Criminal Procedure: Investigation Class Outline

Table of Contents
Introductory Material ............................................................................................................................................................ 2
What is a Search? ................................................................................................................................................................... 4
What is a Seizure? ................................................................................................................................................................. 7
Introduction to the Exclusionary Rule .................................................................................................................................. 7
Probable Cause ...................................................................................................................................................................... 8
Warrants .............................................................................................................................................................................. 10
Fourth Amendment Reasonableness ................................................................................................................................. 11
ArrestsWarrant Requirement & Seizure of Persons ....................................................................................................... 13
Investigative DetentionTerry Stops, Frisks ..................................................................................................................... 17
Exceptions to the Warrant Requirement ........................................................................................................................... 19
Excessive Force .................................................................................................................................................................... 23
Exclusionary Rule................................................................................................................................................................. 24
Confession & Interrogation Law ......................................................................................................................................... 29

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1) Introductory Material
a) Selected Constitutional Provision
i) Amendment IV (1791)
(1) Search and seizures must be reasonable: reasonableness test totality of the
circumstances(Search and seizure are terms of art)
(2) No warrant but upon probable cause supported by oath or affirmation and
describing with particularity the place search and the persons seized.
ii) Amendment V (1791)
(1) No person shall be compelled, in any criminal case, to be a witness against himself.
iii) Amendment VI (1791)
(1) Accused shall enjoy assistance of counsel for his defense (after indictment and upon
arrest)
iv) Amend XIV (1868)
(1) Incorporation doctrine
b) Policy Issues: Balance of these two policies
(1) Crime Control (Efficient expeditious, and reliable disposition of persons suspected of
crimes.)
(2) Due Process (Individual Constitutional Rights) (Rarely is there political support for
due process, and therefore, judicial activists attempt to further balance
c) Judicial Restraint and Judicial Activism
i) Judicial Restraint: Deference to legislators, ground decisions in text, history,
tradition, and precedent, and minimize political discretion, and reject expansive
judicial policy-making.
ii) Judicial Activism: feel free to be non-deferential to democratic decision-makers and
states; draw broadly on public policy considerations in making decisions; exercise
substantial political discretion; and accept expansive judicial policy-making.
d) From the Warren Court to the Roberts Court
i) Warren Court from the 1960s onwards represented many of the landmark precedents,
which represent significant judicial activism towards Due Process (modern 4th
Amendment, Modern exclusionary rule, Modern right to counsel).
ii) Roberts Court have not yet been overruled, but they have been significantly narrowed
and many exceptions with considerable holes in the decisions over the years.
iii) SCOTUS Struggles with Comprehensiveness, Coherence, and Implementation.
e) Ideal rules and real rules
i) Alan Derschowitz
f) The Incorporation Controversy
i) Original Bill of Rights ratified in 1791,and limited solely the federal government.
ii) Vehicle is the 14th Amendment (1868), limits the states.
iii) Concept of incorporation, Incorporates by references (due process), the key provisions
of the Bill of Rights through the 14th Amendment to the State Governments.
However, there was NO actual application of this to the states until the 1960s.
(1) Mapp v Ohio; 1961; 4th Amend + Exclusionary Rule
(2) Malloy v. Hogan; 1964; 5th Amend Right against self-incrimination
(3) Gideon v. Wainwright; 1963; 6th Amendment right to Counsel
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 iv) Theory of Total Incorporation: All provisions, that are individual rights, should be
incorporated through the 14th amendment. Never got a majority on the Supreme
Court. Good reading of the amendment. [Justice Hugo Black]
v) Fundamental Fairness (Pseudo-incorporation): None of the provisions are actually
incorporated, but there are fundamental rights, like what is in the Bill of Rights, with
that are incorporated and implemented into the state. Ordered Liberty [Justice
Frankfurter and Justice Harlan] Some of the traditional rights, founded in ordered
liberty, might look like those listed in the Bill of Rights, but they are not exactly the
same.
vi) Selective Incorporation (Hybrid Approach): Some stuff is in; some is out. How we
decide whether something is incorporated or not is whether something is
fundamental to fairness and tradition. 4th, 5th, and 6th are IN, because they are
important because they are fundamental to fairness and to the national historical
tradition.
(1) Duncan v. Louisiana, 391 U.S. 145 (1968), 14th Amend. Guarantees a right of jury
trial in all criminal cases would come within the 6th amendments guarantee.
(a) Rule: Establishes selective incorporation, as a matter of fundamental fairness,
4th amendment, 5th amendment, and 6th amendment are selectively
incorporated against the states as well.
g) The Shift from Boyd to Schmerber, Hayden, and Katz
i) 4th Amendment prevents unreasonable search and seizure; exclusionary rule; sets
of search rules for custodial search, search upon arrest.
(1) Modern Analysis of 4th Amendment: [1] was it a proper search/seizure; [2] was it
reasonable; [3] does the exclusionary rule apply?
ii) Boyd v. United States, 116 U.S. 616 (1886), right against self-incrimination.
(a) Property rights analysis; English Common Law; and Trespass
(b) Facts: (Pre-incorporation) US Customs officials believe that Boyd avoided paying
the customs tax upon importing glass and failed to bring necessary. Theres a
self-incrimination element there.
(c) Rule: (older doctrine) The 4th and 5th Amendments are two sides of the same
coins. Papers are Boyds property, and the government engaged in a trespass at
common law (or functional equivalent), that is a akin to unreasonable search.
(d) Entick v. Carrington (Lord Camden), taken from the English common law
heritage, as framers intent, protect peoples property interest, and to protect
government from trespassing upon the persons property. HOWEVER, the
government may reasonably search and seize a persons stolen property, or
contraband, or criminal instrumentalities. Government can only search and
seize what it has a property interest in.
(2) Schmerber v. California, 384 U.S. 757 (1966)
(a) Facts: Guy taken to hospital for a blood test for DUI. Blood was seized, but it is
not stolen property, contraband, or criminal instrumentalities. But it is his
property, and mere evidence of a crime.
(b) Rule: Under Boyds 4th Amendments analysis, it violates the reasonable search
and seizure. (There is called exigency doctrine) Blood alcohol dissipates
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 (c) Rule: Where blood test evidence, although it may be an incriminating product of
compulsion, is neither testimony nor evidence relating to some communicative
act or writing by a defendant, it is not inadmissible on privilege grounds.
(3) Warden v. Hayden, 387 U.S. 294 (1967)
(a) Facts: Hayden robs cab company, police follow Hayden into a house, where they
find gun and clothes in washing machine.
(b) Rule: The exigencies of a situation may make imperative a warrantless entry
into premises and a subsequent search. The Fourth Amendment does not require
police officers to delay in the course of an investigation if to do so would gravely
endanger their lives or the lives of others.
2) What is a Search? [Katz and Subsequent Cases on Searches]
a) Katz v. United States, 389 US 347 (1967) [phone taps is a search]
(a) What is a search?
(b) Facts: FBI agents attached an electronic listening and recording device to telephone
booth and recorded s conversation that he was waging bets.
(c) Issue: Is a phone booth a constitutionally protected area and Is there a physically
invasion required?
(d) Rule: Was there a search? If police invade an expectation of privacy (J. Harlan
Concurrence)
(i) Does that person have exhibited an actual (subjective) expectation of privacy?
(ii) Is that expectation one that society is prepared to recognize as reasonable
(Objective, reasonable, or legitimate, justifiable, expectation of privacy)?
1. REASONABLE EXPECTATION OF PRIVACY (REP) [Objective prong schema]
a. Facts statistical analysis, empirical analyses
b. Values (Social value, Intrusiveness; Attempts the person took to guard their
privacy; balanced with crime control)
(e) Holding: Wrong questions. Right questions are centered around privacy (Griswald)
(i) No Common Law property rights; No trespass, conversations are intangible they
cannot be searched or seized.
(ii) Instead Majority focuses on Privacy Right. didnt expect anyone to listen. Doesnt
need physical intrusion to be a search, and the search is unreasonable.
b) United States v. White, 401 U.S. 745 (1971) (J. White) [false friends not a search] [Must
have the complicity of one of the parties; otherwise you get the Katz opinion/facts)
(a) Facts: 4 conversations in Jacksons home overheard by officer in closet and officer using
radio receiver; 4 other conversations overheard by radio equipment.
(b) Previous Disposition: Court of Appeals held that conversations are not admissible
(based on Katz)
(c) Rule: No protectable expectation that other person wont reveal the conversation later
(Hoffa v. United States, 385 U.S. 293 (1966))
(d) Holding: The recordings are constitutional. Unlikely that would distinguish between
an informer and a wired informer. The recordings are constitutional.
c) Oliver v. United States, 466 U.S. 170 (1984) [open fields not a search] (an area that is not
enclosed by a fence, wooded area, etc.)
(a) Rule: No reasonable expectation in open fields, not a 4th Amendment Search
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 (b) Boyd analysis: Its a trespass, but the open field is not an person, place, paper or effect.
Its outside the restrictive language of the 4th Amendment.
(c) Katz analysis: Can move onto an open field (with or without a trespass sign) any time
they want. And can move about and investigate as they wish, without running afoul,
because it is not a 4th Amend. Search (up unto search).
d) United States v. Dunn, 480 U.S. 294 (1987) [curtilage is a search]
(a) What is curtilage?
(i) The areas proximity to the home;
(ii) The existence of an enclosure around the area
(iii) The nature of the use to which the area is put
(iv) The precautions taken to exclude others from the area
(b) Whats knowingly exposed to the public, isnt private Katz
(i) Anything a normal person can do, the police can do.
(ii) Implied social license (driveway)
e) California v. Ciraolo, 476 U.S. 207 (1986) [aerial observation of curtilage is not a search]
(a) Rule. Any police flyover of the curtilage of 400 in a helicopter/1000 in a fixed wing
aircraft is not a 4th Amend. Search.
f) Bond v. United States, 529 U.S. 334 (2000) [luggage squeezes is a search]
(a) Rule: Bond placed a brick of methamphetamine into a bag, which was squeezed by a
Border Patrol agent
(b) This is a 4th Amend. Search. A bag is an effect.
(c) Scalia (dissenting): Its about the touch, its not about the purpose of the touch. It was
foreseeable that that your bag would be pushed, squeezed, and manipulated.
g) Company Records (Third-Party Doctrine); Under Connive with a third-party.
(a) Bank (United States v. Millen)
(b) Phone company (Smith v. Maryland)
h) Kyllo v. United States, 533, U.S. 27 (2001)
(a) Facts. Kyllos house is a grow house. Police need the probable cause. To get probable
cause, they take a heat readings, they see a thermal imaging device, consistent. Kyllos
lawyer says there was no probable cause to (Fruit of the poisonous tree; causal
analysis in which the thermal imaging device is a search, which needs support by
probable cause, to support a warrant.) Why is this a search?
(b) Rule. Sense enhancement device, not in general public use, used to obtain information,
not otherwise available, is a physical invasion.
(i) Kyllo had a subjective expectation of privacy.
There is an objective expectation of privacy (the home). Privacy is at a maximum in
the home. , more likely to be a search. (Majority) This is quite intrusive. Scalia: All
details in the home are quite personal And he took significant measures to guard
against detection. There is significant crime control problems, but nothing special
here.
i) United States v. Place, 462 U.S. 696 (1983)
i) Rule: Exposure of respondents luggage, which was located in a public place, to
trained canine. . . did not constitute a search.
j) Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974)
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 i) Rule: Daylight visual observation of smoke plumes from open fields of respondents
property is not a search
k) Rakas v. Illinois, 439 U.S. 128 (1978)
i) Rule: Automobile passenger has no legitimate privacy interest in unlocked glove
compartment or area under front seat.
l) Hudson v. Palmer, 468 U.S. 517 (1984)
i) Rule: Prisoner has no legitimate privacy expectation in prison cell; fourth amendment
not applicable within confines of prison cells
m) New York v. Class, 475 U.S. 106 (1986)
i) Rule: Automobile owner has no legitimate privacy interest in vehicle identification
number.
n) California v. Greenwood, 486, 486 U.S. 35 (1988)
i) Rule: No objectively reasonable expectation of privacy in trash voluntarily left in
trash bags for collection along a public street.
o) United States v. Caballes (2005)
i) Rule: Drug Dogs sniffing around vehicles not a search
p) United States v. Jacobsen, 466 U.S. 109 (1984)
i) Rule: Private search not a search.
ii) Rule: Replication of a private search, not a search.
iii) Rule: Field test for contraband, not a search.
q) United States v. Knotts (1983)
i) No Search; No Reasonable Expectation of Privacy (Key: NO Trespass; Beeper passed)
r) United States v. Jones, (2012)
i) Common Law: Trespass to chattels
ii) Rule: Common law trespass to chattels. In order to be a search, need to be done to
obtain information.
(1) When there is a physical invasion of a constitutionally protected area (trespass) to
obtain information, that is a search. Common law trespass to chattel. Since it was
a search, it has to be reasonable.
iii) Mosaic Theory: You may have a reasonable expectation of privacy, govt stalking. At
some point you move from no search to search. It would affect (both fbi), under the
mosaic theory, you need.
s) TWO MODES OF ANALYSIS: 4th Amend. Search for Beepers/GPS (Katz-Reasonable
Expectation of Privacy; Jones Physical invasion of a Constitutionally Protected Area)
t) Florida v. Jardines (2013)
i) Facts: Drug sniffing dogs on front porches.
(1) Place. Baggage-not a squeeze.
(2) Caballes. Cars on public road-not a search.
(3) Kyllo. Sense-enhancing Device-Is A Search.
ii) Issue. Is there an invasion of a constitutionally protected area.
iii) Rule. There is a physical invasion of a constitutionally protected area of curtilage
when drug dogs are brought onto a porch. There is an implied social license for knock
and talk but this does not extend to drug dogs.
3) What is a Seizure?
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 a) United States v. Jacobson:
i) Rule: A seizure is a meaningful interference with a possessory interest. [ITEMS]
b) Terry-Mendenhall test [PERSONS]
i) Rule: A seizure occurs only when the officer, by means of intent use of physical force
or show of authority that a reasonable person, under the totality of circumstances,
would not feel free to leave. [Heightened coercion-something more than just a asking
a question.]
c) Clean Seizures
i) Handcuffs
ii) Detained; you are not free to leave; seized; youre under arrest
iii) Shot by police; clubbed; stuffed in a squad car; put in an arm lock.
d) No so clean Seizures
i) Questioning suspects? Mendenhall
ii) Questioning in confined spaces? Royer
iii) Fleeing suspects? Hodari D
iv) Passengers in vehicles? Brendlin
e) United States v. Mendenhall (1980)
i) Q on the airport concourse; Q interview.
ii) Rule: Mendenhall voluntarily consented to accompany the agents to the DEA office
and voluntarily consented to the search of her person.
f) Florida v Royer (1983)
i) Travel documents were taken and not given back. Suspect was seized.
g) Florida v. Bostick (1991)
i) Rule: A person who is not seized should feel to disregard the police and go about his
business. ( should feel free to Decline requests, Answer questions, & terminate the
encounter)
h) California v. Hodari D. (1991) [fleeing suspects]
i) Rule: If there is a show a force. If they submit, its a seizure. It they do not submit, it
is not a seizure if the run.
ii) For seizure, Need to take possession, BUT for arrest, theres constructive seizure
(when not actually taken into custody; by touching )
iii) Wardlow (Flight from the police in a high-crime area is reasonable suspicion)
iv) Justice Scalia. The Terry-Mendenhall factors were written for the point that they
would comply. They are necessary factor, but not sufficient.
i) Brendlin v. California (2007)
i) Rule: Any reasonable passenger would understand the police to be exercising control
to the point that no one in the car is free to depart without permission.
ii) Rule: A car stopped by police. Driver is seized. Passenger is seized.
iii) Rakas: Standing; we only have standing to raise our own 4th amend. issue
iv) Johnson: Justification;
4) Introduction to the Exclusionary Rule (Policy Arguments) and fundamental cases [ER]
a) 4th Amend. Evidence (Possession of Drugs/Weapons) presents a fundamental lynchpin
to the case.
b) Weeks v. United States (1914)
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 i) Origin of the Exclusionary Rule (No English Common Law exclusionary Rule)
ii) Facts: Police searched s house w/o warrant. Later, officer and sharshal and police
came and search against and took letters and envelopes; wants property back.
Papers were introduced at trial.
iii) No approval of the courts of 4th amendment violations.
(1) There is no right, if there is no remedy.
(2) Judicial Integrity necessitates the remedy: Judicial branch has violated the 4th
amendment, we dont want to be complicit into the violations.
c) Wolf v. Colorado (1949)
i) Felix Frankfurter. Pseudo-Incorporation of the 4th Amendment. Were
incorporation something like the 4th amendment. A parallel right that applies to the
states.
ii) The 4th amendment is incorporated, but there is no exclusionary rule.
iii) At this point, only 1/3 of the states were experimenting with an exclusionary rules.
d) Mapp v. Ohio (1961)
i) Rule: Full incorporation of 4th amend. And Exclusionary rule applies. AKA, Wolf v.
Colorado with lack of the exclusionary rules, is overturned.
ii) Policy arguments: (1) Mainly Deterrence but also (2) judicial integrity
(1) Formerly No right, no remedy is rhetorically a weak argument, it only protects
criminals.
(2) Deterrence protects everybody. Its a strong argument. It protects innocent people,
against innocent police phishing.
(3) Alternative Remedies are inadequate.
(4) Platter doctrines-The coordination between federal and state laws, can circumvent
the behavior that the 4th amend was intended to prevent.
iii) Calandra decision (1974)
(1) Deterrence is the policy (lead to a balancing of costs in crime versus benefits of
deterrence)
(2) A judge-made prophylactic rule use to prevent 4th Amend. Violations
(3) THEREFORE, when the costs outweigh the benefits, then we create an exception to
the exclusionary rule. By demotion in status from the Exclusionary Rule from
(part and parcel of 4th Amend) to (judge-made prophylactic rule), it is much easier
to create exceptions to these rules.
e) Other Future Issues
i) Standing
ii) Fruit of the Poisonous Tree-Causation
iii) Good Faith
iv) Impeachment
5) Probable Cause
a) Warrants shall not issue, but upon probable cause, supported by oath or affirmation, and
directed to particular persons, place, and things to be searched or seized.
b) Probable Cause (in Clause 2) aids in determination of Reasonableness (in Clause 1)
c) Probable Cause 30-35% (No hard and fast numbers). A totality of the circumstances
analysis.
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 i) Common sense analysis non technical done often by police
ii) A quantum of suspicion.
(1) PC-Arrest (The person is seizeable, as a basis in the crime) JUST A SEIZURE
WARRANTEXCEPTION-Entry into the persons home.
(2) PC-Search (The item is seizeable, because of their association with crimes based on
their particular location and particular time) (ALWAYS A SEARCH AND SEIZURE
Warrant).
d) Maryland v. Pringle (2003)
i) Facts: Passenger in a car
ii) Rule: There was Probable Cause for the arrest. He was in the car, drugs were in the
car, they were in everyones reach. $700 in cash, everybody view. Joint Possession of
the narcotics. This is only probable cause for the arrest, not facts for trial.
e) TIPS
i) Spinelli v. United States (1969) [2 Prong test requirement for Tips]
(1) Veracity
(a) Track Record
(b) Statement against interest
(c) Corroboration
(2) Basis of Knowledge/Reliability
(a) Firsthand detail
(b) Previous Tips
(c) Self-verifying detail
ii) Illinois v. Gates (1983)
(1) Rule. Probable cause standard is that of a practical, nontechnical conception. We
are not doing the Spinelli 2-prong test, instead the totality of the circumstances.
Veracity and reliability are incorporated into the totality of the circumstances.
(2) Policy Reasons to Overturn Spinelli
(a) Most warrants are written and issued by non-lawyers
(b) Worries that if fewer warrants are issued, than police will invade other 4th
amendment issues such as a consent search in the home.
(c) If fewer warrants are issued, than this will impede crime control measures.
(3) Great deference to Magistrates
f) PRE-TEXT
i) Whren v. United States (1996)
(1) Facts. Unmarked police car observed a car that makes numerous traffic violations.
Police have probable cause to make a traffic stop, but we are concerned that this is
pre-textual, that it is investigative and based on racial basis.
(2) Under the 4th amendment, there is no concern for officers subjective motivation,
with very few exceptions. We only occur objective reasonableness, if there is a
traffic stop based on probable cause, under the 4th Amend.
(3) Rule. There is no bar to a pre-textual stop on the 4th amendment.
ii) Devenpeck v. Alford (2004)

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 (1) Whether an arrest is constitutional when an officer lacks probable cause to arrest a
person for the offense he stated to be the basis for the arrest, but has probable cause
to arrest for another offense that is not closely related to the stated offense.
(2) Rule. Such an arrest is consistent with the probable cause demand (relying on
Whren)
6) Warrants
a) Preference and Issuance
i) The Warrant Preference. The warrant preference reflects the view that the probable
cause determination will be made with greater accuracy by a detached and neutral
magistrate and are more accurate. Great deference to magistrates but no deference
to police officers probable determinations. Johnson v. United States, (1948)
ii) Supported by Probable Clause. Probable cause is a constitutional requirement for the
issuance of a warrant.
iii) Detached and Neutral Magistrates. Magistrates can include clerks, but dont have
to be judges or lawyers. Cannot be a state office in the office of the attorney general
who may be the chief investigator and is later prosecutor in the case involving the
search warrant.
iv) Oath or Affirmation. If the officer violates his or her oath or affirmation-intentionally
making a false statement to the magistrate or acting with reckless disregard to truth
or falsity of a statement-and the statement was necessary to the finding of probable
cause, the warrant issued is invalid. Franks v. Delaware (1978)
v) Particularity. Particularity requirement is best understood as a requirement of
reasonableness-of reasonable particularity in light of the facts and circumstances.
Steele v. United States (1925)
b) Execution
i) Execution within Specified Time. Some jurisdictions, either by statute or rule of
procedure, require that a search warrant be executed within a designated period of
time-on the assumption that the evidence supporting the search warrant is subject to
staleness with the pass of time. Fed. R. Crim. P. 41.
ii) Nighttime Execution of Warrants. Some jurisdictions, either by statute or rule of
procedure, prohibit nighttime execution of warrants in the absence of special
circumstance. (Common law requirement). Daylight is commonly specified by state
statutes. Federal rules define daylight as 6:00am to 10:00pm. Gooding v. United
States (1974). Some states say it is a 4th Amend requirement, some state say it is
not.
iii) Means of Entry to Execute Warrants.
(1) Wilson v. Arkansas (1995) holding that the common law knock and announce
principle part of the reasonableness inquiry under the Fourth Amendment and is,
in general, required by the Fourth Amendment.
(2) Richards v. Wisconsin (1997) holding that in order to justify a no-knock entry, the
police must have a reasonable suspicion that knocking and announcing their
presence, under the circumstances, would be dangerous, futile, or inhibit the
effective investigation of crime.

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 (3) United States v. Banks holding that in narcotics cases, knock and announce, and
crash through the door, after 15-20 seconds.
(4) Hudson v. Michigan [Exclusionary Rule] DO NOT EXCLUDE EVIDENCE, for
violations of the exclusionary rule. No suppression of the evidence.
iv) Damage to Property during Execution of Warrant. United States v. Ramirez (1998)
holding that excessive or unnecessary property destruction during a search violates
the Fourth Amendment, even in instances where the entry itself is lawful and fruits
of the search are not subject to suppression.
v) No Occupants on Premises during Execution of Warrants. Courts are in general
agreement that an execution of a search warrant is permissible even in the absence of
the occupant of the premises searched. United States v. Gervato (3rd Cir. 1973);
United States v. Chubbuck (10th Cir. 1994).
vi) Procedures in the Absence of the Occupant. Statutes, rules of procedure, or
departmental policies typically requires officers, when searching premises in the
absence of the occupant, to leave a copy of the search warrant and an inventory of
seized items. Fed. R. Crim. P. 41.
c) Maryland v. Garrison (1987)
i) Issues raised by a search warrant that was mistaken or ambiguous in its description
of the place to be search.
ii) Rule. The warrant, insofar as it authorized a search that turned out to be ambiguous
in scope, was valid when it issued.
iii) Rule. Officers conduct must be judged based on the information available to them at
the time they act, and it is necessary to allow some latitude for honest mistakes in
executing the warrant.
iv) As long as the mistake was reasonable. (Mistake in Issuance or in Execution)
7) 4th Amendment Reasonableness
a) Exigency Exception (Warrant Exception #1)
i) Probable Cause and No Warrant
ii) Warrant Exception
(1) Emergency
(2) Urgent
(3) Exigency
b) Analysis: Exigency is evaluated upon Totality of the Circumstances, reasonable, fluid,
common sense, Objective clues, (subjective motivation-irrelevant) Hayden
c) Scope: [Reasonable] The permissible scope of search must be as broad as may be
reasonably be necessary to prevent the dangers that the suspect at large in the house may
resist or escape. Hayden
d) Quantum of Suspicion: Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) Probable Cause-
type analysis. Facts. Warrantless entry into a house. There is an exigency (danger to a
person.) Complication, the threshold probable cause or the exigency and the probable of
the entry are sometimes different things (typically in drug cases). Uncertain whether
there is Probable Cause that attaches to the exigency. At a minimum, it is an Objectively
reasonable basis for belief which can mean probable cause in some cases, but not in

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 others. The policy backbone for this case is that some exigent circumstances are very
different, some are very different from another.
e) Creation of the exigency:
i) Vale v. Louisiana, 399 U.S. 30 (1970). They do a protective sweep to look for other
people in the home, but they dont see drug, but then they do a broader sweep for the
house, and they find the drugs. Rule: Evidence is suppressable, because there only a
few key specifically established well-delineated situations may a warrantless search
of a dwelling withstand constitutional scrutiny.
ii) Kentucky v. King, 563 U.S. ___ (2011). Rule: Police may create an exigency when the
violate the 4th amendment or threaten to do so. Any exigency that is not created that
i
f) Searches vs. Seizures
i) Illinois v. McArthur, 531 U.S. 326 (2001). Rule: Valid to not allow back into the
trailer. Reasonable basis for seizure, to get a warrant. Therefore, Searches are more
offensive to 4th amendment liberty principles and seizure (invasions of privacy).
ii) Plain View Doctrine At a minimum, prior to the extinguishing of the exigency, the
police can look and keep anything in plain view, as they look.
iii) Welsh v. Wisconsin (1984).
g) Schmerber
h) Missouri v. McNeely (2013)
i) Rule: NO-there are never per se rules under the exigency circumstances. It is a
totality of circumstances approach, case-by-case approach.
i) Birchfield v. North Dakota
i) Search Incident to Arrest. Automatic Search. Rule: Breathalyzers, incident to
arrest, but if you want to do a blood draw, you need a warrant.
j) Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967)
i) Flight/Escape:
ii) Danger:
iii) Destruction of Evidence:
iv) Facts: Police follow Hayden into a house after a robbery, looking for identifying
clothing, guns, etc.
v) Rule: There is clearly exigent circumstances and entry and search were valid.
k) Automobile Exception (Warrant Exception #2)
i) Rule: 4th amendment reasonableness does not requires officers to obtain a warrant to
search a vehicle, so long as there is probable cause.
ii) Rule: Must be [1] readily mobile, [2] used for transportationnot as a residence, and
perhaps, [3] public place/public access such as a roadway or parking lot; where police
do not have to violate another protected area (curtilage; garage; carport).
iii) Policy backbone originates from the [1] recurring exigency (as related to the car
mobility) as well as [2] a diminished expectation of privacy in vehicles.
iv) Chambers v. Maroney (1970)
(1) Facts: Men robbed gas station, police received info about type of car and what the
robbers were robbers were wearing. Stopped car and search. Got search warrant
and searched s house too.
12
 (2) Was there no exigency? No. They cure the exigency with a seizure of the car. Note:
The seizure of a possessory interests is more tolerable than invasion of the privacy
interests through.
(3) Automobile Exception: Part 1: Recurring exigency.
(4) J. Harlan, says, there isnt a recurring exigency, because Police are regularly seizing
the items.
(5) J. White, (majority), says, seizures/searches, doesnt matter, cars not going anyway.
v) California v. Carney (1985)
(1) Warrantless Search of the motor home is good, based on the Automobile Exception
(2) Automobile Exception: Part 2: Diminished Expectation of Privacy.
vi) United States v. Chadwick (1977)
(1) A container is an item that can contain another item.-SCOTUS
(2) Rule: NO Warrant exception for containers. Must have warrant to search
containers in Cars supported by probable cause.
(3) Rule: No diminished expectation of privacy. A container has a privacy purpose.
(Note, a trunk of a car is a container, with an expectation of privacy).
(4) NOTE: Other ways to get in, if police were to search/seize if the bag was on his
person when arrested by the following doctrines.
(a) NOTE: Could have gotten the trunk in, by a search incident to arrest.
(b) NOTE: Could have impounded the trunk, following an inventory search.
vii) California v. Acevedo (1991)
(1) Rule: We dont care if the Probable cause is limited to the container or to the car.
There is Probable Cause.
(a) Creates a confusing anomaly between probable cause
(b) De minimus privacy protection
(c) Previous rule has frustrated and impeded law enforcement
(2) I get LESS privacy protection when I place a locked bag in a locked trunk of a
vehicle. That is counterintuitive, but that is simply just a fact of the bright line
rules.
viii) Wyoming v. Houghton (1999)
(1) Rule. Automobile exception doesnt differentiate between passengers/drivers and
items. Its recurring exigency due to. Jackets loose in the car, are subject to search.
ix) United States v. Di Re (1948)
(1) Rule. Police cannot search justify a body search of a passenger, based on the
probable cause of a search of a car.
(2) Note: Fuzzy line as to what is clothing, and when it is attached to your person and
when it is a loose container. Extensions of person.
8) Arrests Warrant requirement and Seizure of Persons
a) Rules
i) (CL) Felony Arrest in a public place No warrant required; PC reqd
ii) (CL) Misdemeanors in Officers presence No warrant required; PC reqd (Atwater)
iii) Misdemeanors not committed in Officers presence No Warrant; PC reqd; No Fed
CIS-4th Amendment
b) United States v. Watson (1976)
13
 i) Rule: No warrant requirement for a felony arrest in public place. Only need probable
cause.
(1) 4th Amendment Reasonableness-Probable Cause.
(a) Justice Powell, But logic sometimes must defer to history and experience.
(i) History has balanced the interests. We do not need to balance the
interests.
(b) J. Marshall; J.Brennan (dissenting) We shouldnt follow history, because theres
lots of historical practices that should not be followed, and we must balance the
interests.
(2) Gerstein v. Pugh
(a) Rule. After arrest, the Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint on liberty following arrest.
(b) Courts observed that states must provide a fair and reliable determination of
probable cause as a condition for any significant pretrial restraint of liberty, and
this determination must be made by a judicial officer either before or promptly
after arrest.
(3) County of Riverside v. McLaughlin
(a) Rule. Must occur within 48 hours.
c) Atwater v. City of Lago Vista (2001)
i) Facts. Seat belt violation. Full Custodial Arrest Deprivation of civil Rights (1983),
no evidence of crime, you arrested me on a $50 ticket. Not a jailable offense.
ii) Rule: Probable cause of a misdemeanor for a fine-only offense, does not require a
warrant, when the misdemeanor has been committed in the officers presence and
perceived through his five senses.
iii) Rule: Full custodial arrest is permitted
iv) Atwaterbalancing of interests
(1) State interests v. Individual interests
(a) State interests are low, individual interests are high, and there are
v) Virginia v. Moore (2008)
(1) Facts: Virginia prohibited arrest (citation-only offense) misdemeanor.
(2) Issue: Whether a police officer violates the Fourth Amendment by making an arrest
based on probable cause but prohibited by State law,
(3) Rule. The Supreme Court found no support for the contention that the
constitutionality of an arrest depends on its validity under state law in either
history or traditional standards of reasonableness.
(4) Policy backbone:
(a) Justices refuse to import the local rules. There should be one national standard
of 4th amendment reasonableness.
d) How this works. Full custodial arrest on misdemeanor, on jaywalking (pretextual arrest).
If police find the drugs, the do a search incident to arrest, if they dont, they they release
e) Entry into the home to make Arrests.
i) Rule: Need an [1] arrest warrant, (assuming no exigency or consent), and [2] a
reasonable basis to believe the person (arrestee) is in the home.
ii) Payton v. New York (1980)
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 (1) Group of consolidated cases. NY statute allows entry into home w/o a warrant to
make felony arrest, even when they know wasnt at home.
(2) Watson/Atwater rely on history; here, the history is not clear, in which case we
balance the state interests versus the individual interests.
(a) While state interest in arresting felons is high, but it must be supported by PC,
and it doesnt overwhelm the privacy interests of invading someones home.
(b) Only an arrest warrant is needed. Not a search warrant. The issue is
staleness
(i) All you need for an arrest warrant, it doesnt expire. Search warrant talk
about locations, which typically have statutory expiration dates.
(ii) Lower courts have seized the Reasonable Basis for belief to mean
Reasonable Suspicion which, as a quantum of suspicion is about half that
of Probable cause. Others believe it to be simply a synonym of probable
cause.
(3) Scope of the Entry: Can only look where the arrestee would be found. You have to
stop looking when you find the arrestee. This is not an authorized entry in the
home to search generally.
(4) Misdemeanor: Apply Payton.
iii) Steagald v. United States (1981)
(1) RULE. Arrest Warrant is not adequate to search third parties.
(2) There is connection between the Exclusionary Rule StandingOlson; Carter.
f) Search incident to Arrests [SIA] [Flows from any valid arrest]
i) Rule: Search of their reaching distance, of their area under immediate control;
within lunge,
ii) Full Search: Open containers, look into bags, containers.
iii) No Quantum of Suspicion required.
iv) Policy = Weapons dangers; Evidence Destroyed.
v) Must be substantially contemporaneous with arrest; there is a window (within an
hour or two).
vi) Chimel v. California (1969)
(1) Reaching distance rule; grabbing area based on (no quantum of suspicion required;
based on recurring exigency; full search; going in pockets)
vii) United States v. Robinson (1973)
(1) No quantum of suspicion required
(2) Allowed to open containers
viii) Knowles v. Iowa (1998)
(1) Rule: If youre issuing a traffic ticket, you dont get to do a search incident to arrest,
because youre outside the policy (no usual danger of weapons), no usual danger of
evidence destroyed. Therefore, you cannot do a search incident to a traffic citation.
ix) Reaching distance at the time of arrest not the moment of search. We wanna search
where the arrestee was (near night table), not where they are (squad car).
x) Limits New Circumstances; balancing {State Interests vs. Individual Interest}
(1) Digital Devices [Riley v. California2014]Search Incident to Arrest does not
extend to digital searches. (Looking in laptops or phones)
15
 (2) Blood Alcohol Concentration tests [Birchfield v. North Dakota2016]Allow
breathalyzers SIA not allow blood-draw tests
xi) Arizona v. Gant (2009)
(1) Search Incident to Arrest Special Vehicles Rules
(a) Reaching Distance search prong [Chimmel/Robinson]
(i) At the time of the search (not arrest), was the arrestee unsecured and
within reaching distance of the passenger compartment?
(ii) Significantly diminishing these types of Searches
(iii) Very restrictiveat the time of the search; in order to search the passenger
compartment the person was unsecured and within the reasonable distance
of the passenger compartment. This shouldnt happen very often, because
if there is handcuffed and secured in a police compartment.
(iv) How Gant reconciles with Chimel is an open question and many lower
courts are struggling with that issue.
(b) Evidence Gathering search prong [Rabinowicz]
(i) There must be a Reasonable Basis to Believe that evidence of the Crime of
Arrest (what did the arresting officer articulate) will be found in the vehicle
or passenger compartment.
(ii) Recent occupants
1. Temporaltime
2. Spatial place/location
(2) Gant is dramatically narrowing interpretation of Belton. Bright line rule includes
reaching distance of the passenger compartment but not the trunk. (midget in an
SUV or giant in a compact car). We dont wanna give police the incentive to keep
people in the car, which creates dangerous conditions for police and people.
(a) The evidence gathering search reasonable suspicion; NOTE: theres already
an automobile exception to search for evidence of a crime where there is probable
cause. This is something a bit lower than that.
(b) Does this include the trunk? (Its a narrowing a Belton, and Belton didnt
include the trunk. OTOH, this isnt about reaching distance, this is an evidence-
gathering search of
(3) Thornton v United States (2004)
(a) Who counts as a recent occupant in the evidence gathering search prong? Is
there a contact initiation rule?
(b) Rule: A recent occupant has temporal component (time and a spatial component
(place and location). Its a flexible standard.
(i) A pedestrian can technically be a recent occupant.
(4) Inventory Search (Bertine)
g) Protective Sweep
i) Maryland v. Buie (1990)
ii) Specifically for an in home arrest, done via Payton-with an arrest warrant, and a
reasonable basis to believe that the person is home.

16
 iii) Scope: looking for persons who could pose a threat to police. A cursory visual
inspection. Looking in closets, under beds. NOT looking in drawers, foot lookers, any
place where a small person could be.
iv) Spaces: Spaces immediately adjoining the place of arrest No quantum of suspicion
required. (Free search). Beyond the spaces, there must be a reasonable suspicion to
believe that a person who could pose a threat to police in other areas, the police could
do a visual inspection.
v) Note: There is inherent tension between Buie and Chimel, in which in Chimel the
court didnt allow a top down search of the house without a warrant, whereas in Buie,
they can do a protective top-down sweep with only a reasonable suspicion to believe
a someone could pose a threat to police.
9) Investigative Detention Terry Stops, Frisks
a) Basic Rules
i) Stop Brief investigative detention (absolutely a seizure; but mini-seizure)
(1) Reasonable Suspicion that crime is afoot (crime is occurring or about to occur)
(2) Purpose of the Stop is to Confirm or Dispel the belief; Blossom into PCArrest, or
let them go.
ii) Frisk Patdown of outer clothing for weapons (absolutely a search; but mini-search)
(1) Reasonable Suspicion that armed and dangerous
iii) Policy: Flexible response in the field to respond to crime
b) Terry v. Ohio (1969)
i) Rule: Officers had a reasonable suspicion that crime was about to occur.
c) Quantum of Suspicion
i) Probable Cause 35-40%
ii) Reasonable Suspicion 15-35%
(1) It is a totality of the circumstances. It is fluid, common-sense analysis.
(2) It is more than a hunch. An officer must be able to articulate facts or inferences
from facts that explain your suspicions.
d) Illinois v. Wardlow (2000)
i) Facts. Police in a 4 car caravan about to do a drug stop with a terry stop.
ii) Rule. There is no per se rule about flight from the police. Its totality of the
circumstances.
iii) Suspicious things
(1) High Crime Area
(2) Flight From Police
e) Alabama v. White (1990)
i) Gates is Probable Cause to determine, under the totality of circumstances, the tips (1)
veracity) and (2) basis of knowledge.
ii) White is Reasonable Suspicion under the totality of circumstances, the tips (1)
veracity and (2) basis of knowledge
iii) Terry vehicle stop (Whren: pretextual traffic stop)
(1) What supports Veracity? Corroboration of knowledge, track record, statement
against interest
(2) What supports Basis of Knowledge? self-verifying details, predictive information
17
 iv) Facts:
v) Rule:
f) Florida v. J.L. (2000)
i) Facts. Tip given to police that a young AA male with gun wearing a plaid shirt.
ii) Rule. Basic demographic information and location is not enough for a Terry stop.
iii) Holding. No predictive information. Not enough information to be verified.
g) Navarette (2014)
i) Facts. 911 call regarding a bad
ii) Rule. There is sufficient information for a DUI stop. Corroboration. Excited
utterance. Hearsay analysis. Veracity. Basis of knowledge is first hand witnessing.
Another close case.
iii) Holding. This was treated as reasonable suspicion for a DUI stop.
h) When does a Stop (in Stop n Frisk) become a Full Custodial Arrest? When does a Frisk
become a full search?
i) Frisk starts with patdown of outer clothing. Not supposed to go into pockets, or open
containers. If they dont feel any weapons, then the frisk is over. Then they can
manipulate it with their hands. Then they can pull it out and visually inspect it. And
then they can go into it., Ultimately to dispel the suspicion that it can contain a gun
or knife.
ii) Plain View If Police are within the scope of normal fourth amendment, then they
are able to seize the item as evidence of a crime and use it to as the basis of probable
cause to for a full custodial arrest and a search inventory to arrest.
iii) Minnesota v. Dickerson (1993)
(1) At suppression motion, officer realized it wasnt a gun or knife then it after three or
four seconds realized the ambiguous items was a crack pipe. Judge ruled that
officer exceeded the scope when he realized the item was not
iv) Sharpe
(1) Rule. Terry stops are as long as they need to be. Guy was there 30-40 min, which is
normally too long, but he ran for quite some time
v) Dunaway
(1) Rule. If you put somebody in handcuffs thats a de facto arrest, not a Terry stop.
vi) SCOTUS routinely analogizes Terry stop and Traffic stops
(1) Similarities: Both stops are relatively quick encounters between police: [brief, low-
intensity public detentions that can blossom into full custodial arrest but routinely
result in someone going about their way.]
(2) Terry Stops: Name, Consent Qs, Drug dogs (maybe)
(3) Traffic Stops: Name, Consent Qs, Drug dogs (YES, Caballes;
(a) Rodgriguez (2015)): You cannot extend the traffic stop seizure for 10 more
minutes, to get the drug dog there. Note however, that the Sharpe due diligence
standard of Terry might stand.
(b) Terry/Mendenhall ; and Hodari D., and seizure of the Driver (not free to leave)
(c) Brendlin seizure of the Passenger (passenger know they arent supposed to
leave)
(d) Seizure of Driver: Probable Cause/Reasonable Suspicion of traffic Violation
18
 (e) Seizure of Passenger: Lawful stop of the driver. Arizona v. Johnson (2009): it is
lawful seizure of passenger
(f) Exit of People
(i) Pennsylvania v. Mimms (1977)
1. Rule: Police can request driver to get out of the vehicle during a lawful
traffic stop. Can also be a frisk of the driver.
(ii) Maryland v. Wilson (1997)
1. Rule. Police can request passengers to get out of the vehicle during a
lawful traffic stop.
vii) Michigan v. Long (1983) Frisk of a vehicle
(1) Fact. Frisk of the vehicle.
(2) Rule. If the passenger compartment contains weapons, police can physically pat
down things, or open the glove box. Pat down soft containers.
i) Searches and Seizures of Persons on Premises Subject to Search under a Search Warrant
i) Ybarra v. Illinois, (1979) (Searches of Persons)
(1) NO, a person's mere propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to search that person
(2) A reasonable belief that a person is armed and presently dangerous must form the
predicate to a patdown of the person for weapons, based on a Terry patdown
ii) Michigan v. Summers (1981) (Seizures of Persons)
(1) YES, Because it was lawful to require respondent to re-enter and to remain in the
house until evidence establishing probable cause to arrest him was found, his arrest
and the search incident thereto were constitutionally permissible.
(2) Payton in Reverse SW for the house, some justification for the person.
(3) Payton, AW for the person. That justifies entry into a home.
(4) Mueller v Mena (handcuff in hours) gang hideout. If there is no justification,
than it is a de facto arrest. A Summers detention, can last for several hours.
(5) Bailey (2013). Rule: A Summers detention can only be done if the person is
detained in the immediate vicinity of the premises subject to a search under a
search warrant, while a search warrant is being executed. 1-2 miles is too far away.
10) Exceptions to the Warrant Requirement (Not generalized Crime Fighting, SOPs, prospective
incarceration) B/C there is no individualized suspicion or probable cause.
a) INVENTORY SEARCHES
i) Illinois v. Lafayette (1983) [PERSONAL BELONGINGS-Inventory search]
(1) Inventory Search: Catalog of the items that have come into police custody, to
prevent against false claims of lost/stolen property.
(2) Rule: Inventory Search is lawful, constitutional, search.
(3) Policy: Inventory analysis is based on reasonableness. We achieve this by balancing
the state interest versus the individual interests.
(a) State interests (not crime fighting) get a list of items, prevent false claims of
lost/stolen property, dangerous instrumentalities, person helpful with
identification.
(b) Personal interests include the privacy interest.
(4) VALID INVENTORY SEARCH REQUIREMENTS:
19
 (a) Valid predicate seizure Arrest of person/seizure of vehicle
(b) Incarcerating person/Impounding vehicle
(c) Standard Operating Procedures (SOPs) that channel discretion away from
officers (there is no individualized suspicion in the sense of an inventory search)
(5) Reflections of GANT (Search Incident to Arrest) in vehicles AND LAFAYETTE
(a) No reaching distance rule, no search under Gant, impound the car, and
inventory search of entire vehicle. Gant provides no protection to the car.
Privacy is not protected by Gant.
(6) Reflections of CHADWICK (No mobile container exception)
(a) In Chadwick, police could have inventoried the talcum powder. Chadwick
provides almost no protection.
ii) Colorado v. Bertine (1987) [VEHICLES-Inventory Search]
(1) Issue: Whether the Fourth Amendment prohibits the State from proving the
charges with evidence discovered during the inventory of Bertines van.
(2) Rule: Inventory Search can occur on the side of the road, if its allowed by the
standard operating procedure.
(3) Dissent is concerned that because of the discretion in either parking/locking or
impounding the vehicle, in which the impounding triggers the inventory search.
b) CHECKPOINTS/DUIs
i) Rule: Checkpoints are ok. Roving patrols are not ok. Checkpoints are ok as long as
[1] they meet the balancing test of Brown v. Texas. And [2] they must meet the
primary programmatic purpose with a nexus special needs, and [3] SOPs
(1) Balancing of state interests and effectiveness vs intrusiveness (limited time)
(2) primary programmatic purpose with a nexus special needs, nexus of special needs
are typically (1) roadway safety for DUIs/ and drive license and vehicle registration
or (2) border integrity (near the border) looking for illegal immigrants and drug
interdiction (not general crime fighting, its a border integrity issues).
(3) near the border within 100 miles of the border.
(4) SOPs assure that officers are adhering to the primary programmatic purpose,
ii) Proust (Suspicionless stop is not okay). Must have particularized suspicion.
iii) Michigan Dept of State Police v. Sitz (1990).
(1) Rule. DUIs (Sobriety Checkpoints) are OK
iv) City of Indianapolis v. Edmond (2000)
(1) Rule. There must be a primary programmatic purpose and nexus of special needs.
There is no border integrity. Therefore, this is not roadway integrity. This is not
DUI. This is License and Vehicle and Registration. And eye-balling people for
impairment. Court says that is a generalized investigation.
v) Illinois v. Lidster (2004)
(1) Rule. Particularized crime fighting is okay. Setting up a dragnet/roadblock for
particular people in some particular area.
c) SPECIAL NEEDS
i) Border Stops and Searches.

20
 (1) United States v. Ramsey, 431 U.S. 606 (1977) (upholding border searches without
probable cause and without a warrant as "reasonable" within the meaning of the
Fourth Amendment).
ii) Search of Student in Public School
(1) New Jersey v. T.L.O., 469 U.S. 325 (1985) (rejecting both a warrant requirement
and a probable cause requirement in favor of a reasonableness standard requiring
that school officials (i) have reasonable suspicion of a violation of law or school
regulations and (ii) limit the search specifically to the area reasonably included in
that suspicion).
iii) Drug Testing in the Public Schools
(1) Vernonia School District v. Acton, 515 U.S. 646 (1995) (upholding random drug
testing of student athletes)
(2) Board of Education. v. Earls, 536 U.S. 822 (2002) (upholding random drug testing of
students involved in competitive extracurricular activities)
iv) Search of the Office of Government Employee
(1) OConnor v. Ortega, 480 U.S. 709 (1987)(upholding search of the office of a
government employee if there are reasonable grounds for suspicion of work-related
misconduct or a search is necessary for a non-investigatory work-related purpose
such as retrieval of a file).
v) Drug Testing in Government Employment
(1) Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (upholding drug tests for
United States Customs Service employees seeking transfer or promotion to certain
positions involving drug interdiction or the carrying of firearms);
(2) Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (upholding drug
and alcohol tests for railway employees involved in train accidents or found to be in
violation of particular safety regulations).
(3) Chandler v. Miller, 520 U.S. 305, 318 (1997) (invalidating drug testing for
candidates for state elective office).
d) CONSENT SEARCHES
i) Schneckloth v. Bustamonte (1973)
(1) Rule. It is reasonable to search if consent is voluntary.
(2) Test. Voluntariness is based on the totality of the circumstances. (parallels to
Mendenhall if someone has been seized/coerced test). No warning is required. Only
have to show that there is no coercion, by explicit/implicit means, by implied threat
or covert force.
(3) When the subject of a search is not in custody and the state attempts to justify a
search on the basis of his consent, the 4th and 14th Amendments require that it
demonstrate that the consent was in fact voluntarily given, and not the result of
duress or coercion, express or implied. Voluntariness is a question of fact to be
determined from all the circumstances, and while the subjects knowledge of a right
to refuse is a factor to be taken into account, the prosecution is not required to
demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
(a) Bostick and Drayton, our bus cases in which searches cases. Intimidated Search
cases, but also Consent cases.
21
 (b) Johnson v. Zerbst: Waiver be knowing and intelligent and voluntary.
(4) Policy. Value of consent search is extremely high for crime control but assuring the
absence of coercion.
ii) United States v. Watson (1974). Full custodial arrest in, the absence of proof that
Watson knew he could withhold his consent, though it may be a factor in the overall
judgment is not given controlling significance. NOTE!!! THEREFORE, consent
searches can be given after full custodial arrest. BUT you must be given a Miranda
warning, if they want to use your statements against you. Its one of the areas in
which the criminal procedure dont exactly match up.
iii) Ohio v. Robinette (1996).
(1) Rule. Police officers dont have to tell they have a right to go. NOTE::
iv) Jimeno (1991)
(1) Rule. The Scope of Consent is whatever it reasonably appears to be to the officer. If
the officer gained consent to search the vehicle, it is reasonable to include the a
search of the paper bag in the car. You can also revoke consent. It therefore,
behooves, officers to ask vague questions and interpret them to the maximum
reasonably allowable.
v) United States v. Matlock (1974)
(1) Rule. There is assumption of the risk. Co-tenants. One person present.
vi) Georgia v. Randolph (2006)
(1) Issue. Whether one occupant may give law enforcement effective consent to search
shared premises, as against a co-tenant who is present and states a refusal to
permit the search.
(2) Rule. Social expectation of privacy. Fuzzy boundaries.
(3) Unless the people living together fall within some recognized hierarchy, like a
household of parent/child or barracks house military personnel of different grades,
there is no societal understanding of superior and inferior. . . . In sum, there is no
common understanding that one co-tenant generally has a right or authority to
prevail over the express wishes of another, whether the issue is the color of the
curtains or invitations to outsiders.
vii) Fernandez (2014)
(1) Rule. Must be present to dispute consent. If the person disputed consent, and the
police returned later, the other co-occupant can simply wait to re-consent.
viii) Illinois v. Rodriguez (1990)
(1) Rule. What the officer reasonably believed, apparent authority, since Ms. Fisher
repeatedly said she lived there, had keys, had knowledge of the interior.
Reasonable appearance of authority.
ix) North Carolina v. Bumper (1968)
(1) Rule. If there is show of authority, that is not the same thing as a consent search.
Police officers showed up with paper, said it was warrant, Bumper complied to
search, but that is not the same thing as Actual Consent Search.
x) Whren, Atwater, SIA-narrowed by Ghant, and Inventory Search at held by side of
Consent Search. Officers can leverage these circumstances to obtain a Consent
Search. Even though this may seem coercive, it is informed, and voluntary Consent.
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 e) PLAIN VIEW DOCTRINE
i) Horton v. California (1990)
(1) Requirements for Plain View Seizure Doctrine
(a) Lawful Vantage Point
(b) Right of Access
(c) Seizeable Nature is immediately apparent (Probable Cause)
(2) Plain view Doctrine versus Plain View Search
(a) Plain View Seizure Doctrine: When police search for one thing, and come across
another, they get to seize it.
(b) Idea Plain View Searches (Katz): if theres no expectation of privacy.
(3) Example
(a) Terry Frisk for weapons, come across drugs
(i) Lawful vantage point: Dickerson exceeded the Terry Frisk, which is
(ii) Right of Access: If cant tell, then allowed to go into the pocket.
1. Lawful Vantage Point and Right of access often overlap as Scope of the
Search.
(iii) Seizeable nature of is immediately apparent: often have PC,
(b) Search Warrant for Drugs, come across a weapon (sawed off shotgun)
(i) Lawful vantage point: anywhere drugs be, anywhere hidden (A search
warrant also is a seizure).
1. Plain view doctrine allows the warrantless seizure
(ii) Right of Access: SW: throughout the house.
(iii) Seizeable nature is Immediately Apparent, based upon Probable Cause.
(4) Horton rejects Items disclosed in a surprise.
ii) Arizona v. Hicks (1987)
(1) Rule. When Police started moving stereo equipment around to pull a serial number,
they ultimately had probable cause, but it was not immediately apparent as
required by Horton v. California.
iii) Note, all these searches, create the opportunity for the plain view doctrine. A hugely
important doctrine. For exigency, auto, search incident to arrest, terry stops,
inventory, checkpoints, and special needs.
11) EXCESSIVE FORCE
a) Heightened? Standard? Sometimes yes, SPECTRUM
i) 4th Amendments prohibits unreasonable searches and seizures. A bullet somebody is
a 4th amendment seizure. Any use of force by police officers that is excessive (aka
unreasonable), is unreasonable.
ii) Excessive Force cases are coming up as 1983 cases NOT exclusionary Rules cases.
(1) Exclusionary rules dont protect against excessive force, because they protect
against a
iii) Graham v. Connor (1989)
(1) Grappelling/wrestling/Handling
(2) Facts: Arrestee having insulin reaction, tossed into police car. Clarify the test,
remand back to

23
 (3) Test: (Reasonableness) Totality of the Circumstances, Seriousness of the crime,
flight/nuisance, threat-officers or others
iv) Tennessee v. Garner (1985)
(1) Shooting Case
(2) Rule. Where the officer has probable cause to believe that the suspect poses a threat
of serious physical harm, either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.
(a) If suspect threatens the officers with a weapon, OR
(b) There is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, and,
(c) If, where feasible, some warning has been given
v) Scott v. Harris (2007)
(1) Bumping someone off a the Road
(2) Rule. A police officers attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth Amendment,
even when it places the fleeing motorist at risk of serious injury or death.
(3) Policy:
(a) State Interest: Criminal Apprehension., and even if police cease the pursuit, the
criminal will continue to
(b) Individual Interest:
b) Qualified Immunity
i) Police have immunity unless they violate clearly establish law.
ii) Sometimes, the court can skip the 4th amendments were violated, but, because the
rule wasnt clearly established, you lose.
(1) Mullinex- Suspect approached a, long stand high speed chase, no qualified
immunity, and there is no clearly established law. Maybe could have shot engine
block, instead shot mullinex. Qualified immunity. (attempt to shoot out the engine
block, suspect threatened to kill police officers). It wasnt clear, that this issue
wasnt unconstitutional, its a messy 4th amendment issue, and then.
(2) Pragmatic Concerns. Sometimes we wont get a 4th amendment rule, so that while
in fact, police may or may not have violated the 4th amendment rule, it is not clear
that the rule was established clearly.
c) DNA Testing of Criminals
i) Maryland v. King (2013)
(1) State Interest: ID suspect
(2) Individual Interest:
(3) Routine Booking Exception: After arrest, your privacy rights go down.
(a) Finger printing is okay.
(b) DNA testing (buccal swab is okay!!)
12) Exclusionary Rule
a) Past Analysis
i) Weeks (1914) If theres no remedy, theres no right. Important to have judicial
integrity.

24
 ii) Mapp v. Ohio Repeated but deemphasized. Deter police from violating the 4th
amendment. Exclusionary Rule is part and parcel with the 4th amendment. Imposed
on all state and city governments.
iii) Calandra Only one importance. Its got one policy point, its deterrence. Forward-
looking to police deterrence. Not backward-looking to make the criminal whole.
Rules and Limitations on scope. This is a judge made prophylactic rule, NOT a part
of the 4th amendment. (So, if not, how do we impose it on the states by the 14th
amendment? Its not exactly clear.)
(1) Policy statements: Deterrence is solely the policy. Status of the RuleJudge made
prophylactic rule. So well balance benefits of deterring the police unconstitutional
conduct with the costs of letting criminals go free. Its not a mandate of the
constitution. Both Status and Policy are connected with narrowing the
exclusionary policy. Exclusionary Principle is a Sub-constitutional rule; its not a
constitutional right.
(2) CostsCrime
(3) BenefitsDeterrence
(a) When the category of cases, would give rise to more crime, would outweigh the
deterrent effect, then we would not exclude the evidence.
iv) Rule IF 4th amend violation, then evidence is presumptively not admitted via a
suppression motion.
b) Standing/Personal Right
i) Standing (Not an Article 3, case or controversy standing)
(1) Q: Who can assert a 4th Amend. violation?
(2) A: I can assert my 4th Amend. violation, you can assert your 4th Amend. violation.
ii) Two step Approach. (now defunct; overruled by Rakas)
(1) Was there a 4th Amend Violation?
(2) Who can assert?
(a) Co-conspirator standing (overruled by Rakas)
(b) Target standing (overruled by Rakas)
iii) Rakas v. Illinois (1978)
(1) Key Question: Whether the 4th amend rights of the was violated?
(2) Search:
(a) Katz (Reasonable Expectation of Privacy)
(b) Jones (Physical Invasion of a Constitutionally Protected Area)
(3) Seizures
(a) Terry/Mendenhall (Would a reasonable person feel free to leave under the ToC)
(b) Jacobson (Meaningful interference with a possessory interest)
(4) Rule. Passengers in cars have no reasonable expectation of privacy, passengers
dont have standing/personal right. Therefore, it doesnt matter if there is a 4th
amendment violation.
iv) Rawlings v. Kentucky (1980)
(1) Rule. Ownership of the property seized as a result of a search does not itself entitle
an individual to challenge the search. To contest the legality of the search, the
individual must demonstrate that his/her legitimate expectation of privacy was
25
 violated by the search. Ownership of the seized property is undoubtedly one fact to
be considered in determining whether a person had a legitimate privacy
expectation, but like legitimate presence on premises, it is not a dispositive fact.
(2) Rule. Ownership claims over the drugs is not dispositive, because, seizure of drugs
was done under the plain view seizure doctrine, and the drugs come in.
(a) D
(b) Seizure of the drugs.
v) Brendlin v. California (2007)
(1) Rule. In traffic stops, its one seizure. Suppress everything at the traffic stop.
(2) Note. Its not exactly clear how this is consistent with the rationale in Rawlings,
but thats how courts are analyzing this issue.
vi) Minnesota v. Carter (1998)
(1) Previous Case
(a) Payton/Steagald
(i) Must have an Arrest Warrant (or exigency) and a reasonable basis to
believe he is in the house.
(ii) If we go in 3rd Partys home, to go arrest somebody else.Must have a
Search Warrant to search for and arrest Mr. Payton at Mr. Steagalds
home.
(iii) Mr. Payton can raise Mr. Steagalds privacy/standing/personal right claim.
(b) Olson (1990) when he is an overnight guest, he has a privacy interest in
someone elses house. If Police go with AW, Cannot have MORE privacy
protection, just by being an overnight guest.
(2) Facts. Police looked through blinds and saw people bagging cocaine. They arent on
the lease and dont live there. They grab the guys. Was the
(3) Rule. No, Reaffirming Olson, temporary fleeting illicit business guests do not have
reasonable expectation of privacy no 4th amendment violation. If they would have
stayed overnight, its possible. He would have had 4
(4) Interaction of 4th Amendment Reasonableness With the Exclusionary Rule
(5) Brendlin Seizure of persons
(a) Vehicles one vehicle (Ripe; vehicle stop is distinctions;
(b) On the street.
c) Fruit of the Poisonous Tree Causation Doctrine (Is there a 4th Amendment violation)?
i) Basics:
(1) Did the 4th Amendment violation CAUSE the police to find the evidence?
(2) Two Kinds of Causation (But-for (Actual/Factual) & Proximate (Legal))
(a) But-For Causation: Independent Source; Inevitable Discovery which is a
Hypothetical Independent Source
(b) Proximate Causation: Attenuation
(3) Violation; primary evidence, derivative evidence
(4) Doctrine:
(a) Policy Analysis: Put the police in no worse a position, than they would have
been in, absent the violation.
ii) Independent Source (But-For Causation)
26
 (1) A second path to the evidence (Either lawful path; or unlawful but the lacks
standing to raise a constitutional issues.) Evidence has an independent source, that
is independent of the illegality.
(2) Murray v United States (1988)
(a) Facts. Sneak n Peek by agents. Then got warrant. First search was illegal; no
warrant. Second search (lawful), was supported by SW.
(b) Rule. For genuine independence, the issuance of a search warrant, then we
dont have an illegal path. No facts before the magistrate.
(c) Rule. You can do illegal sneak and peak searches, as long as you dont put any
facts before the magistrate judges.
(d) There is a significant interest in the motivation of officers.
iii) Inevitable Discovery (Hypothetical Version of Indepen. source) (But-For Causation)
(1) Nix v. Williams (1984)
(a) Facts. Nix is a child murderer. Nix is arrested. He is illegally interrogated (6th
Amendment Right to Counsel), on the way to the police station. Nix tells police
where the body is.
(b) Rule. A hypothetical source to independent source to the evidence that was legal,
then the evidence stays in. Its also a balancing. (to put the police in no worse
position through the.
(c) Flagrant 4th amendment violations do not necessary.
iv) Attenuation/Dissipation of the Taint (Proximate Causation)
(1) Brown v. Illinois (1975)
(a) Rule. Factors include:
(i) time
(ii) intervening circumstances
(iii) purpose and flagrancy of the violation
(iv) [Nature of evidence] see Ceccolini below
(2) Wong Sun
(a) Rule.
(b) Holding.. There was dissipation of the taint.
(3) Strief f
(a) Illegal seizure + outstanding AW + SIA
(b) Rule. The AW is good, and is a intervening circumstances. Do we have anything
in the grounds to stop? What was the officer up to? Fishing expedition then
thats not good enough. But if reasonable suspicion
(4) Other Factors
(5) Ceccolini
(a) Nature of the Evidence doctrine
(b) (Witness testimony) Verbal Evidence [People come in of their own free will]
(c) Physical Evidence [physical evidence doesnt jump up]
(d) Rule. May suppress physical evidence but let the verbal evidence in, when they
were discovered at the same point.
(e) Policy. Fewer incentives to suppress volition verbal incentives. OTOH, there
this is double-counting inevitable discovery.
27
 (6) Hudson v. Michigan (2006)
(a) Facts. Drugs in house, SW is good, police are supposed to knock and announce.
Unless they have an exigency circumstances.
(b) Interests. Property, Safety, Narrow privacy interest, Home privacy, SW
requirement in the home,
(c) Rule. A knock-and-announce violation is NOT going to lead to a suppression of
the evidence.
(d) Policy. Interests protected by the Constitutional guarantee are not served by
suppression of the evidence. [Attenuation Doctrine]
(e) It is a policy attenuation, a zone of interest attenuation.
(f) Other methods of deterrence: 1983, bad publicity, civilian review boards
d) Good Faith Exception
i) United States v. Leon (1984)
(1) Facts. Review of the SW, receives that there was no probable cause.
(2) Rule. If the police reasonably relied upon the magistrates probable cause
determination, then there is no suppression of the evidence.
(3) Policy. Crime costs are constant, but the deterrent benefits goes up and down.
Judges have no incentives to violate the 4th amendment. OTOH, police are
engaged in the competitive enterprise of crime prevention/deterrence, and they get
advancements or bringing great cases in, so the best policy for that is the
Exclusionary Principle to deter any further action to deter a violation of the 4th
amendment.
(4) When is a UNREASONABLE RELIANCE
(a) Police Lie to the magistrate Franks v. Delaware (1978)
(b) Magistrate has wholly abandoned the judicial role (just give it to me, Ill sign it)
(c) Warrant is wholly lacking in indicia of Probable Cause
(d) Warrant is facially deficient (lacks specified details of time, person) lacks
particularity.
ii) Krull
(1) Rule. Polices Reasonable reliance upon a LEGISLATORs statutory interpretation
of a 4th amendment
(2) Limits. There was no reason to think this was
(3) When is it Unreasonable? On point, reasonable
(4) Scope. Perhaps, this would fall under a Special Needs Cases. When Police have
Reasonable Reliance under Krulls Legislators exception.
iii) Arizona v. Evans (1995)
(1) Rule. Polices Reasonable reliance upon a COURT CLERKS mistake.
(2) Policy. Court Clerks are members of the Judiciary, cannot deter them by
threatening to suppress evidence, b/c they have no incentive to violate the 4th
amendment.
(3) When is it unreasonable? Database known to be mistake-full, not being updated,
10% chance is wrong. Reliance is not reasonable. Otherwise, if data base has a
reasonable error rate. Then, the reliance is reasonable.
iv) Davis v. United States (2011)
28
 (1) Facts. Belton had SIA in vehicles. Gant only get to search the reaching distance. In
Davis. These new rules are retroactive, for all criminals whose appeal isnt final.
If the officers reasonably relied upon binding appellate court precedent, then there
can be no suppression of the evidence.
(2) Rule. Binding appellate court precedent reasonable reliable upon APPELLATE
JUDGES. So no exclusion of the evidence.
(3) When is it unreasonable? We
(4) Where did the incentive go to litigate these new questions? We might create
(5) Does this extend to persuasive court precedent? No answer.
(a) Potential Analysis? Did the field officer reasonably rely upon an actor who
cannot be deterred by suppression of the evidence?
v) Herring (2009)
(1) Rule. A POLICE CLERK is a hybrid partly police/partly clerk, where there will be
suppression of the evidence if there is culpability in the mistake. This is not simple
negligence, but rather gross negligence, such as systemic negligence or recklessness,
in which case there will be suppression of the evidence. Must also have field
officers reasonable reliance upon the clerk/officer.
(2) The exclusionary principle must pay its way. There must always be field officers
culpability due to the societal costs of releasing criminals.
e) Impeachment Exception
i) Rule. Not to prove substantive guilt, but to attacking the credibility of a witness.
Requires a limiting instruction to the jury. This is limited to the snot to other
witnesses.
ii) United States v. Havens (1980)
(1) Doctrinal Evolution.
(a) Agnello (1925) No impeachment exception
(b) Walden (1954) Impeachment exception limited to collateral crime not a charged
crime. A statement first made on direct examination not on cross-examination.
was witness (so he could have refused to take the stand).
(c) Harris (1971) Collateral crime or charged crime is both, but this necessitates the
jury limiting instruction.
(2) Policy. Chilling the s defense (if you cant take the stand); incentives to the police;
against wanting the jury of arriving at the truth. We dont want the ER to be a
shield for perjury, and crime control.
(3) Rule. Has to be within the scope of direct examination, but can impeach statements
made on direct or cross examination, can be collateral or charged crime, and a
iii) James (1990)
(1) Rule. There is no extension of the impeachment exception, to other defense
witnesses.
(2) Policy. We dont wanna chill the s defense. Problem is that we dont prosecute
people for perjury.
f) Prosecution wins 3 ways
(1) K
13) Confession & Interrogation Law
29
a) 3 Basic Doctrines
i) Voluntariness test (think Consent searches) [Pre-incorporation] (Due Process/5th S I]
[Triggered by Coercion? Or Pressure?]
(1) Due Process
(2) Self-Incrimination
ii) Miranda (Triggered by Custody; full custodial arrest)
(1) No Fruit of the Poisonous Tree (Cannot suppress derivative evidence)
iii) 6th Amendment Right to Counsel at Interrogation (Triggered by Formal Judicial
Proceedings such as Charges/Indictment/Arraignment/Complaint) (NOT an AW!)
b) Overarching Policies
i) Confession Crime control; rehabilitation thought
ii) Concerns False confessions; Inhumane; Does this fit with adversarial model?
c) Fifth Amendment Right against Self-Incrimination/Due Process
i) Spano v. New York (1959)
(1) Facts. Pre-Miranda, Pre-Massiah 6th Right to Counsel
(2) Rule. Voluntariness test: Was the suspects will overborne/overcome through some
type of coercion or police overreaching, under the totality of the circumstances?
(a) Origin in Common Law.
(b) This must be above the baseline.
(c) Sense of a physical threat, more likely to be involuntary.
(3) Holding. Statement was inadmissible.
(4) Note: Voluntariness is a Personal Right based on Standing.
(5) Assume-Full Fruit of the Poisonous Tree. Presumptively Suppressing Derivative
Evidence.
(6) NO Impeachment Exception. (Its presumptively false and its extremely damaging.)
(7) The Right IS exclusion.
ii) The voluntariness test IS the Exclusionary Rule (Statement In or Out)
(1) Shocks the Conscience (Rochin 1952) Sue in 1983
(2) Does the Police conduct (4th Amendment Search & Seizure) shock the conscience?
(3) If we are talking about the exclusion of evidence, well do the voluntariness test.
iii) Chavez v. Martinez (2003)
(1) Person took shots at police officers. Police officer shoot back, and shoot him.
Internal Officers, come to his hospital room, to interview him.
(2) You cannot sue in 1983, for Miranda violations. You must show that it shocks the
conscience under the totality of the circumstances.
d) 5th Amendment Right Against Incrimination
i) A statement about how trial judges are applying the totality of circumstances.
Miranda is a doctrinal overlay on the voluntariness test. It is Full Custodial Arrest.
Handcuffs, custody combined with interrogation which leads to a coercive
atmosphere. Police do not have to Mirandize you, if they only wish to collect
derivative evidence. There is Presumption that Statements made are Involuntary.
ii) To dispel the presumption, police must give the Miranda Warnings:
(1) Right to remain Silent
(2) Anything you say can and will be used against you
30
 (3) You have a right to an attorney
(4) If you cannot afford one, one will be appointed to you.
iii) Miranda v. Arizona (1966)
(1) Miranda is a Constitutional Rule (Dickerson 2000).
(2) Full Custodial Arrest WITH Interrogation leads to a Coercive atmosphere which
leads to a presumption of involuntariness.
(3) Dispell the Coercive Environment through Miranda Warnings.
(4) Waiver must be voluntary (under Totality of Circumstances), knowing and
Intelligent
(5) Invoke Right to Silence and Right to Counsel
(6) Suspect can ALWAYS Initiate
(7) What is Full Custodial Arrest?
(a) Berkamer (1984)
(i) Rule. No Miranda warnings for traffic stops or terry stops, but needed for
terry stops.
(ii) Test:
1. Reasonable Person
2. Suspects Perspective
3. Totality of the Circumstances
4. Significant restriction/limit on freedom of movement
5. Shock of arrest incentive; change in the baseline of freedom and incentive
to talk and hope of release
(b) Howes v. Fields (2012)
(i) Facts. Person convicted of crime. Prison cell is now a home. Is this
Miranda custody?
(ii) Rule. No. While there is a significant restriction on the freedom of
movement, there is nothing above the baseline of freedom that is shown.
(8) What is Interrogation?
(a) Innis (1980)
(i) Facts. Innis invoked right to Counsel. But then, then cops are asking
questions to one another about each other. Here is the Gun, this is where
I hid it. Which is a type of Confession On a Suppression motion.
(ii) Issue. Is this interrogation?
(iii) Holding. NO!
(iv) Rule. Interrogation is a question or its functional equivalent (a statement
that a reasonable officer knows is likely to elicit a response). [i.e. throwing
a piece of damaging evidence in front of
(b) Perkins (1990)
(i) Facts. Cops place two undercover agents in the jail.
(ii) Issue. Is Perkins entitled a Miranda warning?
(iii) Rule. NO! Normally, a custody and interrogation lead to a coercive
atmosphere. Here, there cannot be a coercive atmosphere, because it was
voluntary.
(iv) Miranda puts the suspect in in the
31
 (c) Prysock (1981)
(i) Rule. Officers can state the Miranda warnings in a close proximity or they
are not effective.
(ii) If they are effective (state the rights (silence, used against you, attorney,
appointment)), then police have to get a waiver.
(9) What is Voluntary Waiver?
(a) Voluntary under the totality of the Circumstances.
(10) What is a Knowing and Intelligent Waiver?
(a) Understand the words of the meaning.
(i) Spring (1987)
1. Rule. Police dont have to tell you the truth about the subject of the
interrogation, and they can lie to you. The only Rule is that Do you
understand the words of the warning? If So, then you understood the
warning, for the waiver to be valid.
(ii) Muran v. Burbine (1986)
1. FCA+Interrogation, Miranda Warnings given, Police did not tell that
lawyer had been hired.
(iii) Rule. Dont have to give you helpful information, like You
(b) Oral Waivers are OK
(c) Implied Waivers are ok.
iv) Implied Waivers
(1) Berghuis v. Thompkins (2010)
(a) Facts. MW, understood. Silentno invocation, course of conduct indicating
waiver Statement This indicates an implied waiver.
(b) Rule. Answering the question constitutes an implied waiver.
(c) Rule. An ambiguous invocation right to silence is meaningless. Police are free
to disregard. Only an unambiguous invocation right to silence must be regarded
by police.
e) Invocation of ProtectionsPolice initiated Conversations after Invocation
i) Michigan v. Mosley (1975)
(1) Facts. says I dont wanna talk
(2) Rule. A s invocation of the right to silence must be scrupulously honored
(3) Test: Its a Totality of the Circumstances test
(a) Time
(b) Location
(c) Police Officers jurisdiction
(d) Crime
(e) Other Officers (New developments; New Evidence)
(4) Is this badgering the arrestee or or scrupulously honoring the R/S.
ii) Edwards v. Arizona (1981) [Miranda Right to Counsel]
(1) Facts. says I wanna lawyer
(2) Rule. A s invocation of right to counsel is a complete bar to any subsequent police-
initiated conversations, outside the presence of counsel. However, suspect can
always initiate.
32
 (3) A more protective Edwards rule is present to protect citizens,
iii) Maryland v. Shatzer
(1) Facts. Youre in custody. You invoke the R/C. you released from custody. Miranda
doctrine doesnt apply because youre not in custody. You are required and are
back into custody. Do you have to reinvoke your right to counsel?
(2) Rule. If the break in custody is less than 14 days, then suspect doesnt have to
reinvoke right to counsel. However, if more than 14 days have elapsed, you must
reinvoke your right to counsel!
iv) Davis v. United States (1994)
(1) Rule. Ambiguous invocation of right to counsel is meaningless. Police are free to
ignore.
(2) Rule. Invocation of right to counsel must be clear and unambiguous.
v) Oregon v. Bradshaw (1983)
(1) Facts.
(2) Rule. There need not be a significant initiation. The Court will not imprison people
in their own rights. Any ambiguous discussion, will be resolved against the suspect.
vi) Compare & Contrast
(1) Miranda Voluntariness
(2) Personal Right Personal Right
(3) Right IS Exclusion Right IS Exclusion
(4) NO FPT [Derivative Evidence] FPT
(5) Tucker (1974) - Witness
(6) Patane (2004) Physical Evidence
(7) Impeachment Exception NO Impeachment Exception
(8) Harris
(9) Public Safety Exception (exigency) No Public Safety Exception
(10) Quarles
vii) Seibert (2004)
(1) Rule. MW in the middle of interrogation are ineffective.
f) 6th Amendment Right to Counsel
i) Triggered by Commencement of formal judicial proceedings (NOT an Arrest Warrant)
(Arraignment, Filing of complaint,
ii) Interrogation: Deliberate elicitation of incriminating statements is a
iii) This IS a limit on actual police conduct.
iv) The concern is the integrity of the adversarial nature of the judicial process.
v) Warning. Here: Miranda Warning Suffice. Then a police can get a waive. A waiver
must be voluntary and knowing/intelligent.
vi) Commencement of formal of judicial proceeding is Offence Specific (Texas vs. Cobb).
vii) Commencement of Formal Judicial Proceedings + Deliberate Elicitation of
Interrogation we are concerned with the integrity of the adversarial system of justice
system. Of course we dont imprison somebody in their own rights. So, after the
Miranda Warnings, police can obtain a Waiver. Waiver must be voluntary, Knowing
and intelligent. Custody is Not Required. Commencement is Required.
viii) Massiah v. United States (1964)
33
 (1) Facts. charged with federal narcotics violation. got lawyer. Out on bail. Colton
agreed to be a false friend-put listening device in car. and Colton had
conversation in carpolice heard incriminating statements by .
(2) Rule. The incriminating statements were not admissible, because no MW were
given.
ix) Rothgery v. Gillespie (2008)
(1) What is commencement of formal judicial proceedings?
(a) Police file a complaint; Initial appearance, Gerstein v. Pugh hearing
(b) Grand jury returns an indictment
(2) What is NOT commencement of formal judicial proceedings?
(a) An arrest warrant
(b) The issuance of an arrest warrant
(c) The booking after arrest
g) What is Deliberate Elicitation interrogation?
i) United States v. Henry (1980)
(1) Deliberate: Purposely, knowingly, or recklessly knowing likelihood [mental state]
(2) Elicitation: more than passive listening of the conversation, and some stimulation of
conversation and exploitation of a relationship of trust or confidence
(3) Rule. Does not allow police to play long shots.
(4) Whats out?
(5) Whats in? Just listen, dont talk much, no stimulation of conversation, Passive
Listening
(6) NOT the same standard as Rhode Island v. Innis (5th Amendment R/C)
h) Texas v. Cobb
i) Rule. 6th Amendment Right to Counsel is Offense-Specific Protection.
ii) So, if police interrogate you about burglary, kidnapping, homicide, but only the
burglary is charged, you cant complain about violation of your 6th Amendment R/C
iii) Blockburger doctrine-Double Jeopardy.
(1) Same elements
(2) Same facts
i) Warnings & Waivers
i) Patterson v. Illinois (1988)
(1) Rule. They may have to tell you what crimes you have been charged with, in order
for the waiver to be knowing and intelligent.
(2) Rule. As opposed to Muran v. Burbine were family had retained a lawyer, they may
have to tell you that you have a lawyer.
ii) If there is an Assertion of a right to Counsel,
iii) Montejo v. Louisiana (2009)
(1) Rule. We dont care clear and unambigious invocation. You either waive or you
dont.
iv) There is parallel rule to Edwards
j) StandingPersonal Rights
i) Kansas v. Ventras (2009)

34
 (1) Rule. 6th Amendment R/Counsel is both a police conduct rule with an Exclusionary
Rule. They do not produce 1983 suits for violations. You must go to Roachin
shocks the conscience test for that.
k) Fruit of the Poisonous Tree-Assumed-YES
i) Nix v. Williams
l) Impeachment Exception--YES
i) Kansas v. VentrasYES
ii) Same (for 4th Amendment, Harris, Havens, James)
iii) No Impeachment Exception for the Voluntariness Test/triggered under Coercion.
m) D
n) McNeil v. Wisconsin (2004)
i) Facts. Guy is in custody, and before a judge to face the charges. It was his
ii) Rule. Does not c

35