CRIMINAL PROCEDURE OUTLINE

History

 Broad expansion of doctrine during the era of the Warren Court (mid 1960’s)
o Expansive view on the rights of criminal defendants
 From the late 70’s  present:
o Narrowing the expansions of the Warren Court, limiting D’s rights

Different Levels of Proof

Terry Stop (15-20%) Probable Cause to arrest or Preponderance of the Clear and Convincing Proof Beyond a Reasonable
Reasonable search (30-50%) Evidence (> 50%) Evidence (75%) Doubt (90%)
articulable suspicion if someone is detained  PC standard of proof for civil used in dependency for standard to take away
must be reviewed to make sure cases, standard at motion to removing child from someone’s liberty 
arrest was valid suppress hearing parental custody standard in criminal trials

4TH AMENDMENT

 “The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, describing the place to be searched, and the persons or things to be
seized”
 Focuses on interactions between people and police – regulates police behavior 2 Aspects of 4th A:
o How much privacy as citizens will be given up to police for the promise of security?
1) Reasonableness clause: searches only need
 The “right to be let alone” to be reasonable
 Who does 4th A protect? 2) Warrant Requirement clause: warrant must
o Protects People NOT Places be based on probable cause; presumption
o Only applies to searches conducted in the U.S. that searches MUST have warrant to be
 Doesn’t apply to searches outside the U.S., even if conducted by American law reasonable, but there are many exceptions
enforcement
o only applies to government action  doesn’t cover searches by private individuals
 if someone searches through your stuff on your property, not a “search” within the meaning of the 4 th A

Exclusionary Rule Basics

 BASIC RULE: if evidence is illegally obtained (violated 4 th A)  cannot be presented at trial  weakens case against D
  Based on motion to suppress filed pre-trial
o Motion filed by D, but PROS has burden of proof
o P must prove by preponderance of the evidence that no violation occurred
 Rule is justified by (1) concern for judicial integrity (want the system to run properly, fairly), AND (2) to deter police from doing what they should not
do

Mapp v. Ohio
- Case that applies the exclusionary rule as part of the 4 th A to the states – held that the rule is part of the 4 th A itself, and is incorporated completely
into due process
- Mapp was communist during Cold War era, called lawyer when police came to search her house
- 4th A Violation: Police supposedly looking for person, but searched chests, trunks in basement, tore her apartment apart, looking for
everything/anything they could possibly find
- Basic RULE: 4th amendment says search is supposed to be limited to the particular thing identified in the warrant AND to places that the thing could
logically be found
**Weeks established the exclusionary rule in 1914, Mapp applied it to every state

4TH AMENDMENT QUESTIONS: (For Analysis)

1. Was it a Gov’t Actor?
a. If yes, continue analysis
b. If no, stop analysis
2. Was there a search or seizure?
a. Was it a 4th A search? (Technical 4th A Search)
i. Use Katz 2 Prong Test
1. Subjective expectation of privacy?
2. Objectively reasonable expectation of privacy
ii. If not a search under Katz, is it search under Jones?
iii. If not 4th A search, Police can do whatever they want.
b. Was it a seizure? (or a consensual encounter – requiring consent)
3. Was there probable cause?
4. Was there a valid warrant?
5. If not, was there an exception to the warrant requirement?
6. What remedy follows? ER or exception?
4th A - SEARCH
th
Defining a Technical 4 A Search
To Determine whether there was a technical 4th A search, apply the Katz test:
NOTE: White holds that listening to and
U.S. v. Katz [Primary Case Defining 4th A search – phonebooth case] recording a conversation with an
- Katz = sports gambler waging bets in Public Phone booth undercover agent is NOT a search  not
- FBI wire-tapped the phone booth without a warrant to listen to Katz's calls protected by 4th A
 - questions in case:
o is placing device outside phone booth a physical invasion?
o Is a phone booth a constitutionally protected place?
- BASIC RULE: to determine whether there was a search, apply 2-prong Katz test: Katz Test:
1. Did the defendant have a subjective expectation of privacy? Subjective Expectation of Privacy
+
AND Objectively Reasonable
2. Was the expectation one that society recognizes as reasonable? Expectation of Privacy
= 4A Search
If yes to both  it is a search protected by the 4th A
- Cts Opinion
o (1) D did have a subjective expectation of privacy: he closed phone booth door, walked a block away when he could have called from home
(keeping conversations private from his family)
o (2) court finds the expectation reasonable – people should be able to use public phone booths privately without fear of gov’t eavesdropping
- Takeaways:
o 4th A Protects People NOT Places
o What a person knowingly exposes to the public, even in their own home, is not the subject of 4th A protection
o What a person seeks to preserve as private, even in public areas, may be constitutionally protected

U. S. v. Jones [CL Trespassory Test] [Secondary Case Defining 4th A Search]

- ONLY apply Jones if factual scenario matches, otherwise ALWAYS USE KATZ TEST
- Facts:
o D is owner and operator of nightclub, suspected of trafficking narcotics  FBI launches investigation
o Officers used video surveillance, and cell phone tap
o Applied for warrant to authorize use of GPS on D’s wife’s car  granted, BUT GPS not installed until warrant expired, and car was parked in
public parking lot in Maryland (warrant granted for D.C. not Maryland)
- Holding:
o Gov’ts installation of GPS on target’s vehicle and using GPS to monitor vehicle’s movements constituted a SEARCH
o Info obtained by physical trespass must be excluded (NARROW – apply Katz unless fact pattern includes physical trespass similar to facts in
Jones)
o What happened in Jones IS a search: when officer attached GPS device to the outside of a car in order to track D’s movements
 Police committed a physical trespass onto D’s personal property to learn about D’s movements  “search” under 4th A
o Location info contained in GPS devices is protected by 4 th A
Pineda-Moreno (Dissent)
- Info gained was GPS data (similar to Jones), BUT place in which GPS attached was different
- D’s car was in driveway  within curtilage (area surrounding the home, not the same as attaching in public)
-  concern for what counts as curtilage for lower socioeconomic status defendants
- Easier to clearly define curtilage when D is wealthier

Search Basics
  If something is defined as outside a 4th A “search”  D can’t complain, evidence is admissible
 In order for 4th A to even apply, gov’t action must fit the definition of a search (Katz test used to make that determination)
 Generally, search only conducted after obtaining a warrant AND with probable cause
o All 4th A does is say that searches are unconstitutional without a warrant based on PC
o Police can search, they just have to get warrant based on PC first
o BUT, there are exceptions

Home, Curtilage and Open Fields

 Home: protected under 4th A
 Curtilage: protected under 4th A
 Open Fields: NOT protected under 4th A

Open Fields
 Open field = something that can be seen by public passersby/can be viewed overhead

Oliver v. U.S. [Open field]

- Police got tip that D was operating marijuana farm, police went onto farm without warrant, drove past “no trespassing” signs, walked around locked
gate, found farm about a mile from D’s house – conducted “preview search”
- Nature of intrusion significant because D did exhibit a subjective expectation of privacy
- BUT, is it reasonable?
o After preview search, police obtained warrant (based on info collected during preview search)  concern over whether preview search was
illegal
o Warrant not valid if based on illegal search
- BASIC RULE: there is NO reasonable expectation of privacy in an open field  NO 4th A protection  Police do not need warrant to search open field
o Open fields are openly exposed to the public
o Once you determine area is an open field  no 4th A protection

U.S. v. Dunn [Factors to Analyze whether open-field or curtilage]

- Is the area around the barn considered an open field or curtilage?
o Ct analyze whether the barn was considered part of the home or not.
- BASIC RULE: Factors to determine whether something is an open field or curtilage:
o 1) How close is the area to the home?
o 2) Is the area within an enclosure surrounding the home?
o 3) Nature of use?
o 4) Steps taken to protect area from observation of passersby
 Curtilage is the area surrounding the house, tied to the use of the house, the “intimate details of the home”
 Outside the home, look at the purpose of use, and steps taken to keep the area private (demonstrates subjective expectation of
privacy
Aerial Searches
California v. Ciraolo
- Property viewed from overhead was considered part of the curtilage  subject to 4th A protections
o Protection afforded to curtilage is protection of families and personal privacy in area intimately linked to the home (physically and
psychologically)
- Police received tip that D was growing weed in backyard  flew plane and took photos of greenhouse from 1000 ft above
o Green house was mostly covered, but some areas missing roofing  visible from overhead
th
- 4 A protection doesn’t require police to shield their eyes when passing homes
- BASIC RULE: what a person knowingly exposes to the public is fair game
o Observations here took place within public airspace in physically non-intrusive matter  NOT a 4th A search even though area photographed
was within the curtilage of the home because D knowingly exposed greenhouse to the public by not having it completely covered

Florida v. Riley
- Helicopter way closer (400 ft above)  lawful/legal airspace?
- Area still within lawful airspace, open to public  not 4th A search

Trash
 Searching trash, finding pills, drug paraphernalia
 Could be used to obtain warrant (establish probable cause)
 Could be circumstantial evidence in prosecution  matters how the evidence is obtained

California v. Greenwood [Trash]

- Investigator receives tip that D assumed of drug trafficking  investigator enlists help of local garbageman
- D left trash on the curb in front of his property  question whether D has subjective AND reasonable expectation of privacy in his trash
- Ct applied the Katz test
- BASIC RULE: once trash is outside  no longer reasonable expectation of privacy
o  police searching through trash that has already been left outside on curb (public property) is NOT a search protected by the 4 th A

Observing and Monitoring Public Behavior

U.S. v. Knotts [Beeper Tracking before D in possession of chemicals = Not 4 th A Search]

- Ds charged with conspiracy to manufacture controlled substances – police tipped off by chemical manufacturer that D was stealing chemical used to
manufacture drugs
o Visual surveillance that D also purchased chemicals from another company
o  with company’s permission, gov’t installed beeper tracking device on chemicals before D’s next purchase (different than Jones, tracker
already installed when D bought them, no physical trespass)
o Used surveillance and beeper to track container to co-D’s house, then another co-D’s cabin  obtained warrant, discovered drug lab
 - Court holds that beeper only enhanced normal powers of observation, made it easier/more efficient to track where truck was going
- BASIC RULE: No expectation of privacy on public highway  not a search because gov’t following D on public highways

Karo [Beeper tracking goes into Home = 4th A Search]

- Beeper goes into house  different than Knotts
- Same kind of technology, but going inside the home is different than following on public highway (more protection afforded to the home)
- Officer wouldn’t normally have the power to do that, enhancing normal powers of observation  4th A search

Thermal Imaging
 Looks for heat sources (heat being used in the house)  used in investigations of marijuana growth indoors
 Police use thermal imaging to determine that certain areas of home were using more heat than others (unusually high levels of energy – typically
associated with drug operation)

Kyllo v. U.S.
- Agent of Dept. of Interior suspected D of growing weed in house with heat lamps  used thermal imager to scan D’s house at 3:20 am, showed that
roof over garage and side wall were hot compared to the home, and WAY hotter than other homes
- BUT, most of the public wouldn’t have access to that technology  unreasonable because information couldn’t be obtained without physical
intrusion
- BASIC RULE: obtaining information with any sense-enhancing technology from the interior of the home that could not otherwise have been obtained
without physical intrusion IS a search under 4 th A when that technology is not in public use

Public Information Conveyed to 3rd Party

White v. US [public conversations]

- Gov’t informer recorded conversation with undercover police officer and D
- Not a 4th A search
- Okay to use against D  what you say CAN be used against you, no challenge available under 4 th A
- BASIC RULE: no reasonable expectation of privacy for public conversations (information knowingly exposed to the public not covered by 4 th A)

Smith v. Maryland [Phone Numbers and Email Addresses]

- D trying to suppress phone numbers listed in pen register
o Police obtained list from telephone company of the numbers dialed from D’s home phone without warrant
- BASIC RULE: NOT a search
o No privacy in which phone numbers you call (same would apply to email addresses)

Use of Dogs to Sniff Contraband

 Drug-detection dogs specifically smell for narcotics ONLY  discloses very limited info
 This limited scope of search ensures privacy interests are not violated
 o One cannot have a “legitimate” privacy interest in concealing illegal narcotics
 Dog’s alert is enough to develop probable cause to complete more thorough search

US v. Place [Dog Sniff Closed Luggage]

- BASIC RULE: Ct held canine sniff of closed luggage at airport is NOT a search
o Luggage in airport = public place
o Dog sniff doesn’t require opening luggage  manner that info is collected is much less intrusive than typical search
o Sniff ONLY discloses the presence of narcotics (nothing else)  info disclosed is limited

Illinois v. Caballes [valid dog sniff during traffic stop]

- D stopped for speeding, Trooper radioed police dispatcher to report stop, second trooper showed up with narcotics-detection dog
o While trooper writing ticket for legitimate traffic stop, dog sniffed exterior of car, alerted trooper, weed found
o Incident lasted 10 minutes
- Issue: Whether 4th A req reasonable articulable suspicion to justify using drug-detection dog to sniff vehicle during legitimate traffic stop.
- Vehicle was lawfully pulled over
- BASIC RULE: Dog sniff is during a lawful, not unreasonably prolonged, traffic stop is not a 4A search
o Once traffic stop done, police can’t prolong stop for dog-sniffing (unlawful detainment)

Florida v. Jardines [dog sniff on porch – trespass]

- Detective received tip that weed grown in D’s house  sent surveillance team
- Detective watched home for 15 mins, no activity, couldn’t see inside house (blinds were drawn)  approached home, walked onto front porch with
dog trained to sniff for drugs
o Dog began signaling, detective got warrant, searched house, weed found (and D tried to flea)
- 4 A baseline: when gov’t obtains information by physically intruding on persons, houses, papers or effects  4th A search has occurred
th

- Porch considered curtilage of home  needed warrant for dog to sniff there (conduct search)
- BASIC RULE: dog can’t sniff around the house – still a trespass  need warrant to sniff house
o Dog is trespassing on porch
o Privacy of home in vital concern – different than traffic stop

Florida v. Harris [dog sniff during traffic stop]

- Officer pulled over D for expired plates, noticed that D seemed nervous and had open container in cup holder
- Officer asked D if he could search the car, D said no  officer brought dog to perform “free air sniff”
o Dog reacted to area, officer took reaction as probable cause, searched trunk – found elements necessary to manufacture methamphetamine,
but didn’t find any drugs
o D arrested for possession of pseudoephedrine for use in manufacturing meth
- Officer has PC to conduct search (even though dog was wrong here) – only facts available to officer would warrant person of reasonable caution in
belief that evidence of crime/contraband was present

Factors of Analysis in Technology Cases:

 1. Nature of the place stuff was taken (was it open to the public)
2. Steps person has taken to enhance the privacy of the place
3. Location of observer using technology
4. Availability to general public of technology
5. Is surveillance unnecessarily invasive?

Riley v. California
- BASIC RULE: information on a cell phone is NOT immune from search
o BUT, a warrant is generally required before search, even when cell phone is seized incident to arrest

Bond v. United States

- Border Patrol officer boarded bus to check immigration status of passengers, walked down aisle, squeezed parcels in overhead luggage rack
- Suspicion aroused when he felt brick-like object  led officer to seek D’s “consent” to search, found brick of meth
- D sought to keep contents private (subjective expectation of privacy) – bag was opaque, stored overhead; D may have expected people to move it, but
not to feel in in an exploratory manner
- Expectation considered reasonable  search improper
- BASIC RULE: physically invasive inspection is more intrusive than purely visual inspection  physical manipulation = search

SEIZURE OF A PERSON

Analyze:
- Is it a Terry Stop?
- Is it an Arrest?
- Note: a valid seizure may lead to a SIA or Terry Frisk or event a consensual search

Basic rule to determine whether person is seized:

- When a reasonable person in the defendant’s position would have believed he was NOT free to leave
- Determination made in view of all the circumstances surrounding the incident
- Factors to determine whether person free to leave: (Mendenhall Factors)
o 1) threatening presence of several officers NOTE: Don’t need to be told you are not
o 2) display of weapons by officers free to leave (not required under 4th A)
o 3) physical touching of person Seizure can occur even if person does not
o 4) indication that compliance with request is an order attempt to leave.
 Language used
 Tone of voice
What is triggered when a seizure is found?
- The effect of finding a seizure is that the seized person can invoke the exclusionary rule by arguing that police acted illegally

Police-citizen encounters fall into one of three categories:

BASIC RULE: whenever gov’t actor intersects with a person’s freedom of
movement, there has to be some justification for that interference

 Either consensual OR justified seizure

 - Consensual encounter (not a seizure)
- Terry Stop
- Arrest

- All interferences w/ person’s liberty, MUST be justified

o The more interference, the more justification is needed

What Constitutes a Seizure of a Person under 4 th A?

US v. Mendenhall
- D stopped by DEA agent after getting off plane – suspected/displayed characteristics of drug trafficker
- Ct found initial stop was a terry stop
- Court says that initial encounter was consensual  not a seizure
- Info agents have before detaining D:
o D getting off plane in Detroit, arriving in LA
o LA is drug source
o D is last person off the plane and is traveling alone
o  agents claim this info suggests D meets profile of drug trafficker
- Factors to determine whether person free to leave: (Mendenhall Factors)
o 1) threatening presence of several officers
o 2) display of weapons by officers NOTE: Always use BOTH Mendenhall
o 3) physical touching of person Factors and Drayton Factors to
o 4) indication that compliance with request is an order analyze whether a RP feels free to
 Language used leave.
 Tone of voice

Florida v. Bostick [1st Bus case] *only applies when on a bus

- Bus sweep in FL, officers admit they don’t have justification for Terry Stop
- Ask D for his ticket and ID (both matched)  asked D for permission to search bags
o Some conflict over whether D consented to have 2 nd bag searched
o Drugs found in 2nd bag
- Threatening presence, clear from appearance men are officers, carrying weapons
- Captive audience – people seated on bus, not free to get up and leave; can’t go anywhere, or leave bus without being stranded at bus station
- Court held D consented  valid consensual encounter and D not seized under 4 th A
- BASIC RULE FOR BUSES:
o Would a reasonable person feel free to end the encounter and go about his business?

US v. Drayton [2nd bus case – groin search] *Use Drayton factors and Mendenhall factors when analyzing any type of seizure
- 3 police officers board Greyhound bus, one seated with knee on driver’s seat, other two walking through bus
- Ct finds D gave voluntary consent to search his person
 - BASIC RULE: presume a reasonable person is innocent (when considering whether a reasonable person would feel free to leave)
- Test for Consent: whether it is voluntary under the TOC
- Factors to consider when determining whether seizure has taken place (in addition to Mendenhall):
o Nothing coercive
o No application of force
o No intimidating movement
o No overwhelming show of authority
o No brandishing of weapons
o No blocking exits
o No threat
o No command
o No authoritative tone of voice

US v. Hodari D. [Police Chase – NOT a seizure]

- While police officer chasing D, he throws something
- IF he’s seized while running  what cops found (drugs that D threw) would be excluded
- If he’s NOT seized until he’s physically touched by officer (when tackled)  when he tossed drugs, they were abandoned property and can be used
against him
- BASIC RULE: a police chase is NOT a seizure
o Seizure occurs when there is submission to show of authority (when police officers physically touch D)
o Must be some type of restraint (D not restrained while running)

(1) PROBABLE CAUSE

When is PC Needed?
1. Issuing warrant for search OR arrest
2. Making arrest without warrant
3. Checking on PC in court for arrests made without warrant (preliminary hearings)

Arrest Search
Have to have probable cause that: Have to have probable cause:
(1) a particular crime has been committed (1) to believe that there are fruits, evidence, or instrumentalities of a
AND crime
(2) that D is the one who committed the crime AND
(2) they are in a certain place

 Same level of PC req for both an arrest or search

 Question is always, could you have gotten a warrant – have to have same amt of PC whether you got warrant in advance or not
 Brinegar definition of PC:
 o the facts and circumstances within the officer’s own knowledge and of which they have reasonable trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been/is being committed
 BASIC RULE: if there is PC  search/seizure is valid
o Presumption that search/seizure is reasonable if there is PC

When do you need a warrant?

 If police are making an arrest in public  DON’T need a warrant as long as there is PC (Watson)
 If police making an arrest in the home  MUST get warrant in advance to get over the threshold of the home (Payton)
 If police make an arrest for a non-arrestable violation/offense: NOTE: if an arrest is made without
o  court defers to officer’s judgment a warrant  defendant must have
o Officer can arrest a person even if it’s for an offense that carries no confinement time a preliminary hearing within 48
hours to determine whether PC
Vehicle Stops – Constructive Possession existed to justify arrest

Brendlin v. California [All passengers in car are seized] [Standing]

- BASIC RULE: ALL passengers are seized when riding in a car that is stopped and have standing to challenge the stop

Maryland v. Pringle [Constructive Possession]

- Pringle (D) = front seat passenger
- D Argues his arrest was invalid bc no probable cause to arrest him
- D argues his confession was the FRUIT of his unlawful arrest, so confession should be suppressed
- Court looks back to moment in time when car was stopped, when everyone was arrested -- was there probable cause to arrest Pringle?
- Officer stops car for speeding, 3 men in car  all 3 men are seized
- Five bags of cocaine found behind arm rest
- Court finding D’s arrest as valid bc the theory is that each person in the car could have possessed those drugs
- Drugs were accessible to all passengers in the car, including D
- BASIC RULE: 2 kinds of possession:
o Personal possession = actual possession
o Constructive possession = multiple people can use/own (i.e., sharing car w/ spouse, anything found in car is both yours and spouses despite
who is driving)

Whren v. US [Pre-textual stops]

- PC is an objective standard
- D stopped at stop sign for “little too long” and then turned right without turning on blinker signal
- Pulled over for failing to signal
- D claims he was pulled racial profiling
- BASIC RULE: Pre-textual stops are ok, so long as there is an actual violation & a real legit reason to stop.
o Subjective intention of the police officer NOT relevant -- only objective basis is what matters.
 - Takeaway: De Facto legalization of racial profiling

Tips and Informants

 Informants: cause concern, could be someone who just doesn’t like D
o  when tips are reported to police, how much corroboration is necessary before tip becomes reliable?
o Informers may be engaged in criminal activity, concerns over memory, might have something to gain from snitching, often
anonymous/confidential ( don’t appear in court/aren’t su’]bject to cross-examination)

Aguilar v. Spinelli [two-prong test to determine PC]

- To establish PC based on a tip from an informant:
1) Informer must be reliable as a general matter (a truthful person with good credibility, not lying, no dishonest mistake)
AND
2) Informant must be reliable in this case (good info, no honest mistake) NOTE: fact that police find drugs/evidence of
crime AFTER conducting the search cannot be
Illinois v. Gates [NEW RULE for Informant PC Analyses: TOC and Aguilar/Spinelli Prongs] used to justify warrant. Only matters what
- Police received an anonymous letter detailing D’s plan for obtaining next shipment of drugs police knew about at the time of the warrant.
- D doesn’t make it all the way home before being stopped/intercepted by police
Can’t act on just a hunch.
- Tipster aggravated because Ds bragged about fancy lifestyle, and all the money they made in drug dealing
- DON’T specifically know who tipster is  don’t know how reliable/credible they are
o 1) no way of knowing how reliable informant is as a general matter
 Some discrepancy about info given to police; police can only corroborate travel plans, not anything that is actually illegal
o 2) informant IS somewhat reliable in this case
 Info provided to police (re travel plans) is mostly corroborated
- BASIC RULE: Supreme Court changes prongs of Aguilar-Spinelli into factors considered as part of the totality of the circumstances in determining PC
o Prongs become factors:
 Informer must be reliable as a general matter
 Informant must be reliable in this case (good info, no honest mistake) ANALYZE: To determine PC based on
o One might be sufficient to fill in gaps for the other a tip, look at the TOC and incorporate
o Easier threshold for police to establish  results in introduction of more evidence the Aguilar/Spinelli prongs.
o Informant was anonymous, but Ct said police had PC bc police were able to corroborate tip from informant

Concerns for warrantless arrests & searches:

 No neutral review of PC at the time of arrest/search
 Reviewing what happened after the fact
 Can’t use fact that Ds did have contraband to prove that there was PC

Executing Warrant:
 Should be done during the daytime
 Need to ask for nighttime execution (must be specified in application)
  Valid for ten days (but extension can be requested)

Knock & Announce

 part of reasonableness requirement of 4 th A
 if police violate K&A rule, not enough for evidence to be excluded (just a factor courts will consider when determining whether police acted
reasonably overall)
 Arguments for K&A:
o Gives occupants chance to get clothed
o Occupants more willing to cooperate NOTE: can get a no-knock
o Safety concern (officers break down door  occupants might be startled, react) warrant (apply in advance)
 Arguments against K&A:
o Destruction of evidence
o Fleeing
o Officer safety

Wilson v. Arkansas
- BASIC RULE: whether police knocked and announced must be a factor considered in determining if a search was reasonable under 4A

Richards v. Wisconsin
- Officers knocked, but didn’t announce themselves
- D opens deadbolt, sees cops, runs and dumps drug evidence
- Police asked for no-knock, judge said no, police still didn’t announce
- BUT, court says still reasonable – actions taken were reasonable based on circumstances
o D attempting to destroy evidence
o Court giving deference to police in the field
- BASIC RULE: reasonableness determined on case-by-case basis  police must knock and announce unless exigent circumstances

Hudson v. Michigan
- BASIC RULE: the exclusionary rule does not apply to nock and announce violations

Knock and Announce Takeaways:

BASIC RULE: police must knock and announce UNLESS they

have a reasonable suspicion to believe that doing so would
pose a danger to the officers OR would lead to the
destruction of evidence.

Standard is reasonable suspicion, not PC.

Exclusionary rule DOES NOT apply to K&A  no remedy for

K&A violation
Innocents
 How must police treat innocent people in house while executing a search warrant?

Muehler v. Mena [Reasonable treatment of innocent people during search warrant of house]
- Mena is resident of home, held in handcuffs in garage for 2 hours while search conducted
- Questioned about her immigration status
- Found reasonable because of potential safety threat to officers
- BASIC RULE: officers can detain innocent people within a location for a reasonable time and use reasonable force because of safety concerns for
officers and potential destruction of evidence

LA County v. Rettele
- Cops search wrong house on valid warrant, hold residents naked briefly while premises are secured
- Found reasonable because there could have been safety threat/concern for officers
- BASIC RULE: a search conducted reasonably and pursuant to a valid warrant is not a 4A violation even if the location turns out to be wrong

Maryland v. Garrison
- police go into wrong apartment and search
- Had probable cause for one apartment but searched apartment next door (for which there was no warrant) and found drugs
- Two issues here
o should an error ever be excused and if so,
o should this error have been excused?
- BASIC RULE: police enter wrong apartment during search warrant execution and find drugs, the drug evidence is admissible as long as the officers
made a reasonable and honest error in entering the wrong location
(2) SEARCH WARRANT
 To obtain valid warrant:
o Police must present information (PC) to a neutral magistrate (not a judge, often not a lawyer) BASIC RULE: Once police are in a place
 BASIC RULE: where they are legally allowed to
o 1) Warrant is limited in scope to what police are looking for, AND conduct search  whatever they find
o 2) narrowly tailored to place to be searched can be used against D
 Ex. Big screen tv  cannot look in shoebox
 Coins/jewelry  can look basically anywhere
 Purpose of warrant is to get police into place, and to look for what they originally wanted to find
 If they find other evidence while searching reasonably  admissible
 (3) EXCEPTIONS TO THE WARRANT REQUIREMENT

General Rule: warrantless searches and seizures in a person’s home are presumptively invalid. EXCEPTIONS INCLUDE:
BUT, there are two basic justifications for exceptions to the warrant requirement:
- Exigent Circumstances - Search of person incident
1) Safety of officers (destruction of evidence, officer to arrest
2) Preventing destruction of evidence safety, emergency rule, hot - Inventory searches
pursuit)
- Protective Sweeps
- Plain View
Hot Pursuit - Consent
- Automobile Exception
 Police chasing suspect - Search of Car incident to
- Special Needs
- Probation/Parole
arrest
Warden, MD Penitentiary v. Hayden [Hot Pursuit Exception]
- Armed robber fled scene, police were told D ran into house (police informed by cab drivers who followed D)
- Police entered house with permission, find D pretending to be asleep
o Police go into bathroom, find gun in toilet, clothes in basement
- BASIC RULE: hot pursuit gets police over the threshold of the home without a warrant BUT scope of search still factor
o Permissible scope of search must be as broad as is reasonably necessary to prevent danger that D might escape

Exigent Circumstances
 Includes (1) Destruction of Evidence and (2) Officer Safety
 Both are basic justifications for exceptions to warrant requirement
 In an emergency, police can search without warrant IF there is PC
o Mincey v. Arizona: court rejected exception to warrant requirement for murder scene (crime already committed, no longer an emergency)

(1) Destruction of Evidence: police can enter home without a warrant to prevent the destruction of evidence

Welsh v. Wisconsin [compare this case on exam – destruction of evidence NOT found as valid reason for entry]
- drunk driving, crashes car into tree, goes home and passes out
- Police come into D’s home without warrant, go into his bedroom
- Claimed that exigent circumstance was that D’s blood alcohol level would fall before police could get warrant
NOTE: Diff between cases is that
- BUT, no on-going concern that D would continue driving under the influence – he’s already home, already in bed
Welsh, no concern he would
- Case occurs before MAAD movement, DUI not taken as seriously at the time
continue to drive drunk BUT in
- BASIC RULE: Ct found this not a justified entry w/out warrant bc no ongoing emergency
King, concern D would continue
to sell drugs if not arrested
Kentucky v. King [compare this case on exam – destruction of evidence FOUND as valid]
 - Drug dealer ran into apt but cops didn’t know which door he went in, right or left apt
- Smelled marijuana coming from left apt  K&A  heard people and stuff being moved  thought drug evid being destroyed  entered apt w/out
warrant  find drugs in plain sight
- Turns out drug dealer was actually in apt on right
- Warrantless entry considered reasonable
o Even though there was no knock and announce, entry still reasonable because of concern for destruction of evidence
o If cops didn’t enter (instead stopped and obtained warrant)  they would lose all evidence, no case
- BASIC RULE: if police think you’re destroying evidence of crime OR if there is PC that you are (police must be able to articulate what facts lead to that
suspicion)  they CAN enter home without warrant

(2) Emergency Rule/Safety: officers may enter a home without a warrant to provide help in an emergency OR protect an occupant from imminent injury;
only matters that there objectively appears to be an emergency

Brigham City, Utah v. Stuart [emergency rule justifies warrantless entry]

- Police respond to noise complaint, arrive at house, see two juveniles drinking in the front yard
o Entered backyard and saw fight going on inside kitchen through screen doors and windows, getting out of hand
o  police enter home, announce their presence (no one notices at first – eventually everything calms down)  police arrest Ds
- Court holds that exigent circumstances (emergency rule) justified the warrantless entry
o Officers saw evidence of recent injury and heard violent noises (FACT specific)
- BASIC RULE: officers may enter home without a warrant to render emergency assistance to an injured occupant OR to protect an occupant from
imminent injury

Michigan v. Fisher
- BASIC RULE: doesn’t matter whether officers subjectively believe there was an emergency – entry may be justified as long as if objectively appears
that there was an emergency
o  officer’s subjective opinion doesn’t matter, could enter even if they don’t think there’s an emergency as long as objectively there appears
to be one

Searches Incident to Arrest

SIA for Cars – Cases:
 BASIC RULE: a search incident to arrest is limited to a search of defendant’s person and their immediate vicinity Robinson, Knowles, Mimms,
 Justified by: Wilson, Belton, Gant
o Officers need to be safe, get weapons on person and within “grabable” area
o Destruction of evidence if left after arrest
 An SIA could take place in public if valid arrest based on PC
 SIA includes:
o Grabable area
o Person
 o Containers on person
o Passenger compartment of car

U.S. v. Robinson [SIA during Traffic Stop Arrest]

- court rejected claim that only frisk for weapons was appropriate when person arrested for traffic violation
- Held that SIA is permissible even if there is no reason to believe arrestee had weapons NOTE: grabable area is fact specific (anywhere D has been in
- Police can search the person or the grab areas within the car (passenger compartment) the home during the time of the arrest)  look at precedent
- BASIC RULE: police CAN search a person and the “grabable area” of their car after a valid arrest, regardless of the crime that led to arrest
to make comparisons

If D is at home in living room  entire room is grabable area

Chimel v. California [SIA in Home] If D is sitting on front porch with doors closed and windows
- Police come to D’s house with arrest warrant, search his entire house without search warrant closed  prob not justified for police to search home
- Ct finds scope of search unreasonable
- BASIC RULE: police can search an arrestee’s person and the area within his immediate control (the grabable area)
o Anything else (when arrest occurring in the home) requires a search warrant
o If D moves from one room to another  police can search the next room (police can search are immediately surrounding D if at any point
during arrest he moves to that area) BUT CANNOT search entire house just bc D is arrested in house

BASIC RULES:

IF police have search warrant  they can search area specified in warrant

If police have arrest warrant  they get over the threshold, into D’s home, and can search D’s person and grabable area

If D is somewhere (at someone else’s home)  police must get search warrant for other house AND arrest warrant for D

If D arrested in public based on PC (without warrant)  police can search D’s person as SIA

Knowles v. Iowa [Search Incident to Traffic Citation]

- Search incident to a traffic citation, NOT an arrest
- BASIC RULE: There cannot be a search incident to arrest if there is no arrest during a lawful traffic stop (i.e. police cannot conduct a search incident to
arrest if police only issued a citation)
o Less threat to officer safety when only issuing citation
o No concern for destruction of evidence, citation has already been issued
-  can ask that driver exit the car, but can’t conduct search

New York v. Belton [Grab Zone of Car – Passenger Compartment]

- Speeding basis for traffic stop – PC established when cop smells weed and sees envelope labeled “Supergold”
- Cop had PC to stop car and issue citation for speeding
NOTE: grabable zone extends to whole
passenger area/passenger compartment
and any containers in passenger
 o Can always order passengers out of vehicle
o Arrests all 4 for possession of marijuana (constructive possession)
- Cop searches all 4 passengers, searched car, found jacked in backseat, found cocaine
- BASIC RULE: when passengers are unsecured (not locked in police car), AND within theoretical reach of the grab [grabable zone]  officer may
search passenger compartment, but not trunk

Pennsylvania v. Mimms [ordering DRIVER out of car during traffic stop]

- BASIC RULE: police can order driver out of car on any lawful traffic stop

Maryland v. Wilson [Ordering PASSENGER out of car during traffic stop]

- BASIC RULE: police can order any passenger out of car for any lawful stop

Thorton v. US [Recent Occupant of Car]

- BASIC RULE: If arrestee was recent occupant of car (passenger, not driver)  search of car is reasonable

Coolidge [Car Attached to House]

- BASIC RULE: If car is attached to house  need warrant to search

Collings v. Virginia [Motorcycle Parked in Driveway]

- BASIC RULE: Motorcycle parked in driveway  still need warrant

Arizona v. Gant
- Court backs away from Belton rule
- Police get tip that drug sales are taking place at D’s residence – look him up and find that he has an outstanding warrant for driving with a suspended
license
o  crime of arrest is driving with suspended license
o At time D arrives home, gets out of car, police arrest him, place him in handcuffs  Belton doesn’t apply (D is secure
CARS can benot
and searched:
within reach of
car)
1) Incident to arrest
o No reason to believe that evidence of the crime of arrest (driving with suspended license) would be found in car  searching car
2) Under automobile exception
unreasonable 3) With warrant (rare)
- BASIC RULE: two instances when police can search passenger compartment of car: 4) With consent
o 1) if arrestee is unsecured and within reach of car (Chimel theory) OR 5) As part of inventory search
o 2) if officers have reason to believe evidence of the crime of arrest is in the car

Automobile Exception
 Allows police search car without warrant when there is probable cause that evidence of crime is within the car
 BASIC RULE: cars/movable vehicles can be searched without a warrant if there is PC that the car contains evidence of a crime
 Scope is different than SIA of car
o Includes passenger compartment and trunk
Carroll v. US
- Police may search car without warrant as long as there is PC it contains evidence of crime
- Concern that cars are mobile  huge risk if police always have to stop and get warrant (warrant can’t reasonably be required)
- Applies to any vehicle that could be carrying contraband
- BASIC RULE: because vehicles can be quickly moved, requiring a warrant for a search is unreasonable, only need probable cause that vehicle contains
evidence of a crime

Chambers v. Maroney [Car has already been seized]

- Police arrest robbery suspects, tow car to station, search car, find guns
-  police CAN search car at any time IF they have probable cause to believe the car contains evidence of a crime (different from SIA)
- No specific time requirement
- Cars subject to lots of regulation with gov’t (licensing, safety checks, etc.)  lesser expectation of privacy (justifies warrantless search)
- BASIC RULE: if the car has already been seized and is no longer mobile, police can still use automobile exception

California v. Carney [Mobile Homes]

- D was using mobile home to trade marijuana for sex
- Boy goes in, comes out, police question him, ask him to go back and knock on door
- D comes out, police arrest him and search mobile home
- BASIC RULE: Court treats it as car (ready mobility of cars = lesser degree of protection of privacy interests)  subject to automobile exception

California v. Acevedo [Searching Containers in Car]

- PC attached to the container (which was placed in the car)
- BASIC RULE: scope of search is always limited to the thing which the police have PC to search for
o If PC attaches to car  can search the whole car AND any containers inside the car where stay may be (don’t need warrant to look inside
containers)
o If PC attaches to container  can search car to find container, and then do not need warrant to search container (already have one)
 At that point, search is over UNLESS probable cause develops/other justification arises for further search (think of other exceptions,
try to find one that would apply to allow a search of the rest of the car – automobile exception most likely)

Wyoming v. Houghton [Personal Belongings of Passenger]

- BASIC RULE: Searching a passenger’s property is also covered by automobile exception

BASIC RULES for CONTAINERS:

- If PC to search the car  can search containers in the car

- If PC to search containers in the car  can search car for the containers and can search container (remember if more PC arises, search can expand)
- Can search containers back at police station
- SIA: If car is searched as SIA of person  cannot search trunk
 Maryland v. Buie [Protective Sweep of Home incident to Arrest]
- BASIC RULE: police can do a protective SWEEP of home to ensure they have all suspects and dangers contained. If they find anything at that point, it's
fair game
- So when police believe there could be weapons in the house (may be related to offense), they can do sweep of house and it'll be fair game bc they see
it in plain view
- Sweep = walking through every room, opening closet doors, making sure nothing there. Doesn't mean you're tearing apart drawers. Just looking for
obvious weapons/humans that could pose obvious danger to you

Coolidge [Car Attached to House]

- BASIC RULE: If car is attached to house  need warrant to search

Search Incident to Arrest – RECAP

 SIA at Home  SIA in Car  SIA Constants

 Arrest in home based on an arrest warrant  Robinson: you can have SIA of arrestee  ALWAYS:
 Chimel: SIA is limited to D’s person and the when arrested in a car (limited to passenger 1) Search of person when
grabable area compartment) search conducted incident to
 Can detain others in home while warrant is being  Grabable area = passenger compartment arrest
executed  Gant: if arrestee is unsecured and within 2) Includes all containers on
 Can search others if PC as to them too reach of car, OR if officer has reason to person
 Police CAN to protective sweep of home to believe there is evidence of crime of arrest  **Search may occur at same
ensure all suspects and danger are contained in car  reasonable to search passenger time as arrest
(anything found during protective sweep is fair compartment
game)

Inventory Searches
 If defendant gets pulled over and arrested, car will be impounded
 Police will conduct inventory search of car to document what was in car at time of arrest (meant to ensure that all of D’s belongings are returned)
 BUT, search considered justified exception to warrant requirement
o  anything found in car is fair game

Plain View
 BASIC RULE: if an officer is rightfully in the place where he is  he may seize whatever he plainly sees
o Includes anything in plain view that announces itself as contraband
 Three Requirements:
o 1) officers had right to be there
o 2) objects announce their criminality
o 3) requires no further search to determine whether objects can be seized
 NOTE: Plain view and SIA – memorize:

An object that comes into view during SIA that is appropriately limited
in scope MAY be seized without a warrant.
Horton v. California [Inadvertence Requirement]
- Legal to submit search warrant for A, even if police are actually looking for B In home – arrest warrant executed in home, SIA of D’s person and
-  as long as there is objective reason for PC, search warrant is valid grabable area; if officer sees drugs in plain sight on table  can seize
- BASIC RULE: No inadvertence requirement for plain view
In car – Belton traffic stop; while legitimately at driver’s window during
traffic stop, cop sees “supergold”  can seize
Arizona v. Hicks [Item must be immediately identifiable as illegal]
- Police searching house based on warrant for another purpose
- Officer sees stereo, believes its stolen, picks it up and gets serial number
- Court finds search unreasonable and unlawful: stereo doesn’t announce itself as contraband (NOT in plain view that stereo is stolen)
o Police should have gone back and obtained warrant for the stereos, needed PC for search
- BASIC RULE: must be immediately apparent that the plain view item to be seized is illegal

Plain Smell/Plain Feel

 Corollary to plain view
 BASIC RULE: if officer legitimately in place where he plainly smells something he associates with contraband, he can conduct search further
o BUT, officer can’t make arrest only based on smell

Consent
 BASIC RULE: police may conduct search when individual gives consent, BUT consent must be voluntary and free of government (police) coercion
under the 14th A
o Analysis:
 TOC  look at Drayton factors to determine voluntariness of consent

Schneckloth v. Bustamonte [Definition of “Consent”]

- Traffic stop bc one headlight and license plate light were burnt out  six men in vehicle  All men asked to get out of car after only one produced ID
- 3 POs there  asked to search car  driver consented to search  found stolen checks
- Ct found this to be a voluntary consent to search
- BASIC RULE: DO NOT have to be told you have the right to be free from unwanted searches and seizures under 4A
- Totality of the circumstances test to determine whether consent is voluntary
o Fact-specific inquiry, evaluate consent in light of all factors
NOTE: common sense would not lead to
- Factors:
conclusion that search was consensual 
o D’s age
all it has to be is voluntary under TOC
o Education level
o Intelligence
o Circumstances (coercion, pressure)
o Whether D was told of right to refuse search
 P doesn’t have to prove that D knew he had right to refuse permission (but factor still considered in analysis)
 Ohio v. Robinette
- BASIC RULE: A person who is lawfully stopped but free to leave does not need to be informed that they are free to leave for consent to be valid
- Encounters less than arrest where suspect is free to leave:
o Police are investigating but do not have reasonable articulable suspicion or probable cause
o A traffic stop where officers are extending detention based on their desire to obtain consent to search

Drayton factors also considered in determining voluntariness/consent:

- Nothing coercive/confrontational, no application of force, no intimidating movement, no overwhelming show of authority, no brandishing of
weapons, no blocking of exits, no threat, no command, no authoritative tone of voice

Consent of Others
 When can someone else consent for you?

Georgia v. Randolph [all present occupants of house]

- If police show up to house, ask to conduct search, and one person says yes, while the other person says no  the objecting occupant (who is present)
wins
- BASIC RULE: when there is present and objecting occupant  police don’t have right to enter

Fernandez v. California [one occupant arrested]

- Domestic violence case – female and male cohabitants, both present, male objects to search
- Police arrest him (no hot pursuit, no exigency), BUT after he leaves, she consents to search
- BASIC RULE: once present and objecting occupant is arrested  their consent no longer matters (no power to object if they are no longer present)

Car vs. Home

 Cars
o Cars are mobile, have potential to move, highly regulated by gov’t  lesser expectation of privacy  may be searched with PC
o Under automobile exception, don’t need warrant to search mobile home, even if it is being used as a home (not a vehicle)
 If police have PC to search  can get inside without warrant
o SIA of Person in Car
 Arrest must be valid/legitimate
 If D unsecured and within reach of car  police can search passenger compartment OR
 If reason to believe (less than PC, but not by much) that there is evidence of crime of arrest in the car  search passenger
compartment
o Automobile Exception
 PC can attach to the car itself or something in the car
 If PC attaches to container in the car  search limited to search for container
 If PC attaches to car itself  can search whole car (passenger compartment, trunk, any containers in the car)
 Home still have greatest protection
o Need search warrant to search home OR can get inside with arrest warrant and search grabable area
 o Can search without warrant if valid exception applies (hot pursuit, exigency, consent, etc.)
o BUT, if police only have PC to believe contraband is in the home  not enough, search unreasonable

Probation and Parole Searches

 Warrantless and suspicionless searches are VALID based on fact that D is on probation or parole
 Usually, D has agreed to be searched at any point as condition of release  if police find probationer/parolee, can search without PC

(4) TERRY STOPS

Search and seizure can be justified on less than PC: Terry stop

Terry Stop = brief investigative stop based on reasonable, articulable suspicion (RAS)
 Defendant not free to go, allows police to investigate and develop probable cause
 IS a seizure  governed by 4th A  exclusionary rule applies
o Justification is less than PC, but is based on the legitimate gov’t interest in peace-keeping and maintaining public safety
o Police officer must have reasonable, articulable suspicion in order for Terry stop to be legal under 4 th A
o Must be more than a hunch – officer must be able to point to facts that support finding of reasonable suspicion Ds are committing/about to
commit a crime

Terry v. Ohio
- Officer McFadden noticed two men walking back and forth down street in Cleveland; each would walk down the street, stop in front of a store, then
discuss with each other afterward
o McFadden very experienced officer, assigned to patrol (light duty)
o Believed Ds were “casing the joint” – thought they might be armed (if they were preparing to execute a robbery in broad daylight)
o Officer interfered with Ds’ liberty, asked for their names, conducted a patdown, found guns  placed both men under arrest
- Before Terry, only arrest based on probable cause or consensual encounter
Stop and frisk are analyzed separately
o Ds conduct here doesn’t rise to level of probable cause, but does give McFadden a reasonable, articulable
– must be two separate RAS’s.
suspicion
- BASIC RULES: RAS to stop doesn’t automatically
o To Stop: officer must have RAS that crime is being/about to be committed justify frisk.
o To Frisk: officer must also have RAS that individual is armed and dangerous
 Depends on whether gun/weapon necessary to successfully commit crime/weapon openly visible
 Limited to outer-clothing, must be a general patdown
 If officer feels weapon during patdown  now has PC and is justified to search pockets (or just search the pocket with the gun in
order to confiscate the gun?)

Terry Limits
 Subject to all 4th A restrictions (evidence discovered in violation of 4 th A excluded)
 Frisk must be necessary to prevent violent crime
 Officer must be able to articulate basis for stop:
 o Argument can be based on knowledge of neighborhood, drug sales, etc. (relatively easy to make connection between drugs and violence)
o RAS must be formed before stop conducted
 Frisk limited to places where weapon would be
 If initial inquiry is unproductive  person must be let go
 If probable cause arises during Terry stop  could become valid arrest

Scope of Terry stop

 Must be limited and brief – if it exceeds initial scope, could turn into invalid arrest (no PC for arrest)
 Reasonableness of duration is analyzed by facts:
o 20 mins might be okay (could be different depending on weather conditions, etc.)
o 90 mins determined to be too long

What is RAS to believe that individual is armed and dangerous?

 Seeing bulge resembling gun/weapon
 Furtive gesture (movement that seems secretive)
 Reputation (individual known to carry gun)
 Engaging in particular crime (more likely to involve weapons)
 Tip that person has a gun
 Plain Feel – during patdown (based on RAS), if officer plainly feels something that announces its criminality, and doesn’t require further investigation
to know what it is  officer now has PC to search pockets for object

Minnesota v. Dickerson [Doctrine of Plain Feel]

- Officer CAN’T manipulate objects during frisk (cannot turn/twist/squeeze object in pocket to determine criminality)
- If during patdown, officers feels something he believes is crack pipe/rocks/knife  he now can go into pocket and get it
o Has to be based on PC – item announced itself as crack pipe
o All dependent on the officer’s training and experience
- If officer trained, feels object he knows to be crack pipe  PC to search pockets
- BASIC RULE: If officer is legitimately searching pockets and feels something that is plainly contraband  now have PC to search the pocket and
retrieve the contraband
o Officer must be plainly patting down the D and then plainly feel that the object is contraband in order to develop PC
o If legitimately searching pockets and object doesn’t plainly feel contraband  can’t take it out NOTE: ask at every step – was officer justified and
within the scope of what he is allowed to do? Based
Defining RAS on what facts available to officer before stop.

U.S. v. Arvizu
- D driving minivan with woman and children, slowed down, didn’t make eye contact when passing officer
o Officer knew based on his knowledge and experience investigating drug smuggling that minivans are popular cars for drug smugglers
o Children’s knees too high in window (suggests something was underneath their feet), children waved strangely after van passed
o Van then made sharp right turn before border patrol checkpoint onto bumpy road in an area known for drug trafficking
-  taken all together, in light of officer’s knowledge and experience, info creates RAS for drug trafficking
- Specificity of facts matter, analyzed under TOC
- Court unanimously finds RAS based on facts Officer observed
- BASIC RULE: A combination of facts, which themselves are not evidence of any crime, be taken together to create RAS to stop a car.

Alabama v. White [Threshold for Tip to amount to RAS]

- Tip led to Terry stop of D’s car without traffic violation
- Police received anonymous tip that D would leave a certain place, in a certain car, and would have drugs
o Tip corroborated by police officer’s observations – D drove car described, and took specific route given by informant
o Police stopped D’s car, consensual search revealed brown case, cops asked D to unlock it, found weed inside
- Anonymous tip, standing alone, would not give rise to probable cause
o BUT, information corroborated  sufficient to establish RAS

Florida v. JL [Tip too vague]

- Anonymous caller tells police that young black male at bus stop wearing a plaid shirt is carrying a gun
o Police arrive at bus stop, info somewhat corroborated
o Three young black men at bus stop, at least one wearing plaid shirt, BUT case doesn’t say explicitly how many people were at bus stop
o Gun not visible
- Court holds this information not enough to establish RAS to justify patdown search of D
o Tip is problematic when it provides only general, generic info
o If info could apply to many people  NOT reliable
- **distinguished from White, because tip was specific in describing make and model of car, color, address where it would be parked, and route driver
would take (info would NOT apply to many people) – Also in JL there is no future actions predicted like in White

Navarette v. California
- Police dispatcher receives anonymous tip that silver Ford F-150 is driving erratically and almost running people off road, caller provides license plate #
- Dispatcher relays info to officers – within 15 minutes cops see truck
o Observe truck driving for five minutes – no traffic violations, not driving erratically
- BUT, still RAS to conduct stop of truck (RAS for drunk driving)
o 911 call bore adequate indicia of reliability – some of the info corroborated (highway, truck description, license plate)
o AND caller went through 911, knew that phone call would be recorded  more likely info is reliable
- When officers approached the truck, they smelled marijuana – plain smell
o Officer had right to conduct stop based on RAS for drunk driving  plainly smells drugs  gives officer PC to search truck, NOT to make arrest
(can’t arrest based on smell alone)

Stop and Frisk Analysis

STOP FRISK
1. Was there a seizure? (Mendenhall free to leave test) 1. Was there RAS to believe that individual was armed
2. Were there grounds for a stop? (RAS) and dangerous? (if so  frisk ok)
3. Was the stop within the scope of a Terry stop? (limited and brief) 2. Was the frisk sufficiently limited? (pat down, no
4. If the police-citizen contact went beyond the scope of a Terry stop manipulation)
Flight
 BASIC RULE: when D runs from police (flight) in high crime neighborhood  reasonable articulable suspicion to conduct Terry stop
Wardlow [Flight]
- Officers part of caravan patrolling area known for heavy drug trafficking
- D holding opaque bag, saw cops, turned and ran in opposite direction
- Analyze two factors:
o 1) flight
o 2) high crime area
- Plenty of other reasons to run  rule is problematic as justification for RAS
- BUT, still must be articulable suspicion
o Has to be particular of specific crime (although diluted in high crime area by decision here)
- BASIC RULE: Flight alone, is not enough for RAS, must be more factors combined w/ flight to support RAS

Types of Stops & Suspicion

Type of Encounter Consensual Encounter Terry Stop Arrest
Seizure? No Yes Yes
Threshold Justification Valid Consent (must be voluntary – Reasonable articulable suspicion that Probable Cause
Bustamonte) criminal activity is afoot
Scope of Permissible Search Whatever is consented to (even If RAS that suspect is armed and Depends on type of arrest: SIA or
including search of groin – Drayton dangerous  patdown of outer- person, SIA of person in car, SIA of
factors) clothing; if officer plainly feels person in home
contraband  PC to search pockets

Special Needs
 Special needs include exceptions to PC and the warrant requirement in addition to Terry stops, exigent circumstances, consent, hot pursuit, etc.
 Another exception to the warrant requirement based on something less than PC
 Special needs doctrine = when you can have suspicionless interference
 EX: DUI Checkpoints

BASIC RULES/Analysis Questions:

 1. Is there a special need? Does gov’t have a legitimate special need?
o Is it separate from traditional law enforcement?
o Has to be some limits, can’t be general crime control
2. If special need exists  search must still be reasonable (determined by balancing test)
o Intrusion on individual balanced against gov’t interest and effectiveness
 Intrusion must be low
 Gov’t interest must be high
 Must be effective
o Look at effectiveness of search
o *Doesn’t have to be the less-restrictive means possible (but more likely to be found reasonable if it is)

** If no special need exists  regular 4th A analysis

- Interference must be based on RAS or PC to justify intrusion

Checkpoints

Sitz [DUI Checkpoints - UPHELD]

- 4th A seizure occurs when a car is stopped at a DUI checkpoint  seizure must be justified
- Checkpoint not based on individualized RAS or PC because all cars are stopped
- BUT, there is a legitimate gov’t interest in preventing drunk driving (large magnitude of problem helps provide justification)
o Intrusion is minimal (only lasts 20-30 seconds)
o Police can smell/observe alcohol – comparable to dog sniffing (and reasonably effective)
- BASIC RULE: DUI checkpoints found reasonable based on minimal intrusion

Edmond [Drug Checkpoints - DENIED]

- Police stopping cars, trying to catch people with drugs in their cars
- Court says that gov’t’s primary interest was general crime control, which is not enough to be a special need
o Driving with drugs in car ≠ driving drunk
o Driving drunk creates safety issue, therefore gov’ts primary purpose was public safety in Sitz
o There is no nexus to driving and drugs in your car
- Effectiveness alone isn’t dispositive (only one factor considered)
- BASIC RULE: drug checkpoints not okay, no legit gov’t interest to justify intrusion

Illinois v. Lidster [Stopping Wits in Public to ask about specific Crime (Aka: Canvasing) - UPHELD]
- checkpoint stop to ask if anyone has info on hit and run accident
- D stopped, found to be driving drunk
- Purpose of checkpoint legitimate and limited in scope
o Intrusion only 15-20 seconds  reasonable
- BASIC RULE: checkpoints for purpose of information seeking about specific crimes are okay, minimal intrusion and legit gov’t interest
 o Comparable to approaching potential witnesses in public, knocking on doors to ask for info, etc.

Justified Suspicion-less searches based on SPECIAL NEED – General Drug Tests:

 Skinner v. Railway – drug and alcohol tests for railway employees involved in train accidents/violating particular safety rules
o Relationship between railway employees and not being drunk/high on the job = public safety
 Treasury Employees v. Von Raab – drug tests permissible for US Customs Service employees who seek transfer or promotion to positions involving
drug interdiction or requiring employee carry a firearm
o If working in an area where you come into contact with drugs, need to identify drugs, hold a firearm, you should not have a drug problem
yourself
 Griffin v. Wisconsin – search of probationers’ homes on reasonable grounds (less than PC)

Insufficient Special Need for Drug Testing Employees:

 Chandler v. Miller – State law requiring candidates for designated state office to pass a drug test
o special need was not sufficient, being high/drunk in state office job does not immediately create a safety risk
o Ct found law invalid because “the proffered special need must be substantial — important enough to override the individual’s acknowledged
privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individual suspicion.”

Special Needs in SCHOOLS

New Jersey v. T.L.O. [School Search of Student’s Personal Property]

- School principal searches purse of student suspected of violating school anti-smoking policy
- Search of purse based on reasonable suspicion (no warrant, no PC)
- RULE: Ct says search still justified under 4th A when there are reasonable grounds for suspecting that the search will turn up evidence that student
violated/is violating law OR school rule
- BASIC RULE: determining reasonableness of any search involves determination of whether:
1) Search was justified at its inception, AND
2) Whether it was reasonably related in scope to the circumstances that justified the interference in the first place

Safford v. Redding [Strip Searching of Student (Generally not allowed)]

- 13 yo 8th grader in School
- Suspected Redding of having prescription strength ibuprofen (not a very serious drug)
- School officials search Redding’s underwear (very intrusive search on extremely young minor)
- BASIC RULE: Searches by school officials must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age
and sex of the student and the nature of the infraction.”
- RULE: strip searching of a student is not allowed unless there is specific suspicion the student is hiding evidence in intimate places.

Vernonia School District v. Acton [Permissible School Drug Testing Under 4A]
- Increasing rates of drug use at school, causes concern
- Search only conducted on student athletes (drug tested)
 - Legitimate gov’t interest in preventing teen drug use
- Level of intrusion found reasonable:
o Urine tests administered during athletic season only
o Done in the bathroom, staff listening but not watching
o Measures taken for respect of privacy
- BASIC RULE: drug-testing student athletes okay

Earls [Permissible School Drug Testing Under 4A]

- Drug problem in schools
- Searching any kid involved in extra curricular activity, not just athletes
- Therefore, not as much of a nexus between who is being searched and the purpose behind the searches
- Ct upholds the drug testing
- Notes that public schools have a responsibility to take care of the students in their schools

Unjustified Special Needs in Hospitals

Ferguson v. City of Charleston [Drug testing Women while in labor in hospital]
- Public hospital  staff are state actors
- Women come in to have baby and are drug tested
o If test positive  women would be forced to go through treatment/face prosecution
o Not warned before giving blood  element of coercion
- BASIC RULE: primary purpose of policy was threat of arrest and prosecution in order to force women into treatment AND extensive involvement of
law enforcement at every stage  doesn’t fit special needs category
o Under the Special Needs Balancing Test, the Court said the invasion of privacy was substantial, and that drug testing purpose was
indistinguishable from general crime control

Special Need Searches and DNA

Maryland v. King
- D arrested for assault, had his DNA taken (felony conviction)
- DNA taken with swab (non-intrusive), “junk DNA” only used for identification  put into CODIS database
- D’s DNA matched with DNA from rape kit 6 years earlier
- Ct saw DNA mouth swab collection during booking comparable to the booking process of fingerprinting, a minimal intrusion for the greater good
- BASIC RULE: collection of DNA by cheek swab of an arrestee does not violate an individual’s 4 th A rights when that arrest is for a serious offense AND is
supported by PC

EXCLUSIONARY RULE and STANDING TO CHALLENGE 4TH A VIOLATIONS

Purpose = Deter Police Misconduct

Question of 4th A Violation and Exclusionary Rule

 - The question of whether a 4th A violation has occurred and whether the ER applies are two separate questions
- ER NOT remedy for ALL 4th A violations

Weeks v. US [Evid seized in violation to the CX will be excluded]

- Established Exclusionary rule in federal cases – evidence seized in violation of the Constitution excluded from prosecution
- Applied to states by Mapp v. Ohio
- Want to deter police from violating 4 th A rights
- Judicial integrity: allowing evidence gathered unconstitutionally question the integrity of the entire system
- Cost of Exclusionary Rule:
o Some guilty people will go free
o Some argue is does not deter police misconduct/violations of Constitutional rights

Hudson v. Michigan
- Police obtained warrant to search Hudson’s home, knocked and announced but only waited 3 – 5 secs before entering home — found drugs and
firearms
- BASIC RULE: exclusionary rule does not apply to violations of the knock and announce rule.
- REASONING: once the warrant is issued, the  has no right to privacy in the evid described in warrant

Motions to Suppress Evidence

 Judge decides issues of admissibility of evidence pre-trial
 D has burden of raising motion
 P has burden of proving that search/seizure was valid by preponderance of the evidence (more likely than not)

Jones v. US (1960)
- Search of D’s friend’s apartment (D had key to apt, kept shirt and drugs there)
- Police come to friend’s house, D keeps his hand in a bird’s nest (where drugs are hidden)
- OLD RULE: if D is the target of the search, and evidence is found and used against D  D has standing to challenge search, even if he had no
possessory interest in the place searched
o Didn’t matter that evidence found at friend’s house because D was target

Rakas v. Illinois (Late 1970s)

- D is passenger in car that gets stopped – illegal search of car turns up shotgun found under the seat (not in plain view) and shells in locked glove
compartment
- Rakas was a passenger and it was not his car
- Court holds that D doesn’t have standing to challenge search because he doesn’t have possessory interest in the car  no reasonable expectation of
privacy in his friend’s car
- BUT, Jones (pre-Rakas) says that ONLY D as target of search WOULD have standing to challenge search
- Now, D must have some sort of possessory interest
o  what matters are D’s personal 4th A rights
 o Maybe if D paid for gas, was driving, was in a cab  maybe he would have standing
o BUT, after Rakas, 4th A rights tied to possessory interests
- BASIC RULE: Rakas still good law for principal that D’s personal 4th A rights must be violated in order to raise exclusionary rule as remedy
- Take Away:
o Your PERSONAL 4th A right must be invated by an illegal search to raise exclusionary rule as remedy for 4 th A violation
 This is still law todayr5

United States v. Payner (1980) [Case demonstrates problem w/ Rakas decision]

- IRS case – dinner meeting between D and his banker
- In banker’s hotel room, D has records  police search room and violate banker’s 4th A rights (no warrant, no PC)
- BUT, police want records to prosecute D (not his banker)
- In order for D to raise 4th A claim, he would have to have his personal 4 th A rights violated
- Didn’t happen here because only banker’s rights violated  D has no standing to challenge search under 4 th A
- Ct found D lacked standing to challenge evid bc the Banker’s 4 th A rights were violated, NOT D’s 4th A rights
- This case shows that the Brendilin modification only applies to cars

Can visitors have standing?

Minnesota v. Olson [Overnight Guests]

- Police go to D’s girlfriend’s house to get him (D is an overnight guest)
- Court holds that D has a reasonable expectation of privacy at his girlfriend’s house
- BASIC RULE: guests have REP when staying overnight  personal rights affected by 4th A violation as an overnight guest
- Take Away: Overnight Guests Have a reasonable expectation of privacy

Minnesota v. Carter [Short-term, Business-related Guest]

- Police are peeking through the blinds, seeing Ds bagging cocaine  search (infringing on curtilage? Blinds closed  measures taken to ensure privacy)
o Couldn’t be seen from the street, not readily exposed to public since blinds are closed  unreasonable search IF personal 4th A rights of D
violated
o The violation was the fact that the officers had to peak through the blinds, almost creeping on the D’s in the home.
o If police could see D’s packaging the cocain from the street while walking on sidewalk, then there would be no violation
- Carter and Johnson, people packing cocaine did not live at the apt, owner of apt, Thompson allows them to package cocaine in her apt and pay her
with cocaine
- Here, only Thompson (lessee of apartment) had her personal 4 th A rights violated
- Ds did not – court holds that Ds did not have legitimate/reasonable expectation of privacy in Thompson’s home  can’t challenge legality of search
o Ds’ interest in Thompson’s house was only short-term and business related (different than being an overnight guest at someone’s house)
- Take away: the 2 men, Carter & Johns, do not have a legitimate expect of privacy / REP so they cannot raise the illegality of the original search
o NO REP in house if interest is short-term and business-related
o Business, Short term – No REP
 Brendlin v. California [All passengers are seized during traffic stop]
- Issue: Is a passenger seized in a traffic stop?
- BASIC RULE: passengers in a car have authority to challenge seizure (stopping of car)
o Passengers are seized when car is pulled over
o Traffic stop IS a seizure
o Applying Rakas, passenger’s personal 4th A rights are violated when they are seized illegally as part of invalid traffic stop

Maryland v. Pringle
- BASIC RULE: constructive possession means seizure could be reasonable for all the passengers in a car
- Don’t have to determine whose contraband it is – it could belong to any of the passengers in the car
- Could prove that all 3 possessed it because of its location  arrest all 3 would be valid, each one constructively possessed it

Whren v. US
- BASIC RULE: pretextual stops are okay as long as there is objective probable cause
- D’s claim is that officer racially profiled him  wouldn’t have been stopped if he wasn’t black
- D wants court to ask whether a reasonable police officer would have pulled him over
- Court holds that subjective intent of officer doesn’t matter  pretextual stops okay as long as there is also objective reason

Fruit of the Poisonous Tree

 If at some point, police violate D’s 4th A rights  when does the evidence seized flow from that primary illegality and when must that evidence be
suppressed?
 *Always consider which party has standing to raise exclusionary rule

Wong Sun
- Timeline of Events:
o Police arrest Hom Way and he snitches about laundry
o James Wah Toy (Blackie Toy) laundry and house are searched without warrant, statements made to police
o Johnny Yee’s house is searched, drugs found and statements made
o At the police station, statements from James Wah Toy and Johnny Yee lead police to Wong Sun
o Police arrest Wong Sun at his house without warrant
o Wong Sun and James Wah Toy arrested, arraigned, released, AND THEN give unsigned confessions
- Evidence at issue for suppression:
o Statements made by James Way Toy in his bedroom at time of his arrest (admitting to drug use, tying himself to drug dealer), AND his
unsigned, pre-trial statement (confession)
o Heroin surrendered by Johnny Yee in his bedroom when police search his house
o Wong Sun’s unsigned pre-trial statement (confession)
- Three “trees” under FOPT analysis:
o (1) illegal arrest of James Way Toy
 No drugs, but confession – confession CAN be suppressed because of unbreakable line from JWT’s illegal arrest, to police questioning
 Johnny Yee, to Yee incriminating JWT
o (2) illegal arrest of Johnny Yee for possession of drugs
 BUT, Johnny Yee not charged  nothing to be suppressed
 His personal 4th A rights were violated, but there is no motion to suppress if he is not being charged with crime
 Drugs found in his apt are not fruits as to Wong Sun
o (3) Illegal arrest of Wong Sun
 Wong Sun’s personal 4th A rights were violated when police arrested him in his home without warrant, no PC, no exceptions to
warrant requirement
 BUT, Wong Sun didn’t confess until after he was arrested and released home
 He came back to police station on his own and confessed  confession admissible because taint (4 th A violation) dissipated due to
attenuation

NOTE: if only the FOPT analysis was used, lots of evidence would be suppressed. Using standing, some fruits would be suppressed against some
individuals, but not against others (depending on whose personal 4th A rights were violated).

3 Things to Look Out for with FOPT (3 Exceptions to the ER):

1. Independent Source NOTE: key with FOPT is analyzing various
2. Inevitable Discovery time periods – what’s going on during each
3. Attenuation/Dissipation of the Taint/Inadequate Causation period of time? Attenuation? Independent
Source? Inevitable discovery?

Independent Source Exception

 BASIC RULE: Even if police obtain evid in violation of the 4 th A, it is still admissible if it is also obtained through a source independent of the police
misconduct and untainted by the illegal actions of the police
 When relying on something other than the illegal search  evidence may still be admissible
 The independent source would need to establish RAS to conduct stop or PC for search/arrest

Murray v. United States

- Officers conduct a “preview search” in violation of 4A
- After 4A illegal search, second group of officers apply for warrant based on information that they had before the 4A violation + include no information
gleaned via the 4A illegal search
- BASIC RULE: Court says that because police filed a warrant based on independent information prior to the 4A violation  evidence seized after the
warrant need not be excluded as fruit because of independent source

Inevitable Discovery Exception

 BASIC RULE: if the police can establish by a preponderance of the evid that they inevitably would have discovered the evid, w/o a violation of the 4 th
A, the ER does not apply and the evid is admissible
 Fact specific discovery, depends on when evidence would have been discovered
 Gov’t bears heavy burden of proof that discovery would have occurred anyway (preponderance of the evidence)
 Nix v. Williams
- Vic Pamela Powers taken from YMCA on Christmas Eve where she was watching sporting event with her family
- Wit reported seeing D carrying something with dangling white legs and loading it into his car
- D’s car found with evidence (girl’s clothes)  arrest warrant issued; D turned himself in
- Police began searching for girl (large scale search, 200 volunteers)
- Des Moines police told D’s counsel they would pick him up in Davenport and drive him to Des Moines
o Specific instructions NOT to question him
o BUT, police engage in functional equivalent of interrogation (Christian burial speech)  D tells police where body is
- Poisonous Tree: inappropriate questioning of D to get information about where body was found (violation of D’s 6 th A right)
o  should FOPT apply to evidence found after violation?
 Attenuation doesn’t apply – body found immediately after violation
 No independent source – no other source of information about where the body was
 Inevitable discovery – search was already being conducted, volunteers were within two miles of where body was located
- BASIC RULE: Ct says if PROS can establish by preponderance of the evid that the info inevitably would have been discovered by lawful means, then
evid should be admitted
- This case is exceptional for 3 reasons:
o facts are tragic;
o involves clear constitutional rights violation; and
o illustrates the societal costs that may be incurred when a PO decides to act unlawfully

Attenuation Exception/Dissipation of the Taint

 Inadequate causal connection between 4 th A violation and the evidence obtained
 Factors to Consider in Analyses:
o Look at time,
o intervening circumstances,
o purpose and extremity of original illegality

Brown v. Illinois
- Initial illegality = illegal arrest
- Officers arrest defendant in his home without a warrant and without probable cause
- D makes inculpatory statement
- Police give Miranda warnings, BUT that’s not enough to attenuate D’s statements from the initial illegality  statements excluded
- BASIC RULE: The Court says the statement must be excluded as evidence time between illegal arrest and statement was less than 2 hours, there
was no intervening event of significance, officers acted with purposeful illegality to obtain the statement
o Miranda warnings by themselves cannot purge a taint of an illegal arrest

US v. Ceccolini
- Police illegality leads to discovery of an eye witness – witness will be allowed to testify
 - BASIC RULE: a live witness cannot be a FOPT  when police illegality leads to discovery of an eyewitness, the live witness cannot be suppressed and
will always be allowed to testify

Utah v. Strieff
- Officer detains Strieff, performs a Terry stop
- Initial Terry stop was 4A violation  through the 4A violation, the officer obtains Streiff’s ID, discovers Streiff has an outstanding warning for traffic
violation  arrests Strieff
- Officer performs SIA and recovers drugs and drug paraphernalia
- BASIC RULE: Ct said the bench warrant discovery was an intervening circumstance that dissipated the taint of the initial 4A violation and therefore the
evid recovered as fruit was admissible

Good Faith Exception

Franks
- Police officers getting warrant say they talked with PO who told them that D wore tank tops (lie, police never talked to PO)
-  when info in search warrant is possibly false, want to challenge affiant that they either:
o (1) lied
o (2) had reckless disregard for the truth
- Level of proof to attack search warrant:
o Attack specific falsehood in warrant application
o Must have supporting information to back up claim (affidavit, sworn statement, other explanation of background info about why falsehood is
false)
- Limited to challenging warrant: when you have specific proof of cop’s lie

U.S. v. Leon
- Anonymous informant gives police info about Armando and Patsy BASIC RULE: exception to exclusionary rule
- Police Investigate — see people going in and out of Armando and Patsy’s house with small bags BUT Leon not one applies to police
of the peopleaction
seenthat is: the
leaving
house
1) Deliberate
- Castillo is seen leaving the house — police check Castillo’s probation recs and see Leon (D) listed as his employer
2) Grossly negligent, OR
- Info on Leon
o Anonymous tip that he’s heavily involved in importing drugs into US and stored large quantity of Meth at his3) home
ResultofNOT
systematic/department-
enough to
establish PC wide violations and/or errors
o A lot more info on Armando and Patsy than Leon
- Police sought warrant based in investigation into Armando and Patty and info known about Leon, magistrate makes mistake and grants it (even
though not enough evidence for PC)
- BUT, officers relied on warrant in good faith  search reasonable and evidence not excluded
o Good faith in this case is shown through the police’s extensive work to corroborate the anonymous tip
- Basic RULE: ER does not apply if police reasonably rely on an invalid warrant to conduct a search or seizure
- Problem with this rule is that now magistrates can grant warrants on less than PC without repercussions
- Rule does not hold magistrate or police accountable
 STATEMENTS

 May be anything a
defendant says that
Herring v. US
is inculpatory and
- BASIC RULE: The exclusionary rule is limited to deliberate or grossly negligent violations of 4A, or those that are the result of systematic government
helps to prove an
policies.
element of the
- The exclusionary rule does not apply to negligent or good faith violations of 4A
offense charged
  has 5th A rights
Impeachment
not to testify, and
 Confront witness with specific statement: “yesterday you said X. Today you are saying Y.”
privilege against
 Evidence excluded by ER can still be used to impeach witness
self-incrimination
o Fact that D
Coercion enforces
 (Backgroundthose rights
to Miranda)
can’t be
 Can be Physical
used against
o Can include beating, torture
him
 Can be Psychological
(grounds for
o Ex. Police told suspect his grandmother (woman who raised him) was very ill, in critical condition – then later came back and told D she died.
mistrial)
The only way police might be able to help D go to the funeral is if he confesses (all info untrue)
 14 A due process
th
o  look at TOC, what police know about the individual
and fundamental
o Threats, promises, etc.
fairness always a
o when
Still okay for police to lie to suspect
concern
someone is giving up th
**Involuntary
a right confessions CAN’T be used to impeach defendants (violations of the 14 A are excluded for all purposes)
o Think
voluntarines 5TH AMENDMENT
 5 A Says:
th
No person in a criminal case shall be compelled to be a witness against himself
s, analyzed
through TOC
Three elements of 5th A: (Applied to Statements that are:)
Ways 1) Compulsion
to Challenge a (something D is made/forced to do)
2) Testimonial (something that will be coming out in court)
Statement:
3) Incrimination (any statement that will be used as building block in P’s case)
th As fruit of a 4A
5 A Privilege:
 violation
D cannot be made to testify in his own criminal trial
 D does o Excluded
not have to give police any statements pre-trial (don’t help them build their case)
 D doesfrom case-to answer questions in any proceeding (civil or criminal) when those answers would expose D to criminal prosecution
not have
in-chief but
MIRANDA can still be
 Meantused to
to prevent police brutality/improper interrogation by providing warnings Common misconceptions with Miranda: Miranda warnings are not
impeach the
 BASIC RULE: Miranda rights must be read when D is: needed for a valid arrest
 - And, there is no right to an attorney under Miranda
 As a 14A due - As a suspect, Miranda gives you the right to have an attorney
process violation present while being questioned, or for police to stop
 o (1) in custody AND
o (2) subject to interrogation
 3 Exceptions to Miranda
o statement used for impeachment
o statements obtained in an emergency situation
o statements were made at the time of booking the susp in response to routine questions by police
 D must be read all Miranda rights, must be verbatim
o Meant to communicate to D that they have rights, that they are not alone – atty meant to eliminate element of coercion
 Warnings:
o 1) right to remain silent
o 2) If D wants to talk, any statements can and will be used against him
o 3) right to have an attorney present during questioning
o 4) right to an attorney without having to pay

Custody
 5th A custody ≠ 4th A seizure (BUT a 4th A arrest is always 5th A custody) Custody for 5th A Miranda > seizure under Mendenhall (4th A)
o  not the same test as for when a person is seized under Mendenhall
 Fact specific analyses
 Formal arrest ALWAYS involves custody
o Forceful removal of someone from one place to another
o Arrest is not necessary for custody/custody does not always involve arrest
o Lesser types of (finish copying from slides lesson 17 PP)
 BASIC RULE: when a reasonable person in the defendant’s position (not the D’s subjective position, not D himself) would have thought that he had
been deprived of his freedom in some significant way

Orozco v. Texas [Interrogation in the Home]

- Police come to boardinghouse at 4:00 am, random woman lets them in, they wake up D in his bedroom, question him about his presence at crime
scene and whether he owns pistol
- D eventually admits he was there and pistol is in washing machine in back of house
- No Miranda warnings read before interrogation
- BASIC RULE: D can be in custody even when questioning occurs in D’s home ( D doesn’t have to be at police station to be in custody)

Oregon v. Mathiason [Voluntarily arranged to speak to PO]

- House burglarized, home owner tells police she suspects D
- Police try contacting D, can’t get ahold of him leave him a note on his door
o D calls back, they agree to meet at police station
o D specifically told he’s NOT under arrest, and is allowed to leave after questioning
- Timing is to see whether D is in custody before questioning begins
- If D is in custody  must be read Miranda rights before interrogation begins
 - Court finds that D NOT in custody – he was asked and voluntarily arranged to come to police station AND he was released after questioning
- BASIC RULE: If someone is voluntarily at the police station and free to leave, that person is not in custody, and police need not give Miranda warnings

Berkemer v. McCarty [traffic stop]

- D pulled over for swerving while driving
- Two separate sets of statements made:
o 1) sobriety tests conducted at scene, D says he has been drinking  arrested
o 2) at police station, D makes more statements without being read Miranda
- Court holds that only statements at police station are excluded
o Statements made at scene admissible because D not in custody yet
o Traffic stop presumptively brief – circumstances don’t make motorist feel completely at mercy of police (more comparable to Terry stop) 
Miranda not required
- BASIC RULE: Police need not give Miranda warnings during a traffic stop because typically, the person is not in custody and not under arrest

Yarborough v. Alvarado [Not the Law – pre-dated JDB]

- D comes to police station with his parents, separated from them during questioning, then allowed to leave (no Miranda warnings read)
- Court find that D not in custody  Miranda not necessary
o Case could be argued either way – significant that D not focus of questioning, not arrested and allowed to leave after questioning, voluntarily
came to police station, asked if he needed to take a break
- BASIC RULE: custody-determination is fact-specific  articulate everything that supports determinations that D is in custody AND that D is not in
custody

J.D.B. v. North Carolina [Miranda applied to Juveniles]

- D 13 years old, suspected of being involved in home invasion after being seen with camera at school
- Police officer on campus, questions D with vice principal
o D removed from class, questioned in empty classroom with door closed
- BASIC RULE: court decides that D’s age must be taken into consideration when determining whether/not D is in custody for purposes of Miranda
o D who is 13 years old more likely to feel he is in custody than adult, more susceptible to police pressure/coercion

Interrogation
Rhode Island v. Innis [functional equivalent of interrogation]
- Cab driver found dead, shotgun to the back of the head; 5 days later, another cab driver reported being robbed by man with sawed-off shotgun
o Cabbie comes to police station, identifies D based on picture on bulletin board  police begin searching for D
o D spotted at 4:30 am, arrested, read Miranda warnings
o Other officers (sergeant and captain) arrive, read D Miranda again – he asserts right to an attorney
- While driving to police station, officers begin talking amongst themselves about how important it is to find the gun, since they are near a school for
developmentally delayed, don’t want a child to pick it up and accidentally shoot themselves
o D overhears conversations, tells police where gun is
- D read his warnings, says he wants to talk to his lawyer  police supposed to stop questioning immediately
 o  police NOT allowed to ask “where’s the shotgun?”
o BUT, court does not consider conversation functional equivalent of interrogation
o Conversation took place between officers, not questioning D – nothing to suggest officers were aware of D being susceptible to an appeal on
his conscience for safety of children
- BASIC RULE: Miranda applies whenever a person is in custody AND subjected to either express questioning, or its functional equivalent
o Subjective intent of officers is factor, but is not determinative
o Whether words/actions of police are reasonably likely to elicit an incriminating response from the suspect

Illinois v. Perkins [Perkins Op]

- Undercover cop poses as cellmate, investigates different case (other than the one D is incarcerated for)
- No Miranda warnings given – court finds that Miranda doesn’t apply
- BASIC RULE: Miranda doesn’t protect whenever a suspect is in custody in a technical sense (incarcerated) and converses with someone who happens
to be gov’t agent
o Here, D would obviously feel he was deprived of his freedom, but not because of questioning/police presence – only because he was
incarcerated for crime he committed earlier

P has burden of proof that waiver given by preponderance of the evidence.

Waiver
BASIC RULE: waiver of Miranda must be knowing, intelligent, and voluntary
 Knowing = D was read all Miranda rights, given full and complete warnings
o  enough to constitute a knowing (and intelligent) waiver
 Voluntary = 14th A Bustamonte – determined by TOC
o Depends on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word
o Factors:
 D’s age and experience (with criminal justice system/law enforcement)
 Number and clarity of warnings
 Duration of custody pre-waiver
 Techniques of questioning and obtaining waiver
 Food, water, sleep deprivation?
 Intelligence of D

North Carolina v. Butler [IMPLIED waivers are ALLOWED]

- D arrested in connection with kidnapping, armed robbery, and assault
o D read all of his rights, but refused to sign waiver form
o D said “I’ll talk to you but I won’t sign anything”  made incriminating statements
- BASIC RULE: implied waivers are okay, viewed from TOC
o Mere silence not enough for waiver, and court must presume that D did not waive his rights
o BUT in some cases, waiver can clearly be inferred from D’s actions and words
 Fare v. Michael C. [TOC Approach to Determine Waiver of Miranda w/ Juveniles]
- Juvenile questioned about murder, badly incriminates himself
- During questioning, indicates that he wants help and asks for his probation officer
- BASIC RULE: court holds that attorney relationship is special one  have to ask for attorney; asking for PO doesn’t violate waiver of Miranda
o TOC approach is adequate to determine whether there has been a waiver even when juvenile is interrogated
 Factors to Consider with Juveniles:
 Age
 Experience
 Education
 Background
 Intelligence
 has the capacity to understand the warnings given him
 Understand the nature of his 5A rights
 Understands the consequences of waiving rights

Moran v. Burbine
- police failed to inform suspect of his public defender’s efforts to contact him
- BASIC RULE: Events occurring outside the purview of suspect do not need to be conveyed to suspect to inform his waiver

Waiving or Asserting Miranda Right to Remain Silent

 If D asserts right to remain silent, under what circumstances can police approach D and attempt to speak to him again?

Michigan v. Mosley [Questioning about different crime after invoking right to be silent]
- Interrogation for Robbery:
o D interrogated on day of arrest in early afternoon, lasts 20 mins
o Questioned at police station on 4th floor by Detective Howie
o D read Miranda, said he didn’t want to answer questions about robberies (refused to waive Miranda)  police must stop interrogation
- Interrogation for Murder:
o D questioned again a few hours later
o Interrogated at the police station on the 9 th floor by Detective Hill
o D read Miranda again, D denies involvement – then D told that someone else already implicated him  D makes incriminating statements
- D moving to suppress statements made in murder interrogation based on his asserting his rights during robbery interrogation
- Factors to consider whether or not D’s right to remain silent was scrupulously honored:
o Original interrogation ceased immediately
o Passage of time
o New warnings, and waiver First three factors most significant – if one is lacking  look for one of the others to support
o Questioning about different crime
o Questioned by different officer
o Questioned in different location
 - Not much time passed for D, no break in chain of custody, BUT questioning was about different crime, by different officer, on different floor
- Implied waiver for murder interrogation because D started talking

Berghuis v. Thompkins [Asserting & Waiving Right to Remain Silent]

- D read Miranda, in custody, and being interrogated  has he actually asserted his right to remain silent?
o Declines to sign form acknowledging understanding of rights
o Does not he wants to remain silent or wishes not to talk to PO
- D questioned for almost 3 hours, in hard chair, small room, didn’t say much (only gave one-word answers, nodding head)
- At end of interrogation D answers yes when asked “Do you pray to God to forgive for shooting [victim]?” (Confession)
- Ct decides that D did not assert his right to remain silent by being mostly silent and instead waived his right to remain silent by eventually confessing
o Ct says 3 hours between reading Miranda and confessing does not detract from fact he “engaged in course of conduct indicating waiver”
- BASIC RULE (Re: Assertion of Right to remain silent): mere silence is too ambiguous to assert the right to remain silent  Req of an unambiguous
invocation of Miranda Rights to assert right to remain silent (Same as Davis decision for asserting right to council)
o Purpose: results in objective inquiry that avoids burdens of proof and tells officers what to do when faced with ambiguity
- BASIC RULE (Re: Waiving Right to remain silent): Where the Pros. shows Miranda warning was given and it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the right to remain silent
o Law can presume an individual with full understanding of his or her Miranda rights, acts in a manner inconsistent with their exercise of those
rights, made a deliberate choice to relinquish the protection those rights afford

Waiver and Assertion of the Right to Counsel (under Miranda)

 Court is concerned about coercion creates Miranda rule under 5th A
 Meant to tell the D that they aren’t alone, meant to dispel inherent coercion in police-dominated environment

Edwards v. Arizona [NO Questioning after invoking right to Counsel]

- Arrested/interrogated for robbery and murder, mirandized,  invokes right to counsel  interrogation stops
- Next day new detectives come to jail to interrogate him on same crime, mirandized, waives rights  confesses
o This interrogation is initiated by the detectives, not 
- BASIC RULE: once D invokes his right to counsel  no police interrogation can occur unless D initiates conversation and waive his right to counsel
o Once D asserts right, if police continue to interrogate  D’s statements will be excluded from P’s case-in-chief
o Any waiver after D invokes right to counsel is invalid, UNLESS D initiates the conversation
o Not crime specific, applies to interrogation about any offense while D is in Miranda custody (different than asserting right to remain silent,
where police may question suspect about different crime)
o  more protection for D if he asserts right to counsel:
 Interrogation MUST cease immediately
 Can’t interrogate D about another offense
 Can’t be waived unless D initiates conversation and waives right to counsel

Maryland v. Shatzer
- D is in prison, serving long sentence; police come to him in his “home” (general prison population)
 - BASIC RULE: Edwards protection doesn’t last forever
o Releasing D back into general prison population = releasing D from Miranda custody
- D is in prison, restricted freedom of movement, but he’s not in custody for Miranda purposes at all times  break in Miranda custody when D sent
back “home” to general prison population because that is his home during duration of long sentence
- 14 day rule:
o If there’s a break in Miranda custody for 14 days or more  police can re-initiate interrogation despite suspect’s prior assertion of right to
counsel
o Police can begin questioning D again as long as they wait 14 days or more after D asserts his right to counsel (although D could simply assert
right again  interrogation would have to stop again)
o Police must restate Miranda rights before resuming questioning

Davis v. US [Must be a CLEAR assertion of right to counsel for interrogation to cease]

- D request attorney an hour and a half into the interrogation by saying “maybe I should talk to a lawyer”
- Continues for another house  D says “I think I want a lawyer before I say anything else.”
- BASIC RULE: police may ignore anything that is not a crystal clear assertion of their right to counsel  D must make unambiguous request for
attorney in order for right to counsel to be asserted
o D’s assertion of right to counsel must be clear and unequivocal
o Request for counsel must be clear enough to alert a reasonable police officer under the circumstances that suspect is requesting an attorney

Minnick v. Mississippi
- D actually had chance to consult with attorney  made incriminating statements after police initiated waiver
- BASIC RULE: ability to consult with an attorney not enough to allow police-initiated waiver
o After consulting with attorney, D could still initiate conversation and waive Miranda, but police can’t initiate conversation/waiver
o Once D invokes/asserts right to counsel  police can’t reinitiate questioning unless counsel is present (even if D consulted with counsel
before interrogation resumes)
o Only way D would give up info to police with an attorney present is if D decides to snitch

STATEMENTS AND THE 6TH AMENDMENT

6th Amendment
 In all criminal prosecutions, the accused shall enjoy the right to… have the Assistance of Counsel for his defense
 BASIC RULE: 6th A right to counsel attaches automatically to a criminal prosecution with the initiation of adversarial judicial proceedings
o Arraignment: D comes to court, is informed of charges against him/her, formal reading of charges  D enters not guilty plea
 Automatically triggers 6th A
 BUT, sometimes arraignment isn’t first appearance (sometimes there is initial appearance – occurs after grand jury indictment)
o If there is preliminary hearing/initial appearance/arraignment  6th amendment right to counsel attaches
o 6th A right to counsel can only be waived by intentional relinquishment

Critical Stages
  After right to counsel attaches  court makes determination about whether proceeding is a critical stage
 If so  counsel’s presence is required
o Separate inquiry for the court to make
o Ex. Interrogation without counsel present is 6 th A violation
 Interrogation = critical stage  presence of counsel required under 6 th A

Texas v. Cobb
- D indicted for burglary, gets lawyer, 6 th A RTC for burglary has attached (formal adversarial proceedings have begun) – D released
- Police come and want to conduct interrogation (after attachment of RTC  critical stage)
o BUT, topic of interrogation is abduction, kidnapping, and murder of missing wife and child
- D confesses to his dad that he killed his wife and child  dad makes statement to police
o D arrested, Mirandized, and confesses
- Missing wife and child are related to burglary (facts are intertwined, part of same event)  defense counsel attempts to establish Miranda violation
because RTC had already attached  critical stage  counsel should have been present
- BUT kidnapping and murder not the same offense as burglary
o RTC had attached for burglary, not for kidnapping/murder
- Blockburger test to determine whether same offense: Offense 1
Offense 1
o If the elements of one offense are necessarily included in the other  same offense Offense
Offense 2
2
o ALL of the elements of (2) must be included in (1) in order for (1) and (2) to be same offense for 6 th A purposes
o Facts don’t make it the same offense, elements make it the same
- BASIC RULES:
o 6th A attaches and continues to provide protection for the same offense ( offense specific)
 Custody is irrelevant after initiation of formal judicial proceedings
 “deliberate elicitation” is concern
o 5th A Miranda is not offense specific  asserting RTC under Miranda provides protection regardless of offense
 Whether/not proceedings have begun is irrelevant
 Only matters if D is in custody and being interrogated

Purpose of Right to Counsel

Miranda Straight 6th A
- To aid D during custodial investigation  preventative rule to - To aid D once formal adversarial proceedings have begun against
protect against compulsion to confess him
- Empower D to refuse to speak to police - 6th A right to counsel is something every criminal D is entitled to
when jail time is a possibility
Bottom Line on Right to Counsel
- Requires custody - Custody irrelevant
- Stage/proceeding is irrelevant - Attaches after initiation of judicial proceedings
- Requires “interrogation” or its functional equivalent - “deliberate initiation/elicitation”
- Not offense specific - Offense specific
** sometimes both rights to counsel are applicable BUT keep them straight (they apply in different instances)

Montejo *know the rule only

- BASIC RULE: police can reinitiate interrogation of D who is represented by counsel without violating D’s 6 th A rights IF there is a valid Miranda waiver
o After arraignment, police come and reinitiate interrogation AND get a valid waiver
o  police can read Miranda rights and D waives right to counsel under 5 th AND 6th (saying he waives right to counsel)  police can interrogate
D

(1) Arrest  (2) Custody and interrogation  (3) Miranda rights read (5th A RTC)  (4) D waives knowingly and voluntarily  (5) statements made  (6) D
Arraigned (6th A RTC attaches)  (7) Miranda read again  (8) D makes valid Miranda waiver  (9) police can interrogate D without violating 6th A right

6th A and Jailhouse Informants

 One and only area where 6th A gives D greater protection than 5th A – jailhouse informants
 5th A: under Perkins, use of statements does NOT violate 5th A
o D must be in custody and subject to interrogation
o D’s cellmate asks questions (and is really a snitch)  cellmate is gov’t actor, BUT D isn’t really in custody because cellmate didn’t put him
there
o Undercover gov’t actor not required to read Miranda (would defeat purpose of being undercover)  5th A doesn’t apply to jailhouse
informants
 6 A: questions whether there is deliberate elicitation?
th

US v. Henry [When Post-indictment informants violate 6 th A]

- D arrested for armed robbery, held pretrial, counsel appointed
- FBI agent talks to Nichols (jailhouse informant), told him to be alert for statements, but not to initiate conversations
- D confesses to Nichols (paid informant)
- BASIC RULE: use of post-indictment informants violates 6 th A right to counsel Deliberate elicitation ≠ Functional
o If there is deliberate elicitation of information equivalent of interrogation
o Nichols does deliberately elicit info  statements made to him by D are excluded
DE is subjective, FEI is objective
th
Kulmann v. Wilson [When Post-indictment informants Does NOT violate 6 A]
- Lee was informant, but was only listening post, didn’t elicit any info from D
- D sees brother during visit, gets very upset, comes back to cell and tells Lee
- Court rules that Lee was just listening post  no 6th A violation  statements come in
- Facts not hugely different, but distinguishing factor is whether snitch intentionally/deliberately elicited information
- BASIC RULE: if the informant is merely a passive listener and does nothing to elicit statements, 6A is not violated
 Massiah v. US (1964)
- TAKEAWAY/IMPORTANCE: A person who has been indicted on criminal charges has as much a constitutional right to have an attorney present during
police interrogations as he does during the trial itself.
- HOLDING: ’s 5th and 6th A rights are violated where he has been indicted, he has invoked his right to counsel, and federal agents have deliberately
elicited incriminating statements from him in the absence of his retained counsel
- BASIC RULE: police cannot deliberately elicit a statement from a defendant in the absence of counsel after he has been indicted

CHALLENGES TO STATEMENTS

4th Amendment 5th Amendment 6th Amendment 14th Amendment

Challenge as FOPT Challenge as Miranda violation Challenge as violation of right to Challenge as due process violation
- 4th A violation = illegality; - D never read Miranda rights counsel - Statements not voluntary
evidence obtained afterward - Improper waiver/lack of under 14th A (Bustamonte
excluded as FOPT waiver factors, coercion, consider
- D asserts rights and police TOC)
don’t respect it
Statement out for gov’t case-in-chief Statement out for gov’t case-in-chief Statement out for gov’t case-in-chief Statement out for all purposes
Admissible for impeachment Admissible for impeachment Admissible for impeachment

5th A Miranda
 When a Miranda violation leads to
o (1) subsequent statement  Seibert governs
o (2) subsequent discovery of tangible evidence  Patane governs

Missouri v. Seibert
- Updating Elstad rule (that after D makes initial statement letting “cat out of the bag” even if he hasn’t been read Miranda rights yet, his second/later
statements may be admissible absent “deliberately coercive and improper tactics”)
- D burned down her house with son in it
o Intentionally questioned without Miranda warnings until  makes confession/incriminating statements  police take break
o After break,  read Miranda warnings, and basically asked to repeat everything she said before Miranda was given
o  second statement is product of the first (and police refer back to D’s answers 1 st interrogation)
- BASIC RULE: A second confession after a Miranda waiver is admissible only if there was a long enough break following the initial confession without a
 Miranda waiver to give a reasonable suspect the belief that he or she had a right not to speak to officers.
o when there is a continuous, rolling sequential interrogation
o Can the warnings advise the suspect that there is a real choice about making statements?
o Elstad RULE: Subsequent statement admissible when first statement was made under “good-faith Miranda mistake”
o Factors to Analyze:
 Completeness and detail of the questions and answers in the first interrogation round
 Elstad: PO only commented he thought was involved in burglary
 Seibert: asked detailed and complete questions about the crime.
 Overlapping content of the 2 statements
 Elstad: first statement was one incriminating sentence and second statement was full confession
 Seibert: second statement was a reiteration of 1 st interrogation statement
 Timing of both statements (how much time in between statements)
 Elstad: first occurred shortly prior to arrest and second occurred after arrest and was driven to station
 Setting where both statements are made
 Elstad: one interrogation occurred at ’s home and second occurred at station
 Seibert: Both occurred at station in interrogation room
 Continuity of police personnel (Same interrogators?)
 Elstad: different interrogators
 Seibert: Same interrogators in both interrogations
 Degree to which interrogator’s questions treated the second round as continuous with the first
 Seibert: Interrogators kept referring back to what she said in first interrogation

U.S. v. Patane [Physical Evid Exception]

- Police advise D of right to be silent, D interrupts and says he knows his rights  police don’t read the rest
- To have knowing waiver, police MUST read everything  P concedes Miranda warning was inadequate
- Police ask D about gun, D tells police where it is
o Statement “it’s in the bedroom” is inadmissible
o BUT, gun comes in as physical evidence
- BASIC RULE: if a statement is a violation of Miranda, but it leads to the discovery of physical evidence  the statement is excluded, but the physical
evidence comes in

Miranda Violation Exceptions

1. Impeachment (statement taken in violation of Miranda can be used to impeach D if he testifies differently at trial)
2. Public Safety

Harris v. New York (Impeachment)

- BASIC RULE: Statements gained from a criminal  in violation of Miranda, can still be used to impeach the  if he chooses to testify at trial.

New York v. Quarles [Public Safety/Emergency]

 - Woman approached two police officers, told them she had just been raped by black man wearing jacket that said “Big Ben” on the back, told them he
had gun, and was heading to supermarket
- Police go to store, D sees them, tries to run, police corner him, empty gun holster
- Terry Stop: RAS that rape has taken place – eye witness/victim IDs suspect, tells police exactly what he looked like and where he was  RAS to
stop/seize
o RAS to frisk – victim said he had a gun  RAS that D was armed and dangerous
o  valid Terry stop
- TOC to determine whether D was in custody:
o Police officers pursued him with guns drawn, D handcuffed after being frisked, police tell him to stop, and trap him in corner of store
o Police directly ask “where’s the gun?”  interrogation
- D in custody AND interrogated  should have been read Miranda rights
o Gun comes in under Patane as physical evidence regardless of Miranda violation
o BUT, statements also come in based on public safety exception to Miranda
- BASIC RULE: if police are asking questions for public safety concerns  exception to Miranda
o Must be objective public safety concern – almost instinctive for cops to ask questions to maintain public safety
o Only applies in rare circumstances with facts similar to Quarles

IDENTIFICATION

 Out-of-court statements of identification ARE admissible (defined as NOT hearsay)

Identification Anlaysis (on PP lecture 22)
Problems with Eye Witness IDs:
1. Faulty perception of event – stress, lighting, obstructions, weapon focus, distractions, see what one expects to see, time distortion
2. Cross-racial misidentifications
3. Memory Problems over times – memory declines within an hour, once W selects someone  that image is in memory of event (memory replays the
person W picks)
4. Problems with procedure – no test subjects, desire to please police, unconscious and conscious suggestion, influence of drugs, alcohol, and substances
Challenges to ID Testimony
Out of Court Procedure:
 Is testimony about the out of court proc allowed in court?
o 4th A: FOPT if there is 4th A violation
o 6th A: Wade, Ash, Kirby
o 14th A: M v. B, Biggers, Fosters, Simmons, Stovall
In Court ID
  Is it a FRUIT of out of court ID proc?
o Wade governs regardless of type of violation (4th, 6th, 14th)
6th A Violations - The Right to Counsel in Lineups
U.S. v. Wade (1967)
- Wade () is forced to participate in a lineup after counsel was appointed and without notice to his counsel
- 2 Issues:
o Was the out of court ID a violation of 6 th A right to counsel?
o If, so, should the court have excluded the in court ID as FOPT of unconstitutional out of court procedure?
- 6 A attached because proceedings against D had begun  he was indicted  formal proceedings begun (arraignment – formal presentation in ct w/
th

counsel present)
- Line Ups are Critical Stage  D has right to counsel at ALL critical stages once 6 th A attached
- D’s Atty’s presence at lineup is crucial to their ability to conduct meaningful confrontation at trial of the wit
- 2 BASIC RULES:
o A post-indictment wit ID of a crim suspect, conducted w/out notice to and in absence of suspect’s counsel, violates the 6th A right to assistance
of counsel. (Does not require much analysis)
o Exclusion of the out-of-court ID does not automatically exclude an in-court ID  must determine whether the in-court ID is fruit of tainted ID
procedure OR does it have an independent source? (Analyze the factors)
 Factors:
 What was the Wit’s prior opportunity to view the susp during original crim act? (How well was the Wit able to see the susp during
NOTE: PROS must
criminal act? What were the circumstances? Wit far or close to susp? Obst of view? Weapon focus? Length of encounter?)
prove in-court ID
is indep by clear  Was there an instance where Wit ID’s  via alternative ID proc prior to problematic ID proc in question? (Prior ID must be credible,
and convincing not problematic  favors ct allowing in court ID) (EX: prior ID before official proceedings began)
evid.  How much time is between the original crime and the problematic ID?
 Did Wit fail to ID the  on a previous occasion?
 Did Wit ID anyone else prior to problematic ID?
 Is there discrepancies between Wit’s description of  and ’s actual appearance?
Kirby v. Illinois (No rt to counsel prior to formal judicial proceedings)
- BASIC RULE: NO right to counsel during ID proc before 6 th A right attaches, but can still look if the proc was fair under the 4 th or 14th A.
Ash (No rt to Counsel for photo arrays)
- BASIC RULE: Right to counsel only applies to show ups and lineups, NOT photo arrays.

14th A Due Process Violations – Unnecessarily Suggestive ID Procedures

 - TOC analysis
3 Step Analysis
1. Was the ID proc suggestive?
2. If the ID proc was suggest, was it necessarily suggestive?
3. Was the ID reliable? (overlapping factors w/ Wade factors)
a.
Stovall v. Denno
- D stabbed husband to death and stabbed wife 11x
- Wife hospitalized for life saving surgery
- After arraignment, W/out letting D retain attorney yet, after wife’s surgery, showed D to her in hospital room
o Wade does not apply retroactively —> ID not thrown out for lawyer not present
- D was handcuffed and surrounded by 5 PO and 2 Das
- D was only black person in room
- Holding: under these circs the ID procedures were necessary —> no 14 th A due process violation
- BASIC RULE: unnecessarily suggestive ID procedures that can lead to mistaken identity violate 14 th A dues process
o TOC analysis

Foster v. California
- D in lineup with 2 men both noticeably shorter than D
- D wore leather jacket like wit saw him wearing during crime
- Wit still could not positively identify D as robber
- Wit asked to speak with D one-on-one
o D’s attorney not present
o Wit still uncertain D was robber
- 10 days later Wit asked to come back for another lineup
o 5 men in lineup and D was only person who appeared in both lineups
o Wit now says he is “convinced” D is robber
- Wit repeated ID on wit stand during trial
- HOLDING: Ct said these ID procedures were unnecessarily suggestive under these circumstances
Simmons v. US
- D arrested for bank robbery during the day time in a well lit bank
- Pointed weapon at clerk and asked for money
 - Robbers wore no masks and they were inside for approximately 5 min
- Day after robbery FBI obtains about 6 photos of D and other accomplices together
- Later, Same day, photos shown to 5 wits
o All wits ID D as one robber
- Week or two later, another photo array given and all 5 wits ID D again
- Factors Ct looked at
o What is the crime?
 Robbery w/ gun (Ct says “serious felony”)
 Robbers still at large
- HOLDING:
o NOT unnecessary for FBI to resort to photo ID in this instance, because…
 Serious felony
 Perpetrators still at large
o NOT substantial likelihood of mis-id, because…
 Robbery took place in afternoon
 Well lit bank
 Wore no masks
 Wit’s saw robbers for period of 5min during robbery
 Wit’s shown photos only day later and identified D
 Memories still fresh
 Group photos
 ID’d D in subsequent photo array as well
- BASIC RULE: Convictions based on eye witness ID at trial following a pre-trial ID by photograph will be sent aside on that ground only if the photographic
ID procedure was so impermissible suggestive so as to give rise to a very substantial likelihood of mid-id
Neil v. Biggers
- Vic raped and testifies she could see rapists face bc of the light from doorway and bright moon
- Entire incident took 15 to 30 min
- Shown potential Susp in lineups, show ups, and photoarrays
o didn’t ID anyone until she saw D during show up
- D was told to say “shut up or I’ll kill you.” During show up in front of Vic
o 2 PO present
- ISSUE: Under TOC, was the ID reliable even though the confrontation procedure was suggestive?
- HOLDING: Ct said yes because…
 o Vic spent significant time w/ D under artificial light and under full moon
o Vic of horrible crime
o Pre-ID description of Susp was “more than ordinarily thorough”
o Vic had “no doubt”
o Vic didn’t ID anyone else before IDing D
- BASIC RULE: it is the likelihood of misidentification which violates a D’s right to Due Process
Manson v. Brathwaite
- Undercover cop goes w/ informant to buy drugs from known drug dealer
- Factors:
o Opportunity to View
 Stood 2 feet away from D and observed his fave
 There was natural light so he was able to see D’s face
o Degree of attention
 It was his job to remember what D looked like so he could describe him later
 Cop was black like D and therefore able to observe more than general description of D
o Accuracy of description
 Description given minutes after transaction w/ D
 2 days later, cops was alone and viewed photo of D and identified him as drug dealer
 Described D’s race, height, build, color and style of hair, high cheekbones, and clothes
 No claim made that D did not possess features described by cop
o Wit’s level of certainty
 When identified photo cop stated “there is no question whatsoever.”
o Time between crime and confrontation
 Description of D was given minutes after crime occurred
 Photo ID took place 2 days later

Types of Eye Witness Identifications:

1) In-Court
Line-Up Photo-Array Show-Up
o Witness on stand, identifies D for the record Witness is shown line- Witness is shown display Conducted in the field, suspect is taken
2) Out-of Court up, asked to pick of photos, asked to pick and shown to W ( circumstances are
o 3 types: suspect suspect suggestive – suspect in handcuffs, only
 Line-ups person being shown to W)
 Photo-arrays D has RTC at D does NOT have RTC at
 Show-ups procedure (if 6th A has procedure D has right to counsel at procedure (if 6th
attached) A has attached)
**most problematic