
i. Note also: ind. source and inevitable discovery apply to
both 4th and 6th, but not Miranda.
H. Impeachment
1. Havens: Evidence obtained in violation of the 4th Am. can be
used to impeach statements made by a testifying defendant.
a. The substance of the cross-examination must have
been reasonably suggested by the defendant’s direct
examination.
2. The Havens rule applies only to defendants. Third parties have
more to lose from perjury and will be deterred.
XII. The 5th amen. privilege against self-incrimination
A. 5th amen.: No person shall be compelled in any criminal case to be
a witness against himself.
B. English roots in the “star chamber”  to protect accused against
the “cruel trilemma” (confess, lie, silence  contempt)
C. Privilege & Immunity
1. Contours:
a. Testimonial
i. Testimonial
1. Spoken word
2. Does the question as the ∆ to speak his
mind? Goes to the Contents of the Mind,
cruel trilemma.
a. Routine booking questions ok, Muniz,
but they can’t go too far.
3. Acts of production could be testimonial
 a. If the existence of, possession of, and
production of are incriminating, then
is it testimonial? (all you have to
know for the test)
1. Things like subpoena duces
tecum:
i. Is it testimonial?
ii. Does the answer put the
witness in the cruel
trilemma?
iii. Does the question ask the
witness to speak his mind?
ii. Not Testimonial (e.g. blood tests)
1. Physical evidence
2. Demonstrative evidence
a. E.g. being made to speak certain
words, a lineup, etc.
b. Incriminating
i. Sometimes it is just a civil sanction, which is not
enough. Sometimes civil sanction is enough. Not
going to ask about this.
ii. Not if SOL has run
iii. Not if prosecution comes from foreign gov.
iv. Not if witness has already been convicted and
appeals have been exhausted.
v. Not if witness has already pled guilty and been
sentenced
vi. Not if sufficient immunity has been granted
c. Compulsion
i. E.g.
1. Subpoena
2. Contempt of court
3. Police station interrogation
4. Requiring state employees to give up 5th.
5. Requiring those receiving gov. Ks to give up
5th.
 6. Prosecution commenting on silence/asserting
5th = compulsion
D. This is a privilege, not a right. A privilege can be taken away by the
gov., in this case by a grant of sufficient immunity.
E. The privilege does not apply if there will be no prosecution, e.g.
statute of limitations has run, grant of immunity, etc.
F. Real risk of prosecution, not a fanciful risk.
G. Confessions require extrinsic corroboration, b/c inherently
unreliable.
H. Testimony causing reputational injury not good enough, has to be
incriminating.
I. Transactional immunity:
1. Can’t prosecute for that crime. Also, cannot prosecute for
anything else they might say, any other crimes they admit to
on the stand.
2. Definitely broad enough to be sufficient immunity.
J. Kastigar v. US
o Privilege against self-incrimination extends to cases where the
witness is not himself the subject of prosecution (b/c
obviously it could lead to prosecution), and includes grand
jury proceedings.
o Immunity must be coextensive and coterminous w/ the
privilege in order to supplant it (i.e. in order for the state to
compel testimony).
 Use & Derivative Use Immunity: protection against the
use of testimony for subsequent prosecution. May
subsequently prosecute, but all evidence must be from
an independent source (provable by government). This
puts witnesses in the same position in which they would
have been had they remained silent.
o Use and derivative use immunity is adequate to satisfy the
privilege. Statutes granting immunity extend to all
jurisdictions (i.e. are applicable against the states and fed).
 o The 5th amen. does not prevent the prosecution from using
evidence derived from legitimate independent source
(whether real or hypothetical), in a subsequent prosecution
(transactional immunity is not required). BofP on the gov. to
show legit independent source.
K. Fed. gov. has said that 18 months is the limit to hold someone for
contempt of court.
1. Doesn’t apply to the states.
L. Hiibel
1. Involved a stop and identify statute.
2. ∆ did not want to give his name, he claimed his name was
privilege. Court says no, that statute was not a link in a
change that would provide a link in a chain of evidence needed
to prosecute the guy for a crime. No reasonable person would
think that giving his name would lead to prosecution.
3. So, level of risk of prosecution needed for “incrimination”: a
real substantial link needed in the chain of evidence to
prosecute.
M. Hit and Run statutes
1. The court: the purpose of that is civil and regulatory, not to
force someone to speak to their commiting a crime, not
facilitated for criminal conviction. It is testimonial and
compelled, but Not incriminating, b/c underlying purpose is
civil.
N. Bouknight, O’Connor
1. Act of production cases, but this is different b/c it dealt with a
child. It is testimonial, is it incriminating or not?
2. Court: the purpose of the statute is not criminal. Meant to
attend to the health and safety of the child, therefore not
incriminating.
3. Dissent  Marshall: this statute is aimed a particular group of
parents (those who have abused their children). This makes
this program about ordinary criminal prosecution.
O. Police Interrogation
1. Bram re:voluntariness
a. Facts:
 i. Detective and accused are alone in the officer
ii. Accused is made to strip naked
b. Method of Questioning:
i. Officer starts from the assumption that the
accused is guilty, and he has evidence to prove it,
and puts the onus on the accused to prove that
he is not guilty.
c. “but he couldn't see me from where he was”
i. Is that a confession?  its called a ‘negative
pregnant’, it is less compelling to a jury, but it
contains within it the seeds of a confession.
d. Court: voluntariness is going to part of the 5th amen.
e. Rule: CONFESSIONS MUST BE FREE AND
VOLUNTARY
i. Confessions cannot be induced by any threat or
promise, or hope of benefit or fear, that,
according to Bram is enough to make confession
inadmissible/involuntary.
f.  Can’t figure out the effect on ∆’s mind, so not going
to inquire into that, just focus on the police conduct.
g. ‘Good for the soul’ benefit is not enough to ‘induce’,
although if it is designed to produce something else,
such as point the finger/blame at someone else, then it
does ‘induce.’
h. This case extended the protection beyond physical
coercion.
2. Watt, Frankfurter
a. Solitary confinement, no hearing, sustained questioning
inherently coercive
b. Generally, need a preliminary hearing w/in 24-48 hrs.
c. Jackson, Dissenting:
i. Balancing costs of exclusion to against the costs of
admitting the evidence
 1. “If the State may arrest on suspicion and interrogate
without counsel, there is no denying the fact that it
largely negates the benefits of the constitutional
guaranty of the right to assistance of counsel.
a. Any lawyer who has ever been called into a
case after his client has ‘told all’ and turned
any evidence he has over to the Government,
knows how helpless he is to protect his client
against the facts thus disclosed.”
2. Physical violence: “Such treatment not only breaks
the will to conceal or lie, but may even break the will
to stand by the truth.”
3. “The Constitution and Bill of Rights represent the
maximum restrictions upon the power of organized
society over the individual that are compatible with the
maintenance of organized society itself. They were
intended and should be so interpreted.
a. Those restrictions we should not for that
reason cast aside, but that is food reason for
indulging in no unnecessary expansion of
them.”
4. If the 5th amen. prevents the State from taking into
custody and questioning one suspect reasonably of an
unwitnessed murder, then
a. If it does, the people of this county must
discipline themselves to seeing their police
stand by helplessly while those suspected of
murder prowl about unmolested.
3. Massiah, Stewart
a. (incriminating statements obtained surreptitiously while
free on bail violated rt.s?)
b. **The gov. cannot illicit incriminating statements thru
undercover agents after the initiation of criminal
proceedings w/out violating 6th amen.
c. 4th, 5th, 6th violated in this case.
 d. - Right to counsel attaches post-indictment. Cannot
deliberately elicit (as opposed to passively listen)
incriminating statements after that time in the absence
of counsel. This is one of the most critical periods of
the proceedings. B/w arraignment and trial
consultation and preparation are vitally important, and
defendants are entitled to aid of counsel here as much
as at the trial itself.
e. - Note this was applied even outside the jailhouse
context.
f. White, Dissent:
i. No 4th vio: U.S. v. White
ii. No 5th vio: no coercion, he is talking to his friend
iii. No 6th vio: there was no interference with
communication w/counsel
4. Escobedo
a. Where the suspect has been taken into police custody
and the police carry out a process of interrogations that
leads to incriminating statements; and
b. the suspect has requested and been denied an
opportunity to consult with his lawyer, and the police
have not effectively warned him of his constitutional
right to remain silent;
c. the accused has been denied his 6th Am. Right ‘right to
counsel’.
5. Spano
a. Can still investigate after indictment, just no elicitation,
plus just cannot use his statements against him.
6. Miranda, Warren
a. WARNINGS
i. He has the right to remain silent;
ii. Any statement does make may be used as
evidence against him;
iii. He has the right to the presence of an attorney
during any questioning; and
iv. If cannot afford one, one will be appointed.
 v. ---If the suspect invokes any of his Miranda
rights, then the police cannot question him, and
any questioning that has already occurred must
stop.
vi. –he may waive these rights
b. WAIVER
i. ∆ may waive these rights
ii. waiver must be made:
1. knowing, voluntary, intelligently
c. Dissent
i. Harlan: the 5th amen. does not ban all pressure
on the confessor. Due process and voluntariness
should be the std. Some compulsion has to be
tolerable.
ii. White: The rules do not make any sense, i.e. if
coercion is the problem then why not just require
counsel to be present.
7. “Custody”
a. Note, “custodial interrogation” triggers Miranda, not “all
arrests.”
b. “Custody” = term of art
i. includes station house interrogation (in-custody
situation)
ii. not in-custody includes: voluntary appearances;
traffic stops; Terry stops (unless they ‘ripen’ into
custodial arrests); grand jury testimony
iii. Gray area (just can make arguments, tough
questions)
1. Berkemer, Marshall
a. Factors to determine whether suspect
is in custody:
1. Duration of the stop, and arrest
2. Exposure to public view
(whether during this period of
time other people could see
what was going on)
 3. Whether the atmosphere
outside the station house was
police dominated
4. E.g. accused was surrounded by
police inside his bedroom, it was
a police dominated atmosphere.
5. Has to be police dominated
atmosphere  just the fact
someone is in jailhouse is not
dispositive.
2. Murphy
a. A suspect participating in a probation
interview is not “in custody”
8. “Interrogation”
a. Innis, Stewart
i. “express questioning,
ii. or its functional equivalent”
1. i.e. “any words or actions on the part of the
police that the police should know are
reasonably likely to elicit an incriminating
response from the suspect.”
2. “the focus is on the suspect’s state of
mind/perceptions, not the police”
b. Perkins
i. Conversations b/w suspects and undercover
agents are not police “interrogations” for Miranda
purposes
1. Coercion is looked at from suspect’s point of
view, suspect here thought he was talking to
a friend.
2. “Ploys to mislead a suspect or lull him into a
false sense of security that do not rise to the
level of compulsion or coercion to speak are
not w/in miranda’s concerns.”
3. “there is no interplay b/w police interrogation
and police custody.”
 4. Brennan, concurrence: Gov. is in a powerful
position to exploit this weakness, look to the
totality of the circumstances.
5. Dissent, Marshall: this is custody.
a. Note: Being alone makes someone
vulnerable, need to talk to someone.
CA: this is not police dominated.
b. Stevens, dissent:
c. Muniz
i. Routine booking questions are not interrogation
for Miranda purposes.
9. Waiver
a. If the Miranda warning have not been given, waiver is
impossible
b. Express waiver, followed by a statement = possible
waiver. Must be knowing, voluntary, and intelligent.
i. Silence will not suffice,
ii. Parial answer is not a waiver
iii. Trickery as to the waiver invalidates it
iv. Factors that weigh against voluntariness:
1. Incommunicado
2. Lengthy interrogation/relay questioning
c. Moran v. Burbine: Under Miranda, deceit and trickery
which does not actually affect the suspect’s knowing
and intelligent waiver is not a concern. (lying about his
attorney outside is ok)
i. Thus, the police are not required to keep the
suspect informed as to the status of his legal
representation.
ii. Distinguishable from Messiah because this
interrogation took place before the initiation of
criminal proceedings.
iii. Stevens, dissenting: Miranda’s waiver standard
precludes trickery.
 1. Also: he views the lawyer and the suspect as
‘one,’ so deceit of the lawyer = deceit of the
suspect. Principal and agent.
2. “If the lawyer is seen as a nettlesome
obstacle to the pursuit of wrongdoers – as in
an inquisitorial society – then the Court’s
decision today makes a good deal of sense.
If a lawyer is seen as an aid to the
understanding and protection of
constitutional rights – as in an accusatorial
society – then today’s decision makes no
sense at all…”
d. Mosley (invocation of right to remain silent): When a
suspect invokes his right to remain silent, the police
must scrupulously honor his right to cut of
questioning.
e. Edwards (invocation of right to counsel): When a
suspect invokes his right to counsel, the police cannot
initiate further questioning.
i. Must determine who initiated the further
questioning (waiver or re-initiation).
f. OR v. Bradshaw (after invocation, suspect was held to
have ‘initiated’ further convo. by asking “well, what is
going to happen to me now?”)
i. Some inquiries are so routine that they cannot be
held to ‘initiate’ further convo. (i.e. they cannot
be fairly said to represent a desire on the part of
the accused to open up a more generalized
discussion relating directly or indirectly to the
investigation) – where they are routine incidents
of the custodial relationship.
ii. Despite this, the court held that the inquiry here
evinced a willingness and desire for a generalized
discussion about the investigation. Reasonable
interp. of the officer.
g. Minnick:
 i. Once invoked, interrogation cannot be reinitiated
by police w/out counsel present.
h. Davis: The suspect must articulate his desire to have
counsel present sufficiently clear that a reasonable
police officer in the circumstances would understand the
statement to be a request for an attorney.
i. As a result of Miranda, contemporary police
interrogation resembles the method and substance of a
classic confidence game (it is deceptive and
manipulative at its very core).
09/27/2009
09/27/2009