Criminal Procedure Textbook

CRIMINAL PROCEDURE
LexisNexis Law School Publishing

Advisory Board
William Araiza
Professor of Law
Brooklyn Law School
Ruth Colker
Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law
Ohio State University Moritz College of Law
Olympia Duhart
Associate Professor of Law
Nova Southeastern University Shepard Broad Law School
Samuel Estreicher
Dwight D. Opperman Professor of Law
Director, Center for Labor and Employment Law
NYU School of Law
David Gamage
Assistant Professor of Law
UC Berkeley School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
Paul Marcus
Haynes Professor of Law
William and Mary Law School
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
2
CRIMINAL PROCEDURE
SEVENTH EDITION
2012 Supplement
Joseph G. Cook
Williford Gragg Professor of Law
University of Tennessee
Paul Marcus
Haynes Professor of Law
William and Mary Law School
Melanie D. Wilson
Professor of Law
University of Kansas
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(Pub. 00669)
TABLE OF CONTENTS
Chapter 2: THE FOURTH AMENDMENT AND THE DEPRIVATION OF

LIBERTY ................................................................................................................................... 6
Chapter 3: THE FOURTH AMENDMENT AND THE SEIZURE

OF EVIDENCE ....................................................................................................................... 11
Chapter 4: THE RIGHT TO COUNSEL ............................................................................. 27
Chapter 5: CONFESSIONS AND OTHER INCRIMINATING STATEMENTS .......... 32
Chapter 6: VINDICATING CONSTITUTIONAL VIOLATIONS ................................... 44
Chapter 7: PRINCIPLES OF FAIR TRIAL ...................................................................... 50
Chapter 2
THE FOURTH AMENDMENT AND THE DEPRIVATION OF LIBERTY
2.01 THE SEIZURE REQUIREMENT
Page 20: [Add to Note 3:]
But see R.H. v. State, 916 N.E.2d 260 (Ind. App. 2009). The use of pepper spray has been held
to result in a detention per se, irrespective of the suspects reaction. State v. Garcia, 217 P.3d
1032 (N.M. 2009).
2.02 THE SLIDING SCALE OF SUSPICION
[B] The Pervasive Roadblock
And see State v. Anaya, 217 P.3d 586, 589 (N.M. 2009) (Evading a marked DWI checkpoint is
a specific and articulable fact that is sufficient to predicate reasonable suspicion for an
investigatory stop.).
[C] A Modicum of Suspicion
Page 40: [Add following Note 2:]
(3) In Kramer v. State, 15 So. 3d 790, 792 (Fla. Dist. Ct. App. 5th Dist. 2009), the court
held that the suspects mere act of actively chewing, while walking late at night in a highcrime area, did not give [the officer] a reasonable suspicion to believe that Kramer was engaged
in criminal activity.).
[D] Reasonable Suspicion
Page 70: [Add to Notes:]
And see United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009) (Unlike J.L., in which a
single anonymous caller reported only possession of a gun, Smith and other callers reported
multiple gun shots fired in broad daylight and a gunman on the loose.).
[G] The Duration of the Detention
Page 86: [Add following Notes and Questions:]
ARIZONA v. UNITED STATES
United States Supreme Court
132 S. Ct. ___ (2012)
[The Court, in a 5-3 decision, held that federal law had preempted in large part a state
law, the purpose of which was to discourage and deter the unlawful entry and presence of aliens
6
and economic activity by persons unlawfully present in the United States. The following
portion of the opinion addressed the only portion of the law not deemed to be preempted.]
JUSTICE KENNEDY delivered the opinion of the Court.
...
IV
D
Section 2(B)
Section 2(B) of S.B. 1070 requires state officers to make a reasonable attempt . . . to
determine the immigration status of any person they stop, detain, or arrest on some other
legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully
present in the United States. . . . The law also provides that [a]ny person who is arrested shall
have the persons immigration status determined before the person is released. . . . The accepted
way to perform these status checks is to contact ICE [Immigration and Customs Enforcement],
which maintains a database of immigration records.
Three limits are built into the state provision. First, a detainee is presumed not to be an
alien unlawfully present in the United States if he or she provides a valid Arizona drivers license
or similar identification. Second, officers may not consider race, color or national origin . . .
except to the extent permitted by the United States [and] Arizona Constitution[s]. . . . Third, the
provisions must be implemented in a manner consistent with federal law regulating
immigration, protecting the civil rights of all persons and respecting the privileges and
immunities of United States citizens. . . .
The United States and its amici contend that, even with these limits, the States
verification requirements pose an obligation to the framework Congress put in place. The first
concern is the mandatory nature of the status checks. The second is the possibility of prolonged
detention while the checks are being performed.
1
. . . It is true that 2(B) does not allow state officers to consider federal enforcement
priorities in whether to consult ICE about someone they have detained. . . . In other words, the
officers must make an inquiry even in cases where it seems unlikely that the Attorney General
would have the alien removed. This might be the case, for example, when the alien is an elderly
veteran with significant and longstanding ties to the community. . . .
7
Congress has done nothing to suggest it is inappropriate to communicate with ICE in

these situations, however. Indeed, it has encouraged the sharing of information about possible
immigration violations. . . . A federal statute regulating the public benefits provided to qualified
aliens in fact instructs that no State or local government entity may be prohibited, or in any way
restricted, from sending to or receiving from [ICE] information regarding the immigration status,
lawful or unlawful, of an alien in the United States. . . . The federal scheme thus leaves room
for a policy requiring state officials to contact ICE as a routine matter. . . .
2
Some who support the challenge to 2(B) argue that, in practice, state officers will be
required to delay the release of some detainees for no reason other than to verify their
immigration status. . . . Detaining individuals solely to verify their immigration status would
raise constitutional concerns. See, . . . Illinois v. Caballes, 543 U.S. 405, 407 (2005) (A seizure
that is justified solely by the interest in issuing a warning ticket to the driver can become
unlawful if it is prolonged beyond the time reasonably required to complete that mission). And
it would disrupt the federal framework to put state officers in the position of holding aliens in
custody for possible unlawful presence without federal direction and supervision. Cf. Part IVC,
supra (concluding that Arizona may not authorize warrantless arrests on the basis of
removability). The program put in place by Congress does not allow state or local officers to
adopt this enforcement mechanism.
But 2(B) could be read to avoid these concerns. To take one example, a person might
be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence
of 2(B) instructs officers to make a reasonable attempt to verify his immigration status with
ICE if these is reasonable suspicion that his presence in the United States is unlawful. The state
courts may conclude that, unless the person continues to be suspected of some crime for which
he may be detained by state officers, it would not be reasonable to prolong the stop for the
immigration inquiry. . . .
To take another example, a person might be held pending release on a charge of driving
under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the
jaywalker) would appear to be subject to the categorical requirement in the second sentence of
2(B) that [a]ny person who is arrested shall have the persons immigration status determined
before [he] is released. State courts may read this as an instruction to initiate a status check
every time someone is arrested, or in some subset of those cases, rather than as a command to
hold the person until the check is complete no matter the circumstances. Even if the law is read
as an instruction to complete a check while the person is in custody, moreover, it is not clear at
this stage and on this record that the verification process would result in prolonged detention.
However the law is interpreted, if 2(B) only requires state officers to conduct a status
check during the course of an authorized, lawful detention or after a detainee has been released,
8
the provision likely would survive preemptionat least absent some showing that it has other
consequences that are adverse to federal law and its objectives. There is no need in this case to
address whether reasonable suspicion of illegal entry or another immigration crime would be a
legitimate basis for prolonging a detention, or whether this too would be preempted by federal
law. . . .
The nature and timing of this case counsel caution in evaluating the validity of 2(B).
The Federal Government has brought suit against a sovereign State to challenge the provision
even before the law has gone into effect. There is a basic uncertainty about what the law means
and how it will be enforced. At this stage, without the benefit of a definitive interpretation from
the state courts, it would be inappropriate to assume 2(B) will be construed in a way that creates
a conflict with federal law. . . . This opinion does not foreclose other preemption and
constitutional challenges to the law as interpreted and applied after it goes into effect.
JUSTICE SCALIA, concurring in part and dissenting in part.
. . . The Government has conceded that even before Section 2 was enacted, state and
local officers had state-law authority to inquire of DHS [the Department of Homeland Security]
about a suspects unlawful status and otherwise cooperate with federal immigration officers. . . .
The concession, in my view, obviates the need for further inquiry.
. . . Of course, any investigatory detention, including one under 2(B), may become an
unreasonable . . . seizur[e], U.S. Const.,, Amdt. IV, if it lasts too long. See Illinois v. Caballes
. . .. But that has nothing to do with this case, in which the Government claims that 2(B) is preempted by federal immigration law, not that anyones Fourth Amendment rights have been
violated. And I know of no reason why a protracted detention that does not violate the Fourth
Amendment would contradict or conflict with any federal immigration law.
JUSTICE ALITO, concurring in part and dissenting in part.
. . . The United States does not deny that officers may, at their own discretion, inquire
about the immigration status of persons whom they lawfully detain. Instead, the United States
argues that 2(B) is pre-empted because it impedes federal-state cooperation by mandating that
officers verify the immigration status of every detained person if there is reason to believe that
the person is unlawfully present in the country. The United States claims that 2(B)s mandate
runs contrary to federal law in that it precludes officers from taking [the Federal Governments]
priorities and discretion into account. . . .
The underlying premise of the United States argument seems to be that state and local
officers, when left to their own devices, generally take federal enforcement priorities into
account. But there is no reason to think that this premise is true. And even if it were, it would
not follow that 2(B)s blanket mandate is at odds with federal law. Nothing in the relevant
federal statutes requires state and local officers to consider the Federal Governments priorities
before requesting verification of a persons immigration status. . . .
The United States attack on 2(B) is quite remarkable. The United States suggests that a
state law may be preempted, not because it conflicts with a federal statute or regulation, but
because it is inconsistent with a federal agencys current enforcement priorities. Those priorities,
however, are not law. They are nothing more than agency policy. I am aware of no decision of
this Court recognizing that mere policy can have pre-emptive force. . . . If 2(B) were preempted at the present time because it is out of sync with the Federal Governments current
priorities, would it be unpre-empted at some time in the future if the agencys priorities changed?
...
If properly implemented, 2(B) should not lead to federal constitutional violations, but
there is no denying that enforcement of 2(B) will multiply the occasions on which sensitive
Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of
most objections to 2(B). Close and difficult questions will inevitably arise as to whether an
officer had reasonable suspicion to believe that a person who is stopped for some other reason
entered the country illegally, and there is a risk that citizens, lawful permanent residents, and
others who are lawfully present in the country will be detained. To mitigate this risk, Arizona
could issue guidance to officers detailing the circumstances that typically give rise to reasonable
suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United
States champions, the Federal Government could share its own guidelines. Arizona could also
provide officers with a nonexclusive list containing forms of identification sufficient under 2(B)
to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as
proof of legal status, the problem of roadside detentions will be greatly mitigated.
10
Chapter 3
THE FOURTH AMENDMENT AND THE SEIZURE OF EVIDENCE
3.01 OBTAINING SEARCH WARRANTS
[D] Allegations of Probable Cause
Page 151: [Add to Notes:]
(3) For a case in which the court found Ybarra, rather than Pringle, dispositive, see State
v. Johnson, 186 Ohio App. 3d 648, 929 N.E.2d 1094, 1098, 1099 (2010).
[E] Special Considerations
[9] Public School Searches
Page 255: [Add as new principal case]
SAFFORD UNIFIED SCHOOL DISTRICT # 1 v. REDDING
129 S. Ct. 2633 (2009)
Justice SOUTER delivered the opinion of the Court.
The issue here is whether a 13-year-old students Fourth Amendment right was violated
when she was subjected to a search of her bra and underpants by school officials acting on
reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to
school. Because there were no reasons to suspect the drugs presented a danger or were concealed
in her underwear, we hold that the search did violate the Constitution, but because there is reason
to question the clarity with which the right was established, the official who ordered the
unconstitutional search is entitled to qualified immunity from liability.
I
The event immediately prior to the search in question began in 13 year-old Savana
Reddings math class at Safford Middle School one October day in 2003. The assistant principal
of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he
showed her a day planner, unzipped and open flat on his desk, in which there were several
knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner
was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines.
Savana stated that none of the items in the planner belonged to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and
one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned
under school rules without advance permission. He asked Savana if she knew anything about the
pills. Savana answered that she did not. Wilson then told Savana that he had received a report
that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson
11
search her belongings. Helen Romero, an administrative assistant, came into the office, and
together with Wilson they searched Savanas backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurses office to
search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove
her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets),
which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side
and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic
area to some degree. No pills were found.
Savanas mother filed suit against Safford Unified School District # 1, Wilson, Romero,
and Schwallier for conducting a strip search in violation of Savanas Fourth Amendment rights.
The individuals, (hereinafter petitioners) moved for summary judgment, raising a defense of
qualified immunity. The District Court for the District of Arizona granted the motion on ground
that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. . . .
A closely divided Circuit sitting en banc, however, reversed. . . . [T]he Ninth Circuit held
that the strip search was unjustified under the Fourth Amendment test for searches of children by
school officials set out in New Jersey v. T.L.O. . . .
II
. . . In T.LO., we recognized that the school setting requires some modification of the
level of suspicion of illicit activity needed to justify a search, . . .and held that for searches by
school officials a careful balancing of governmental and private interests suggests that the
public interest is best served by a Fourth Amendment standard of reasonableness that stops short
of probable cause,. . . We have thus applied a standard of reasonable suspicion to determine the
legality of a school administrators search of a student, . . . and have held that a school search
will be permissible in its scope when the measures adopted are 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. . . .
Perhaps the best that can be said generally about the required knowledge component of
probable cause for a law enforcement officers evidence search is that it raises a fair
probability, . . . or a substantial chance, . . . of discovering evidence of criminal activity. The
lesser standard for school searches could as readily be described as a moderate chance of finding
evidence of wrongdoing.
III
A
In this case, the schools policies strictly prohibit the nonmedical use, possession, or sale
of any drug on school grounds, including [a]ny prescription or over-the-counter drug, except
those for which permission to use in school has been granted pursuant to Board policy. . . . 1 A
When the object of a school search is the enforcement of a school rule, a valid search assumes,
of course, the rules legitimacy. But the legitimacy of the rule usually goes without saying as it
does here. The Court said plainly in New Jersey v. T.L.O. . . ., that standards of conduct for
schools are for school administrators to determine without second-guessing by courts lacking the
12
week before Savana was searched, another student, Jordan Romero (no relation of the schools
administrative assistant), told the principal and Assistant Principal Wilson that certain students
were bringing drugs and weapons on campus, and that he had been sick after taking some pills
that he got from a classmate. . . . On the morning of October 8, the same boy handed Wilson a
white pill that he said Marissa Glines had given him. He told Wilson that students were planning
to take the pills at lunch.
Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400
mg, available only be prescription. Wilson then called Marissa out of class. Outside the
classroom, Marissas teacher handed Wilson the day planner, found within Marissas reach,
containing various contraband items. Wilson escorted Marissa back to his office.
In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and
open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson
asked where the blue pill came from, and Marissa answered, I guess it slipped in when she
gave me the IBU 400s. . . . When Wilson asked whom she meant, Marissa replied Savana
Redding. . . . Wilson then inquired about the day planner and its contents; Marissa denied
knowing anything about them. Wilson did not ask Marissa any follow up questions to determine
whether there was any likelihood that Savana presently had pills: neither asking when Marissa
received the pills from Savana nor where Savana might be hiding them.
Schwallier did not immediately recognize the blue pill, but information provided by a
poison control hotline indicated that the pill was a 200-mg dose of an anti-inflammatory drug,
generically called naproxen, available over the counter. At Wilsons direction, Marissa was then
subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later
on. The search revealed no additional pills.
It was at this juncture that Wilson called Savana into his office and showed her the day
planner. Their conversation established that Savana and Marissa were on friendly terms: while
she denied knowledge of the contraband, Savana admitted that the day planner was hers and that
she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who
had identified Savana and Marissa as part of an unusually rowdy group at the schools opening
dance in August, during which alcohol and cigarettes were found in the girls bathroom. Wilson
had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had
told the principal that before the dance, he had been at a party as Savanas house where alcohol
was served. Marissas statement that the pills came from Savana was thus sufficiently plausible
to warrant suspicion that Savana was involved in pill distribution.
experience to appreciate what may be needed. Except in patently arbitrary instances, Fourth
Amendment analysis takes the rule as a given, as it obviously should do in this case. There is no
need here either to explain the imperative of keeping drugs out of schools, or to explain the
reasons for the schools rule banning all drugs, no matter how benign, without advance
permission. Teachers are not pharmacologists trained to identify pills and powders, and an
effective drug ban has to be enforceable fast. The plenary ban makes sense, and there is no basis
to claim that the search was unreasonable owing to some defect or shortcoming of the rule it was
aimed at enforcing
13
This suspicion of Wilsons was enough to justify a search of Savanas backpack and
other clothing.2 If a student is reasonably suspected of giving out contraband pills, she is
reasonably suspected of carrying them on her person and in the carryall that has become an item
of student uniform in most places today. If Wilsons reasonable suspicion of pill distribution
were not understood to support searches of outer clothes and backpack, it would not justify any
search worth making. And the look into Savanas bag, in her presence and in the relative privacy
of Wilsons office, was not excessively intrusive, any more than Romeros subsequent search of
her outer clothing.
B
Here it is that the parties part company, with Savanas claim that extending the search at
Wilsons behest to the point of making her pull out her underwear was constitutionally
unreasonable. The exact label for this final step in the intrusion is not important, though strip
search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes
down to her underwear, and then pull out her bra and the elastic band on her underpants. . . .
Although Romero and Schwallier stated that they did not see anything when Savana followed
their instructions, . . . we would not define strip search and its Fourth Amendment consequences
in a way that would guarantee litigation about who was looking and how much was seen. The
very fact of Savanas pulling her underwear away from her body in the presence of the two
officials who were able to see her necessarily exposed breasts and pelvic area to some degree,
and both subjective and reasonable societal expectations of personal privacy support the
treatment of such a search as categorically distinct, requiring distinct elements of justification on
the part of school authorities for getting beyond a search of outer clothing and belongings.
Savanas subjective expectation of privacy against such a search is inherent in her
account of it as embarrassing, frightening, and humiliating. The reasonableness of her
expectation (required by the Fourth Amendment standard) is indicated by the consistent
experiences of other young people similarly searched, whose adolescent vulnerability intensifies
the patent intrusiveness of the exposure. . . .
The indignity of the search does not, of course, outlaw it, but it does implicate the rule of
reasonableness as stated in T.L.O., that the search as actually conducted [be] reasonably related
in scope to the circumstances which justified the interference in the first place. . . . The scope
will be permissible, that is, when it is not excessively intrusive in light of the age and sex of the
student and the nature of the infraction. . . .
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew
beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen,
common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the
nature and limited threat of the specific drugs he was searching for, and while just about
anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that
There is no question here that justification for the school officials search was required in
accordance with the T.L.O. standard of reasonable suspicion, for it is common ground that
Savana had a reasonable expectation of privacy covering the personal things she chose to carry
in her backpack, . . . and that Wilsons decision to look through it was a search within the
meaning of the Fourth Amendment.
14
large amounts of the drugs were being passed around, or that individual students were receiving
great numbers of pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her
underwear. Petitioners suggest, as a truth universally acknowledged, that students . . . hid[e]
contraband in or under their clothing, . . . and cite a smattering of cases of students with
contraband in their underwear. . . . But when the categorically extreme intrusiveness of a search
down to the body of an adolescent requires some justification in suspected facts, general
background possibilities fall short; a reasonable search that extensive calls for suspicion that it
will pay off. But nondangerous school contraband does not raise the specter of stashes in
intimate places, and there is no evidence in the record of any general practice among Safford
Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa
suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson
ordered yielded nothing. Wilson never even determined when Marissa had received the pills
from Savana if it had been a few days before, that would weigh heavily against any reasonable
conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any
indication of danger to the students from the power of the drugs or their quantity, and any reason
to suppose that Savana was carrying pills in her underwear. We think that the combination of
these deficiencies was fatal to finding the search reasonable.
In so holding, we mean to cast no ill reflection on the assistant principal, for the record
raises no doubt that his motive throughout was to eliminate drugs from his school and protect
students from what Jordan Romero had gone through. Parents are known to overreact to protect
their children from danger, and a school official with responsibility for safety may tend to do the
same. The difference is that the Fourth Amendment places limits on the official, even with the
high degree of deference that courts must pay to the educators professional judgment.
We do mean, though, to make it clear that the T.L.O. concern to limit a school search to
reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear
for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from
outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the
degradation its subject may reasonably feel, place a search that intrusive in a category of its own
demanding its own specific suspicions.
[In the remainder of the opinion, the Court held that because the law regarding the strip
searching of students had not been clearly established, the school officials were entitled to
qualified immunity.]
[In separate opinions, Justices Stevens and Ginsburg concurred on the Fourth
Amendment issue, but dissented on the question of qualified immunity.]
Justice THOMAS, concurring in the judgment in part and dissenting in part.
I agree with the Court that the judgment against the school officials with respect to
qualified immunity should be reversed. . . . Unlike the majority, however, I would hold that the
search of Savana Redding did not violate the Fourth Amendment. The majority imposes a vague
and amorphous standard on school administrators. It also grants judges sweeping authority to
second-guess the measures that these officials take to maintain discipline in their schools and
15
ensure the health and safety of the students in their charge. This deep intrusion into the
administration of public school exemplifies why the Court should return to the common-law
doctrine of in loco parentis under which the judiciary was reluctant to interfere in the routine
business of school administration, allowing schools and teachers to set and enforce rules and to
maintain order. . . . But even under the prevailing Fourth Amendment test established by New
Jersey v. T.L.O., . . . all petitioners, including the school district, are entitled to judgment as a
matter of law in their favor.
. . . [I]n the majoritys view, although the school officials had reasonable suspicion to
believe that Redding had the pills on her person, . . . they needed some greater level a
particularized suspicion to conduct this strip search. There is no support for this contortion of
the Fourth Amendment.
The Court has generally held that the reasonableness of a searchs scope depends only on
whether it is limited to the are that is capable of concealing the object of the search. . . .
In keeping with this longstanding rule, the nature of the infraction referenced in T.L.O.
delineates the proper scope of a search of students in a way that is identical to that permitted for
searches outside the schooli.e., the search must be limited to the areas where the object of that
infraction could be concealed. . . . The reasonable suspicion that Redding possessed the pills for
distribution purposes did not dissipate simply because the search of her backpack turned up
nothing. It was eminently reasonable to conclude that the backpack was empty because Redding
was secreting the pills in a place she though no one would look. . . .
The majority compounds its error by reading the nature of the infraction aspect of the
T.L.O. test as a license to limit searches based on a judges assessment of a particular school
policy. According to the majority, the scope of the search was impermissible because the school
official must have been aware of the nature and limited threat of the specific drugs he was
searching for and because he had no reason to suspect that large amounts of the drugs were
being passed around, or that individual students were receiving great numbers of pills. . . . Thus,
in order to locate a rationale for finding a Fourth Amendment violation in this case, the majority
retreats from its observation that the schools firm no-drug policy makes sense, and there is no
basis to claim that the search was unreasonable owing to some defect or shortcoming of the rule
it was aimed at enforcing. . . .
Even accepting the majoritys assurances that it is not attacking the rules reasonableness,
it certainly is attacking the rules importance. This approach directly conflicts with T.L.O. in
which the Court was unwilling to adopt a standard under which the legality of a search is
dependent upon a judges evaluation of the relative importance of school rules. . . . Indeed, the
Court in T.L.O. expressly rejected the proposition that the majority seemingly endorsesthat
some rules regarding student conduct are by nature too trivial to justify a search based upon
reasonable suspicion. . . .
The majority has placed school officials in this impossible spot by questioning whether
possession of Ibuprofen and Naproxen causes a severe enough threat to warrant investigation.
Had the suspected infraction involved a street drug, the majority implies that it would have
approved the scope of the search. . . . In effect, then, the majority has replaced a school rule that
draws no distinction among drugs with a new one that does. As a result, a full search of a
students person for prohibited drugs will be permitted only if the Court agrees that the drug in
16
question was sufficiently dangerous. Such a test is unworkable and unsound. School officials
cannot be expected to halt searches based on the possibility that a court might later find that the
particular infraction at issue is not severe enough to warrant an intrusive investigation.
3.02 WARRANTLESS SEARCHES

[I] Exigent Circumstances
Page 362: [Add as new principal cases]
MICHIGAN v. FISHER
130 S. Ct. 546 (2009)
PER CURIAM.
Police officers responded to a complaint of a disturbance near Allen Road in
Brownstown, Michigan. Officer Christopher Goolsby later testified that, as he and his partner
approached the area, a couple directed them to a residence where a man was going crazy. . . .
Upon their arrival, the officers found a household in considerable chaos: a pickup truck in the
driveway with its front smashed, damaged fenceposts along the side of the property, and three
broken house windows, the glass still on the ground outside. The officers also noticed blood on
the hood of the pickup and on clothes inside of it, as well as one of the doors to the house. (It is
disputed whether they noticed this immediately upon reaching the house, but undisputed that
they noticed it before the allegedly unconstitutional entry.) Through a window, the officers could
see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door
was locked, and a couch had been placed to block the front door.
The officers knocked, but Fisher refused to answer. They saw that Fisher had a cut on his
hand, and they asked him whether he needed medical attention. Fisher ignored these questions
and demanded, with accompanying profanity, that the officers go to get a search warrant. Officer
Goolsby then pushed the front door partway open and ventured into the house. Through the
window of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew.
Fisher was charged under Michigan law with assault with a dangerous weapon and
possession of a firearm during the commission of a felony. The trial court concluded that Officer
Goolsby violated the Fourth Amendment when he entered Fishers house, and granted Fishers
motion to suppress the evidence obtained as a resultthat is, Officer Goolsbys statement that
Fisher pointed a rifle at him.
[The Michigan Court of Appeals sustained the ruling of the trial court, and the Michigan
Supreme Court denied leave to appeal.] Because the decision of the Michigan Court of Appeals
is indeed contrary to our Fourth Amendment case law, particularly Brigham City v. Stuart, 547
U.S. 398 (2006), we grant the States petition for certiorari and reverse. . .
[L]aw enforcement officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury. . . . This
17
emergency aid exception does not depend on the officers subjective intent or the seriousness
of any crime they are investigating when the emergency arises. . . . It requires only an
objectively reasonable basis for believing, . . . that a person within [the house] is in need of
immediate aid. . . .
Brigham City illustrates the application of this standard. There, police officers responded
to a noise complaint in the early hours of the morning. As they approached the house, they
could hear from within an altercation occurring, some kind of fight. . . . Following the tumult to
the back of the house whence it came, the officers saw juveniles drinking beer in the backyard
and a fight unfolding in the kitchen. They watched through the window as a juvenile broke free
from the adults restraining him and punched another adult in the face, who recoiled to the sink,
spitting blood. . . . Under these circumstances, we found it plainly reasonable for the officers to
enter the house and quell the violence, for they had an objectively reasonable basis for believing
both that the injured adult might need help and that the violence in the kitchen was just
beginning. . . .
A straightforward application of the emergency aid exception, as in Brigham City,
dictates that the officers entry was reasonable. Just as in Brigham City the police officers here
were responding to a report of a disturbance. Just as in Brigham City, when they arrived on the
scene they encountered a tumultuous situation in the houseand here they also found signs of a
recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers
could see violent behavior inside. Although Officer Goolsby and his partner did not see punches
thrown, as did the officers in Brigham City, they did see Fisher screaming and throwing things. It
would be objectively reasonable to believe that Fishers projectiles might have a human target
(perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short,
we find it as plain here as we did in Brigham City that the officers entry was reasonable under
the Fourth Amendment. . . .
JUSTICE STEVENS, with whom JUSTICE SOTOMAYOR joins, dissenting.
. . . Today, without having heard Officer Goolsbys testimony, this Court decides that the
trial judge got it wrong. I am not persuaded that he did, but even if we made that assumption, it is
hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals
making fact-intensive decisions of this kind. We ought not usrup the role of the factfinder when
faced with a close question of the reasonableness of an officers actions, particularly in a case
tried in a state court. I therefore respectfully dissent.
KENTUCKY v. KING
__ U.S. __ (2011)
JUSTICE ALITO delivered the opinion of the Court.
It is well established that exigent circumstances, including the need to prevent the
destruction of evidence, permit police officers to conduct an otherwise permissible search
without first obtaining a warrant. In this case, we consider whether this rule applies when police,
by knocking on the door of a residence and announcing their presence, cause the occupants to
18
attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances
rule does not apply in the case at hand because the police should have foreseen that their conduct
would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the
exigent circumstances rule. The conduct of the police prior to their entry into the apartment was
entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a
situation, the exigent circumstances rule applies.
I
A
This case concerns the search of an apartment in Lexington, Kentucky. Police officers
set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer
Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the
deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the
officers that the suspect was moving quickly toward the breezeway of an apartment building, and
he urged them to hurry up and get there before the suspect entered an apartment. . . .
In response to the radio alert, the uniformed officers drove into the nearby parking lot,
left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a
door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the
officers saw two apartments, one on the left and one on the right, and they did not know which
apartment the suspect had entered. Gibbons had radioed that the suspect was running into the
apartment on the right, but the officers did not hear this statement because they had already left
their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left,
they approached the door of that apartment.
Officer Steven Cobb, one of the uniformed officers who approached the door, testified
that the officers banged on the left apartment door as loud as [they] could and announced,
This is the police or Police, police, police. . . . Cobb said that [a]s soon as [the officers]
started banging on the door, they could hear people inside moving, and [i]t sounded as
[though] things were being moved inside the apartment. . . . These noises, Cobb testified, led
the officers to believe that drug-related evidence was about to be destroyed.
At that point, the officers announced that they were going to make entry inside the
apartment. . . . Cobb then kicked in the door, the officers entered the apartment, and they found
three people in the front room: respondent Hollis King, respondents girlfriend, and a guest who
was smoking marijuana. The officers performed a protective sweep of the apartment during
which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also
discovered crack cocaine, cash, and drug paraphernalia.
Police eventually entered the apartment on the right. Inside, they found the suspected
drug dealer who was the initial target of the investigation.
B
In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in
marijuana, first degree trafficking in a controlled substance, and second-degree persistent felony
offender status. Respondent filed a motion to suppress the evidence from the warrantless search,
but the Circuit Court denied the motion. The Circuit Court concluded that the officers had
19
probable cause to investigate the marijuana odor and that the officers properly conducted [the
investigation] by initially knocking on the door of the apartment unit and awaiting the response
or consensual entry. . . . Exigent circumstances justified the warrantless entry, the court held,
because there was no response at all to the knocking, and because Officer Cobb heard
movement in the apartment which he reasonably concluded were persons in the act of destroying
evidence, particularly narcotics because of the smell. . . . Respondent then entered a conditional
guilty plea, reserving his right to appeal the denial of the suppression motion. The court
sentenced respondent to 11 years imprisonment.
The Kentucky Court of Appeals affirmed. It held that exigent circumstances justified the
warrantless entry because the police reasonably believed that evidence would be destroyed. The
police did not impermissibly create the exigency, the court explained, because they did not
deliberately evade the warrant requirement.
The Supreme Court of Kentucy reversed. . . As a preliminary matter, the court observed
that there was certainly some question as to whether the sound of persons moving [inside the
apartment] was sufficient to establish that evidence was being destroyed. . . . But the court did
not answer that question. Instead, it assume[d] for the purpose of argument that exigent
circumstances existed. . . .
To determine whether police impermissibly created the exigency, the Supreme Court of
Kentucky announced a two-part test. First, the court held, police cannot deliberately creat[e]
the exigent circumstances with the bad faith intent to avoid the warrant requirement. . . .
Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances
if it was reasonably foreseeable that the investigative tactics employed by the police would
create the exigent circumstances. . . . Although the court found no evidence of bad faith, it held
that exigent circumstances could not justify the search because it was reasonably foreseeable that
the occupants would destroy evidence when the police knocked on the door and announced their
presence. . . .
We granted certiorari. . . .
II
...
B
Over the years, lower courts have developed an exception to the exigent circumstances
rule, the so-called police-created exigency doctrine. Under this doctrine, police may not rely
on the need to prevent destruction of evidence when that exigency was created or
manufactured by the conduct of the police. . . .
In applying this exception for the creation or manufacturing of an exigency by the
police, courts require something more than mere proof that fear of detection by the police caused
the destruction of evidence. An additional showing is obviously needed because, as the Eighth
Circuit has recognized, in some sense the police always create the exigent circumstances.
United States v. Duchi, 906 F.2d 1278, 1284 (CA8 1990). That is to say, in the vast majority of
cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason
for the destruction is fear that the evidence will fall into the hands of law enforcement.
20
Destruction of evidence issues probably occur most frequently in drug cases because drugs may
be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in
possession of valuable drugs are unlikely to destroy them unless they fear discovery by the
police. Consequently, a rule that precludes the police from making a warrantless entry to prevent
the destruction of evidence whenever their conduct causes the exigency would unreasonably
shrink the reach of this well-established exception to the warrant requirement.
Presumably for the purpose of avoiding such a result, the lower courts have held that the
police-created exigency doctrine requires more than simple causation, but the lower courts have
not agreed on the test to be applied. Indeed, the petition in this case maintains that [t]here are
currently five different tests being used by the United States Courts of Appeals, . . . and some
state courts have crafted additional tests . . ..
III
A
Despite the welter of tests devised by the lower courts, the answer to the question
presented in this case follows directly and clearly from the principle that permits warrantless
searches in the first place. As previously noted, warrantless searches are allowed when the
circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense
with the warrant requirement. Therefore the answer to the question before us is that the exigent
circumstances rule justifies a warrantless search when the conduct of the police preceding the
exigency is reasonable in the same sense. Where, as here, the police did not create the exigency
by engaging or threatening to engage or threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus
allowed. 1
...
B
Some lower courts have adopted a rule that is similar to the one we recognize today. . . .
But others, including the Kentucky Supreme Court, have imposed additional requirements that
are unsound and that we now reject.
Bad faith. Some courts, including the Kentucky Supreme Court, ask whether law
enforcement officers deliberately created the exigent circumstances with the bad faith intent to
avoid the warrant requirement. . . .
This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence.
Our cases have repeatedly rejected a subjective approach, asking only whether the
circumstances, viewed objectively, justify the action. . . .
There is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should
not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they
will enter without permission unless admitted. In this case, however, no such actual threat was made, and therefore
we have no need to reach that question.
21
Reasonable foreseeability. Some courts, again including the Kentucky Supreme Court,
hold that police may not rely on an exigency if it was reasonably foreseeable that the
investigative tactics employed by the police would create the exigent circumstances. . . .
Contrary to this reasoning, however, we have rejected the notion that police may seize
evidence without a warrant only when they come across the evidence by happenstance. In
Horton . . . we held that the police may seize evidence in plain view even though the officers
may be interested in an item of evidence and fully expec[t] to find it in the course of a search. .
..
Adoption of a reasonable foreseeability test would also introduce an unacceptable degree
of unpredictability. For example, whenever law enforcement officers knock on the door of
premises occupied by a person who may be involved in the drug trade, there is some possibility
that the occupants may possess drugs and may seek to destroy them. Under a reasonable
foreseeability test, it would be necessary to quantify the degree of predictability that must be
reached before the police-created exigency doctrine comes into play.
...
Probable cause and time to secure a warrant. Some courts, in applying the policecreated exigency doctrine, fault law enforcement officers if, after acquiring evidence that is
sufficient to establish probable cause to search particular premises, the officers do not seek a
warrant but instead knock on the door and seek either to speak with an occupant or to obtain
consent to search. . . .
This approach unjustifiably interferes with legitimate law enforcement strategies. There
are many entirely proper reasons why police may not want to seek a search warrant as soon as
the bare minimum of evidence needed to establish probable cause is acquired. Without
attempting to provide a comprehensive list of these reasons, we note a few.
First, the police may wish to speak with the occupants of a dwelling before deciding
whether it is worthwhile to seek authorization for a search. They may think that a short and
simple conversation may obviate the need to apply for and execute a warrant. . . . Second, the
police may want to ask an occupant of the premises for consent to search because doing so is
simpler, faster, and less burdensome than applying for a warrant. A consensual seach also may
result in considerably less inconvenience and embarrassment to the occupants than a search
conducted pursuant to a warrant. . . . Third, law enforcement officers may wish to obtain more
evidence before submitting what might otherwise be considered a marginal warrant application.
Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is
broader in scope than the search that a judicial officer is likely to authorize based on the evidence
then available. And finally, in many cases, law enforcement may not want to execute a search
that will disclose the existence of an investigation because doing so may interfere with the
acquisition of additional evidence against those already under suspicion or evidence about
additional but as yet unknown participants in a criminal scheme.
We have said that [l]aw enforcement officers are under no constitutional duty to call a
halt to a criminal investigation the moment they have the minimum evidence to establish
probable cause. Hoffa v. United States . . .. Faulting the police for failing to apply for a search
22
warrant at the earliest possible time after obtaining probable cause imposes a duty that is
nowhere to be found in the Constitution.
Standard of good investigative tactics. Finally, some lower court cases suggest that law
enforcement officers may be found to have created or manufactured an exigency if the court
concludes that the course of their investigation was contrary to standard or good law
enforcement practices (or to the policies or practices of their jurisdictions). . . . This approach
fails to provide clear guidance for law enforcement officers and authorizes courts to make
judgments on matters that are the province of those who are responsible for federal and state law
enforcement agencies.
C
Respondent argues for a rule that differs from those discussed above, but his rule is also
flawed. Respondent contends that law enforcement officers impermissibly create an exigency
when they engage in conduct that would cause a reasonable person to believe that entry is
imminent and inevitable. . . . In respondents view, relevant factors include the officers tone of
voice in announcing their presence and the forcefulness of their knocks. But the ability of law
enforcement officers to respond to an exigency cannot turn on such subtleties.
Police officers may have a very good reason to announce their presence loudly and to
knock on the door with some force. A forceful knock may be necessary to alert the occupants
that someone is at the door. . . . Furthermore, unless police officers identify themselves loudly
enough, occupants may not know who is at their doorstep. Officers are permittedindeed,
encouragedto identify themselves to citizens, and in many circumstances this is a cause for
assurance, not discomfort. . . . Citizens who are startled by an unexpected knock on the door or
by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that
these persons are police officers. Others may appreciate the opportunity to make an informed
decision about whether to answer the door to the police.
If respondents test were adopted, it would be extremely difficult for police officers to
know how loudly they may announce their presence or how forcefully they may knock on a door
without running afoul of the police-created exigency rule. And in most cases, it would be nearly
impossible for a court to determine whether that threshold had been passed. The Fourth
Amendment does not require the nebulous and impractical test that respondent proposes.
D
For these reasons, we conclude that the exigent circumstances rule applies when the
police do not gain entry to premises by means of an actual or threatened violation of the Fourth
Amendment. This holding provides ample protection for the privacy rights that the Amendment
protects.
When law enforcement officers who are not armed with a warrant knock on a door, they
do no more than any private citizen might do. And whether the person who knocks on the door
and requests the opportunity to speak is a police officer or a private citizen, the occupant has no
obligation to open the door or to speak. . . . And even if an occupant chooses to open the door
and speak with the officers, the occupant need not allow the officers to enter the premises and
may refuse to answer any questions at any time.
23
Occupants who choose not to stand on their constitutional rights but instead elect to
attempt to destroy evidence have only themselves to blame for the warrantless exigent
circumstances search that may ensue.
IV
We now apply our interpretation of the police-created exigency doctrine to the facts of
this case.
A
We need not decide whether exigent circumstances existed in this case. Any warrantless
entry based on exigent circumstances must, of course, be supported by a genuine exigency. . . .
The trial court and the Kentucky Court of Appeals found that there was a real exigency in this
case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was
certainly some question as to whether the sound of persons moving [inside the apartment] was
sufficient to establish that evidence was being destroyed. . . . The Kentucky Supreme Court
assum[ed] for the purpose of argument that exigent circumstances existed, . . . and it held that
the police had impermissibly manufactured the exigency.
We, too, assume for purposes of argument that an exigency existed. We decide only the
question on which the Kentucky Supreme Court ruled and on which we granted certiorari.
Under what circumstances do police impermissibly create an exigency? Any question about
whether an exigency actually existed is better addressed by the Kentucky Supreme Court on
remand. . . .
B
In this case, we see no evidence that the officers either violated the Fourth Amendment or
threatened to do so prior to the point when they entered the apartment. Officer Cobb testified
without contradiction that the officers banged on the door as loud as [they] could and
announced either Police, police, police or This is the police. . . . This conduct was
entirely consistent with the Fourth Amendment, and we are aware of no other evidence that
might show that the officers either violated the Fourth Amendment or threatened to do so (for
example, by announcing that they would break down the door if the occupants did not open the
door voluntarily).
Respondent argues that the officers demanded entry to the apartment, but he has not
pointed to any evidence in the record that supports this assertion. He relies on a passing
statement made by the trial court in its opinion denying respondents motion to suppress. . . . In
recounting the events that preceded the search, the judge wrote that the officers banged on the
door of the apartment on the back left of the breezeway identifying themselves as police officers
and demanding that the door be opened by the persons inside. . . . However, at a later point in
the opinion, the judge stated that the officers initially knock[ed] on the door of the apartment
unit and await[ed] the response or consensual entry. . . . This latter statement is consistent with
the testimony at the suppression hearing and with the findings of the state appellate courts. . . .
There is no evidence of a demand of any sort, much less a demand that amounts to a threat to
violate the Fourth Amendment. If there is contradictory evidence that has not been brought to
our attention, the state court may elect to address that matter on remand.
24
Finally, respondent claims that the officers explained to [the occupants that the officers]
were going to make entry inside the apartment, . . . but the record is clear that the officers did
not make this statement until after the exigency arose. As Officer Cobb testified, the officers
knew that there was possibly something that was going to be destroyed inside the apartment,
and [a]t that point, . . . [they] explained [that they] were going to make entry. . . . (emphasis
added). Given that this announcement was made after the exigency arose, it could not have
created the exigency.
...
The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
JUSTICE GINSBURG, dissenting.
The Court today arms the police with a way routinely to dishonor the Fourth
Amendments warrant requirement in drug cases. In lieu of presenting their evidence to a neutral
magistrate, police officers may now knock, listen, then break the door down, never mind that
they had ample time to obtain a warrant. I dissent from the Courts reduction of the Fourth
Amendments force.
. . . The question presented: May police, who could pause to gain the approval of a
neutral magistrate, dispense with the need to get a warrant by themselves creating exigent
circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must
exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted
by their own conduct.
I
Two pillars of our Fourth Amendment jurisprudence should have controlled the Courts
ruling: First, whenever practical, [the police must] obtain advance judicial approval of searches
and seizures through the warrant procedure. Terry v. Ohio . . .; second, unwarranted searches
and seizures inside a home bear heightened scrutiny, Payton v. New York . . .. [T]he police
bear a heavy burden, the Court has cautioned, when attempting to demonstrate an urgent need
that might justify warrantless searches. Welsh v. Wisconsin . . .
That heavy burden has not been carried here. There was little risk that drug-related
evidence would have been destroyed had the police delayed the search pending a magistrates
authorization. As the Court recognizes, [p]ersons in possession of valuable drugs are unlikely
to destroy them unless they fear discovery by the police. . . . Nothing in the record shows that,
prior to the knock at the apartment door, the occupants were apprehensive about police
proximity. . . .
II
. . . Under an appropriately reined-in emergency or exigent circumstances exception,
the result in this case should not be in doubt. The target of the investigations entry into the
building, and the smell of marijuana seeping under the apartment door into the hallway, the
Kentucky Supreme Court rightly determined, gave the police probable cause . . . sufficient . . .
to obtain a warrant to search . . . the apartment. . . . As that court observed, nothing made it
25
impracticable for the police to post officers on the premises while proceeding to obtain a warrant
authorizing their entry.
NOTES AND QUESTIONS
(1) It would appear undisputed that the exigent circumstances justifying the warrantless
entry resulted from the police activity within the apartment building. It is equally obvious that
the offense preceding the search was initiated by the police who had set up a controlled buy.
Is the exigency for the search more dubious because, but for official inducement, the particular
crime would not have occurred at all?
(2) The officers entered the wrong apartment, a fact the Court notes but apparently
considers insignificant. Do you agree? The only facts implicating the occupants of the entered
apartment (one of whom is the respondent in this prosecution) was an odor of burning marijuana
and noises which led the officers to believe that drug-related evidence was about to be
destroyed. Should that be enough? What if marijuana use is not a crime?
The drug dealer targeted by the police presumably was inside one of the two apartments.
Once the police discover they have the wrong one, would they be justified in making a
warrantless entry into the other one, notwithstanding the absence of any suspicious odors or
sounds?
(3) Justice Ginsburg observes that exceptions to the search warrant requirement are
indeed exceptions, and warrants are presumed to be the rule. She also notes that this is
particularly the case when residential premises are the target of the search. The idea that
warrants are needed when officers have both probable cause and time to secure a warrant is
dismissed by the majority with the explanation, [t]his approach unjustifiably interferes with
legitimate law enforcement strategies. Is it possible that any requirement that a warrant must be
obtained may be seen by officers to interfere with legitimate law enforcement strategies? Does
the present case suggests that the Court will stand ready to legitimize such strategies?
(4) The King decision appears to focus solely on narcotics investigations. The dissent
seems to assume that the holding is relevant only to drug cases. Can you envision any other
situation in which the decision would validate a warrantless search which otherwise would not
come within the exigent circumstances exception?
26
Chapter 4
THE RIGHT TO COUNSEL
4.01 Recognition of the Right
The problem of public defendants with massive caseloads continues to plague the entire
U.S. criminal justice system. Excellent research has been developed on the problem. See, e.g.,
Drinan, The National Right to Counsel Act: A Congressional Solution to the National Indigent
Defense Crisis, 47 Harv. J. on Legis. 487 (2010); Symposium, Broke and Broken: Can We Fix
Our State Indigent Defense System? 75 Mo. L. Rev. 667 (2010). In In re E.S. 90 Cal. Rptr. 3d
564, 584 (Cal. App. 2009) the court wrote of the professional responsibility of defenders in
facing crushing numbers of clients.
The American Bar Association (ABA) has devoted much attention to the
obligations of a public defender in the predicament in which Hauschild found
himself. On May 13, 2006, the ABA issued its formal opinion [on point].
Noting that, as under the California Rules of Professional Conduct a public
defenders office is considered to be the equivalent of a law firm and
responsibility for handling [a] case [] falls upon [the] office as [a] whole ,
the opinion makes clear that the ethical obligations of public defenders and other
publically funded attorneys who represent indigent persons charged with crimes
are no different from those of privately retained defense counsel. Under the ABA
Opinion, a deputy public defender whose excessive workload obstructs his or her
ability to provide effective assistance to a particular client should, with
supervisorial approval, attempt to reduce the caseload, as by transferring
nonrepresentational responsibilities to others, refusing new cases, and/or
transferring cases to another lawyer with a lesser caseload. If the deputy public
defender is unable to obtain relief in that manner the ABA Opinion provides, he
or she must file a motion with the trial court requesting permission to withdraw
from a sufficient number of cases to allow the provision of competent and diligent
representation to the remaining clients. In support of the motion, counsel
should provide the court with information necessary to justify the withdrawal,
while being mindful of the obligations not to disclose confidential information or
information as to strategy or other matters that may prejudice the client. If the
request to withdraw is denied by the trial court, the attorney should pursue
appellate review.
See generally, Baxter, Gideons Ghost: Providing the Sixth Amendment Right to Counsel in
Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 342 (2010). At trial in People v. Abernathy,
926 N.E. 2d 435 (Ill. App. 2010), the defendant retained private counsel. Upon conviction he
discharged the attorney and requested appointed counsel. The trial judge denied the request
believing the defendant was not indigent. The belief was based upon the presence of retained
counsel at the trial. The ruling was reversed with the appeals court emphasizing the duty of the
trial judge to carefully consider the question of indigency: Here, the trial courtassumed that,
because Abernathy had previously been able to obtain private counsel, he was not indigent.
However, such an assumption is not in accord with Illinois law. Instead, the court is required to
27
inquire into the defendants actual financial circumstances and reach a reasoned determination
concerning indigency.
Page 382: [Add to text:]
Private lawyers in Missouri have a professional responsibility to represent indigent defendants if
necessary, for they have an obligation to perform public service. State v. Pratte, 298 S.W.3d
870 (Mo. 2009).
4.03 The Right to a Pro Se Defense
But the risk of danger or disruption must be clear before the defendant can be denied his right of
self-representation. For an exchange between judges on how clear that risk must be, see, People
v. Butler, 219 P.3d 982 (Cal. 2009) [record of violent conduct and jail restrictions not sufficient.]
The more limited view was stated in United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.
2009):
A defendant therefore has two correlative and mutually exclusive Sixth
Amendment rights: the right to have counsel, on one hand, and the right to refuse
counsel and represent himself, on the other.
But see, Lay v. State, 179 P.3d 615 (Okla. 2008) where the court required standby counsel in
all capital cases involving self-representation.
The Wisconsin Court of Appeals agreed that the trial judge has no duty to advise the
defendant of the right to self-representation. State v. Darby, 766 N.W.2d 77 (Wisc. App. 2009).
Several courts have held that the request for self-representation must be clear, it cannot be
equivocal. See, e.g., United States v. Mendez-Sanchez, 563 F.3d 935 (9th Cir. 2009):
[B]ecause the exercise of self-representation cuts off the exercise the right to
counsel, often to individual detriment, we recognize the right only when it is
asserted without equivocation. [I]f [the defendant] equivocates, he is presumed
to have requested the assistance of counsel.
But if the request is clear, and the defendant has made a knowing decision, the trial judges role
is limited. She does not have any discretion. Alongi v. Ricci, 367 Fed. Appx. 341 (3rd Cir.
2010).
Page 417 [Add to Note 4:]
The Indiana Supreme Court exercising its supervisory power now requires trial
judges to warn defendants of the dangers of self representation. Hopper v. State, 934 N.E. 2d
1086 (Ind. 2010).
28

The state constitution in Washington requires that the defendant be allowed to represent
herself on appeal, as the Faretta rationale is persuasive whether the defendant wants to make
his own case at trial or on appeal. State v. Rafay, 229 P.3d 86 (Wash. 2009).
4.04 When the Right Applies
The court in People v. White, 917 N.E.2d 1018 (Ill. App. 2009) found a Sixth Amendment
violation when defense counsel was not allowed to observe the moment of identification of the
defendant by the witness.
[A] general police policy of prohibiting counsel from observing the moment of
identification, frustrates the second purpose of Wade and Gilbert, which is to
safeguard against the inherent risks of suggestion (intentional or unintentional)
that are present in lineups generally. This is especially true in this case, where
defense counsel was in all respects prohibited from any contact with the witnesses
or those conducting the lineup.
See also, Koosed, Reforming Eyewitness Identification Law and Practices to Protect the
Innocent, 42 CREIGHTON L. REV. 595 (2009); Thompson, Beyond a Reasonable Doubt?
Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. DAVIS L. REV.
1487 (2008).
In several recent opinions, judges have evaluated the importance of having experts testify
as to the reliability of eyewitness identifications. The court in Bomas v. State, 987 A.2d 98 (Md.
2010) was clearly concerned over potential battles of the experts:
We appreciate that scientific advances have revealed (and may continue to reveal)
a novel or greater understanding of the mechanics of memory that may not be
intuitive to a layperson. Nonetheless, some of the factors of eyewitness
identification are not beyond the ken of jurors. For example, the effects of stress
or time are generally know to exacerbate memory loss and, barring a specific set
of facts, do not require expert testimony for the layperson to understand them in
the context of eyewitness testimony. In recognition of this, we believe, consistent
with our past holdings, that a flexible standard that can properly gauge the state of
the scientific art in relation to the specific facts of the case is best.
Contrast with State v. Clopten, 223 P.3d 1103 (Utah 2009):
The most troubling dilemma regarding eyewitnesses stems from the possibility
that an inaccurate identification may be just as convincing to a jury as an accurate
one. As one leading researcher said: [T]here is almost nothing more
convincing than a live human being who takes the stand, points a finger at the
defendant, and says Thats the one! Elizabeth F. Loftus, Eyewitness Testimony
29
19 (1979). Because of this overreliance on questionable eyewitnesses, juries will

often benefit from assistance as they sort reliable testimony from unreliable
testimony. The challenge arises in determining how best to provide that
assistance in cases where mistaken identification is a possibility. It is apparent
from the research that the inclusion of expert testimony carries significant
advantages over the alternatives, namely cross-examination and jury instructions.
In Turner v. Rogers, __U.S.__ (2011), a majority of the Supreme Court held that there is
no automatic right to counsel for indigent civil defendants facing jail time for civil contempt.
States are not required to give counsel in such cases, but they must provide procedural
safeguards to determine whether the parent is able to comply with the underlying support decree
which was the basis for the contempt order. In this case, the judge sentenced the defendant to a
year in jail without making an express finding about his ability to pay outstanding child support.
The majority opinion found that Turner did not get due process in his case. It also held that a
lawyer is not an automatic requirement, as the Due Process Clause allows a state to provide
fewer procedural protections to civil contempt defendants than in a criminal case, which is
governed by the Sixth Amendment. The four dissenting Justices agreed there is no right to
appointed counsel for indigent defendants facing incarceration in civil contempt proceedings.
They would not have reached the issue of alternative procedural safeguards.
4.05 Ineffective Assistance of Counsel
Page 525: [Add to comment:]
In a set of short, per curiam opinions dealing with capital cases, the Supreme Court laid
out some basic principles regarding ineffective assistance and the duty of the defense lawyer to
adequately consider mitigating factors at the sentencing stage. See, Bobby v. Van Hook, 130 S.
Ct. 13 (2009), Wong v. Belmontes, 130 S. Ct. 383 (2009), and Porter v. McCollum, 130 S. Ct.
447 (2009). In Van Hook the Justices noted that the ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases would be helpful to determine
competent assistance, but would not be the set standard. Wong established that the failure of the
defense lawyer to offer evidence that was merely cumulative would not lead to a reversal.
Porter makes clear that the lawyer will have an obligation to adduce mitigation evidence of
significance [there relating to lack of education, mental health, and trauma resulting from
battlefield service].
In a far more substantive decision, the Court in Padilla v. Kentucky, ___ U.S. ___ (2010)
applied the Sixth Amendment right to effective assistance of counsel to include a defendants
need to receive accurate advice about the immigration consequences of a possible guilty plea.
The Justices emphasized the serious consequences of deportation proceedings: The severity of
deportationthe equivalent of banishment or exile,only underscores how critical it is for
counsel to inform her noncitizen client that he faces a risk of deportation. The importance of
accurate legal advice for noncitizens accused of crimes has never been more important.
The lawyer has an obligation not to mislead the court, but also has a duty to not simply
represent that the case is frivolous. [The court must] be confident that [the lawyer] conducted
30
a thorough examination of the entire record with an eye to all potential appellate issues. United
States v. Palmer, 600 F. 3d 897, 899 (7th Cir. 2010).
31
Chapter 5
CONFESSIONS AND OTHER INCRIMINATING STATEMENTS
5.01 The Due Process Approach
Is a statement resulting from being held in the interrogation room for 11 hours necessarily
coercive? No, said the court in Commonwealth v. Tolan, 904 N.E.2d 397 (Mass. 2009), for there
the officers repeatedly offered the suspect food, drinks and the use of the restroom; plus the
interrogation was not continuous for the entire 11 hour period. But see, Crowe v. County of San
Diego, 608 F. 3d 406 (9th Cir. 2010) where the interrogation process was found to be
shock[ing] to the conscience. There, the [suspects] 14 and 15 years old, respectively were
isolated and subjected to hours and hours of interrogation during which they were cajoled,
threatened, lied to, and relentlessly pressured by teams of police officers. Psychological torture
is not an inapt description.
Page 553: [Add to Problem B:]
The courts routinely allow deceptions by the police as to evidence against the accused.
Does that change, though, if the officers lie about an official document which is supposed to
contain the incriminating evidence? Compare People v. Mays, 174 Cal. App. 4th 156 (Cal. App.
2009) [interrogation still allowed, trickery was not coercive] with Wilson v. State, 2010 WL
1905000 (Tex. 2010) [it is a state crime to present false document for purpose of affecting an
investigation.] The statement in United States v. Lall, 607 F. 3d 1277 (11th Cir. 2010) was not
allowed because the officers advised the defendant it would not be used against. But, in United
States v. Brenton-Farley, 607 F. 3d 1294 (11th Cir. 2010) the statement was allowed, even
though the court noted that some police tricks may be objectionable as a matter of ethics.
The interrogating officer there tricked the suspect into believing the investigation was about
terrorism. [However], there is no evidence they made any promise that questioning would be
limited to that subject, or gave him any assurance that statements relating to other crimes would
not be used against him. For an excellent treatment of the area, see, Wilson, An Exclusionary
Rule for Police Lies, 47 AMER. CRIM. L. REV. 1 (2010).
5.03 The Self-Incrimination Approach
In Florida v. Powell, __ U.S. __ (2010), the arresting officer read the defendant this
statement of rights:
You have the right to remain silent. If you give up the right to remain silent,
anything you say can be used against you in court. You have the right to talk to a
lawyer before answering any of our questions. If you cannot afford to hire a
lawyer, one will be appointed for you without cost and before any questioning.
You have the right to use any of these rights at any time you want during this
interview.
The state court reversed the conviction because the suspect had not been clearly informed of his
right to have counsel present during questioning. The Supreme Court disagreed, relying heavily
on Duckworth v. Eagan:
32
The Tampa officers did not entirely omi[t], any information Miranda required
them to impart. They informed Powell that he had the right to talk to a lawyer
before answering any of [their] questions and the right to use any of [his] rights
at any time [he] want[ed] during th[e] interview. The first statement
communicated that Powell could consult with a lawyer before answering any
particular question, and the second statement confirmed that he could exercise
that right while the interrogation was underway. In combination, the two
warnings reasonably conveyed Powells right to have an attorney present, not
only at the outset of interrogation, but at all times. Although the warnings were
not the clearest possible formulation of Mirandas right-to-counsel advisement,
they were sufficiently comprehensive and comprehensible when given a
commonsense reading.
For a sobering discussion of the understanding of the rights, See, Rogers, et al.,
Everyone Knows Their Miranda Rights: Implicit Assumptions and Countervailing Evidence,
16 Psych. Pub. Pol. and L. 300 (2010).
The custody issue continues to be difficult. See, e.g., United States v. Slaight, 620 F. 3d
816, 817 (7th Cir. 2010) [.. officers made ingenious, pertinacious, but ultimately (as it seems
to us) transparent efforts to disguise a custodial interrogation as a noncustodial:interviewed
suspect at police station , he did not have car; two large officers and suspect, pretty much filled
up the room]; United States v. Hargrove, 625 F 3d. 170, 179 (4th Cir. 2010) [no custody, even
though officers were armed upon entry of defendants home and conducted pat down no
substantial level of control over defendant]; United States v. Bassignani, 560 F.3d. 989 (9th Cir.
2009) [because defendant was interviewed for 2 hours in a familiar place, a conference
room at his workplace, he was not in custody he was also told he was not under arrest]; State v.
James, 225 P.3d 1169 (Idaho 2010) [even though officer threatened to arrest all occupants of the
car unless one confessed, the threat of lawful arrest alone does not transform non-custodial
questioning into the functional equivalent of arrest]; In re C.H., 763 N.W.2d. 708 (Neb. 2009)
[officers failure to advise 14-year old student he was free to leave principals office meant the
suspect was in custody, such advice is crucial]; United States v. Harrold, 679 F.Supp.2d. 1336
(N.D. Ga. 2009) [suspect was in custody despite having gone to the police station voluntarily;
her wallet and identification were taken from her, she was put in a locked room, and she was
never told she could leave].
Page 624, [Add to Problem F: Custody]
The Supreme Court followed Justice OConnors lead in J.D.P. v. North Carolina, __
U.S.__ (2011). There the Justices split sharply, in a 5-4 decision with the majority holding that
a trial court must take into consideration the age of a minor defendant in determining whether the
custody element for Miranda is present.
Justice Alito, in the dissenting opinion, condemned what he saw as the majority using the
case to run Miranda off the rails...[resulting in ] the extreme makeover of Miranda. For the
dissenters the holding was both harmful and unnecessary:
33
First, many minors subjected to police interrogation are near the age of majority, and for
these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second,
many of the difficulties in applying the Miranda custody rule to minors arise because of
the unique circumstances present when the police conduct interrogations at school. The
Miranda custody rule has always taken into account the setting in which questioning
occurs, and accounting for the school setting in such cases will address many of these
problems. Third, in cases like the one now before us, where the suspect is especially
young, courts applying the constitutional voluntariness standard can take special care to
ensure that incriminating statements were not obtained through coercion.
The majority, in an opinion by Justice Sotomayor, strongly disagreed, [s]eeing no reason for
police officers or courts to blind themselves to [the] commonsense reality...that a childs age
properly informs the Miranda custody analysis. She explained further:
[A] reasonable child subjected to police questioning will sometimes feel pressured to
submit when a reasonable adult would fee free to go. We think it clear that courts can
account for that reality without doing any damage to the objective nature of the custody
analysis.....
[C]hildren generally are less mature and responsible than adults, ... they often lack the
experience, perspective, and judgment to recognize and avoid choices that could be
detrimental to them, ... they are more vulnerable or susceptible to...outside pressures
than adults....[E]vents that would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens....
.
Our history is replete with laws and judicial recognition that children cannot be viewed
simply as miniature adults....So long as the childs age was known to the officer at the
time of the interview, or would have been objectively apparent to any reasonable officer,
including age as part of the custody analysis requires officers neither to consider
circumstances unknowable to them, nor to anticipat[e] the frailties or idiosyncrasies
of the particular suspect whom they question....
The test is objective: the actual, subjective beliefs of the defendant and the interviewing
officer on whether the defendant was free to leave are irrelevant. United States v. Lall, 607 F.
3d 1277, 1284 (11th Cir. 2010). One court identified five key factors to consider in the
determination:
(1) [W]hether the officers told the suspect he was under arrest or free to leave; (2) the
location or physical surrounding of the interrogation; (3) the length of the interrogation;
(4) whether the officers used coercive tactics such as hostile tones of voice, the display of
weapons, or physical restraint of the suspects movement; and (5) whether the suspect
voluntarily submitted to questioning.
United States v. King, 604 F. 3d. 125, 138 (3rd Cir. 2010)
34

Defendant in custody was shown a video of him committing a crime. Is this interrogation? Yes,
decided the court in United States v. Green, 541 F.3d 176 (3rd Cir. 2008); the judges there could
hardly imagine a more prototypical example of his functional equivalent of interrogation.
Courts here are supposed to look to an objective standard, were the officers actions
reasonably likely to elicit an incriminating response? Still, the subjective standard continues to
creep into the analysis. See, Rodriguez v. States, 991 A. 2d 100 (Md. Ct. Sp. App. 2010) [Officer
testified that she had no intention of interrogating the appellant during the transport for
investigative purposes.]; Shaneberger v. Jones, 615 F. 3d 448 (6th Cir. 2010) [While we do
not focus on the intent of the police, a practice that is subjectively intended to elicit an
incriminating response will very likely produce a finding that the police should have known that
such a result would occur.]
The police officer in United States v. Blake, 571 F.3d. 331 (4th Cir. 2009) taunted the
17-year old suspect by showing him a charging sheet with a possible death sentence, and saying,
I bet you want to talk now. Held, not interrogation.
The taunt at most contained an implicit suggestion that Blake would be wise to
cooperate in light of the information contained in the statement of charges. In the
absence of any explanation of why cooperating, rather than conferring with a
lawyer, would be the best choice for Blake, [Officer] Reese could not have
reasonably anticipated that his taunt would convince Blake to change his mind.
Thus, we conclude that any marginal coercive effect that Reese reasonably would
have expected the remark to have was even more subtle than that of the
conversation at issue in Innis.
The issue here is not whether a statement is made in response to a particular question. The
entire course of conduct of the officers must be examined to determine whether the statement
was in response to unlawful questioning under Miranda. United States v. Jackson, 544 F.3d.
351, 357 (1st Cir. 2008).
Once a suspect requests counsel, does that request stay in force forever? No, said the
Supreme Court in Maryland v. Shatzer, __ U.S. __ (2010). The suspect there was interrogated
and asked for a lawyer. Thereafter, he was released from custody and then confessedin
response to police questioningthree years later. The Court found such a request for counsel
would not last for all time. And, the Justices concluded, it would be impractical to let lower
courts decide on a case-by-case basis the appropriate time period for such a request. So, they set
a quite specific limit: In our judgment, 14 days will provide plenty of time for the suspect to get
reacclimated to his normal life, to consult with friends and counsel and to shake off any residual
coercive effects of his prior custody.
35

Did these cases involve unambiguous requests for silence or a lawyer: United States v.
Plugh, 576 F.3d 135 (2nd Cir. 2009): defendant refused to sign waiver form and made vague
statement of I dont know if I need a lawyer [unambiguous, officers should construe those
words and refusal to sign as a negative answer to question of whether he was willing to talk];
United States v. DeLaurentiis, 629 F.Supp.2d 68 (D. Me. 2009): defendant asked to speak with
her uncle whom she identified as a lawyer [clear request for a lawyer, she told the police she
wanted to call my Uncle Steve who is an attorney, and they wouldnt let me do it]; State v.
Schroeder, 777 N.W.2d 793 (Neb. 2010) [suspect said, Thats the end of this conversation, Im
done ambiguous, not sufficient clarity.]
Page 664 [Add as new principal case]:
BERGHUIS V. THOMPKINS
___ U.S. __ (2010)
JUSTICE KENNEDY delivered the opinion of the Court.
I
A
On January 10, 2000, a shooting occurred outside a mall in Southfield, Michigan. Among
the victims was Samuel Morris, who died from multiple gunshot wounds. The other victim,
Frederick France, recovered from his injuries and later testified. Thompkins, who was a suspect,
fled. About one year later he was found in Ohio and arrested there.
Two Southfield police officers traveled to Ohio to interrogate Thompkins, then awaiting
transfer to Michigan. The interrogation began around 1:30 p.m. and lasted about three hours. The
interrogation was conducted in a room that was 8 by 10 feet, and Thompkins sat in a chair that
resembled a school desk (it had an arm on it that swings around to provide a surface to write on).
At the beginning of the interrogation, one of the officers, Detective Helgert, presented
Thompkins with a form derived from the Miranda rule. It stated:
NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have a right to talk to a lawyer before answering any questions and you
have the right to have a lawyer present with you while you are answering any
questions.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you
before any questioning, if you wish one.
36
5. You have the right to decide at any time before or during questioning to use
your right to remain silent and your right to talk with a lawyer while you are being
questioned.
Helgert asked Thompkins to read the fifth warning out loud. Thompkins complied.
Helgert later said this was to ensure that Thompkins could read, and Helgert concluded that
Thompkins understood English. Helgert then read the other four Miranda warnings out loud and
asked Thompkins to sign the form to demonstrate that he understood his rights. Thompkins
declined to sign the form. The record contains conflicting evidence about whether Thompkins
then verbally confirmed that he understood the rights listed on the form.
Officers began an interrogation. At no point during the interrogation did Thompkins say
that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an
attorney. Thompkins was [l]argely silent during the interrogation, which lasted about three
hours. He did give a few limited verbal responses, however, such as yeah, no, or I dont
know. And on occasion he communicated by nodding his head. Thompkins also said that he
didnt want a peppermint that was offered to him by the police and that the chair he was
sitting in was hard.
About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, Do you
believe in God? Thompkins made eye contact with Helgert and said Yes, as his eyes
well[ed] up with tears. Helgert asked, Do you pray to God? Thompkins said Yes.
Helgert asked, Do you pray to God to forgive you for shooting that boy down? Thompkins
answered Yes and looked away. Thompkins refused to make a written confession, and the
interrogation ended about 15 minutes later.
Thompkins was charged with first-degree murder, assault with intent to commit murder,
and certain firearms-related offenses. He moved to suppress the statements made during the
interrogation. He argued that he had invoked his Fifth Amendment right to remain silent,
requiring police to end the interrogation at once.
III
The Miranda Court formulated a warning that must be given to suspects before they can
be subjected to custodial interrogation. The substance of the warning still must be given to
suspects today. A suspect in custody must be advised as follows:
He must be warned prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires.
All concede that the warning given in this case was in full compliance with these requirements.
The dispute centers on the responseor nonresponsefrom the suspect.
A
Thompkins makes various arguments that his answers to questions from the
detectives were inadmissible. He first contends that he invoke[d] his privilege to remain
silent by not saying anything for a sufficient period of time, so the interrogation should have
cease[d] before he made his inculpatory statements.
37
This argument is unpersuasive. In the context of invoking the Miranda right to counsel,
the Court in Davis v. United States, 512 U. S. 452, 459 (1994), held that a suspect must do so
unambiguously. If an accused makes a statement concerning the right to counsel that is
ambiguous or equivocal or makes no statement, the police are not required to end the
interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda
rights.
The Court has not yet stated whether an invocation of the right to remain silent can be
ambiguous or equivocal, but there is no principled reason to adopt different standards for
determining when an accused has invoked the Miranda right to remain silent and the Miranda
right to counsel at issue in Davis. Both protect the privilege against compulsory selfincrimination, by requiring an interrogation to cease when either right is invoked
There is good reason to require an accused who wants to invoke his or her right to remain
silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights
results in an objective inquiry that avoid[s] difficulties of proof and . . . provide[s] guidance to
officers on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement
could require police to end the interrogation, police would be required to make difficult decisions
about an accuseds unclear intent and face the consequence of suppression if they guess
wrong. Suppression of a voluntary confession in these circumstances would place a significant
burden on societys interest in prosecuting criminal activity. Treating an ambiguous or equivocal
act, omission, or statement as an invocation of Miranda rights might add marginally to
Mirandas goal of dispelling the compulsion inherent in custodial interrogation. But as
Miranda holds, full comprehension of the rights to remain silent and request an attorney are
sufficient to dispel whatever coercion is inherent in the interrogation process.
Thompkins did not say that he wanted to remain silent or that he did not want to talk with
the police. Had he made either of these simple, unambiguous statements, he would have invoked
his right to cut off questioning. Here he did neither, so he did not invoke his right to remain
silent.
B
We next consider whether Thompkins waived his right to remain silent. Even absent
the accuseds invocation of the right to remain silent, the accuseds statement during a
custodial interrogation is inadmissible at trial unless the prosecution can establish that the
accused in fact knowingly and voluntarily waived [Miranda] rights when making the
statement. The waiver inquiry has two distinct dimensions: waiver must be voluntary in
the sense that it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception, and made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.
Some language in Miranda could be read to indicate that waivers are difficult to establish
absent an explicit written waiver or a formal, express oral statement. Miranda said a valid
waiver will not be presumed simply from the silence of the accused after warnings are given or
simply from the fact that a confession was in fact eventually obtained.
The course of decisions since Miranda, informed by the application of Miranda warnings
in the whole course of law enforcement, demonstrates that waivers can be established even
38
absent formal or express statements of waiver that would be expected in, say, a judicial hearing
to determine if a guilty plea has been properly entered. The main purpose of Miranda is to ensure
that an accused is advised of and understands the right to remain silent and the right to
counsel.
One of the first cases to decide the meaning and import of Miranda with respect to the
question of waiver was North Carolina v. Butler. The Butler Court, after discussing some of the
problems created by the language in Miranda, established certain important propositions. Butler
interpreted the Miranda language concerning the heavy burden to show waiver, in accord with
usual principles of determining waiver, which can include waiver implied from all the
circumstances. And in a later case, the Court stated that this heavy burden is not more than the
burden to establish waiver by a preponderance of the evidence.
The prosecution therefore does not need to show that a waiver of Miranda rights was
express. An implicit waiver of the right to remain silent is sufficient to admit a suspects
statement into evidence. Butler made clear that a waiver of Miranda rights may be implied
through the defendants silence, coupled with an understanding of his rights and a course of
conduct indicating waiver. The Court in Butler therefore retreated from the language and
tenor of the Miranda opinion, which suggested that the Court would require that a waiver . . .
be specifically made.
If the State establishes that a Miranda warning was given and the accused made an
uncoerced statement, this showing, standing alone, is insufficient to demonstrate a valid
waiver of Miranda rights. The prosecution must make the additional showing that the accused
understood these rights. Where the prosecution shows that a Miranda warning was given and
that it was understood by the accused, an accuseds uncoerced statement establishes an implied
waiver of the right to remain silent.
The record in this case shows that Thompkins waived his right to remain silent. There is
no basis in this case to conclude that he did not understand his rights; and on these facts it
follows that he chose not to invoke or rely on those rights when he did speak.
In order for an accuseds statement to be admissible at trial, police must have given the
accused a Miranda warning. If that condition is established, the court can proceed to consider
whether there has been an express or implied waiver of Miranda rights. In making its ruling on
the admissibility of a statement made during custodial questioning, the trial court, of course,
considers whether there is evidence to support the conclusion that, from the whole course of
questioning, an express or implied waiver has been established. Thus, after giving a Miranda
warning, police may interrogate a suspect who has neither invoked nor waived his or her
Miranda rights. On these premises, it follows the police were not required to obtain a waiver of
Thompkinss Miranda rights before commencing the interrogation.
D
In sum, a suspect who has received and understood the Miranda warnings, and has not
invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement
39
to the police. Thompkins did not invoke his right to remain silent and stop the questioning.
Understanding his rights in full, he waived his right to remain silent by making a voluntary
statement to the police. The police, moreover, were not required to obtain a waiver of
Thompkinss right to remain silent before interrogating him.
The judgment of the Court of Appeals is reversed, and the case is remanded with
instructions to deny the petition.
It is so ordered.
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The Court concludes today that a criminal suspect waives his right to remain silent if,
after sitting tacit and uncommunicative through nearly three hours of police interrogation, he
utters a few one-word responses. The Court also concludes that a suspect who wishes to guard
his right to remain silent against such a finding of waiver must, counter intuitively, speakand
must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in
favor of the police. Both propositions mark a substantial retreat from the protection against
compelled self-incrimination that Miranda v. Arizona has long provided during custodial
interrogation.
The strength of Thompkins Miranda claims depends in large part on the circumstances
of the 3-hour interrogation, at the end of which he made inculpatory statements later introduced
at trial. The Courts opinion downplays record evidence that Thompkins remained almost
completely silent and unresponsive throughout that session. One of the interrogating officers,
Detective Helgert, testified that although Thompkins was administered Miranda warnings, the
last of which he read aloud, Thompkins expressly declined to sign a written acknowledgment
that he had been advised of and understood his rights. There is conflicting evidence in the record
about whether Thompkins ever verbally confirmed understanding his rights. The record contains
no indication that the officers sought or obtained an express waiver.
As to the interrogation itself, Helgert candidly characterized it as very, very one-sided
and nearly a monologue. Thompkins was [p]eculiar, [s]ullen, and [g]enerally quiet.
Helgert and his partner did most of the talking, as Thompkins was not verbally
communicative and [l]argely remained silent. To the extent Thompkins gave any response,
his answers consisted of a word or two. A yeah, or a no, or I dont know. . . . And
sometimes . . . he simply sat down . . . with [his] head in[his] hands looking down. Sometimes . .
. he would look up and make eye-contact would be the only response. After proceeding in this
fashion for approximately 2 hours and 45 minutes, Helgert asked Thompkins three questions
relating to his faith in God. The prosecution relied at trial on Thompkins one-word answers of
yes.
Thompkins nonresponsiveness is particularly striking in the context of the officers
interview strategy, later explained as conveying to Thompkins that this was his opportunity
to explain his side [of the story] because[e]verybody else, including [his] co-[d]efendants,
had given their version, and asking him [w]ho is going to speak up for you if you dont
speak up for yourself? Yet, Helgert confirmed that the only thing [Thompkins said]
40
relative to his involvement [in the shooting] occurred near the end of the interviewi.e., in
response to the questions about God. The only other responses Helgert could remember
Thompkins giving were that [h]e didnt want a peppermint and the chair that he was
sitting in was hard. Nevertheless, the Michigan court concluded on this record that
Thompkins had not invoked his right to remain silent because he continued to talk with the
officer, albeit sporadically, and that he voluntarily waived that right.
Even when warnings have been administered and a suspect has not affirmatively invoked
his rights, statements made in custodial interrogation may not be admitted as part of the
prosecutions case in chief unless and until the prosecution demonstrates that an individual
knowingly and intelligently waive[d] [his] rights. [A] heavy burden rests on the government
to demonstrate that the defendant knowingly and intelligently waived his privilege against self
incrimination and his right to retained or appointed counsel.
It is undisputed here that Thompkins never expressly waived his right to remain silent.
His refusal to sign even an acknowledgment that he understood his Miranda rights evinces, if
anything, an intent not to waive those rights. That Thompkins did not make the inculpatory
statements at issue until after approximately 2 hours and 45 minutes of interrogation serves as
strong evidence against waiver. Miranda and Butler expressly preclude the possibility that the
inculpatory statements themselves are sufficient to establish waiver.
In these circumstances, Thompkins actions and words preceding the inculpatory
statements simply do not evidence a course of conduct indicating waiver sufficient to carry the
prosecutions burden.I believe it is objectively unreasonable under our clearly established
precedents to conclude the prosecution met its heavy burden of proof on a record consisting of
three one word answers, following 2 hours and 45 minutes of silence punctuated by a few largely
nonverbal responses to unidentified questions.
The Court concludes that when Miranda warnings have been given and understood, an
accuseds uncoerced statement establishes an implied waiver of the right to remain silent. More
broadly still, the Court states that, [a]s a general proposition, the law can presume that an
individual who, with a full understanding of his or her rights, acts in a manner inconsistent with
their exercise has made a deliberate choice to relinquish the protection those rights afford.
These principles flatly contradict our long standing views that a valid waiver will not be
presumed . . . simply from the fact that a confession was in fact eventually obtained, Miranda,
and that [t]he courts must presume that a defendant did not waive his rights. Indeed, we have
in the past summarily reversed a state-court decision that inverted Mirandas antiwaiver
presumption, characterizing the error as readily apparent. At best, the Court today creates an
unworkable and conflicting set of presumptions that will undermine Mirandas goal of providing
concrete constitutional guidelines for law enforcement agencies and courts to follow,. At
worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided
for the constitutional guarantee against self-incrimination.
41
Davis clear-statement rule is also a poor fit for the right to silence. Advising a suspect
that he has a right to remain silent is unlikely to convey that he must speak (and must do so in
some particular fashion) to ensure the right will be protected. What in the world must an
individual do to exercise his constitutional right to remain silent beyond actually, in fact,
remaining silent? By contrast, telling a suspect he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires, Davis requirement that a suspect must clearly reques[t] an attorney to
terminate questioning thus aligns with a suspects likely understanding of the Miranda warnings
in a way todays rule does not. The Court suggests Thompkins could have employed the simple,
unambiguous means of saying he wanted to remain silent or did not want to talk with the
police. But the Miranda warnings give no hint that a suspect should use those magic words,
and there is little reason to believe policewho have ample incentives to avoid invocationwill
provide such guidance.
Conversely, the Courts concern that police will face difficult decisions about an
accuseds unclear intent and suffer the consequences of guess[ing] wrong, is misplaced. If a
suspect makes an ambiguous statement or engages in conduct that creates uncertainty about his
intent to invoke his right, police can simply ask for clarification.
The Court asserts in passing that treating ambiguous statements or acts as an invocation
of the right to silence will only marginally serve Mirandas goals. Experience suggests the
contrary. In the 16 years since Davis was decided, ample evidence has accrued that criminal
suspects often use equivocal or colloquial language in attempting to invoke their right to silence.
A number of lower courts that have (erroneously, in my view) imposed a clear-statement
requirement for invocation of the right to silence have rejected as ambiguous an array of
statements whose meaning might otherwise be thought plain. At a minimum, these decisions
suggest that differentiating clear from ambiguous statements is often a subjective inquiry.
Todays decision turns Miranda upside down. Criminal suspects must now
unambiguously invoke their right to remain silentwhich, counter intuitively, requires them to
speak. At the same time, suspects will be legally presumed to have waived their rights even if
they have given no clear expression of their intent to do so. Those results, in my view, find no
basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on
which those precedents are grounded. Todays broad new rules are all the more unfortunate
because they are unnecessary to the disposition of the case before us. I respectfully dissent.
NOTES AND QUESTIONS
(1) Does the government still retain the burden of proving a knowing and willing waiver of
Miranda rights? Did the government here sustain that burden?
(2) Are the dissenting Justices correct that the decision turns Miranda upside down? Or is
the majority right in writing that Thompkins waive[d] the right to remain silent by making an
uncoerced statement to the police?
(3) How does the decision here deal with earlier opinions which indicated that the trial judge
should not presume a valid waiver simply because the defendant spoke to the police? For a
good overview, see, Rethinking Miranda: The Post-Arrest Right to Silence, 99 Cal. L. Rev.
151 (2011).
42

In People v. Lessie, 223 P.3d 3 (Cal. 2010) the minor defendant requested that he see a parent.
Earlier caselaw in California indicated that such a request constituted an invocation of rights
under the Fifth Amendment. This caselaw, the court held, was no longer valid. Instead, the
analysis in each case should be a totality of the circumstances approach looking to the many
factors present in each case.
43
CHAPTER 6
VINDICATING CONSTITUTIONAL VIOLATIONS
6.01 STANDING
Page 685 [Add to end of Note 1:]
After Rakas, Fourth Amendment standing is analytically aligned with substantive Fourth
Amendment law; therefore, standing is not jurisdictional and may be waived by the
government if not asserted. See United States v. Ewing, 638 F.3d 1226, 1230 (9th Cir. 2011).
Page 685 [Add to end of Notes and Questions:]
(6) The prevalence of computers and cell phones has raised issues regarding the expectations of
privacy subscribers retain in information they provide to their internet service providers. Circuit
courts regularly reject the idea that subscribers hold either subjective or objectively reasonable
expectations of privacy in this information. Typical of these decisions is United States v. Bynum,
604 F.3d 161 (4th Cir. 2010), declaring that defendant Bynum can point to no evidence that he
had a subjective expectation of privacy in his internet and phone subscriber information i.e.,
his name, email address, telephone number, and physical address which the Government
obtained . . . . Bynum voluntarily conveyed all this information to his internet and phone
companies . . . . Even if Bynum could show that he had a subjective expectation of privacy in his
subscriber information, such an expectation would not be objectively reasonable.
With regard to expectations of privacy in the contents of a computer, some courts liken
computers to containers, such as suitcases or briefcases. United States v. Trejo, __ F.Supp. 2d
__ (E.D. Mich. Mar. 12, 2010). These courts reason that because intimate information is
commonly stored on computers, it seems natural that personal computers should fall into the
same category as suitcases, footlockers, or other personal items that command a high degree of
privacy. Nevertheless, when a person lends her computer or cell phone to another, she may lose
her reasonable expectation of privacy in its contents. See Casella v. Borders, 404 F3d. Appx.
800 (4th Cir. 2010) (woman who lent cell phone containing nude images of her body to her
boyfriend lost her reasonable expectation of privacy because she had no right or ability to
exclude others from viewing the images).
6.02 THE EXCLUSIONARY RULE(S)
Page 731 [Add after the Herring decision but before [3]:]
NOTE
The Sixth Circuit applied the principles of Groh v. Ramirez, supra p. 722 note (3), rather
than those established in Herring v. United States, in holding that patient records seized pursuant
to a warrant that did not list the corresponding individual patient names would be suppressed.
As regards records of patients whose names did not appear on a patient list presented to the
issuing Magistrate Judge, the facts of this case mirror those in Groh and require suppression of
those files. This facial deficiency was so evident, moreover, that no officer could reasonably
presume the warrants [sic] valid. United States v. Lazar, 604 F.3d 230 (6th Cir. 2010).
44
Page 731 [Add after note above but before Section [3]:]
DAVIS V. UNITED STATES
___ U.S. __ (2011)
JUSTICE ALITO delivered the opinion of the Court.
The Fourth Amendment protects the right to be free from unreasonable searches and
seizures, but it is silent about how this right is to be enforced. To supplement the bare text, this
Court created the exclusionary rule, a deterrent sanction that bars the prosecution from
introducing evidence obtained by way of a Fourth Amendment violation. The question here is
whether to apply this sanction when the police conduct a search in compliance with binding
precedent that is later overruled. Because suppression would do nothing to deter police
misconduct in these circumstances, and because it would come at a high cost to both the truth
and the public safety, we hold that searches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary rule.
I
The question presented arises in this case as a result of a shift in our Fourth Amendment
jurisprudence on searches of automobiles incident to arrests of recent occupants.
A
Under this Courts decision in Chimel v. California, a police officer who makes a lawful
arrest may conduct a warrantless search of the arrestees person and the area within his
immediate control. This rule may be stated clearly enough, but in the early going after
Chimel it proved difficult to apply, particularly in cases that involved searches inside of
automobiles after the arrestees were no longer in them. A number of courts upheld the
constitutionality of vehicle searches that were substantially contemporaneous with occupants
arrests. Other courts disapproved of automobile searches incident to arrests, at least absent some
continuing threat that the arrestee might gain access to the vehicle and destroy evidence or grab a
weapon. In New York v. Belton, this Court granted certiorari to resolve the conflict.
...
For years, Belton was widely understood to have set down a simple, bright-line rule.
Numerous courts read the decision to authorize automobile searches incident to arrests of recent
occupants, regardless of whether the arrestee in any particular case was within reaching distance
of the vehicle at the time of the search. Even after the arrestee had stepped out of the vehicle and
had been subdued by police, the prevailing understanding was that Belton still authorized a
substantially contemporaneous search of the automobiles passenger compartment. Not every
court, however, agreed with this reading of Belton. . . . .
This Court granted certiorari in Gant [to consider the split in authority]. . . . As a result,
the Court adopted a new, two-part rule under which an automobile search incident to a recent
occupants arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle
during the search, or (2) if the police have reason to believe that the vehicle contains evidence
relevant to the crime of arrest.
45
...
B
The search at issue in this case took place a full two years before this Court announced its
new rule in Gant. On an April evening in 2007, police officers in Greenville, Alabama,
conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens and
passenger Willie Davis. The police handcuffed both Owens and Davis, and they placed the
arrestees in the back of separate patrol cars. The police then searched the passenger
compartment of Owenss vehicle and found a revolver inside Daviss jacket pocket.
Davis was indicted on one count of possession of a firearm by a convicted felon. In his
motion to suppress the revolver, Davis acknowledged that the officers search fully complied
with existing Eleventh Circuit precedent. Like most courts, the Eleventh Circuit had long read
Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches
incident to arrests of recent occupants. Davis recognized that the District Court was obligated to
follow this precedent, but he raised a Fourth Amendment challenge to preserve the issue for
review on appeal.
While Daviss appeal was pending, this Court decided Gant. The Eleventh Circuit, in the
opinion below, applied Gants new rule and held that the vehicle search incident to Daviss arrest
violated his Fourth Amendment rights. As for whether this constitutional violation warranted
suppression, the Eleventh Circuit viewed that as a separate issue that turned on the potential of
exclusion to deter wrongful police conduct. The court concluded that penalizing the arresting
officer for following binding appellate precedent would do nothing to deter Fourth Amendment
violations. It therefore declined to apply the exclusionary rule and affirmed Daviss conviction.
We granted certiorari.
II
The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. The Amendment says
nothing about suppressing evidence obtained in violation of this command. That rulethe
exclusionary ruleis a prudential doctrine created by this Court to compel respect for the
constitutional guaranty. Exclusion is not a personal constitutional right, nor is it designed to
redress the injury occasioned by an unconstitutional search. The rules sole purpose, we have
repeatedly held, is to deter future Fourth Amendment violations. Our cases have thus limited the
rules operation to situations in which this purpose is thought most efficaciously served.
Real deterrent value is a necessary condition for exclusion, but it is not a sufficient one.
The analysis must also account for the substantial social costs generated by the rule. Exclusion
almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or
innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal
loose in the community without punishment. Our cases hold that society must swallow this bitter
pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence
benefits of suppression must outweigh its heavy costs.
Admittedly, there was a time when our exclusionary-rule cases were not nearly so
discriminating in their approach to the doctrine. . . . In time, however, we came to acknowledge
the exclusionary rule for what it undoubtedly isa judicially created remedy of this Courts
46
own making. We abandoned the old, reflexive application of the doctrine, and imposed a more
rigorous weighing of its costs and deterrence benefits. In a line of cases beginning with United
States v. Leon, we also recalibrated our cost-benefit analysis in exclusion cases to focus the
inquiry on the flagrancy of the police misconduct at issue.
The basic insight of the Leon line of cases is that the deterrence benefits of exclusion vary
with the culpability of the law enforcement conduct at issue. When the police exhibit deliberate,
reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costs. But when the police act with an
objectively reasonable good-faith belief that their conduct is lawful, or when their conduct
involves only simple, isolated negligence, the deterrence rationale loses much of its force, and
exclusion cannot pay its way.
...
III
The question in this case is whether to apply the exclusionary rule when the police
conduct a search in objectively reasonable reliance on binding judicial precedent. At the time of
the search at issue here, we had not yet decided Gant, and the Eleventh Circuit had interpreted
our decision in Belton to establish a bright-line rule authorizing the search of a vehicles
passenger compartment incident to a recent occupants arrest. The search incident to Daviss
arrest in this case followed the Eleventh Circuits precedent to the letter. Although the search
turned out to be unconstitutional under Gant, all agree that the officers conduct was in strict
compliance with then-binding Circuit law and was not culpable in any way.
Under our exclusionary-rule precedents, this acknowledged absence of police culpability
dooms Daviss claim. Police practices trigger the harsh sanction of exclusion only when they are
deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid
by the justice system. The conduct of the officers here was neither of these things. The officers
who conducted the search did not violate Daviss Fourth Amendment rights deliberately,
recklessly, or with gross negligence. Nor does this case involve any recurring or systemic
negligence on the part of law enforcement. The police acted in strict compliance with binding
precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a
strict-liability regime, it can have no application in this case.
Indeed, in 27 years of practice under Leons good-faith exception, we have never applied
the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police
conduct. . . .
About all that exclusion would deter in this case is conscientious police work.
Responsible law-enforcement officers will take care to learn what is required of them under the
Fourth Amendment precedent and will conform their conduct to these rules. But by the same
token, when binding appellate precedent specifically authorizes a particular police practice, welltrained officers will and should use that tool to fulfill their crime-detection and public-safety
responsibilities. An officer who conducts a search in reliance on binding appellate precedent
does no more than act as a reasonable officer would and should act under the circumstances. The
deterrent effect of exclusion in such a case can only be to discourage the officer from doing his
duty.
47
...
It is one thing for the criminal to go free because the constable has blundered. It is
quite another to set the criminal free because the constable has scrupulously adhered to
governing law. Excluding evidence in such cases deters no police misconduct and imposes
substantial social costs. We therefore hold that when the police conduct a search in objectively
reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The
judgment of the Court of Appeals for the Eleventh Circuit is Affirmed.
JUSTICE SOTOMAYOR, concurring in the judgment.
Under our precedents, the primary purpose of the exclusionary rule is to deter future
Fourth Amendment violations. Accordingly, we have held, application of the exclusionary rule
is unwarranted when it does not result in appreciable deterrence. In the circumstances of this
case, where binding appellate precedent specifically authorized a particular police practicein
accord with the holdings of nearly every other court in the countryapplication of the
exclusionary rule cannot reasonably be expected to yield appreciable deterrence. I am thus
compelled to conclude that the exclusionary rule does not apply in this case and to agree with the
Courts disposition.
This case does not present the markedly different question whether the exclusionary rule
applies when the law governing the constitutionality of a particular search is unsettled. As we
previously recognized in deciding whether to apply a Fourth Amendment holding retroactively,
when police decide to conduct a search or seizure in the absence of case law (or other authority)
specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth
Amendment violations:
If, as the Government argues, all rulings resolving unsettled Fourth Amendment
questions should be nonretroactive, then, in close cases, law enforcement officials
would have little incentive to err on the side of constitutional behavior. Official
awareness of the dubious constitutionality of a practice would be counterbalanced
by official certainty that, so long as the Fourth Amendment law in the area
remained unsettled, evidence obtained through the questionable practice would be
excluded only in the one case definitively resolving the unsettled question.
United States v. Johnson.
The Court of Appeals recognized as much in limiting its application of the good-faith
exception it articulated in this case to situations where its precedent on a given point is
unequivocal. Whether exclusion would deter Fourth Amendment violations where appellate
precedent does not specifically authorize a certain practice and, if so, whether the benefits of
exclusion would outweigh its costs are questions unanswered by our previous decisions. . . . In
my view, whether an officers conduct can be characterized as culpable is not itself dispositive.
We have never refused to apply the exclusionary rule where its application would appreciably
deter Fourth Amendment violations on the mere ground that the officers conduct could be
characterized as nonculpable. Rather, an officers culpability is relevant because it may inform
the overarching inquiry whether exclusion would result in appreciable deterrence. . . . Whatever
we have said about culpability, the ultimate questions have always been, one, whether exclusion
48
would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its
costs.
As stated, whether exclusion would result in appreciable deterrence in the circumstances
of this case is a different question from whether exclusion would appreciably deter Fourth
Amendment violations when the governing law is unsettled. The Courts answer to the former
question in this case thus does not resolve the latter one.
[JUSTICE BREYER, joined by JUSTICE GINSBURG, dissented on grounds of retroactivity.]
Page 763 [Add before Note 2:]
Although the decision in Elstad saves some confessions from exclusion, the Seventh Circuit has
declared that a second, voluntary and Mirandized statement will be excluded if the second
statement follows too closely from an involuntary and non-Mirandized confession. In United
States v. Swanson, 635 F.3d 995 (7th Cir. 2011), the court deemed the accuseds first unwarned
statement to be involuntary and distinguished Elstad. We have found that Swansons initial
statements were not voluntary. So in deciding whether Swansons Mirandized second written
statement is insulated from the taint of the first statements we consider whether there has been a
sufficient break in the stream of events.
49
CHAPTER 7
PRINCIPLES OF FAIR TRIAL
7.01 THE PRESUMPTION OF INNOCENCE
Page 789: [Add to the end of Note 3:]
Because federal guidelines are advisory after Booker, a sentencing judge may consider
evidence of a defendants post-sentencing rehabilitation if the defendants initial sentence has
been set aside on appeal, Pepper v. United States, 131 S. Ct. 1229 (2011), and may impose a
sentence below the guideline range to reflect the difference between the high sentencing ranges
for crack cocaine and the lower sentencing ranges for powder cocaine. Kimbrough v. United
States, 552 U.S. 85 (2007). Nevertheless, the Court held that a sentencing judge may not impose
or lengthen a prison term to promote a criminal defendants rehabilitation. Tapia v. United
States, No. 10-5400, 564 U.S. __ (June 16, 2011). In Tapia, the sentencing judge determined
that the guideline range for the defendants crime was 41 to 51 months and imposed 51 months,
citing the defendants need for drug treatment and the Bureau of Prisons requirement that a
prisoner admitted for drug rehabilitation be incarcerated long enough to complete 500 hours of
treatment. The Court found the sentencing courts reasoning flawed, explaining that the
sentencing statute limits the factors a judge may consider when imposing incarceration and using
statutory interpretation to conclude that imprisonment is not an appropriate means of promoting
correction and rehabilitation.
7.02 THE RIGHT TO TRIAL BY JURY
Page 793: [Add to beginning of Note:]
Part of the Sixth Amendments guarantee of trial by jury includes the right to a public
trial. That right is violated when the trial judge precludes the public from the voir dire of
prospective jurors. See Presley v. Georgia, 130 S. Ct. 721 (Jan. 19, 2010) (per curiam). In
Presley, the judge instructed the lone observer in the courtroom, who happened to be the
defendants uncle, that he needed to leave the courtroom to allow potential jurors to occupy the
space. The trial judge said that the observer could return once the trial starts. The Supreme
Court noted that there are exceptions to the general rule that voir dire of jurors be open to the
public but noted that those circumstances would be rare. The Court added that trial courts are
obligated to take reasonable measures to accommodate public attendance at criminal trials,
including considering alternatives to closure of the proceedings.
Page 793: [Add to end of Note:]
Although neither the prosecution nor the defense may strike a juror based on the jurors
race or gender, there is no prohibition against using a peremptory challenge because of a
prospective jurors demeanor. Although when evaluating a lawyers motives for purportedly
striking a juror based on demeanor, the judge should take into account . . . any observations of
the juror that the judge was able to make during the voir dire, the Supreme Court refused the
contention that a demeanor-based explanation must be rejected if the judge did not observe or
cannot recall the jurors demeanor. Thaler v. Haynes, 130 S. Ct. 1171 (Feb. 22, 2010) (per
curiam).
50
Page 801: [Add to end of Note 4:]

The non-visible shackling of a defendant during trial does not violate due process.
United States v. Jackson, 2011 WL 1882511 (7th Cir. Apr. 19, 2011).
Page 829: [Add to end of Notes:]
(4) Even when a prosecutor breaches her Brady obligations, it will be difficult for the
accused to recover money damages in a subsequent civil rights lawsuit. For example, in Connick
v. Thompson, 131 S. Ct. 1350 (2011), a district attorneys office conceded that prosecutors
violated their Brady obligations in prosecuting the defendant for armed robbery. Nevertheless,
the Court ruled that the accused was not entitled to damages against the district attorneys office
under 42 U.S.C. 1983 because a single incident of prosecutorial misconduct of this kind did not
establish the necessary pattern of a failure to train prosecutors sufficient to show that the district
attorney acted with deliberate indifference to the rights of the accused.
51

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CRIMINAL PROCEDURE

LexisNexis Law School Publishing

Chapter 2: THE FOURTH AMENDMENT AND THE DEPRIVATION OF

Chapter 3: THE FOURTH AMENDMENT AND THE SEIZURE

Chapter 4: THE RIGHT TO COUNSEL ............................................................................. 27

Chapter 5: CONFESSIONS AND OTHER INCRIMINATING STATEMENTS .......... 32

Chapter 6: VINDICATING CONSTITUTIONAL VIOLATIONS ................................... 44

Chapter 7: PRINCIPLES OF FAIR TRIAL ...................................................................... 50

Congress has done nothing to suggest it is inappropriate to communicate with ICE in

3.02 WARRANTLESS SEARCHES

Page 418: [Add to Note 5:]

19 (1979). Because of this overreliance on questionable eyewitnesses, juries will

Page 632: [Add to Note 1:]

Page 657: [Add to Note 1:]

Page 674: [Add to Note 4:]

Page 801: [Add to end of Note 4:]

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