Criminal Procedure Investigative

Overview:
Criminal procedure occurs on a spectrum, with crime control on one end and due process on the other. The result is a tension and balancing act between
ensuring the rights of defendants and preventing/punishing crime.
Liberty v. Safety:
On a spectrum of providing safety on the one hand, and liberty on the other, the effects:
If there is too much liberty, society may become too dangerous.
If there is too much safety, then it becomes oppressive and people cannot function with the necessary latitude needed to flourish.
So the balance becomes:
Do we focus on certain police conduct or the accused? And, independent of whom we focus on, was it a constitutional right that was violated?
Theories of criminal procedure:
Critical legal theory:
The focus should be creating rules that effect the resolution of cases.
Those rules should more closely reflect societal values.
Dorothy Roberts:
Criminal justice is largely about society controlling black men.
Allen: Criminal justice is largely about rehabilitating wrongdoers.
Lamar: The primary value/goal should be protecting innocents.
Criticism: There are values that are more important than whether or not a person is innocent.
Why should SCOTUS make criminal justice policy?
1) Legislatures are more responsive and responsible for criminal justice policies.
2) SCOTUS is too distanced from the on-the-ground reality of the situation to full appreciate the impact that its decisions have.
1) Why did CP become Constitutionalized?
1) Sociology: increasing urbanization, geographic mobility, and professional police forces demanded uniformity.
2) Historically: there was a less crowded, less expansive criminal docket due to the fact that much of what we consider "crime" today was not criminal
way back.
3) Technology: criminal prosecutions were different. Physical evidence was not permitted, and searches were not conducted. This meant that there was
less governance of those things that are regulated by criminal procedure.
4) Politically: the change in race relations brought about by the abolition of slavery. This led to the need to have regulation for the protection and fair
prosecution of blacks and other minorities.
5) Legal profession: the end of the upper class monopoly on the profession, leading to an increase in lawyers. With more lawyers comes a need for
more legal work, so they ginned up egal issues in criminal litigation.
2) How did CP become Constitutionalized?
Seminal case: Hurtado v. California. This provided the right to a grand jury indictment, as articulated in the 5th Amendment, which carried over to
capital crimes in state court.
J. Matthews: Due process and the right to a grand jury are articulated separately in the Constitution, so they cannot mean the same thing.
Therefore, due process must be defined. It is imperative to prevent legislatures and other state/institutional actors from catching arbitrary bad
guys rather than acting in furtherance of the law. Thus, DP is what occurs when those state/institutional actors are not behaving in an arbitrary,
capricious, dissimilar, or vindictive fashion.

J. Harlan: Due process cannot equal the BOR, since the BOR was so important that it was written down as a separate part of the Constitution.
4th Amendment:
How is it applied to criminal proceedings: basically exclusion is the only remedy for a violation, subject to certain exceptions.
Weeks: If the 4th Amendment has been violated, then the fruit of that labor is suppressed. EXCLUSIONARY RULE
Wolf: The exclusionary rule is not mandatory, provided that there is at least some remedy for violations.
Consider: If state actors seized evidence in violation of the 4th, it would be admitted. But federal actors who seized evidence in violation of the
4th would have it suppressed at the federal level. The evidence could still come in at the state level, as federal actors would be able to turn that
evidence over to state actors, who could use it.
This would effectively undo the protection provided by the 4th.
Mapp: The exclusionary rule applies in federal court to unconstitutional searches and seizures under the 4th Amendment where they produce
evidence that is to be introduced by the government into state court criminal proceedings.
Effect: eliminates the above consideration.
Important because: the Court reconsidered the issue a mere 11 years after it the initial ruling. This suggests that there was a significant
problem with the interpretation of the Weeks decision.
Consider: is the exclusionary rule too much, or too little? If suppressing evidence, the evidence is always reliable, probative evidence. It is not being
suppressed because of a deficiency, but because of the manner in which it was obtained. This is a bit like calling back a goal for being offsides.
There wasn't a flaw in the play - a foul that gave an advantage - rather, the fact that the goalscorer was in an offside position is sufficient to pull the
goal back.
The exclusionary rule assumes that the potential for the exclusion of perfectly viable information is sufficient to prevent abuses and violation of
the 4th Amendment. It also assumes that officers can figure out the contours of the 4th while in the field, and that all policing is done with the
goal of prosecuting criminals.
This last assumption is probably correct given the trend of increasing criminalization of those who act outside of socially accepted
boundaries.
What other remedies are available? Any proposed remedy must be proportionate, and not so weak or trivial as to be trite or without impact.
1) Damages. However, these are difficult to assess and weigh, and it could lead to jurors awarding more to certain types/groups of individuals
than others.
2) Injunction: Shows that we do not want this type of behavior to occur. However, there is a high standard. This includes showing that the you,
the individual plaintiff, are likely to have this harm occur again, and that you are likely to prevail at trial anyway.
3) Providing a grand jury in state proceedings. The current rule is that GJ is not available for state proceedings (Hurtado).
Substantive 4th Amendment Protections:
4th Amendment is only triggered if an act can be termed a search or seizure. If it is not considered a search or seizure, then the defendants ill not receive
4th Amendment protection.
Search: The conclusion that a state actor has improperly invaded a legitimately expected privacy interest.
Seizure:
Protected interests defined through a property lens: the state of the law until Katz (1967):
Katz: Defendant's phone call was listened to by a state actor while he was using a public pay phone booth with closed door.
Two-step privacy test: (1) Person exhibits an actual (subjective) expectation of privacy, and (2) that expectation is one that society can or does
recognize as reasonable.
Policy: Views privacy as a property interest, not as a matter of the ability to control the flow/dissemination of information.
What a person knowingly exposes to the public, even within his own home, is public, whereas that which is sought to be protected, even in
public, should be considered private.

U.S. v. White:
If an accomplice becomes an informant, then there is no privacy protection for the wrongdoer if that information is to be used in court.
Privacy:
Open Fields Doctrine
California v. Greenwood:
Where evidence is located outside the curtilage, it is held out to the public and may be searched.
In this case, it was garbage. The defendant assumed the risk that their garbage could be searched by the government because he placed the
information where a member of the public could access it.
Dunn:
Four factor test: (1) the proximity of the area claimed to be curtilage, (2) whether the area is included within an enclosure surrounding the
home, (3) the nature of the uses to which the area is put, (4) the steps taken by the resident to protect the area from passersby's observations.
U.S. v. Ciraolo:
In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect this is marijuana
plants were constitutionally protected from observation with the naked eye from an altitude of 1000 feet.
Riley: Defendant was growing pot in a greenhouse w/in the curtilage of his home, though a few roof panels were missing. Police flew over at a
height of ~400ft, assumed they saw pot growing, and obtained a search warrant based on the UFO's observation.
The defendant had a subjective expectation of privacy, based on the fencing and obscuring of the greenhouse. But, that privacy interest [in
growing pot] is not one which society is prepared to honor. Helicopter was in legitimate airspace.
U.S. v. Miller: Banks shared customer information with the police.
By sharing the information with a third party, the privacy interest was lost.
Smith v. Maryland: Police recorded all of the phone numbers dialed, along with the length of the call.
If information is knowingly or unknowingly shared with the government, then the privacy interest is lost.
U.S. v. Karo: Police installed a beeper in a container of ether, which was to be used for criminal purposes.
The act of installation was not a violation itself, but the information gathered would be violative if it could not have been gathered by the naked
eye.
Dow Chemical Co. v. U.S.: The police used equipment that is not generally available to the public to view 's property.
Surveillance of private property with highly sophisticated surveillance equipment not generally available to the public might be proscribed
without a warrant. However, using that technology to view land that is more like an open field would not be violative.
Kyllo v. United States:
Obtaining information regarding the interior of the home using sense enhancing technology so that there is no physical intrusion still
constitutes a search. Policy of protecting a strong privacy expectation within the home.
Sniff tests:
U.S. v. Place:
Submitting luggage to a sniff test does not constitute a search because the general contents of the container are not disclosed to the police.
Only the contraband can be detected. But, warrantless detention of luggage for an unreasonable time (90 minutes or more) before the sniff
test is executed renders the seizure invalid.
Process: How much time has elapsed between the seizure and the execution of the sniff test?
a) If less than 90 minutes then no search.
b) If more than 90 minutes, then it is a search and requires a warrant.
Illinois v. Caballes: One officer was writing a ticket for a traffic stop while a second walked the dog around the car.

If the execution of the sniff test had taken longer than it took for the officer to write the ticket, then it would have been an unconstitutional
seizure. But there is no privacy to violate since there is no legitimate privacy interest in contraband (Place analysis still correct).
Seizures: Exercise of control by the government over a person or thing.
There are three elements needed for a seizure:
1) A reasonable person must believe they have been seized, judged objectively.
Mendenhall: Even if there is intent to seize, if under the circumstances a reasonable person wouldn't feel seized, then there is no seizure.
Totality of the circumstances. Would a reasonable person in that situation feel free to go? Officer intent may be determined by looking at what s/he
says., as would the words from the suspect.
U.S. v. Drayton: A routine drugs and weapons search revealed drugs on two passengers.
Rule: whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.
Totality of the circumstances analysis: what did the officer do that would make a passenger feel as though they could not leave or end the
encounter? Of particular value: 1) whether the officer was armed and removed his weapon, 2) did the officer advise the passenger that he
could refuse consent? (admonition that a passenger could refuse is not dispositive on its own).
2) The officer must have an intent to seize, judged objectively.
Brower v. County of Inyo:
A Fourth Amendment seizure occurs only where police force has been intentionally applied. Evidence of a seizure is sufficient where a person is
stopped by an instrumentality set in motion or put in place to achieve that very end.
If there is no law enforcement intent to seize, then there is no seizure.
3) There must be 1 + 2 plus either the physical application of force by an officer or submission by the seized to an officer's show of authority.
California v. Hodari D.:
An arrest occurs where: 1) there is a physical application of force by a police officer or 2) submission to an officer's show of authority.
A chase is not constrained by the 4th Amendment, and does not constitute a seizure.
When the 4th Amendment does apply: two prongs. 1) Is there a valid warrant, and 2) Did the police have probable cause and/or consent for their actions?
Warrant Requirement:
General rule: all custodial arrests require probable cause.
U.S. v. Watson:
A warrant is needed unless probable cause or exigent circumstances exist.
Search warrant needed to make an arrest in a 3rd party's home. The requirement prevents broad intrusions into privacy, thereby promoting the
protected interests of the 4th Amendment.
Atwater v. Largo Vista:
Where an officer has 1) probable cause 2) to make an arrest 3) for committing a minor criminal offense 4) in his presence, it is not a
violation of the 4th Amendment.
Policy: In favor of making rules.
Easier to understand, enforce, and follow for police. This tilts the balance between liberty and policing toward the police.
Broadens the scope of actions that may lead to an arrest in order to ensure more criminals are caught and removed from society. Also tilts
balance toward police.
Tilts society toward the criminalization of more activities, resulting in the need for a stronger prison industrial complex.
Visits severe, negative consequences on a greater number of people, consequences which should only be visited on people where
absolutely necessary. But see above.
Valid Warrant:
Valid oath or affirmation:

Satisfied by providing the facts leading to a determination that probable cause exists. Must be correct because warrants cannot be
rehabilitated by testimony at a later date. But police also have to balance correctness against delay.
Neutral magistrate:
Magistrate should not be connected to the investigation at hand, nor have an incentive to issue warrants. Outside of these parameters, there is
not much else that is required. Magistrates can range in their temperaments and attitudes towards warrants, and may be more strict or lax in
their issuance of warrants.
Describe with reasonable detail the place to be searched or the person to be seized:
A relatively lax requirement whose overturning requires that the officers have an objectively reasonable reason for failing not to realize the
warrant is overly broad. Does not preclude police from seizing other items that are not mentioned.
Supports the probable cause requirement by requiring the suspicions to be relatively strong. Limits the scope of searches to a particular time
and place. Helps to prevent innocents from being targeted.
Execution:
Knock and announce:
Wilson v. Arkansas: Absent a law enforcement interest in establishing the reasonableness of an unannounced intrusion, there is a 4th
Amendment requirement to knock and announce police presence prior to entering to execute a search or seizure.
Richards v. Wisconsin: There must be a reasonable suspicion that knocking and announcing would be dangerous or futile, or
prevent the effective investigation of a crime. Ex: destruction of evidence. (case by case analysis)
U.S. v. Ramirez: It is reasonable for officers to damage property in the course of executing a warrant. But excessive or
unnecessary destruction of property in the course of a search may violate the 4th Amendment, even though the entry was
lawful and the fruits of the search are not subject to suppression.
U.S. v. Banks: Even if the defendant does not hear the officers knock and announce their presence, a constitutionally permissible
time may ripen into a reasonable suspicion of exigency.
Probable Cause Standard:
Concerned with whether or not search and seizure was justified based on the information known to the arresting officers at the time of the arrest.
Brinegar v. United States: An officer has probable cause to arrest when the facts and circumstances within the officers knowledge and of
which they had reasonably trustworthy information are sufficient in themselves to arrant a man of reasonable caution in the belief that
an offense has been or is being committed.
Nathanson v. United States: An officer may not issue a warrant based on a hunch. He must have objective facts.
Draper v. United States: An officer may have probable cause where s/he pays for consistently reliable tips from an informant.
Spinelli v. United States: Conclusory information from a confidential informant is not sufficient in and of itself, unless there is
information to support that tip.
Two-pronged test:
1) Test the veracity of the informant: what did he know?
2) How was the information acquired: how did he know it?
Illinois v. Gates: A warrant may issue based on affidavits that are entirely hearsay. Must show by a totality of the circumstances that
there is a fair probability that contraband or evidence of crime will be found in a particular place. Considerations: 1) whether the
affidavit shows that the information comes from a reliable informant and 2) the informant had a sound basis of knowledge for the
information. (Spinelli test in action).
Totality of the circumstances test has supplanted Aguilar-Spinelli.
Aguilar-Spinelli is still used though.
Consent searches:

Schneckloth v. Bustamante: To determine whether a search was voluntary does not require that a person knew of his rights, but whether
the the totality of circumstances indicated the person voluntarily allowed the search.
Georgia v. Randolph: Where there are two (or more) co-occupants, each giving conflicting answer to a request to search, the one
refusing consent prevails.
Exceptions: Probable cause is still needed, but a warrant is not.
Exigency: A totality of the circumstances based test.
Mincey v. Arizona: There is no special exception for the scene of a murder, a warrant is still required to conduct a search.
Welsh v. Wisconsin: The police lacked exigent circumstances because the dissipation of the alcohol in the Ds blood that would occur
while police obtained a warrant does not qualify as an exigent circumstance, given the minor nature of the crime. Exigency depends on
the seriousness of the crime.
Brigham City v. Stuart: Exigency allowed because police were entering to break up a fight,
Plain view: a policy favoring officers by allowing them to seize evidence that is in their line of sight.
General rule: If 1) an officer has a right to be in a particular place, 2) the item is in plain view, and 3) it is immediately apparent that the
item is contraband.
Arizona v. Hicks: No plain view exception applied because the officer moved the stereo equipment, which was outside the scope of the
search.
Question: Is there a separate invasion of the defendant's privacy interest, above and beyond the initial intrusion?
Horton v. California: The discovery does not have to be inadvertent: even if the police find something they suspected may be there, it will
still qualify for the exception.
Auto Searches:
General rule: A warrantless search of a vehicle is allowable provided there was probable cause that the fruits, instrumentalities, or
evidence of a crime are within the vehicle.
U.S. v. Carroll: For searches and seizures of automobiles, where obtaining a warrant is not practicable, officers may search if they
have probable cause that contraband is within the vehicle. [mobility requirement]
Chambers v. Maroney: If the police could have conducted a warrantless search of the vehicle when it was stopped, the vehicle may be
towed to the police station and searched at a later time.
California v. Acevedo: Police may search any container that they have probable cause to search once it is in the car. However, they
may not search the rest of the car unless they have probable cause to search that as well.
Police have broad authority here. If they have probable cause to search the vehicle, then they can search containers in it that may
contain what they are looking for. Thus, if they are looking for drugs or stolen items, they can search containers. But if they are
looking for illegal immigrants, they can not search for containers (unless they are illegal fetuses meant for Christopher Reeves).
Wyoming v. Houghton: The search may extend to packages belonging to a passenger, and is not limited to the driver's belongings.
U.S. v. Ross: Where the police have probable cause to justify a warrantees search of an automobile, they may search the entire car
and open any packages or luggage found there which could reasonably contain the items for which they have probable cause to
search.
California v. Carney: Automobile exception applies to mobile homes. The fact that it is a home is undermined by the fact that it is a
readily mobile vehicle, resulting in a lowered privacy expectation.
Did not apply:
U.S. v. Chadwick: The police may not use probable cause + exigency to justify warrantless entry and search of a person's home.
The exception applies only to vehicles, where citizens have a lessened privacy expectation. Footlockers [as in this case] have a
greater privacy expectation because they are a "repository for personal effects".

Arkansas v. Sanders: Police had probable cause to search a suitcase, but waited until the trunk was in a moving vehicle to stop
and attempt the search. Search was invalidated for two reasons: 1) because the exigency of mobility (the reason for the auto
exception) must be assessed at the point immediately before the search, but after seizure and control of the object. 2) because
there is no diminished expectation of privacy in the luggage simply because it was seized from the trunk of a vehicle.
Robbins v. California: Police had probable cause due to smell of marijuana coming from vehicle. Searched and found two bricks
in a closed, opaque container. Court held that there was no diminished expectation of privacy, even though it wasn't luggage. The
shape/type of container doesn't matter - only matters that the defendant would have had an expectation of privacy. Probably
would have been different if the pot had been in a semi transparent or transparent container, since there would be less of a privacy
expectation if one knows that people can easily see into the container.
Arrest and Searches Incident to Arrest:
Arrests are serious business because they are a total violation of an individuals right to be left alone.
General rule: All custodial arrests require probable cause.
Watson: A warrant is needed unless probable cause or exigent circumstances exist.
Search warrant needed to make an arrest in a 3rd party's home. The requirement prevents broad intrusions into privacy, thereby promoting the
protected interests of the 4th Amendment.
Atwater v. Lago Vista: Where a statute gives police the power to arrest for a misdemeanor, the Fourth Amendment does not forbid a warrantless
arrest, even if the crime is minor, does not involve breach of the peace, and is punishable by only a fine.
Searches Incident to Arrest:
General rule: A search may be conducted without a warrant where it is incident to a lawful arrest.
U.S. v. Robinson: The police may conduct a search incident to arrest whenever they arrest a person. Even though this promotes the policy of
protecting officer safety and preserving evidence, the officers do not actually have to fear for their safety, nor be concerned that evidence
will be destroyed, nor believe they will find evidence of a crime, so long as the suspect is placed under arrest.
Maryland v. Buie: Police may perform a protective sweep of areas immediately adjoining the place of arrest from which an attack by
accomplices could be launched. May extend to areas outside the immediate area of arrest if the police have a reasonable and articulable
suspicion that accomplices who might pose a threat to the police may be present.
Chimel v. California: At the time of the arrest, police may conduct a full search of the person arrested and the areas within the person's
immediate reach.
Prevents concealment or destruction of evidence, and helps prevent the arrestee from seizing a weapon to resist arrest or assist in escape.
New York v. Belton: When an officer has made an arrest of an occupant of an automobile, he may conduct a warrantless search of the
remainder of the passenger compartment.
From here, assess to make sure other applicable auto search rules were followed.
Thornton v. United States: A search incident to arrest is admissible where the officer believes that further contraband or similar evidence
may be found in the vehicle from which the arrestee had just exited.
Arizona v. Gant: Where there is an arrest of a driver or passenger, the police may search wherever it is reasonable to believe there is
evidence of the crime for which the person was arrested, provided that the arrest was based on probable cause. Without the reasonable
belief, the police can only search within the scope of Chimel, and so eliminates pretextual searches.
This rule overrules the law that said that the police could search the entire vehicle.
This rule is inconsistent with Chimel, which allows a search to extend only to the area within reaching distance.
Colorado v. Bertine: Searches for the purpose of inventorying the contents of a vehicle about to be impounded are allowed, because it
protects the owner from losing the contents while safeguarding the police from potential danger.
Arrested for DUI, police inventoried the contents of the van.

Reasonabless requirement:
The only requirement imposed by the Fourth Amendment along with probable cause.
Because it is a totality of the circumstances inquiry, there are no dispositive facts. There is only the cluster of facts, which will together lean in one
direction or another.
Concern: the courts will defer to trial courts, and trial courts defer to the police. So the law will end up deferring to the side of the police due to the lack
of field expertise that judges and attorneys have. How can they say that what an officer did was unreasonable if they don't have experience with what is
a legitimate exercise of police power and what is not?
Camara v. Municipal Court: Government inspectors who perform administrative searches (searches for fire alarms, health code violations, etc) must
have a warrant to search private residences and commercial buildings.
Stop and frisk:
Allows police to stop a suspect and frisk him/her for weapons.
Terry v. Ohio: When the police have 1) an articulable 2) reasonable 3) suspicion that someone may be involved in criminal activity, 4) they may
stop that person 5) even though they do not have probable cause.
Think of as a stop and frisk. Must have a factual basis to support each part. Could be simple as handing money to a person in public in exchange
for something that the officer can't quite make out.
If the police believe that 1) the suspect may be armed and presently dangerous, 2) the police may conduct a protective frisk of the person.
Must be limited in scope and motive.
Limited by Dunaway v. New York: The reasonableness balancing test does not apply to custodial interrogations. There must be a valid
arrest.
The police seized a man without probable cause, was not told he was under arrest, was told he would be restrained if he attempted to
leave, and made incriminating statements that were later used against him at trial.
The stop itself:
U.S. v. Sharpe: To determine if the stop itself is permissible, the court considers: 1) the purpose of the stop; 2) the reasonableness of
the time in effectuating the purpose of the stop; 3) the reasonableness of the means of the investigation.
Royer is a good example of the application of the Sharpe rule, even though it came before.
Also limited by Florida v. Royer: An investigatory stop myst be temporary and no longer than necessary to carry out its purpose. There
was no apparent reason to remove D from the concourse to a small room and hold him for 15 minutes while searching his belongings. It
would have been less intrusive to have dogs do a sniff test.
Narcotics agents removed a man to a police detention area without his consent, and proceeded to search him and his luggage.
2 questions: 1) How long was the defendant held? 2) How intrusive was the search?
Must be protective not evidentiary.
Pennsylvania v. Mimms: If the officer reasonably suspects a person may be armed, he may conduct a frisk of that person.
Maryland v. Wilson: Gives the analytical process:
1) Once a stop is properly made,
2) The police can legitimately require passengers to exit the car,
3) Then decide whether officer safety justified a Terry frisk of the passengers who the police believed created a risk to officer safety,
4) Even if the police had no reason to believe that the passengers had or were about to violate any laws.
Arizona v. Johnson: When a driver or passenger is lawfully detained in connection with a traffic stop, the police may putdown the person
whenever they have reasonable suspicion to believe that the person is armed and dangerous, regardless of whether the police also have
cause to believe the vehicles occupant is involved in criminal activity.

Michigan v. Long: A search of the passenger compartment was permissible where: 1) it is limited to those places where a weapon may be
hidden or placed; 2) there is reasonable suspicion to believe that the suspect is dangerous 3) and may gain immediate control of the
weapons.
Here, the guy swerved into a ditch and exited the car, leaving the driver side door open. When police talked to him, he began walking
back to the door. Police stopped and frisked him, and then proceeded to check inside the passenger compartment where they found a
hunting knife. An officer shined his light into the vehicle to continue looking for other weapons, saw something on the front seat,
checked it, and found pot.
Clear policy of preserving officer safety.
Once an object is manipulated, it becomes a search.
Minnesota v. Dickerson: There is a plain feel exception, but must be supported by probable cause. The feel is narrowly circumscribed. If
the officer squeezes or manipulates the object to determine what it is, then that exceeds the scope of a Terry stop and is not permissible.
The purpose for allowing the stop and frisk is officer safety not evidence gathering. If, of course, the officer knew that it was a lump of
crack cocaine in the defendant's pocket without manipulating it, he could have seized it. But he didn't, so the frisking exceeding the
bounds established by the court.
Reasonable suspicion:
General rule: Alabama v. White
Alabama v. White: Under the totality of the circumstances of the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to
justify the investigatory stop of the defendant's car.
Contours:
Florida v. J.L.: An anonymous tip, standing on its own, is insufficient to create a reasonable suspicion.
There was no indicia of reliability here, only information saying that a black male at a bus stop possessed a gun.
U.S. v. Arvizu: When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they
must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis
for suspecting legal wrongdoing.
Particularized and objective basis found where: 1) the vehicle was of a type commonly used by smugglers, 2) the van was driving along a
dirt road sometimes use by smugglers, 3) the trip took place at a time when there was a shift change, 4) the van slowed considerably when
the driver saw the agent, 5) the driver was stiff with rigid posture, 6) the children were waving in an abnormal pattern as if being instructed,
7) the children's knees appeared to be propped up on something, 8) the van was registered to an area near the border that is notorious for
drug and alien smuggling.
Illinois v. Wardlow: Unprovoked flight after seeing a marked police car passing by in a high crime area provides offers with a reasonable
suspicion to conduct a Terry stop.
Race:
Use of profiles to identify potential criminals:
Listing the factors in a profile does not make them less probative (Sokolow).
Use of profiling should raise the level of scrutiny and reduces the officers ability to enforce the law.
Whren v. United States: Whether or not a search is reasonable does not turn on the subjective motivation of the officer.
The equal protection clause is the proper argument to challenge intentionally discriminatory application of laws, not the Fourth Amendment.
U.S. v. Sokolow: The fact that the factors used to determine whether there is a reasonable suspicion does not detract from the evidentiary value
of those factors as seen by a trained agent. The suspicion must be based on objective articulable facts such as those listed in the profile.
Agents used a profile for a "drug carrier" to identify the defendant as one, and stopped him.
Racial profiling:

Targeting a person using race without evidence of wrongdoing.

Chicago v. Morales: Laws may be voided for vagueness where it is fails to give officers sufficient guidelines, and thereby violates the Due
Process Clause because of the potential for arbitrary enforcement.
Here, the law defined loitering and could only be invoked if the officer reasonably believed that at least one of the loitering persons was a
member of a criminal street gang. It requires an officer to demand dispersal
Interest Balancing:
Used to uphold administrative inspections, regulatory searches, and other kinds of "special needs" governmental action that fall outside the typical
scope of law enforcement activity.
Special needs doctrine:
Progenitor of special needs doctrine:
Camara v. Municipal Court: Government inspectors who perform administrative searches (searches for fire alarms, health code
violations, etc) must have a warrant to search private residences and commercial buildings.
Question for the following three cases:
How is that there is a lowered privacy interest in a student's purse, an employee's desk, and a probationer's home?
Brown v. Texas: Where a seizure is less intrusive than a traditional arrest, a balance must be struck between the public interest and the
individual's right to personal security free from arbitrary interference by law officers. The gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty are to be
weighed against each other.
New Jersey v. T.L.O.: Defines special needs beyond the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable.
In this case, a girl was caught smoking in a school bathroom. She was referred to the vice principal, who searched her purse for
cigarettes. While searching, he also found rolling papers, which made a more extensive search reasonable. Then he found marijuana, and
a list of people who owed the student money. These were held to be reasonable under the circumstances because of the need to
maintenance the swift and informal disciplinary procedures in the school. Searches of students depend only on the reasonableness
requirement + totality of the circumstances inquiry, no warrant or probable cause is needed.
Griffin v. Wisconsin: Probation officers do not need a warrant to search a probationer's home if a state statute authorizes warrantless
searches and there are reasonable grounds to believe contraband is present in the probationer's home. Because probation entails
limitations on the probationer's liberties, full probable cause and a judicially approved warrant are not retired to search.
O'Connor v. Ortega: The test for whether a public employer's work-related search of its employee's office, desk or file cabinet comports
with the Fourth Amendment should simply be the "reasonableness" of the search + totality of the circumstances.
Examples where it is used:
Roadblocks:
Indianapolis v. Edmond: Checkpoints set up to search cars for illegal drugs are unconstitutional seizures. 1) What are the interests
threatened, and how are they connected to the law enforcement practices at issue?
Here, the checkpoints were designed to find evidence of "ordinary criminal wrongdoing". But, a general interest in detecting crime
does not justify a suspicion less seizure and neither does the "intractable nature of the drug problem". Enabling suspicion less
checkpoints would pretty much allow nearly all suspcionless seizures. Had the checkpoints been put in place to promote highway
safety (like a DUI checkpoint), then it would be more likely to be pass muster.
Illinois v. Lidster: The roadblock was upheld because it was information seeking: 1) Does not involve suspicion/lack of suspicion of
the individual stopped, 2) less likely to provoke anxiety or be intrusive (only lasted for 10-15 second), 3) do not involve asking

questions designed to be elicit self-incriminating information. Should be brief and not prove no more burdensome than what
typically accompanies normal traffic congestion.
So, the balance of the interests here is in favor of police activity. The police weren't creating an undue burden on individuals because
it would not take longer to get through the backed up traffic than would occur during normal congestion. Liberty interest also
protected because people were not subjected to questions designed to make them confess to wrongdoing, and everyone was being
stopped not for the purpose of detecting "general criminal activity" (as in Edmond), but for the purpose of gathering information
about an event that had occurred in that very place.
Non-police searches:
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls: Special needs of schoolteachers and
administrators upheld as reasonable where students wanted to participate in competitive extracurricular activities because requiring
a warrant + probable cause would unduly interfere with the maintenance of the swift and informal disciplinary procedures that are
needed in a school setting.
Here, the balance was struck between a lowered privacy interest and the voluntary nature of seeking to participate in competitive
extracurricular activities, and a urine collection as being miminally intrusive v. the school's interest in combating the drug problem
being sufficiently great.
Limits on drug testing:
Chandler v. Miller: Unreasonable. No indication of special need, which means that there must have been individualized
suspicion.
Balance: No indication of suspicion of drug use. Not likely to deter drug use since the time of testing was chosen by the
candidate.
The state of georgia had a law requiring all candidates for public office to submit to drug testing within 30 days prior to
qualification for nomination or election.
Special needs entangled with law enforcement needs:
Unacceptable:
Ferguson v. Charleston: In cases where the intrusion was justified, the special need was separate from law enforcement
activity. Here, however, the purpose was to generate evidence of criminal activity and thus coerce women into drug programs.
Warrentless, suspicion less, nonconsensual searches cannot be justified on these grounds.
Here, a state hospital developed a program where they would test the urine of pregnant women for cocaine and then provide
the positive results to police.
Acceptable:
New York v. Burger: Warrantless inspection of premises in a closely regulated industry is permissible if three criteria are met:
1) A substantial government interest informing the regulatory scheme under which the inspection is made; 2) warrantless
inspections must be necessary to further the regulatory scheme; 3) the inspection program must provide a constitutionally
adequate substitute for a warrant (by informing proprietors that regular inspections of a defined type take place under the law
for this industry and by placing the appropriate limits on the time, place, and scope of inspections).
Here separating legitimate dealers in used auto parts from chop shops, and ensuring that stolen cars and parts could be traced was
acceptable even if doing so overlapped with purposes in the penal laws. The administrative scheme is not unconstitutional simply
because the inspecting officer may find evidence of a crime.
Ah! So it is acceptable where the search is for the purpose of ensuring compliance with a regulatory scheme, or other non-law
enforcement purpose. But if evidence of criminal activity is generated by happenstance, then that would be ok. In Ferguson,
the purpose was specifically to generate evidence of criminal activity and didn't further any other purpose. But, in Ferguson,

if the urine was sampled and then the women offered treatment or counseling without referral to the police in order to further
the purpose of increasing general health and protecting babies, then that would probably have been acceptable?
Reasonableness and Police Use of Force:
Tennessee v. Garner: The use of force to apprehend a suspect constitutes a seizure. The force used must be reasonable. Deadly force is
reasonable only where it is necessary to prevent the felon's escape AND where the felon threatens death or serious bodily harm (invoking
policies behind officer safety exception to warrant requirement?) When feasible, some warning must be given before an officer may use deadly
force.
When responding to a call for a burglary, it is unreasonable for police to shoot and kill a person fleeing the scene merely because he refused to
stop when ordered to do so.
Inquiry: Is it reasonable to shoot and kill a young, small, unarmed person who is running away, is on foot, with no way to believe that the
deceased posed a threat to the officer's safety?
Dude must have been black.
Limitation:
Scott v. Harris: Garner is not triggered whenever an officer's actions constitute deadly force. Garner is only an application of the Fourth
Amendment reasonableness test.
Here a person was rendered a quadriplegic after being rear ended by an officer involved in a high speed chase of a motorcycle.
Graham v. Connor: The 4th Amendment standard for whether an officer's actions are reasonable is the "objective reasonableness" test.
Objective reasonableness is assessed by looking at the facts and circumstances surrounding the event, without reference to the officer's
subjective intent. Must consider the fact that officers must make split second decisions.
Limits on Exclusionary Rule:
Good Faith Exception:
United States v. Leon: An officer's reliance on probable cause determination and on technical sufficiency of the warrant must be objectively
reasonable.
Does not apply in any of the following four situations:
(1) The affidavit is so lacking in probable cause that no reasonable officer would have relied on it.
(2) The arrant is defective on its face.
(3) The affiant lied or misled the magistrate.
(4) The magistrate has wholly abandoned his judicial role.
Policy: If the officers believe that what they are doing is right, then the exclusionary rule won't deter them anyway.
Illinois v. Krull: Evidence seized under a facially valid law that is declared unconstitutional at a later date will not be excluded, even if the
search was warrantless.
Herring v. U.S.: Where an officer reasonably relies upon a warrant that turns out to be invalid, reckless or intentional conduct is required in
order to justify exclusion of evidence.
Standing:
Jones v. U.S.: Where a defendant is the target of a search, s/he may seek exclusion of evidence, even if the search took place in someone else's
home.
Alderman v. U.S.: Fourth Amendment rights are personal rights, which may not be asserted by someone else.
Rakas v. Illinois: To have standing, a person must have a legitimate expectation of privacy in the place/thing searched/seized.
Totality of the circumstances inquiry.
Standing exists anytime:
(1) The person owned or had a right to possession of the place searched.

(2) The place searched was in fact the person's home, regardless of whether the person owned it or had a right to possession (living
with parents).
(3) The person was an overnight guest of the owner of the place searched.
Minnesota v. Carter: The defendants did not have a sufficient expectation of privacy in the apartment because they were there for
only a few hours, were not there overnight, and were there for business purposes. Commercial purposes receive a lesser degree of
privacy than do personal/social.
Here, an officer peered through a window, observed criminal activity, and then arrested the defendants shortly after they left.
U.S. v. Payner: There was no expectation of privacy in the items seized and searched, since they all belonged to the bank officer. Does not
matter that they were about or referenced someone else.
Fruit of the Poisonous Tree Doctrine:
Evidence derived from law enforcement agents' unconstitutional activity has been held to be inadmissible in criminal proceedings when it has been
obtained as a direct result of that activity, but also when it has been derived only as an indirect result such a constitutional breach. Applies to both
physical and testimonial evidence. Needs but for causation (independent source or inevitable discovery doctrines) and proximate cause (attenuation) in
order to survive suppression motion.
Wong Sun v. U.S.: In determining whether evidence is gained fruit of the poisonous tree, courts are to ask whether the evidence being objected to
was obtained through exploitation of the illegally obtained evidence or instead by means sufficiently distinguishable to be purged of the primary
taint.
Must break the causal link between the bad evidence and the evidence that was gathered as a result of it, in order to bring evidence in.
Here, the police lacked probable cause to arrest Toy because the description of him was not sufficient. Thus, all evidence gathered as a result of that
arrest was considered to be the fruit of the poisonous tree.
There are two main inquiries here. But for, and proximate cause. Not the same as torts though.
But for: Was the evidence obtained trough an independent source? If so, then it won't be suppressed. OR Would the evidence have been inevitably
discovered? If so, no suppression.
Independent Source Doctrine:
Murray v. U.S.: If police initially discover evidence during an illegal search of a warehouse, but subsequently discover the same evidence
during a valid search, the evidence is admissible provided that the second search is totally independent of the first, illegal search.
Mincey v. Arizona:
Murray v. United States:
The affidavit submitted to the judge did not have any information that was gained from the unwarranted search. Police had information from
a different source that would have justified a search, and if they did rely only on those facts, tit was as if they traveled back in time.
The process of getting a warrant is more than having probable cause, and helps to constrain and restrain the scope of the search.
Inevitable Discovery Doctrine:
Nix v. Williams: The burden is on the government to show by a preponderance of the evidence that the evidence the prosecution seeks to
introduce ultimately would have been discovered by lawful means. However, the prosecution does not have to show that the officers acted in
good faith; exception applies even if the police knew that their actions would be unlawful and deliberately chose the unlawful method.
Here, the admission by the defendant was excluded because his 5th Amendment rights were violated. However, the body was deemed
allowable because search teams were already in close proximity to the body and it would have been found anyway.
Hudson v. Michigan: Exclusion is not a foregone conclusion for violations of the knock and announce rule. Even if the evidence would not
have come to light but for the illegal action of the police, one must still tackle the problem of attenuation.
Proximate cause: Attenuation
Attenuation:

U.S. v. Ceccolini: The voluntary testimony of the witness was an independent intervening act that broke the causal chain.
The greater the willingness of the witness to freely testify, the greater likelihood that he or she will be discovered by legal means, and
therefore, there is less incentive to conduct an illegal search. Free will can clean the taint???
Impeachment:
U.S. v. Havens: If evidence is illegally acquired, it may be introduced for the limited purpose of impeaching the defendant.
5th Amendment:
General Rule: "[No person] nor shall be compelled in any criminal case to be a witness against himself...".
Overall policy concerns:
Prior to the Revolutionary War, the King could order people to testify to their actions, regardless of whether they wanted to or not. The King could
torture individuals in order to extract information, which could then be used against them.
Prevents people from being the instrument of their own destruction.
Trilemma:
1) Avoids self-incrimination. - TALK
2) Avoids not talking but creating the inference of guilt. - BALK
3) Prevents perjury. - LIE
There is no way to know what the cost of applying the 5th Amendment right is.
Innocent people don't invoke it.
Guilty people would probably perjure themselves if they didn't have the right.
Burr: The privilege against self incrimination rests solely with the Defendant, who alone has the right to decide whether an answer would be
incriminating.
Answers the question of who bears the burden of invoking the privilege.
Question: In what way do the cases try to put the Defendant in the place they would have been in if they had not testified:
Counselman v. Hitchcock: Where there is a violation of the Fifth Amendment, the claimant must be put in the position he would have been in
had immunity been claimed.
Is it sufficient to say that use immunity prevents the prosecutor from using wrongly acquired info?
1) The privilege applies in any proceeding under oath.
2) Direct testimony is not admissible, but neither are the fruits of such testimony.
Immunity:
Two types of immunity: 1) use and derivative use immunity. 2) Transactional immunity.
Murphy v. Waterfront Commission: The privilege prohibits a state from compelling testimony under a grant of immunity unless the testimony
cannot be used by a federal prosecutor .Thus, federal prosecutors may not use evidence obtained as a result of a state grant of immunity,
and vice versa.
Transactional immunity:
Brown v. Walker: Transactional immunity statute is valid because it prevents a person from being criminally prosecuted for providing
information that would aid another criminal prosecution.
Use and derivative use immunity:
Ullman v. United States: The immunity granted need only protect against those sanctions which generate the fear that justifies invocation of
the privilege, i.e. criminal sanctions.
Kastigar v. United States: Prosecutors need only grant use and derivative use immunity to individuals who are unwilling to testify.
Coextensive with the 5th Amendment even though neither type protects the individual from prosecution. Only ensures that the testimony
provided will not be used. Won't prevent an investigation and subsequent criminal charges.

N.B.: When prosecuting someone who was previously immunized, the government must show by a preponderance of the evidence that the
evidence used in the subsequent prosecution is independent of the prior testimony.
Contours:
1) What does it mean to compel testimony?
Griffin v. California: A prosecutor may not comment on the defendant's failure to testify at trial.
Impermissibly penalizes the defendant's exercise of this Fifth Amendment rights, and the threat of such comments pressures the defendant to
testify and thereby waive their rights.
Carter v. Kentucky: A defendant is entitled, upon timely request, to have the trial judge instruct the jury members that they are to draw no
adverse inference from the defendant's failure to testify.
Ohio Adult Parole Authority v. Woodward: A voluntary inmate interview does not violate the 5th of 14th Amendments.
Williams v. Florida: Requiring mandatory notice of a defense prior to trial is not compelled testimony, and the pressure is no different from
that faced in Woodward.
McKune v. Lile: Even though loss of privileges and being sent to a different facility is a punishment for exercising 5th Amendment rights,
the state has a compelling interest in the transfer and granting of privileges so it is not compellation.
O'Connor: Some penalties may be sufficient to qualify as coercion/compellation, but not the withholding of privileges or facility
transfers.
U.S. v. Antelope (9th Circuit): Where the penalty is more than merely hypothetical, and has effectively extended the defendant's term, it
may be found to be compulsion to require disclosure of prior sex crimes.
2) What does it mean to incriminate oneself?
If the witness's answer poses a sufficiently serious risk of criminal punishment (and if compulsion and testimony are satisfied), then the
privilege applies.
What counts as criminal punishment:
Boyd v. U.S.: Certain types of civil forfeiture should be considered criminal for 5th Amendment purposes.
Recently: legislative intent.
U.S. v. Ward: Reporting requirements do not violate the 5th Amendment if used to support a civil penalty.
7 factors:
1) Disability or restraint such as fines and imprisonment.
2) Proceeding is historically punitive?
3) Scienter requirement: mens rea.
4) Pormote deterrence rehabilitation.
5) Behavior is punished separately as a crime.
6) Listed as non-criminal.
7) Whether there is an alternative purpose that can be connected to it and then whether it appears excessive in relation to that
excessive purpose.
Allen v. Illinois: The legislation met all seven criteria, but because the legislature declared it non criminal, it was not held to be
criminal thus no 5th Amendment protection applied.
How great must the risk be for a witness to claim the privilege?
Brown v. Walker: The danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the
ordinary course of things, not a danger of an imaginary and insubstantial character, having reference to some extraordinary and
barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.
How serious must the risk of criminal punishment be?

Hoffman v. United States: It need only be evident from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure
could result.
Hiibel v. Sixth Judicial District Court of Nevada: Refusal to provide identification was not protected under 5th Amendment in this
situation because there were no articulated real and appreciable fear that his name would be used to incriminate him.
Defendant was stopped by an officer after an assault report was filed, and refused to provide his identification. Defendant stated no
reason why other than the fifth amendment. There was a law stating that anyone arrested under it must identify themselves, but was not
required to answer any other questions.
Chavez v. Martinez: Only when a testimony is introduced in a criminal case is the 5th Amendment violated.
Defendant was interrogated by a police offer while he was in extreme pain, which violates both due process and Miranda.
The phrase incrimination can also refer to the setting in which the compelled testimony is used.
3) What does it mean to testify against oneself?
What if the evidence is something other than an oral answer to an oral question?
Schmerber v. California: Blood taken from a defendant for purpose of BAC determination was not "testimonial" so no 5th Amendment.
Suggests physical evidence is not covered by the privilege, because it is not communicative in the same way that oral testimony is.
What does it mean for information to be "testimonial"?
Doe v. United States: In order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information. Only under those circumstances is a person compelled to be a witness against himself.
Here, a defendant was required to sign a document authorizing foreign banks to turn over his account records, though he was not
asked to identify any accounts or verify their existence.
Stevens: Can a defendant be compelled to use his mind to assist the prosecution in convicting him? No. Here, the defendant
turned his mind toward writing, the effects of which were used against him.
Pennsylvania v. Muniz:
Here, information about the defendant's mental coordination was gathered through the use of asking six questions that
required him to think.
Testimony is evidence that encompasses all responses to questions that, if asked of a sworn suspect during a criminal trial
could place the suspect in the "cruel trilemma".
Where suspects are required to communicate their knowledge or lack of knowledge about certain facts, their personal beliefs,
and a choice between truth and falsity, then it is more likely testimony.
In Doe, the consent form did not identify any particular facts or beliefs, so the defendant could not have attested to the
truth or falsity of any of the information.
Burdening the Privilege:
The privilege does not protect lies:
United States v. Apfelbaum: Immunized testimony may be used against a defendant to impeach him in a prosecution for perjury.
Brogan v. United States: If a defendant lies and says no, rather than pleading the 5th, then he can be criminally punished for
misrepresentation.
Except when it doesn't:
New Jersey v. Portash: A person's testimony before a grand jury under a grant of immunity may not be used to impeach him when he is a
defendant in a later criminal trial.
Hale v. Henkel: Only natural persons can claim the 5th Amendment privilege.
Necessary in order to regulate economic affairs.

Required records doctrine:

Shapiro v. United States: If a person or business is required to keep certain records, the privilege does not apply if the records were not used
in furtherance of a civil regulatory scheme.
Marchetti v. United States: Applies three part Albertson test:
Defendant was a professional gambler who did not register and pay the occupational tax.
1) Statute was directed at a specific group.
2) Is a member of a group that is inherently suspect of criminal activity.
3) The inquiry is into an area of law permeated with criminal activity.
The information provided would basically incriminate them merely by providing it.
No need to assert privilege here, as even that would have been incriminating.
California v. Byers: 5th Amendment does not extend to law requiring hit-and-run drivers to remain at the scene.
The cost to the government's interest in civil regulation of traffic accidents is too great to allow drivers to get away.
Baltimore City Dpeartment of Social Services v. Bouknight: A state may require a person civilly charged with being an unfit parent to produce the
child.
The state has an interest in enforcing its civil regulatory code, and because it is a civil (and non penal) issue, the 5th Amendment does not apply.
The defendant's claim falls powerfully within the ambit of the 5th Amendment, since producing the child (or not) would have been incriminating
given the circumstances. However, the cost to the government would have been too high to calculate, particularly as concerns the health or well
being of the child.
Fisher v. United States: A suspect's act of producing tax documents in response to a summons "testified" only to the existence of the
documents, their authenticity, and the fact that the suspect had custody of them - facts which were already known anyway.
Here, the defendant was subpoenaed to produce tax documents for the court.
United States v. Hubbell: But where the subpoena dubbed a "fishing expedition" caused the defendant to make extensive use of the contents
of his own mind in locating and identifying the documents to be produced, that will fall within the 5th Amendment.
Here, the defendant had to submit over 13,000 pages of discovery in response to a subpoena.
Lefkowitz v. Turley: A state may not condition the award of a contract to contractors upon a waiver of the 5th Amendment right.
Pre-Miranda:
Bram v. United States: Confession excluded based on common law of evidence and Fifth Amendment.
Malloy v. Hogan: Fifth Amendment privilege applies to the states (1964).
Due Process Developments:
Brown v. Mississippi: Admission into evidence of an involuntary confession coerced through physical torture is a violation of Due Process.
Expanding the definition of coercion:
Ashcraft v. Tennessee: An inherently coercive interrogation was found where the defendant was held for 36 hours without the ability to
communicate with the outside world, without sleep or rest, non stop.
Watts v. Indiana: Where a confession is the product of sustained pressure by police (defendant was held incommunicado and without a
hearing for 6 days), the confession does not come from free choice and is not voluntary.
The right to counsel:
Moved away from analyzing whether or not the confession was voluntary to asking whether police conduct was acceptable in a free society.
Massiah v. United States: An indicted defendant's surreptitious questioning by an undercover police agent violated the sixth amendment right to
counsel.
Once adversarial proceedings have started, he has a right to legal representation when the state interrogates him.
Established a per se right to counsel for all federal defendants, and implicitly applied to state felony defendants

Reasoning:
1) Counsel is important during the early stages of questioning because it might deny a defendant 'effective representation by counsel at the
only stage when legal aid and advice would help him'.
2) The time from arraignment to trial is the most critical part of the proceedings.
3) In order to provide meaning to the sixth amendment right to counsel, it must apply to both undercover interrogations and known
interrogations.
Escobedo v. Illinois: Where the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular
suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating
statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him
of his absolute constitutional right to remain silent, the accused has been denied the assistance of counsel, and a violation of the sixth
amendment has occurred, and as a result no statement elicited by the police during the interrogation may be used against him at a criminal
trial.
Creates the rule that the right to counsel only attaches at critical stages that occur after the beginning of adversarial judicial criminal
proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Miranda:
Miranda v. Arizona: There is a Fifth Amendment privilege against self-incrimination which is a basis for determining the admissibility of a pre-trial
confession in both state and Federal prosecutions. When a law enforcement officer interrogates a suspect in custody, the officer must inform the
suspect of his rights, warn him of the consequences of waiving those rights, and obtain a waiver; otherwise any confession made by the suspect is
inadmissible at trial to prove the suspect's guilt.
Custodial police interrogations are inherently coercive. Therefore, in order to retain the element of voluntariness and offset the coercive nature, the
police must warn of the following:
1) The right to remain silent.
2) Anything he says can be used against him at a court of law.
3) The right to the assistance of a lawyer.
4) If he cannot afford a lawyer, the government will provide him with one.
Voluntariness still matters:
1) Where a person confesses.
2) Where the Massiah right applies.
Scope:
Initial assumption is that any incriminating statements made in response to custodial interrogation were presumptively compelled.
Heavy burden to establish a voluntary waiver.
Definitions:
Custody:
Orozco v. Texas: Miranda applied where a suspect was questioned at 4 am in his bedroom.
Probably didn't feel free to leave.
Estelle v. Smith: Applied where a psychiatrist's testimony was used at the penalty stage of a capital case based on his exam of the
defendant where the defendant was not Mirandized prior to the examination.
Oregon v. Mathiason/California v. Behler: No violation where the defendants voluntarily went to the police and confessed without being
placed under duress.
Not in custody, confessed of their own free will.
United States v. Mandujano: Does not apply to grand jury witnesses.

They aren't the ones in custody.

Beckwith v. United States: Does not apply where there is an investigation but no arrest.
No custody.
Berkemer v. McCarty: A traffic stop does not itself qualify as custody, since it is temporary detention for the purpose of issuing a citation,
as opposed to being in the police-dominated atmosphere of a station.
Some situations involving traffic stops may involve custody, so in those situations it would be necessary for police to Mirandize.
Terry stops do not implicate Miranda, but if there is an arrest after a Terry stop, then Miranda applies.
Minnesota v. Murphy: There was no formal arrest or restraint on freedom of movement when the defendant confessed, thus Miranda is
inapplicable.
Stansbury v. California: The officer's intent is irrelevant when assessing Miranda.
Defendant was asked to accompany officers to the station because they believed he was a witness to a crime. He made several
incriminating statements, at which point, the police placed him under arrest. The state upheld conviction because defendant was not the
prime suspect at the time the statements were made.
Interrogation:
Rhode Island v. Innis: There was no interrogation because there was only a dialogue between officers to which no response from
defendant was invited.
"The term interrogation refers to any words or actions on the part of the police that the police show know are reasonably likely to elicit
an incriminating response from the suspect. The after portion of this definition focuses primarily upon the perceptions of the suspect,
rather than the intent of the police."
Arizona v. Mauro: There is no interrogation where police allow suspect's wife to talk to him in the presence of officers while taping the
conversation with the suspect's knowledge.
If he had no knowledge, then this would probably be more like Massiah and it would implicate his sixth amendment right to counsel
rather than fifth amendment right against self-incrimination.
Illinois v. Perkins: Miranda warnings need not be given by someone whom the defendant does not know to be a police officer.
Here, defendant had a cellmate who was covertly working for the police.
It is acceptable for police to use trickery to obtain a confession.
Warnings:
California v. Prysock: A failure to explicitly connect the right to counsel to the right to appointed counsel does not qualify as an invalid
Miranda warning.
Separate references are sufficient.
Duckworth v. Eagan: Not using the explicit language stated in Miranda is acceptable provided that the rights are conveyed sufficiently.
Florida v. Powell: The warnings were adequate, even if it did not explicitly state that the defendant had a right to counsel during
questioning.
Invocation:
Right to remain silent:
Michigan v. Mosley: Invocation of the right to remain silent must be scrupulously honored. It is scrupulously honored when:
1) Police immediately cease questioning when the defendant indicates his desire to remain silent.
2) Resumption only after passage of a significant amount of time (2 hours in this case).
3) New Miranda warnings were given prior to resumption.
4) Later interrogation was restricted to a crime that was not the subject of the first interrogation.

Right to counsel:
Edwards v. Arizona: If, after receiving Miranda warnings, defendant informs the government officers that he wishes to speak with his
attorney, he may not be subjected to further interrogation until his attorney has been made available to him, unless he initiates
discussion with the police.
If a suspect gives an indication that they are happy to make a response to some sort of police questioning, but one that doesn't make
sense legally: "I'll give oral, unsigned answers."
If a suspect lacks understanding of their rights, and indicates that they
Davis v. United States: Was the request for counsel sufficiently clear that a reasonable police officer in the same situation would
understand the statement to be a request for counsel.
Once an unequivocal expression to receive counsel has been made, no subsequent questions or responses may be used to cast doubt
on the request and all questioning must cease. However, where the request is ambiguous, officers may be ask clarifying questions or
may continue to interrogate the suspect until an unambiguous request is received.
Connecticut v. Barret: Refusal to make a statement without counsel present is not sufficient to invoke Edwards.
Fare v. Michael C.: Statements are admissible where Miranda has not been adequately invoked and where a defendant does not
explicitly ask for an attorney.
Here, a juvenile requested that his probation officer be present. Officers refused, and defendant made incriminating statements.
Oregon v. Bradshaw: Interrogation can continue where a suspect initiates the conversation with the police. A valid waiver lies
where a suspect invokes his right to an attorney, then asks "what is going to happen to me now?", is rewarded, and then submits
to a polygraph.
Arizona v. Roberson: Once a defendant cuts off questioning by invoking the sixth amendment right to counsel, he may not be
questioned about ANY offense without counsel present, even if it is entirely unrelated to to the subject of the initial interrogation.
Minnick v. Mississippi: Once counsel is requested, interrogation must cease whether or not the defendant consults with counsel.
Once the right is asserted, the mere fact that a suspect has earlier consulted with counsel is irrelevant - the attorney must actually
be present during interrogation. A violation of the fifth amendment is found where the defendant requests counsel, is given an
opportunity to confer with counsel and is then forced to talk to the police without counsel present.
Maryland v. Shatzer: When a suspect has been released from his pretrial custody and has returned to his normal life for some
time before the later attempted interrogation, if he gives a confession after 14 days has passed, then that admission is voluntary as
there has been a break in custody.
Diminished benefits accruing to law enforcement and public safety from extending Edwards for the two years contemplated in
this case.
"screw you I want a lawyer" : not ambiguous, it is very clear. not ambiguous, it is very clear that the client knows what they want.
Waiver:
Must be knowing, voluntary, and intelligent.
NC v. Butler/Miller v. Fenton: No magic words needed to waive rights.
All that is required is a course of conduct indicating a waiver, though saying that one understands their rights and wishes not invoke
them is certainly helpful.
Moran v. Burbine: The fact that the police tricked the defendant and kept him in the dark about the presence of a waiting attorney did
not invalidate the waiver.
Sister obtained attorney for brother who was a suspect in a murder. Lawyer called police to say that she would represent defendant in any
questioning. Lawyer was not told that defendant would be in a lineup the next day, nor was she told that defendant was a murder suspect.
Defendant signed a waiver and confessed.

Berghuis v. Thompkins: A suspect who has received and understands his Miranda rights and has not invoked these rights waives the right
to remain silent by making an uncoerced statement to the police.
Cannot claim right to remain silent by remaining silent. An affirmative right to claim the 5th Amendment now exists.
In the absence of an invocation, any incriminating statements can be admitted.
New York v. Quarles: When place officers ask questions reasonably prompted by concern for public safety, the defendant's responses
need not be suppressed even if the defendant was in police custody when the statements were made and the facts come within the ambit
of Miranda.
Creates public safety exception to Miranda.
Unless the suspect initiates further conversation. Does it apply to the sixth amendment also? No.
Bypassing:
6th Amendment:
Due Process:
Future:
Curtilage:
Has always received more protection than open fields.
Question is where does the curtilage end and the open field begin?
First fence rule? Constitutional protection shouldn't depend on how far away a person puts their fence.
How much does the area look like it is needed for the domestic needs of the house?
Ex: garden, bushes, flowers, or other improvements.
If an area is curtilage, then it will receive full 4th amendment protection.
Custody:
An arrest is a broader constraint than a Terry Stop, where the person's freedom of movement is significantly dampened.
Progression:
1) An action occurs that is not covered by the 4th amendment: "Hey you, come here, I want to talk to you for a minute."
2) Then something like a Terry Stop occurs: "No, you're not free to leave yet."
Ask if there is an articulable suspicion?
Grants greater freedom to ask questions that wouldn't be acceptable under Miranda.
3) Is there enough information for the officer to arrest?
What degree of constraint is there?
How long?
Where?
Handcuffs?
So then, was there probable cause?
4) Make a timeline.
5) Assess who the state actor is:
If a non-law enforcement agent/event, then best chance at using special needs to argue that it should be a reasonableness standard.
If can argue that it is about some other tangential reason for stopping people, then can also argue that it is special needs and thus reasonableness.
Where the primary, overwhelming purpose of the activity is criminal law enforcement, then probable cause + warrant will control.