Criminal Procedure – Falkoff Spring 2009

CHAPTER 1: Introduction to the Criminal Justice System

1) Introduction
a) In the federal system, and approximately 2/5 of the state systems, a defendant cannot be prosecuted for a
serious (felony) crime unless a grand jury (usually comprised of 17 to 23 persons) has reviewed the
evidence and decided to return an indictment or the defendant waives such an indictment.
b) The federal right to a grand jury is one of the few Fifth Amendment rights that has not been incorporated
to the states through the Fourteenth Amendment.
c) Prosecution of serious crimes in most jurisdictions…
i) Discretion of police to involve person in system
ii) Discretion of prosecutor to charge individual
iii) Right to counsel
iv) Negotiated guilty pleas are common
v) Motions in limine (motion before trial asking judge to exclude certain evidence from trial)
vi) Rights to an impartial judge, a jury, cross-examination of witnesses, etc.
vii) Right to address the court prior to sentencing
2) Lies, Damned Lies, and Statistics
a) Type of offense with largest number of arrests: drug offenses
b) Type of offense with largest number of prosecutions: drug offenses
c) 87% of federal defendants charged with a criminal offense were charged with felonies.
d) 75% of federal defendants sentenced to prison in 2002
e) Between 1990 and 2002, the number of inmates serving a sentence of imprisonment increased by 151%
(!)
f) Very few criminal cases are resolved by trial. (3% in 2001)
g) Opponents of plea-bargaining argue that it places pressure on defendants to waive their constitutional
rights and increases the possibility that innocent people plead guilty.
3) Readings on the Criminal Justice Process
a) Perspectives on the system as a whole
i) Packer article:
(1) Crime Control model: efficient, expeditious, and reliable screening and disposition of persons
suspected of crime are the central value (assembly line).
(2) Due Process model: central values focus on the maintenance of the dignity and autonomy of the
individual (obstacle course).
ii) Other articles
(1) Roberts: Race helps determine who criminals are, and the number of black males in jail reflects
racial bias
(2) Steiker: Constitutional criminal procedure is a species of substantive criminal law for cops.
“Inclusionary rules”—rules that permit the use at trial of admittedly unconstitutionally obtained
evidence or that let stand criminal convictions based upon such evidence (standing doctrines,
good-faith exception to warrant requirement, harmless error, “fruit of the poisonous tree” are all
examples).
b) Plea Bargaining and Sentencing
i) Alschuler, Implementing the Criminal Defendant’s Right to Trial…
(1) Plea bargaining makes a substantial part of an offender’s sentence depend, not upon what he did
or his personal characteristics, but upon a tactical decision irrelevant to any proper objective of
criminal proceedings.
(2) Plea bargaining leads lawyers to view themselves as judges and administrators rather than
advocates.
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 (3) Advocates of plea bargaining maintain that providing the resources to implement the right to trial
would be impracticable.
(4) When someone denies his guilt, it is important to determine on the basis of evidence whether he
is guilty
(5) It is wrong for punishing a person for asking that the evidence be heard
ii) Wright & Miller, The Screening/Bargaining Tradeoff:
(1) Prosecutorial screening is the principal alternative to plea bargaining.
(2) Prosecutors must make early determinations based on police investigations to determine whether
charges should be filed.
(3) Prosecutors must file charges they would generally want to result in a conviction and sanction.
Must be likely to prove in court.
(4) Offices must restrict plea bargaining.
(5) Training must enforce these values.
iii) Lynch, Screening versus Plea Bargaining:
(1) The prosecutor, rather than a judge or jury, is the central adjudicator of facts (as well as replacing
the judge as arbiter of most legal issues and of the appropriate sentence to be imposed).
(2) Mitigating information is argued before the prosecutor, not a judge, in “sentencing” under a plea
bargain
c) Race and Drugs
i) There are dramatically high rates of criminal justice control for young black men.
ii) Drug law enforcement is the conspicuous exception to the findings that race plays little role in
sentencing.
iii) Crack cocaine convictions, which heavily fall on young black men, include incredibly stiff penalties.
d) The Police
i) The scope of police discretion in policing streets and public spaces has been restrained by vagueness
review of statutes granting police authority.
ii) Police need legal authority to protect citizens, and this authority is being taken away
e) The Lawyers and the Trial Courts
i) Judges are understaffed at the early stages of the adjudicative process—initial appearance,
preliminary hearing, and arraignment.
ii) Plea bargaining: agreement between the defendant and the prosecutor to plead guilty for lesser
charges or recommendation of a lesser sentence. Could result in minimum punishment for
originally-charged offense.
iii) Indigent defendants: two frustrations
(1) Lack of choice of attorney
(2) Assembly-line defense: different attorney for each step
iv) Most public defenders assume their client is guilty.
v) Court practice: “work crimes”—short cuts, deviations, and outright rule violations that develop to
usurp the right of due process granted every defendant
vi) Explicit pressures are exerted by all court personnel for an individual to plead guilty
vii) Trial judges face the possibility of being labeled “soft on crime” for granting sentencing
concessions.
viii) Unwritten rule: if you go to trial and lose, you will get a stiffer sentence.
f) The Supreme Court
i) The Supreme Court is out of touch with practical problems relating to police practices that directly
impact potential defendants.
ii) “Exclusionary rule”—the evidentiary rule which disallows the admission against criminal
defendants, at his trial, of certain kinds of evidence obtained in violation of his rights.
iii) “Booking” and “mugging” of suspects are events untouched by Supreme Court rulings.

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 iv) The Supreme Court never gets to see many of the police practices that raise the most pervasive and
significant issues of suspects’ rights.
v) Statutes and administrative decisions governing these wrongs are almost nonexistent.
vi) “Rights” announced by the Court must filter down through lower courts, attorneys, etc.
g) Two Models of Adjudication
i) Crime Control Model
(1) Efficiency is key
(2) To the extent feasible, encourages informal, non-judicial processes
(3) Puts high trust in police officers and prosecutors
(4) Trial are avoided in favor of plea bargaining
(5) DON'T WANT TO WASTE A LOT OF TIME, EFFORT, AND MONEY ON JUDICIAL
PROCESSES
(6) More bright line rules we have, the better
(7) More uniform the procedures we have, the better
(8) Presumes that when the police arrest you, you are guilty
(9) Content with the defendant getting an adequate lawyer, adequate opportunity to investigate, etc.
ii) Due Process Model
(1) Inheres the liberal view of the privacy of the individual and complimentary concept of the
beneficial limitations on official power
(2) Recognizes/emphasizes of error and bias (even in whether to charge someone or not)
(3) Wants judges to intervene early in cases (judiciary should have a very active role to make sure
the government doesn't over reach and encroach on personal liberties)
(4) Ultimately, it is about the legal guilt of the defendant, not guilt based on facts (legally admissible
evidence)
(5) Setting limits on governmental power
(6) Address economic inequalities in the human justice system

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CHAPTER 2: The Idea of Due Process

1) Introduction
a) Most of the law of criminal procedure is constitutional. Judges are the primary generators of rules for
regulating the behavior of police, prosecutors, defense attorneys, and the other actors who administer the
criminal process.
b) Due process: when the state uses its coercive machinery to catch and punish criminals, it must treat
people fairly, even the people it wishes to punish. This is embodied in the phrase "due process of law."
2) A Brief History:
a) In 1776, career public prosecutors basically didn't exist; prosecution was either the crime victim's job or
a private attorney's job.
b) Beginning with Hurtado v. CA, the Supreme Court began accepting the invitation to incorporate the
protections of the 4th, 5th, and 6th Amendments through the 14th Amendment.
c) Criminal procedure only had to comply with "fundamental fairness," which permitted anything that did
not "shock the conscience" of the judiciary.
d) The words "due process" rarely appear in the cases defining the constitutional rules. Those rules come
from the 4th, 5th, and 6th.
3) Defining Due Process
a) Hurtado v. CA:
i) Facts: Hurtado was charged with first degree murder and convicted. No grand jury ever considered
his case. He argued that the 14th Am. required a grand jury indictment because this was a serious
crime.
ii) Holdings:
(1) Plaintiff here argued that "due process of law" meant "law of the land," as found in the Magna
Carta. This meant that due process had a fixed meaning, and that meaning was tied to the
notions of justice and fairness customary and traditional at the time of the creation and signing of
the Bill of Rights.
(2) Plaintiff never argued for incorporation of 5th Am through 14th—merely argued that “due
process” meant a grand jury was required.
(3) "a process of law...must be taken to be due process of law, if it can be shown the sanction of
settled usage both in England and in this country"
(4) Court seems to say that States have the right to choose to have grand juries because this
right is not so fundamental as to be universal.
(a) Since the “grand jury” language is not found in the 14th Amendment, it can be inferred that it
was intentionally left out; thus, only applicable in the federal context through the 5th
Amendment
(5) Court holds that grand juries are not fundamentally part of "due process of law"
(a) It remains good law that the grand jury right of the 5th Amendment is not incorporated to the
states through the 14th Amendment
(6) Harlan dissent: If a grand jury right is not fundamental and universally needed to meet "due
process," why did the Founders include it in the Fifth Amendment? The Fourteenth Amendment
should also incorporate this right.
b) Notes:
i) Operation of a grand jury:
(1) The grand jury's primary task is to review the cases presented to it by the government.
(2) Grand jurors may ask questions of the witness and may discuss the case with the prosecutor as
evidence is submitted.
(3) The grand jury returns a "true bill" or a "no bill" to charge the crime.
(4) The Rules of Evidence do not apply; the suspect has no right to testify in his own defense and is
not allowed to have counsel. The suspect may not put on contrary evidence.
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 (5) Grand jurors hear only what the prosecution wants them to hear.
ii) Four views of Due Process:
(1) Due process as the rule of law: this signifies the constraint of arbitrariness in the exercise of
government power. Agencies of official coercion should be guided by rules. Vague criminal
statutes should be unconstitutional.
(2) Due process as the Bill of Rights: Due process is a concept that forces government to comply
with the BOR. The Court has adopted this view, through the incorporation doctrine, and has
incorporated all 4th, 5th, and 6th Am. rights (except the grand jury right) through the 14th Am.
(3) Due process as accuracy (and racial discrimination protection): due process should ensure
accurate procedures, procedures that would prevent conviction of innocent defendants.
(a) Betts v. Brady: indigent defendants entitled to appointed counsel only under undefined
"special circumstances"
(b) Brown v. Mississippi: involuntary confessions are inadmissible.
(c) Brady v. Maryland: prosecution must turn over exculpatory evidence to the defense
(d) Drope v. Missouri: defendants cannot be made to stand trial unless they are competent to
assist in their own defense.
(4) Due process as "fundamental fairness:" Does the procedure "violate those fundamental
principles of liberty and justice which lie at the base of all our civil and political institutions?"
Also phrased as "conduct that shocks the conscience."
4) Incorporation
a) Duncan v. Louisiana:
i) Facts: Duncan was convicted of the battery of some white boys on the side of the highway (D was
black). He sought a jury trial, but Louisiana only granted a jury trial in capital cases or where
imprisonment or hard labor may be imposed.
ii) Holdings:
(1) The Court has looked increasingly to the BOR for guidance; many of the rights guaranteed by
the BOR are now incorporated through the 14th Am.
(2) We hold that the 14th Am. guarantees a right of jury trial in all criminal cases which--were
they to be tried in a federal court--would come within the 6th Am.'s guarantee.
(3) Court looks to historical context of jury right and finds that it has been present nearly every step
along the way to the BOR.
(4) The laws of every State guarantee a right to jury trial in serious criminal cases;"
(5) We would not assert...that every criminal trial--or any particular trial--held before a judge alone
is unfair or that a defendant may never be as fairly treated by a judge as he would by a jury."
(6) In the federal system, petty offenses are defined as those punishable by no more than 6
months in prison and a $500 fine. In 49 of 50 states crimes subject to trial without a jury,
which occasionally include simple battery, are punishable by no more than one year in jail."
"We need not, however, settle in this case the exact location of the line between petty offenses
and serious crimes."
(7) It is sufficient for our purposes to hold that a crime punishable by two years
imprisonment" is a serious offense requiring a jury trial right.
b) Notes on the Medina case:
i) The Mathews v. Eldridge balancing test is used in the civil context, but the Court has rejected it in
the criminal context.
(1) Weighing private interest v. government interests and the risk of erroneous deprivation under
current procedure
ii) Because the States have considerable expertise in matters of criminal procedure and the criminal
process is grounded in centuries of common law tradition, it is appropriate to exercise substantial
deference to legislative judgments in this area."
iii) The BOR speaks in explicit terms to many aspects of criminal procedure, and the expansion of those
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 constitutional guarantees under an open-ended Due Process Clause invites undue interference with
considered judgments and the careful balance the Constitution strikes. BOR occupies the space,
leaving little room for other interpretations or rules.
c) Hamdi v. Rumsfeld:
i) Facts: Hamdi was captured in Afghanistan in 2001, after 9/11. He claimed (through his father) that
he was there as a relief worker. The government captured him as an “enemy combatant” and held
him in South Carolina, indefinitely until the War on Terror was over. The authority for this was
granted by Congress in the Authorization for the Use of Military Force that was passed after 9/11—
authorized the detention of unlawful combatants.
ii) Holdings:
(1) AUMF authorized detaining Hamdi, but the procedure granted was lacking
(a) U.S. citizens designated as enemy combatants by the Executive Branch have a right to
challenge their detainment under the Due Process Clause
(b) Fourth Circuit Court of Appeals vacated and remanded.
(2) Court applied the three-prong test of Mathews v. Eldridge to determine that Hamdi required
notice of the charges and the opportunity to the heard before a neutral fact finder. Mathews…
(weigh three factors)
(a) Interest of individual in retaining property and the injury of official action
(b) Costs and burdens of additional process, and the interests of the government in efficient
adjudication
(c) Risk of error through the procedures used and the probable value, if any, of additional or
substitute procedural safeguards
(3) Procedures can include hearsay statements offered against Hamdi and also grant a presumption
in favor of evidence presented by the Government, although rebuttable
iii) Souter concurrence/dissent:
(1) Concurred on the fact that additional process was due
(2) Dissented on the fact that Congress established authority for detention of enemy combatants
through the AUMF.
iv) Scalia dissent:
(1) Went the farthest in restricting the executive power of detention.
(2) Based on historical precedent and the language of the Constitution, in the Suspension Clause,
Art. 1, § 9, cl. 2, the Government only had two options:
(i) Congress could suspend habeus corpus
(ii) Hamdi must be tried under criminal law
(3) If neither of the above is effected, then Hamdi must be released or properly arrested.
(4) The Court need not invent a new process for Hamdi.
v) Thomas dissent: Supported authority of the Government to detain Hamdi because of the grave threat
the national security and the authority granted by Congress in the AUMF.
d) Notes from Hamdi:
i) Neither side really wins here, but Constitutional Due Process Requirements come out of this case:
(1) Notice (of the factual basis of his classification/detention)
(2) Right to Rebut the Factual Assertions Against You
(3) Right to Meet Before a Neutral (Impartial) Decision-Maker

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CHAPTER 4: THE SIXTH AMENDMENT

1) The Right to Counsel

a) Gideon v. Wainwright:
i) Facts: Gideon was charged and convicted by a jury of breaking and entering a Florida pool hall
(felony). He asked for appointed defense counsel but was denied it. Gideon conducted his own case
as best he could. He appealed, claiming that the Sixth Amendment guarantees the right to counsel
for criminal defendants in his circumstance. The Court agreed.
ii) Holdings:
(1) Question: Should the Court overrule Betts, which held that refusal to appoint counsel did not
necessarily violate the 14th Amendment’s Due Process Clause. (Betts held that only “special
circumstances” would require the appointment of counsel to assure the “fairness” afforded by the
DP Clause.)
(2) The Court chose to overrule Betts explicitly.
(a) The Betts Court looked at national history to determine whether the right to counsel was
“fundamental” and concluded that it was not.
(i) Unless there were “special circumstances”—i.e., D is feeble minded, illiterate, or any
death penalty case would be considered “special circumstances”
(b) Since Betts, the Court has recognized several other BOR rights as fundamental (just
compensation in Fifth, unreasonable searches and seizures in Fourth, etc.)
(c) Court determines that Betts was a break from established precedents—Powell, Zerbst, etc.
(Powell: “[assistance of counsel] is a fundamental safeguard”)
(3) “…in our adversary system of criminal justice, any person hauled into court, who is too poor to
hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” (an “obvious
truth”)
iii) Douglas concurrence: Rights protected by 14th Amendment DP should not be “watered-down”
versions of BOR rights.
iv) Clark concurrence: Constitution makes no distinction between capital and noncapital crimes—right
to counsel should apply for any type of criminal case because the Constitution does not specify
otherwise.
v) Harlan concurrence: No need to decide whether protection extends to all criminal cases.
vi) Notes:
(1) Authors: “…there probably would be general agreement that any practice that generated a
relatively high risk of erroneous convictions is “unfair,” as the absence of counsel most likely
does.
b) What is the scope of the right applied in Gideon?
i) Argersinger v. Hamlin: “We hold…that absent a knowing and intelligent waiver, no person
may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless
he was represented by counsel at his trial…”
ii) Alabama v. Shelton:
(1) Facts: LeReed Shelton was convicted of assault and sentenced to 30 days imprisonment, but his
sentence was suspended and he was placed on two years’ probation. Violation of probation
would lead to imprisonment. (Shelton represented himself at a bench trial, voluntarily after
being admonished of the problems with doing so.)
(2) Holdings:
(a) Argersinger held that defense counsel must be appointed…when the criminal prosecution
leads to imprisonment, even for a brief period. “…no person may be imprisoned for any
offense, whether classified as petty, misdemeanor, or felony, unless he was represented by
counsel at his trial…”

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 (b) Court here holds that “a suspended sentence that may end up in the actual deprivation of
a person’s liberty may not be imposed unless” counsel is appointed.
(c) The uncounseled conviction here leads to imprisonment when the accused breaks his
probation.
(d) 16 states already supply counsel under these circumstances.
(e) An alternative: pretrial probation/rehabilitation which includes conditions typical of post-
trial probation. Imprisonment occurs only after there is a probation violation.
(f) Scalia dissent:
(i) [R]espondent has not suffered, and may never suffer, a deprivation of liberty.
(ii) Imposition of a suspended sentence does not deprive the defendant of his personal liberty,
so the Sixth Amendment does not come into play here.
(iii) Only 24 states have adopted the system created by the majority. The majority
forces this system on the majority of states for no good reason.
c) Right to Counsel Chart
Counsel? Actual Imprisonment Could have Didn't receive prison but Convicted and given
received prison imprisoned later for suspended sentence
but didn't conviction b/c of (prison term), no
uncounseled conviction attempt to imprison
yet
Must Argersinger v. Baldasar v. Illinois Alabama v. Shelton
assign Hamlin (held that D (6th Amendment (takes the Argersinger
counsel must be Analysis: prison is wheretest and reformulates
appointed in any we draw the line--if it it so that the only
criminal prosecution causes the person to thing that matters if
whether classified as serve more time later--- you are given a prison
petty, misdemeanor, however the Supreme term, not whether or
or felony that Court OVERRULED this) not you are actually
actually leads to imprisoned -- expands
imprisonment even Argersinger)
for a brief period)
Need not Scott v. Illinois Nichols v. US
assign (held that counsel (Sentencing
need not be considerations:
appointed when Overruled Baldasar--no
the D is fined for reason the court should
the charged not be able to raise
crime, but is not someone's sentence b/c
sentenced to a of a prior conviction
term of since the judge has
imprisonment) always had great
discretion in this
determination)

2) The Right to Effective Counsel

a) The Meaning of Effective Assistance
i) Mere appointment does not satisfy the Sixth Amendment.
ii) “Mockery of justice” (old) standard: ineffectiveness is found only in circumstances so shocking as
to reduce the trial to a farce or charade. (Even inebriated counsel may not satisfy this.)
iii) Beginning in the 1970s, a large proportion of states replaced the mockery standard with one that
requires counsel to possess and exercise the legal competence customarily found in the jurisdiction.
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b) Critical Stages of the Proceeding
i) Court has held that the right to counsel applies at every critical stage of a criminal prosecution.
ii) What is a “criminal prosecution” and which stages are “critical?”
(1) Criminal prosecution: Begins when adversary proceedings have begun and continues through
the sentencing process.
(2) Critical Stage: Begins at the initial appearance or any formal charging process (filing an
indictment or information) and continues until the sentence is imposed.
c) Strickland v. Washington: Effective assistance of trial counsel
i) Facts: D was a capital criminal (murder, robbery, kidnapping, torture, etc.) was appointed trial
counsel. D pleaded guilty against his counsel’s advice, waived a jury trial and sentencing, and chose
to be sentenced by the judge. Trial counsel felt that his client’s case was doomed after he learned
that the client confessed. Counsel did not seek character witnesses or family references. He did not
pursue a psychological expert. Counsel simply argued remorse upon allocution. Court here found
that counsel was effective, based upon its newly-enunciated standard.
ii) Holdings:
(1) Benchmark: whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.
(a) Court found D’s counsel’s actions to be reasonable under the totality of the evidence
(i) Counsel chose to rely on D’s acceptance of responsibility for his crime
(ii) Counsel’s tactical decision not to present mental state evidence was, if not the best
decision, a legitimate one in light of the situation at the time (even if it was in error, it
would not have prejudiced D’s position)
(iii) Counsel’s actions were within the range of professionally competent assistance
(2) Two components:
(a) The defendant must show that counsel’s performance was deficient (court must consider the
totality of the circumstances before the judge/jury)
(i) “Must show that counsel’s performance fell below an objective standard of
reasonableness”
(ii) Fact-based inquiry
1. “[T]he performance inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.”
2. “…must judge the reasonableness…on the facts of the particular case, viewed as of
the time of counsel’s conduct.” No hindsight as 20/20.
3. When the defendant tells counsel or leads counsel to believe that a line of defense is
fruitless, the actions of counsel based on these urgings cannot be challenged as
unreasonable.
(iii) Purpose: defendants receive a fair trial
(iv)A court must indulge a “strong presumption that counsel’s conduct falls within the
range of reasonable professional assistance.”
1. Judicial scrutiny “must be highly deferential”
2. “…too tempting for a defendant to second-guess counsel’s assistance.”
3. “…strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallegeable.”
(b) The defendant must show that the deficient performance prejudiced his defense.
(i) Conflict of interest of counsel = prejudicial (See Cuyler v. Sullivan).
(ii) “The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
1. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.”

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 2. “It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.”
(3) Does not establish mechanical rules—focus on the fundamental fairness of the proceeding.
(4) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
(5) Facts here: No ineffective assistance, no prejudice
(a) Strategic choices were made here that were reasonable.
(b) Aggravating circumstances were overwhelming.
iii) Marshall dissent:
(1) “Reasonableness” standard is meaningless.
(2) Prejudice standard problems:
(a) Too hard to tell based upon a “cold record”
(b) Assumption that we are only “protecting the innocent” with the Sixth Amendment is faulty.
(3) Death row advocates know that family and social information regarding the convicted person can
be quite persuasive.
iv) Notes on Strickland:
(1) A claim that counsel was ineffective must rise to the level that it would be viewed as a denial of
the right to counsel.
(2) TEST: Where D receives death sentence and claims he received ineffective representation,
he must prove that:
(a) (Performance Prong) D must prove that the counsel’s performance was deficient (requires
showing that counsel made errors so serious that counsel was not functioning as the counsel
guaranteed by the 6th Amendment--D must overcome the presumption that his actions were
sound trail strategies)
(i) Counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary (heavy measure of deference to counsel's
judgments)
(b) (Prejudice Prong) D must show that the deficient performance prejudiced the defense
(i) Requires the showing that counsel’s errors were so serious as to deprive the defendant of
fair trial, a trial whose result is reliable
(ii) D must show there is a reasonable probability that, but-for counsel's unprofessional
errors, the result of the proceeding would have been different (a reasonable probability is
a probability sufficient to undermine confidence in the outcome)
(3) The high standard keeps frivolous claims out of court
(a) The practice of law is all about strategies and different attorneys will make different choices
under similar circumstances
(b) As long as the attorney can articulate that he looked at all the evidence, facts, and the
law, and then made a decision; the attorney is safe (totality of the circumstances)
d) Indigency and the Criminal Justice System: pp. 163-67
i) Most densely populated areas use public defender offices—these are usually underfunded or
understaffed.
ii) Where PDs do not exist, indigent defendants are usually assigned counsel.
iii) Assigned counsels are usually subject to maximum fees for types of cases—these fees are very low.
iv) Indigent defendants are frequently neglected by their appointed counsel.
v) In the years since Gideon, the Supreme Court has made no move to require adequate funding for
PDs.
vi) Ake v. OK: defendant must have access to psychiatric expertise.

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CHAPTER 5: THE FOURTH AMENDMENT

1) Text and History

a) Two key roles of the Amendment:
i) The law’s chief source of privacy protection.
ii) Regulates government actors. Think of it as “tort law for the police.”
b) Nearly all Supreme Court opinions until recently treats probable cause and a warrant as defining the
usual conditions for a “reasonable” search or seizure.
2) Remedy and Right
a) Dominant remedy invoked is, by far, the exclusionary rule. Motions to suppress are filed in 5% of
criminal cases.
b) All exclusionary rule claims seek to suppress incriminating evidence.
3) Boyd and its Cabining
a) Boyd v. United States:
i) Facts:
(1) Boyd was charged with attempting to willfully defraud the United States while importing 35
cases of plate glass; allegedly failing to pay proper import duties. The property was seized by the
tax collector and forfeited to the U.S.
(2) Boyd was ordered by the district court to produce the applicable invoice, but Boyd objected that
to do so would result in the invoice being used to incriminate Boyd. He was ordered to produce
the invoice, not by a subpoena, but by a similar document.
(3) Boyd asserted that no person can be compelled to provide evidence that could so incriminate
under the Fourth and Fifth Amendments
ii) Holdings:
(1) No actual “search and seizure” here; however, it “accomplishes the substantial object of those
acts.”
(2) Forced disclosure of papers through a court order violated the Fourth Amendment. Those papers
therefore could not be used by the government as incriminatory evidence—would violate the
Fifth.
(a) Fifth prohibited “compulsory discovery by exhorting a party’s oath,” so it followed that it
also prohibited discovery by “compelling the production of his private books and papers.”
(b) The documentary production was simply another form of “forcible and compulsory extortion
of a man’s own testimony.”
(c) Disclosure of a document = testifying in court
(3) Court linked Fourth and Fifth Amendments, noting that it had “been unable to perceive that the
seizure of a man’s private books and papers to be used in evidence against him is substantially
different from compelling him to be a witness against himself.”
(a) Court treated the two as if they are really joined/merged
(b) No distinction in Boyd between tangible things and intangible things
(4) Analysis was limited to documents because they have a testimonial nature.
iii) Notes
(1) Boyd’s analysis was a property-based assessment of what the 4th Amendment is alla bout
(a) Puts private papers outside the reach of the government (categorical understanding of how
the 4th Amendment works)
(b) Gives special status to “private papers”
(i) Makes it always unreasonable for the government to search for and seize your personal
papers
(ii) Also made it so that you always have a superior interest in your private papers

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 (iii) However, government can always search/seize stolen goods b/c technically not
your property
1. Government also has a superior property interest in your taxes
(2) What is the scope of the 4th Amendment after Boyd?
(a) Protect private papers
(i) Property of the D—the government does not have a superior right to them
1. Property-based interpretation of the 4th Amendment
(ii) But this might also be an indication that the 4th and 5th Amendments protecting you from
the government trying to force you to incriminate yourself
(b) Boyd may rest on concerns for privacy—the “right to be left alone”
b) Cases Cabining Boyd (subsequent courts went to great lengths to cabin the broad power of Boyd)
i) Gouled v. US: Applied Boyd to a search/seizure pursuant to a warrant that produced documents of
the D that were later used at trial over an objection. Court found that the 4th Amendment was
violated by the search/seizure, and when the evidence was produced at trial, it violated the 5th
Amendment. HELD: Papers should not be immune from search/seizure if they fall w/in the
principles of the cases in which other property may be seized and they are adequately described in
the affidavit and warrant
ii) Brandeis’s dissent in Olmstead v. United States: “right to be left alone” in wiretapping case.
“Every unjustifiable intrusion by the Government upon the private life of the individual, whatever
the means employed, must be deemed a violation of the Fourth Amendment. And the use, as
evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation
of the Fifth.”
(1) Brandeis used language from the Boyd decision in his dissent of the “right to be left alone”
4) The Demise of Boyd
a) Schmerber v. California:
i) Facts: DUI. Petitioner arrested and taken to a hospital where he received treatment for injuries
sustained. At the direction of a police officer, and against the advice of counsel present and
petitioner, a blood sample was drawn from petitioner while receiving treatment for his injuries. This
was tested and used to convict him of DUI. Petitioner alleges that his Fourth (unreasonable search
and seizure), Fifth (privilege against self-incrimination), and Sixth Amendment (right to counsel)
rights were violated.
ii) Holdings:
(1) Fifth Amendment self-incrimination:
(a) Court rejects this claim.
(b) “We hold that the privilege protects an accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of a testimonial or communicative
nature.”
(c) Prohibits the testimony of a self-incriminating kind from a party or a witness.
(d) Holt v. US: forcing defendant to put on a blouse in court did not violate this right.
(e) “The prohibition of compelling a man in a criminal court to be witness against himself is a
prohibition of the use of physical or moral compulsion to extort communication from
him, not an exclusion of his body as evidence when it may be material.”
(f) Reaches an accused’s communications, whatever they may be.
(g) Lie detector tests may be reached by the Fifth Amendment.
(2) Sixth Amendment right to counsel
(a) Court rejects this, as well.
(b) His claim is limited to the failure of police to respect his wishes.
(c) No issue of counsel’s ability to represent is presented.
(3) Fourth Amendment search and seizure claim
(a) Expressly provides for “the right of the people to be secure in their persons”
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 (b) Question: whether the police were justified in requiring petitioner to submit to the blood test,
and whether the means and procedures employed in taking his blood respected relevant
Fourth Amendment standards of reasonableness.
(c) DUI often involves a warrantless arrest made based on probable cause (watery eyes, slurred
speech, smell of alcohol, etc.)
(d) Absent an emergency, a warrant will be required to invade the human body.
(i) Officer here might reasonably have believed that evidence could be lost by the passage of
time.
(ii) Attempt to secure evidence here presented the exigent circumstances necessary to
intrude without a warrant.
(e) Test performed here was reasonable measure.
(i) Acceptable and safe medical practices.
(ii) Not acceptable if done by police alone at the police station. Medical personnel was
involved here.
iii) Dissent:
(1) Person who analyzed the blood test provided evidence that was both “testimonial” and
“communicative” in nature. This violates the Fifth Amendment.
(2) Strange to think that a person’s papers cannot be admitted (Boyd) but his blood can.
iv) Notes:
(1) Protects against intrusions that are not justified under the circumstances or made in an improper
manner
(a) Suggests a “balancing test”
(b) Under Boyd, certain types of searches were off limits (i.e., personal papers)
(c) Under Schmerber, NOTHING was off limits (4th Amendment protects everything, BUT
ONLY from unreasonable searches)
(i) Now, instead of a purely property approach (Boyd), this becomes a procedural protection
against unreasonable searches and seizures
b) Warden, Maryland Penitentiary v. Hayden:
i) Facts: Armed robbery conviction. Items: clothing, cap, jacket, trousers, were seized from accused’s
home during a warrant raid and used to convict him. These items were “mere evidence” and were
not instrumentalities of the crime of which he was accused. Does anything in the Fourth
Amendment support a distinction between “mere evidence” and instrumentalities, fruits of crime, or
contraband?
ii) Holdings:
(1) The distinction between mere evidence and instrumentalities is irrational. Some items
could be both or either, depending on the circumstances.
(2) The items of clothing here are not “testimonial” or “communicative” in nature.
(3) Searches and seizures may be “unreasonable” within the Fourth Amendment even when the
Government asserts a superior property interest (such as when the property is allegedly stolen
and does not rightfully belong to the accused).
(4) Court rejects the “mere evidence” distinction.
(a) Intrusions must still be made after fulfilling the probable cause and particularity requirements
of the Fourth Amendment
(b) Must still receive a warrant from a magistrate, absent exigent circumstances.
iii) Dissent:
(1) What about the holding in Boyd? Where did that go? This plainly violates the holding in that
case, based upon the Fifth Amendment’s prohibition against self-incrimination.
(2) A policeman in “hot pursuit” may enter a home without a warrant. However, that same police
man cannot seize a person’s books, pamphlets, papers, and other personal effects that are not
related to the purported crime which brought him in “hot pursuit.”
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 (3) The personal effects of an accused are sacrosanct from prying eyes.
iv) Notes:
(1) The 4th Amendment was designed to protect privacy rights, not property rights
(a) Therefore, the old rule is based on a fiction b/c sometimes things that might be evidentiary in
one case may be an instrumentality in another
(2) The government interest is not in property, but in solving crime
(a) Therefore, the old rule is unworkable and as long as the search is lawful, the items can be
seized regardless of the fact that they are mere evidence or instrumentality
c) Berger v. New York:
i) Facts: Issue here involved the issuance of an ex parte order for eavesdropping. This was based on a
statute. The order did not limit the period of time it was in place and included no other qualifications
besides there being a “reasonable ground to believe that evidence of crime may be thus obtained, and
particularly describing the person or persons whose communications [are to be overheard].”
ii) Holdings:
(1) The Fourth Amendment requires that a warrant issue not only upon probable cause, oath,
and affirmation, but also “particularly describing the place to be searched, and the persons
or things to be seized.”
(2) The NY statute lacks this particularization. It authorizes “indiscriminate use” of electronic
spying devices.
(3) Must show present probable cause for the continuance of eavesdropping.
(4) Statute must place a termination date on the eavesdrop
(5) No showing of exigent circumstances (like the spoilage of evidence situation)
iii) Notes:
(1) 4th Amendment used to only be used to protect papers, now it protects most everything
(2) 5th Amendment only protects you from incriminating yourself based on testimony
(a) Does NOT include blood, fingerprints, etc.
(i) Those things now fall under the scope of the 4th Amendment
(3) So under this context, we are going to engage in some sort of balancing to determine whether a
search and seizure was reasonable or not
5) The Exclusionary Rule
a) Mapp v. Ohio (1961):
i) Facts: Petitioner was convicted of knowingly having in her possession lewd books after an
admittedly illegal police search of her home for a fugitive. Lewd books possession violated OH law.
(1) Police officers arrived at Mapp’s house, demanded entrance, and were denied it. They had
information that a bombing suspect was hiding at Mapp’s home.
(2) Several doors of the house were forcibly opened by the police.
(3) The police held up a fake warrant, which Mapp tried to view, using force.
(4) The police raided drawers and Mapp’s bedroom and found the lewd books.
(5) At trial, no search warrant was produced. There probably was no real warrant.
(6) Trial court held that materials could not be excluded because the OH rule did not favor
exclusion.
ii) Holdings:
(1) Weeks (1914): use of illegally seized evidence involved “a denial of the constitutional rights of
the accused.” Adopted the exclusionary rule but only in the federal context
(a) Exclusionary rule only applied to federal officials, and not the state officials
(2) Wolf v. CO (1945): held “that in a prosecution in a State court for a State crime the Fourteenth
Amendment does not forbid the admission of evidence obtained by an unreasonable search and
seizure.”
(a) This holding is rejected in Mapp.

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 (b) 4th Amendment applies against the states, so state officers cannot unreasonably search your
home and seize your stuff (need warrants, etc.)
(c) However, the exclusionary rule didn’t exist yet for the states (your remedy could only be in
civil court)
(d) Wolf stated that it could not brush aside the rules established by states that did not buy into
the exclusionary rule. At that time 2/3 of states opposed the rule. At the time of Mapp, ½ of
those have fully or partially adopted it.
(3) “We hold that all evidence obtained by searches and seizures in violation of the Constitution is,
by that same authority, inadmissible in state court.”
(a) Exclusionary rule MUST be followed by the states
(i) Uniformity between federal courts and state courts so federal officers don’t bring
evidence obtained to a state court across the street to get around the exclusionary rule
(ii) States still have not come up with their own effective rules after a dozen years to not
violate the 4th Amendment, so the federal exclusionary rule will solve this problem
(4) Touts “right to privacy” in the 14th Amendment
(5) Purpose of the exclusionary rule “is to deter—to compel respect for the constitutional guaranty
in the only effective available way—by removing the incentive to disregard it.”
(6) Court argues that it makes no sense that a federal prosecutor may not use the evidence but can
walk over to a state prosecutor and the evidence may be admissible.
(7) Point-Counterpoint: “The criminal is to go free because the constable has blundered”—“The
criminal goes free, if he must, but it is the law that sets him free.”
iii) Black concurrence:
(1) The Fourth Amendment does not itself contain any provision expressly precluding the use of
such evidence.
(2) Considering the Fourth and Fifth Amendments in tandem, “a constitutional basis emerges which
not only justifies but actually requires the exclusionary rule.”
iv) Douglas concurrence:
(1) Without the rule, the only other remedy would be trespass. This is an illusory remedy.
v) Harlan dissent:
(1) ½ of the states will adhere the non-exclusionary rule
(2) States are constitutionally free to follow it or not as they may themselves determine.
(3) The rule is fairly debatable.
b) Notes on Mapp
i) The case was litigated as a First Amendment case. The First Amendment argument prevailed later
in Stanley v. GA.
ii) The exclusionary rule is the progeny of the marriage of the Fourth and Fifth Amendments in Boyd.
iii) One criticism: the Court’s decision runs contrary to the text of the Amendment. It is not mentioned
at all.
iv) The problem that federal police would hand evidence over to state prosecutors was solved and
eliminated in Elkins v. United States (1960): HELD that evidence seized by state officers in
violation of the 4th Amendment is inadmissible in a federal criminal trial and vice versa
v) Point-Counterpoint: Admitting illegally obtained evidence seems to condone its illegality—
Suppressing such evidence produces a fraud upon the fact finder (the evidence exists but cannot be
admitted for an artificial reason)
vi) Police perjury issue: particularly problematic in drug prosecutions. Officers may commit perjury on
the stand and judges may “wink.”
vii) Argument, probably the strongest, for the rule: DETERRENCE. The Court has repeatedly stated
that the rule exists solely in order to deter violations of the Fourth Amendment.
6) The Meaning of “Searches”
a) The Relationship between Privacy and Property
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i) Katz v. United States: eavesdropping device located on the outside of a phone booth
(1) Facts: Defendant was convicted under a federal statute for transmitting wagering information by
telephone from LA to Miami and Boston. At trial, the Government introduced evidence of the
defendant’s end of telephone conversations overheard by FBI agents who attached an electronic
listening device to the glass phone booth he used every morning to make bets. Court of Appeals
rejected the contention that there was no violation of the Fourth Amendment because there was
no intrusion into the physical area occupied by defendant. Judgment reversed.
(2) Holdings:
(a) The Government’s activities equaled a “search.”
(i) The Fourth Amendment protects certain types of individual privacy and also includes
protections which may go further.
(ii) The Court rejected the assertion that the booth was a “constitutionally protected area.”
“The Fourth Amendment protects people, not places.”
(iii) “What a person knowingly exposes to the public, even in his own home, is not a
subject of Fourth Amendment protection.”
(iv)The Fourth Amendment is no longer limited to application to searches and seizure of
tangible property—it extends to the recording of oral statements, “overhead without
any technical trespass under local property law.”
(v) The 4th Amendment applies to surveillance techniques that do not necessarily involve
physical penetration of protected spaces.
(b) Was the search reasonable? No.
(i) The Government was not required, before commencing the search, to present their
estimate of probable cause for detached scrutiny by a neutral magistrate. They were not
compelled to observe precise limits established in advance by a specific order…
(ii) Searches conducted outside the judicial process, without prior approval of judge or
magistrate, are per se unreasonable under the Fourth Amendment—subject to…some
exceptions…
1. The Court refuses to establish an exception under these circumstances.
(c) Majority: “What a person (1) knowingly exposes to the public…is not a subject of the 4th
Amendment protection. But what he (2) seeks to preserve as private…must be
constitutionally protected”
(3) Harlan concurrence
(a) TEST: What protection is afforded to people under the Fourth?
(i) A person must have exhibited an actual (subjective) expectation of privacy; and
(ii) The expectation is one that society is prepared to recognize as “reasonable”
(objective).
(b) Applying the test:
(i) The subject here subjectively believed that his telephone conversation was private.
(ii) Society generally views telephone booth conversations as private.
(4) Black dissent:
(a) The words of the Fourth will not bear the meaning espoused by the majority
(i) Searches can only involve tangible things.
(ii) This involved a “future item”—a conversation not yet created. There is no way the
Fourth could apply to something that cannot be described.
(b) It is improper to rewrite the amendment in an attempt to modernize it.
(i) The Framers could have chosen to outlaw eavesdropping if they wished.
(ii) “…continuously functioning constitutional convention…”
ii) Notes after Katz:
(1) “Open fields” doctrine: “police entry and search of open fields involves no Fourth Amendment
intrusion even if officers intrude upon privately owned land.”
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 (a) Oliver v. United States: police officers discovered marijuana as the result of a warrantless
entry (trespass) and inspection of someone’s land. This did not constitute a “search.”
(i) Used Katz to find that there was not a reasonable expectation of privacy in an open field
(ii) Open fields do not provide the setting for those “intimate activities” that the 4th
Amendment is intended to shelter from government interference or surveillance
(iii) Existence of a property right is but only one element in determining whether
expectations of privacy are legitimate
(b) Hester v. United States: “an individual may not legitimately demand privacy for activities
conducted out of doors in fields, except in the area immediately surrounding the home.”
(c) The Court has rejected a case-by-case approach to the doctrine because police should not
have to guess as to whether every intrusion will constitute a search.
(2) “Curtilage” and United States v. Dunn:
(a) “Curtilage” Definition: “the area surrounding the home where reasonable privacy
expectations receive Fourth Amendment protection” (usually bushes)
(b) Facts:
(i) A barn located approximately 50 yards from a fence surrounding the defendant’s
residence was outside the curtilage and in an open field. DEA agents had to cross several
barbed-wire fences, a wooden fence, and 200 acres on D’s ranch to see the barn to obtain
a warrant to search it. Seized a bunch of amphetamines and drug materials.
(c) Holding: These warrantless entries did not violate Dunn’s 4th Amendment rights b/c the
officer had only entered open fields, not the “curtilage”
(i) Factors analysis to determine curtilage: Four factors…
1. Proximity of the area claimed to be curtilage to the home
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 observations by people
passing by
(ii) Court decided the barn was outside the “curtilage"
(d) RULE: Curtilage is a somewhat protected area but not always protected by the 4th
Amendment (determined by 4 factors)
(3) California v. Ciraolo (1986): Police conducted aerial surveillance at 1000 feet in a fixed-wing
aircraft and discovered marijuana growing there. HELD: This did not constitute a “search.”
Even though the yard was w/in the cartilage of the home and a fence shielded the yard from
street observation, the Court held that aerial surveillance did not constitute a search (said you
have no reasonable expectation of privacy since planes are always flying overhead)
iii) Florida v. Riley: helicopter surveillance at 400 ft.
(1) Facts: Mobile home on five acres. Greenhouse 10 or 20 feet behind the mobile home. 10% of
the roof panels were missing. Marijuana was alleged to be growing in the greenhouse. From
400 feet above, a police helicopter observed what was believed to be marijuana growing in the
greenhouse. A warrant was obtained based upon this belief, and the property was searched and
defendant convicted of growing pot.
(2) Holdings:
(a) Question: whether surveillance of the interior of a partially covered greenhouse in a
residential backyard from the vantage point of a helicopter located 400 feet above the
greenhouse constitutes a “search” for which a warrant is required under the Fourth
Amendment
(b) California v. Ciraolo controls. There, the occupant had a subjective expectation of privacy
that was not reasonable and not one society was prepared to honor. The same applies here.
“The Fourth Amendment does not require police…traveling at this altitude…to obtain a
warrant in order to observe what is visible to the naked eye.”
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 (c) Like the last case, the property was in the curtilage and subject to viewing from the air.
(d) “Any member of the public could have been flying over Riley’s property in a helicopter at
the altitude of 400 feet and could have observed Riley’s greenhouse.”
(3) O’Connor concurrence: subjective belief, not objectively reasonable
iv) Notes after Riley
(1) Bond v. United States: (2000)
(a) Facts:
(i) Border patrol officer boarded a bus to check immigration status of passengers. He
grabbed and squeezed an opaque piece of luggage that passengers had placed in the
overhead storage. He felt a “brick” inside, got consent to search the bag, searched, and
found a brick of marijuana.
(b) Holding: Court found this violated the 4th Amendment.
(i) “Ciaraolo and Riley are different from this case because they involved only visual, as
opposed to tactile, observation. Physically invasive inspection is simply more intrusive
than purely visual inspection…” One does not expect that others will feel their bags.
(ii) Under the Katz (objective/subjective standard):
1. Did the individual exhibit an actual expectation of privacy?
a. Yes, he sought to preserve privacy by using an opaque bag and placing the bag
directly above his seat
2. Was the individual’s expectation of privacy one that society is prepared to recognize
as reasonable?
a. Yes, when a bus passenger places a bag in an overhead bin, he expects that other
passengers or bus employees may move it for one reason or another BUT NOT
expect that other passengers or bus employees will feel the bag in an exploratory
manner
(2) United States v. Place: (1983)
(a) Facts:
(i) Federal narcotics agents suspected that two suitcases in possession of Place contained
drugs. Exposed these suitcases to a “sniff test” by a narcotics dog. Dog reacted
positively to one of the suitcases, so the officers obtained a search warrant for the bag and
found cocaine
(b) Holding:
(i) “Sniff test” by a drug sniffing dog is not a “search.” The technique is not intrusive b/c
only discloses only the presence or absence of contraband. The information obtained is
limited.
v) Illinois v. Caballes:
(1) Facts: An Illinois state trooper stopped respondent for speeding and called for backup. A
second officer arrived, bringing a drug-sniffing dog. While the first trooper was writing a
warning ticket, the other trooper walked the dog around respondent’s trunk. The dog alerted, the
officers searched the trunk, and they found marijuana. The man was arrested and convicted.
The Illinois Supreme Court reversed, finding that there were no specific and articulable facts to
suggest drug activity. The Supreme Court vacated and remanded.
(2) Holdings:
(a) A dog sniff conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no individual has any right to
possess does not violate the Fourth Amendment.
(b) Initial seizure was based on probable cause and lawful.
(i) It could have become unlawful if it was prolonged beyond the time reasonably required
to complete the mission of issuing the warning ticket.
(ii) An unlawful seizure would have occurred, making the dog sniff illegal.
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 (iii) However, this episode took less than 10 minutes
(c) Canine sniff treated as “sui generis”—discloses only the presence or absence of narcotics
(d) There was no intrusion upon respondent’s privacy expectations. The sniff was performed on
the exterior of the car.
(e) The interest in possessing contraband cannot be deemed “legitimate,” so only revealing that
contraband does not violate the Fourth Amendment.
(f) U.S. v. Place controls the analysis. The use of a well-trained narcotics dog does not
implicate legitimate privacy interests.
(g) This case differs from Kyllo (thermal imaging device) because that device was capable of
discovering lawful, private activity (this case is discussed below)
(3) Souter dissent:
(a) This was a search and a dog sniff is a search. It was an unauthorized incident of the traffic
stop.
(b) Goes through discussion of the fallibility of these dogs.
(c) Search is not sui generis. It is like any other search that is subject to the Fourth Amendment.
vi) Key for all of these cases is to recognize what police activity constitutes a search in the first
place:
(1) Must know if this is even a search for us to apply the 4th Amendment
(a) Not about probable cause just yet
(2) Do you have a reasonable expectation of privacy in open fields?
(a) NO
(i) Oliver – this was not a search b/c you don’t have a legitimate expectation of privacy in
open fields
(ii) Dunn – Whether his barn was within the curtilage of his home or not?
1. There’s something sacred about the home that extends to areas outside the home
(within fences)
2. Court decided his barn was outside the curtilage, and thus, not entitled to 4th
Amendment protection
(iii) Ciraolo – An example of when something is within the curtilage but not protected
by the 4th Amendment
b) “Knowingly Exposed to the Public”
i) Katz: “what a person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.” (not a search)
ii) Undercover agents and informants
(1) Hoffa v. United States: held that successful efforts of an informant to obtain the confidence of a
suspect and to elicit statements from him involved only “a wrongdoer’s misplaced belief that a
person to whom he voluntarily confided his wrongdoing would not reveal it.”
(2) Lopez v. United States: recording of statements elicited by an undercover agent are not
protected by the Fourth Amendment
(3) On Lee v. United States: transmission of a suspect’s statements to a nearby police officer via a
secret microphone hidden on the informant’s person is not protected by the Fourth Amendment.
iii) United States v. White:
(1) Facts: Respondent had four conversations with an undercover agent, Jackson, in Jackson’s
home. The Feds had no warrant. These conversations were overheard, via a radio device, by
federal agents listening. One hid in Jackson’s closet, with Jackson’s consent. Four other
conversations were overheard in a similar manner. Defendant was convicted of narcotics
violations based on these overheard conversations.
(2) Holdings:
(a) Monitoring radio transmissions of conversations by government agents is NOT a search and
thus is not a 4th Amendment event
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 (i) However, the Court is NOT saying that undercover officers listening through
microphones are not a search though (not that broad)
(b) One contemplating illegal activity must realize and risk that his companions may be
reporting to the police.
(i) Discussing your crime with anyone will not afford you protection
(ii) If you want to keep something private, keep it to yourself
(iii) Court looked at the effectiveness of the police to investigate being taken away if
this was considered a 4th Amendment search
(iv)The fact that White spoke quietly didn’t matter
(c) There is “no constitutional right to exclude an informant’s unaided testimony (Hoffa),” so
there is also no privilege against a more accurate version of the events in question.”
(3) Douglas dissent: Electronic surveillance is the greatest leveler of human privacy ever created.
(4) Harlan dissent: More than self-restraint by law enforcement officials is required and at the least
warrants should be necessary…this undermines the confidence and sense of security in dealing
with one another that is characteristic…of our society.
iv) Notes after White:
(1) According to the plurality, it makes no sense to recognize a Fourth Amendment privilege against
using accurate, transmitted versions of conversations when there is no privilege against allowing
an informant to testify to the conversations at trial.
(2) Current doctrine compares the undercover informant with a “gossipy friend,” as opposed to a
comparison to a spy.
v) California v. Greenwood: police directed trash collector to separate a person’s trash for
investigative purposes
(1) Facts: Greenwood was suspected of selling drugs in his house. Investigator Stracner asked the
neighborhood’s regular trash collector to pick up opaque plastic bags that Greenwood left on the
curb in front of his house and turn them over to police without mixing them with other persons’
garbage. Evidence of narcotics trafficking was found, and Greenwood was convicted using this
evidence.
(2) Holdings:
(a) “The warrantless search and seizure of the garbage bags left at the curb outside the
Greenwood house would violate the Fourth Amendment only if respondents manifested a
subjective expectation of privacy in their garbage that society accepts as objectively
reasonable.”
(b) Respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth
Amendment protection.
(c) Respondent placed the trash on the curb for a third party (any member of the public) to
receive (outside of the curtilage). Third party (any animal or child even) could have
unsealed, exposed, and sorted through it himself and reported to police or even allowed the
police to sort through it.
(i) So, although Greenwood may have had a subjective expectation of privacy in the trash
bags, it fails the objective prong b/c society is not ready to accept his expectation as
reasonable
(3) Brennan dissent: A trash bag is “a common repository for one’s personal effects” and
is…”therefore…inevitably associated with an expectation of privacy.” Greenwood only exposed
the outside of the bags to the public, not what was inside. What about the mail? Is that also
unprotected. Keep in mind that the service provided (required?) is a public one.
vi) Notes:
(1) Smith v. Maryland: no Fourth Amendment interest exists in the numbers one dials on a phone
line.

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 (2) United States v. Miller: a bank depositor has no Fourth Amendment interest in the bank’s
microfilms of his checks, deposit slips, etc.
c) Privacy and Technology
i) Introduction
(1) Obviously, a great many persons make use of surveillance techniques and technologies that no
one imagined in 1791.
(2) Keep in mind Katz’s “knowingly exposed” language—what is really “exposed,” given advances
in technology? Anything police can see or hear with the most advanced technology available to
them? To the public?
(3) United States v. Knotts: held that no search took place when police monitored a beeper
attached to a drum of chloroform to track the movements of a car known to be carrying the drum.
(a) “A person traveling in a car on a public thoroughfare has no reasonable expectation of
privacy in his movements from one place to the next because he ‘voluntarily conveys to
anyone who wants to look…the fact [that he is traveling on particular roads in a particular
direction].’ “
(b) The monitoring of a beeper did not violate the 4th Amendment when it revealed no
information that could not have been obtained through visual surveillance
ii) United States v. Karo:
(1) Facts: Tracking beeper placed inside a container with consent of a seller to a buyer that had no
idea the container he was receiving had such a beeper. Can with beeper entered a storage
facility. Police received permission to monitor this facility with a camera, observing a locker.
Can was then moved via truck to a private residence where the visual of the can was lost.
(2) Holdings:
(a) Court holds that the “actual placement of the beeper into the can” did not violate the Fourth
Amendment. Respondents had “[no] legitimate expectation of privacy in [the can].” Keep in
mind that the seller of the can gave permission to put the beeper in it.
(b) Transfer of the container did not constitute a “seizure.” No one’s possessory interest was
interfered with in a meaningful way.
(c) Court holds that “monitoring of a beeper in a private residence, a location not open to
visual surveillance, violates the Fourth Amendment rights of those who have a
justifiable interest in the privacy of the residence.”
(d) Government employed a device to obtain information it could not have obtained by
observation from outside the curtilage of the house. This information was used, in part, to
obtain a search warrant.
(e) Court distinguishes Knotts: Beeper in that case told the authorities nothing about the interior
of Knotts’s cabin. However, when a beeper reveals the location of property that has been
concealed from public view, it constitutes a “search.”
(f) However, the court still found that the search and seizure was valid b/c the warrant was
supported by probably cause based on visual evidence and evidence that could have ben
obtained through visual surveillance
(i) Officers here could have obtained a warrant without the information of affidavit about the
location of the ether (gained by use of the beeper track).
1. Monitoring the beeper was not a “search” of the locker
2. Under Knotts, there is no Fourth Amendment violation. The ether was seen by police
being moved from one location to another.
3. Even after striking the beeper info, the warrant still included enough for probable
cause to issue it.
(3) Concurrence/Dissent:
(a) Distinguishes Knotts: agents watched a container in plain view on a highway. Case here:
agents could not see the container once it entered the residence.
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 (b) Once beeper can entered house, privacy concerns arose. Information pertaining to beeper
was gained in violation of privacy rights of defendant.
(4) Notes:
(a) We are not going to take beepers that are being monitored outside the home to constitute a
search
(b) However, once the beeper is in the home and cannot be viewed by observation, that
constitutes a search
(i) This falls under the concept that the home is a special place
1. When you are using technology, it is ok in public but not ok to impede the province
of the home
(ii) What is difficult, however, is determining when the “beeper” becomes a search b/c you
can watch the car with the beeper in it pull into the house/garage and assume that it is still
in there (visual observations from outside the home until the garage door closes)
(c) What about the IPASS?
(5) Dow Chemical Co. v. United States: Found that “surveillance of private property by using
highly sophisticated surveillance equipment not generally available to the public, such as satellite
technology, might be constitutionally proscribed absent a warrant.”
(a) However, under the facts of the case, the area observed was an “open field,” so surveillance
from 1200, 3000, and 12000 feet did not bring the Fourth Amendment into play.
iii) Kyllo v. United States:
(1) Facts: Police used thermal imaging device to help obtain a warrant. Agema Vision 210 emits
rays which bounce back and depict a visual heat image of that heat being emitted from the
exterior of a home. This was used to determine that pot plants were being grown inside under
lamps. District Court upheld the validity of the warrant because the device could not show
“human activities” and that “no intimate details of the home were observed.”
(2) Holdings:
(a) Dow Chemical held that privacy expectations are heightened in an area immediately adjacent
to a public home.
(b) This is much more than naked-eye surveillance of a home.
(c) This constituted a “search.”
(i) Information regarding the interior of the home was obtained using sense-enhancing
technology not generally in public use.
(ii) This information could not have been obtained without physical intrusion into a
“constitutionally protected area.”
(d) Like Katz, the waves in question reached only the exterior of the home (booth).
(e) “In the home, all details are intimate details, because the entire area is held safe from prying
government eyes…”
(f) Fourth Amendment draws a firm line at the entrance to the house. This is a “search” and
presumptively unreasonable without a warrant.
(3) Dissent: The equipment did not penetrate walls. Court assumes an inference about the heat
emitted can equate with a Fourth Amendment violation. It is like saying the relative volume of
sounds coming from the Katz booth would have violated the Fourth Amendment.
d) The Meaning of “Seizures”
i) Florida v. Bostick (1991):
(1) Facts: Defendant, traveling by bus from Miami to Atlanta, was approached on a stop-over in
Fort Lauderdale. An officer approached him, and asked him to whether he could inspect his
ticket and ID. Defendant complied. The officer then asked defendant if he could search his
luggage. The factual findings say that defendant complied. Contraband was found, and
defendant was arrested.
(2) Holdings:
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 (a) Q: Whether the type of police encounter on a bus described above constitutes a “seizure”
within the meaning of the Fourth Amendment?
(i) A: No.
(b) “Only when the officer, by means of 1) physical force or 2) show of authority, has in some
way restrained the liberty of a citizen may we conclude that a ‘seizure’ has taken place.”
(i) The mere fact that Defendant did not feel that he was free to leave the bus does not mean
that police seized him.
(c) Where the encounter takes place is but one factor to consider
(d) Under the totality of the circumstances, absent intimidation or harassment, Bostick could
have refused the search request
(e) TEST FOR SEIZURE:
(i) “Whether, taking into account the totality of the circumstances surrounding the
encounter, the police conduct would have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about his business
(decline/terminate the search encounter).”
(ii) No seizure occurs unless the police convey a message that compliance with their request
is required.
1. Don’t care about the subjective belief of the defendant
a. What we want to know is whether a reasonable innocent person would have felt
coerced to give consent
2. Doesn’t matter that a bus is a confined space
a. We don’t look at if he felt “free to leave,” but whether a party felt free to “decline
or terminate” the search encounter
(3) Dissent: The officers did not advise the defendant of the fact that he could “break off” the
encounter.
ii) United States v. Drayton: bus again
(1) Facts: Two men on bus, police conduct interdiction sweep. Police did not inform passengers of
their right not to cooperate. Consent search occurred, narcotics discovered. Defendant arrested.
(2) Holdings: 4th Amendment does not require police officers to advise bus passengers of their
right not to cooperate and to refuse consent to searches—look to totality of circumstances
(a) Q: Whether officers must advise bus passengers during a random questioning session that
the passengers have a right not to cooperate to avoid a “seizure” without a warrant.
(i) A: No.
(b) Respondents were not seized, and the search was voluntary.
(c) Test: “whether a reasonable person would feel free to decline the officers’ requests or
otherwise terminate the encounter.”
(d) Facts: Aisle was left free. Spoke to passengers in a polite, quiet voice. Nothing said would
suggest to a reasonable person that he could not leave.
(e) Officers wearing uniforms and carrying holstered guns is not a show of authority.
(f) Knowledge of the right to consent is but one factor to consider in the “seizure” analysis.
(3) Dissent: “The reasonable inference was that the ‘interdiction’ was not a consensual exercise; but
one the police would carry out whatever the circumstances; that they would prefer ‘cooperation’
but would not let the lack of it stand in their way.”
iii) Notes:
(1) United States v. Mendenhall: factors which help determine a “seizure”
(a) Threatening presence of several officers
(b) Display of a weapon by an officer
(c) Physical touching of the person of the citizen
(d) Use of language or tone of voice indicating that compliance with the officer’s request might
be compelled.
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 (2) Brower v. County of Inyo:
(a) Facts: police placed a hidden roadblock in front of a defendant in a stolen car, intending to
cause him to crash. Was he “seized” by this? (He sought to recover under a § 1983 claim.)
(b) Holdings:
(i) “Violation of the Fourth Amendment requires an intentional acquisition of physical
control.”
(ii) Fourth Amendment seizure only occurs when “there is a governmental termination of
freedom of movement through means intentionally applied…”
(iii) Petitioner could claim a Fourth Amendment seizure in this case.
(3) California v. Hodari D:
(a) Q: Is a suspect who attempts to run away from police seized when police pursue him?
(b) A: No. “An arrest requires either physical force, or, where that is absent, submission to the
assertion of authority…”
(i) Seizure by physical force OR
(ii) Show of authority plus submission.
e) Consent Searches
i) Schneckloth v. Bustamonte:
(1) Facts: Bustamonte was stopped on the highway at 2:40 a.m. in his car that had a broken
headlight. He couldn’t produce his license, and of the 5 other passengers, only 1 had a license.
The police asked to search the car, and a passenger whose brother owned the car said “Sure, go
ahead.” Wadded up in the left rear seat were three stolen checks. The checks were admitted at
Bustamonte’s trial, and he was convicted.
(2) Holdings:
(a) Question: What must the prosecution prove to demonstrate that consent was “voluntarily”
given?
(i) Done through a totality of the circumstances approach
(ii) Knowledge of the right to refuse consent is one factor to be taken into account, but the
government need not establish this to prove voluntary consent.
(iii) The Fourth Amendment requires that consent not be coerced, by explicit or
implicit means, by implied threat or overt force.
1. DPC doesn’t require the state to prove that the D knew he had a right to refuse to
answer questions
2. D’s state of mind and the police’s failure to advise him of his rights are certainly
factors, but are not in themselves determinative
(b) Does the government need to advise an accused that consent may be withheld?
(i) No.
(ii) Differs from Miranda. Police questioning and the nature of custodial surroundings
produce an inherently coercive situation.
(c) Can this right be waived?
(i) No.
(ii) This would not make sense with the “third party consent” doctrine that the Court has
established. How could one waive have his rights waived by a third party?
(iii) These third party cases are like “assumption of the risk”—you assume the risk
that people you have granted joint access and control to will consent to a search.
(d) A: “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 Fourth Amendment [requires] that it demonstrate
that consent was in fact voluntarily given, and not the result of duress or coercion, express
or implied.
(e) A: “Voluntariness is a question of fact to be determined from all the circumstances, and
while the subject’s knowledge of a right to refuse is a factor to be taken into account, the
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 prosecution is not required to demonstrate such knowledge as a prerequisite to establishing
voluntary consent.”
(3) Dissent
(a) Does not understand how a citizen can waive a meaningful constitutional right w/out being
aware of it
(b) Real issue is whether the D needs to be told of their constitutional right to not give consent
(c) The case deals with consent, not coercion—the police should advise the suspect of his right
to refuse consent
ii) Notes:
(1) Third Party Consent Doctrine
(a) Illinois v. Rodriguez: Court extended the doctrine to protect searches based on third party
consent where the police reasonably believed that the third party possessed common
authority over the premises, even when no such authority existed.
(b) United States v. Matlock: where people mutually use property and have joint access and
control for most purposes, ‘it is reasonable to recognize that any of the co-inhabitants has
the right to permit the inspection in his own right and that the others have assumed the
risk that one of their number might permit a common area to be searched.”
(2) Florida v. Jimeno: (Permissible scope of a consent search)
(a) Facts: Man was pulled over for running a red light. Officers asked to search his car. They
found a paper bag. They opened the bag, and cocaine was inside. The man was convicted.
(b) Holdings:
(i) “The Fourth Amendment is satisfied when, under the circumstances, it is objectively
reasonable for the officer to believe that the scope of a suspect’s consent permitted him to
open a particular container within the automobile.”
(ii) Here, general consent to search the vehicle could reasonably be assumed to include
consent to search the bag found in the vehicle.
f) Application to Non-Citizens
i) Generally, if you are not a citizen of the United States, you are not protected by the 4th Amendment
to be free from unreasonable search and seizure
ii) United States v. Verdugo-Urquidez (1990)
(1) Facts: V-U was a citizen and resident of Mexico. The DEA, in cooperation with Mexican police
officers, apprehended V-U and arrested him for various narcotics offenses. After his arrest, DEA
agent wanted to search V-U’s residences for evidence and the Mexican Judicial Police
authorized the searches, but no warrant from a US magistrate was ever received.
(2) Issue: Does the 4th Amendment apply to the search and seizure by US agents of property that is
owned by a nonresident alien and located in a foreign country?
(3) Holding:
(a) NO. The 4th Amendment concerns “the people,” suggesting a concern w/ persons who are
part of the national community, as contrasted w/ aliens w/out any substantial connection to
the US
(i) Also, extraterritorial aliens are not even entitled to rights under the 5th Amendment,
which speaks in the relatively more universal term of “person”
(b) There are different ambits of 4th Amendment rights based on who the person is
1. Different classes of “people” may include a hierarchy:
a. Citizens
b. Resident Aliens
c. Illegal Aliens
d. Voluntary and substantial connection w/ US

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 (c) Therefore, any restrictions on searches and seizures of nonresident aliens and their foreign
property must be imposed by the political branches through diplomatic understanding, treaty,
or legislation
(4) Kennedy concurrence:
(a) Suggests that applying the 4th Amendment to V-U in this case doesn’t work
(i) Courts have no control over what happens w/ Mexican authorities
(ii) Didn’t think court needed to argue about these different classes of “people”
(b) First, you have to decide whether or not the constitution even applies to foreigner before you
decide what constitutional protection he has
iii) Rasul v. Bush (2004)
(1) HELD: that the habeas statute extends to non-citizen detainees at Guantanamo
iv) Boumediene v. Bush (2008)
(1) Facts:
(a) D and other Algerian natives were seized by Bosnian police when US intelligence officers
suspected their involvement in a plot to attack a US embassy there
(b) US classified them as enemy combatants in the war on terror and detained them at
Guantanamo (located on land the US leases from Cuba)
(i) D filed petition for writ of habeas corpus
(c) Two year prior (2006), Congress passed the Military Commission Act (MCA) that eliminated
federal court jurisdiction to hear habeas applications from detainees who have been
designated as enemy combatants
(d) D argued that the MCA did not apply to them, and even if it did, it was unconstitutional
under the Suspension Clause
(i) “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it”
(2) Holding:
(a) The MCA was unconstitutional and the detainees were entitled to a habeas corpus hearing
(i) The MCA strips federal courts of jurisdiction over habeas petitions filed by foreign
citizens detained at Guantanamo
(ii) Since the MCA does this, the MCA is a violation of the Suspension Clause of the
Constitution
1. B/c the procedures laid out in the Detainee Treatment Act are not adequate substitutes
for the habeas write, the MCA operates as an unconstitutional suspension of that writ
2. The detainees were not barred from seeking habeas or invoking the Suspension
Clause merely b/c they had been designated as enemy combatants or held at
Guantanamo
(b) The detainees at Guantanamo are entitled to the protection of the 5th Amendment right not to
be deprived of liberty w/out due process and of the Geneva Conventions
(c) The detainees are able to challenge the adequacy of judicial review provisions of the MCA
before they have to seek to invoke that review
(d) Therefore, the Court of Appeals ruling (that favored strict territorial application) would be
reversed and the detainees could petition their writ of habeas corpus
(3) Notes:
(a) Suspension Clause Application
(i) Contextual inquiry
(ii) Case by case
(iii) Where you are located (territorial approach)
(iv)Status (citizen/noncitizen, enemy combatant)
(v) Length of containment
(vi)Practical considerations
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 (b) Johnson v. Eisentrager
(i) Court addressed whether habeas corpus jurisdiction extended to enemy aliens convicted
of violating laws of war
(c) Context specific inquiry is used to determine which constitutional right a noncitizen
might have in some extraterritorial space (Kennedy’s approach)
(i) Being litigated in Bogram right now: Airbase in Afghanistan where we have prisoners—
inquiry is whether or not they have Suspension Clause rights?
(d) Different ways to determine who is applicable to these constitutional rights (where and
to whom the constitution extends):
(i) Membership (Rehnquist)
(ii) Territoriality
(iii) Mutual Obligation
1. When the US government compels noncitizens to act, the theory is that the US
government itself has taken on a responsibility to respect certain rights the individual
has
(iv)Pragmatic Due Process (Kennedy)
1. Anomalous and practical rule
a. What seems reasonable in the context?
2. Difficulty is to determine beforehand what the context of constitutional rights will be
3. This decisively takes the Territorial model in consideration
a. Focuses on the “special status” of Guantanamo
(v) Limited Government
1. The government isn’t extended constitutional rights, but rather, the constitution
provides a set of limits on the government
a. Government can only act if it has been positively granted the right to act in
particular circumstances
(e) Verdugo is still valid and Boumediene is an exception for the Suspension Clause
g) Probable Cause and Warrants
i) Introduction
(1) If no “search” or “seizure” has taken place, the Fourth Amendment does not apply.
(2) Two main questions:
(a) How much or what kind of justification must the police have to search or seize?
(Answer: probable cause)
(b) Who decides whether that justification is present—a magistrate in a warrant
proceeding before the search or seizure takes place, or a trial judge in a suppression
after the fact? (Answer: A neutral magistrate decides in a warrant proceeding before the
fact.)
(3) Probable cause: A substantive standard. It defines the level of suspicion police must have
before they search or seize someone or some thing.
(4) Warrant requirement: A procedural requirement. It determines the method by which
probable cause or some other substantive standard is applied.
(5) The probable cause standard presupposes that government can invade one’s privacy—as long as
it has a good enough reason.
ii) The Text of the Fourth Amendment
(1) “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
(a) Nowhere does the text say that warrants themselves are ever required.

27
 (b) Nowhere does the text say that probable cause is to be the ordinary standard for searches and
seizures.
(2) Some argue that the Fourth Amendment neither requires probable cause nor a warrant for a
search or seizure.
(3) Prof. Telford Taylor’s theory: the focus is on what is “reasonable,” with warrants and probable
cause as afterthoughts
(4) Prof. Amsterdam’s theory: probable cause and warrants serve to define reasonableness.
iii) The Probable Cause Standard
(1) Brinegar v. United States (1949): probable cause is “the facts and circumstances within [the
officers’] knowledge and of which they had reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution to believe that an offense
has been or is being committed.”
(2) Nathanson v. United States: “Mere affirmance of belief or suspicion [by the police] is not
enough.”
(3) Draper v. United States (1958): case involved a confidential informant’s tip that described the
clothes, arrival location and time, and demeanor of a man carrying heroin. Informant had been
accurate on several occasions, and was on the occasion in question. Cop told this to the judge to
get the warrant and judge said this was good enough.
(a) Court held that search was valid. Informant’s details have been corroborated in a large part
to be reasonable
(4) Spinelli v. United States (1969): Court found that warrant was not supported by probable
cause. Affidavit described innocent-seeming conduct of accused and provided nothing more
than a “bald and unilluminating assertion of suspicion.” Man was seen using same telephone
booth every day, and a confidential but reliable source said he was operating a gambling
handbook. The (1) information of informant must be verified, and (2) there must be a basis
of knowledge.
(5) Spinelli and Draper are reconcilable
(a) Both depend on reliability (basis of knowledge)
(b) Spinelli just adds that the information must be verified (corroboration)
iv) Illinois v. Gates: (OVERRULES Spinelli—creates totality of the circumstances)
(1) Facts: Anonymous letter mailed to the police that stated that a couple was dealing drugs out of
their house and would be making a trip to FL to pick up drugs and drive them back to IL.
Detective investigated tip, corroborated the information, and arrested couple at their home when
they returned from FL. A warrant had been issued, and a search of their home revealed the
drugs.
(2) Holdings:
(a) TEST: Magistrate is to make a practical, common-sense decision whether, given all the
circumstances (totality of the circumstances) set forth in the affidavit before him, including
the “veracity” (truthfulness) and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place. (If this is found, a valid warrant shall be issue.)
(i) Standing alone, the letter here would not do. Needed to be corroborated by the
investigation.
(ii) “…only the probability, and not a prima facie showing, of criminal activity is the
standard of probable cause.” Spinelli
(iii) “A sworn statement of an affiant that ‘he has cause to suspect and does believe’
that liquor illegally brought into the United States is located on certain premises’ will not
do. Nathanson”
(iv)“Veracity”—what is the basis for believing that the affiant is credible?

28
 1. An informant’s veracity, reliability, and basis of knowledge are all highly relevant in
determining the value of his tip
(v) “Basis of knowledge”—why or how does the affiant know where the contraband is
located?
(vi)The Court abandoned the Spinelli test because they believed that very strong
evidence as to one prong can make up for the weakness on the other prong,
therefore, they will simply look at the totality of the circumstances and from all that
info the magistrate can decide whether or not this informant has provided
reasonably trustworthy information
(b) White concurrence: Spinelli two-pronged test should not have been abandoned…
(i) Affidavit, standing alone, cannot = probable cause without a showing of both “veracity”
and “basis of knowledge” of tip.
(ii) Absent these, a police investigation could = probable cause if it supports “both the
inference that the informer was generally trustworthy and that he made his charge… on
the basis of information obtained in a reliable way.”
(3) Notes:
(a) What must the police have probable cause to believe?
(i) For arrests: That the defendant committed a crime.
(ii) For searches: That the police will find evidence of a crime in the place being searched.
(b) One of the consequences of keeping the law of probable cause to a minimum is to permit
local variation.
(i) However, this makes it very difficult to challenge a probable cause determination
(c) What standard of review should appellate courts use to review probable cause
determinations? Deferential or searching?
v) Ornelas v. United States: Court holds that question of probable cause to make a warrantless search
should be reviewed de novo.
(1) Facts: Police conducting a drug interdiction surveillance in downtown Milwaukee noticed an
older two-door Oldsmobile, CA plates, pulling into a hotel at 4:00 a.m. Officers ran the plates,
ran the owner through a drug information system, and determined that the owner of the car was a
drug pusher. Police approached the men in the car, asked to search it, and the men consented.
One officer removed a panel in the car door (which appeared to have a loose screw) and
discovered drugs. (He based his belief that drugs might be there on his observations of similar
door panels in the 2000+ cars he had previously searched.)
(2) Holdings:
(a) “The principal components of a determination of…probable cause will be the events
which occurred leading up to the stop or search, and then the decision whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer,
amounted to…probable cause.”
(b) Independent and searching review of probable cause “is necessary if appellate courts are to
maintain control of, and to clarify, legal principles.”
(i) Do not defer to the probable cause determination made by the original probable cause
determiner (aka the police)
(c) “The Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant
to a warrant,’ and the police are more likely to use the warrant process if the scrutiny applied
to a magistrate’s probable-cause determination to issue a warrant is less than that for
warrantless searches. Were we to eliminate this distinction, we would eliminate the
incentive.”
(d) Unlike Gates, where a magistrate makes the probable cause determination and issues a
warrant (that will be a deferential standard)

29
 (e) Distinction between a police officer and a magistrate determining probable cause is
important for the court’s standard of review
(i) Might be pushing police to go to the magistrate to made a determination separate from
police—allows the police to “cool their heels a bit”
(3) Notes: Probable cause generally raises two types of issues:
(a) Level of probability that a given kind of evidence can be found at a particular place.
(b) How that level of probability should be apportioned among the individuals at the scene. (I.e.,
who is a suspect and who is a mere bystander?)
vi) Maryland v. Pringle: Probable cause can exist for arrest when noone in a small car claims
drugs that are found there.
(1) Facts: Three men, including Pringle, were driving in a small car when it was pulled over. One
officer approached, asked for a license, ran the license, and issued a written warning. Another
officer arrived on the scene, asked the men to step out of the vehicle, and the driver, Partlow,
consented to a search. Five bags of cocaine were found, and none of the men claimed
ownership. All three men were arrested. Later, Pringle confessed and claimed the coke was his.
He later claimed that his confession was inadmissible because it was the fruit of an illegal arrest.
He won at the state supreme court, lost at the federal level.
(2) Holdings:
(a) MD authorized warrantless arrests for felonies committed in an officer’s presence or where
an officer has probable cause to believe that a felony has been committed or is being
committed in the officer’s presence.
(b) It was reasonable for the arresting officer to assume that all three men had knowledge of,
and exercised dominion and control over, the cocaine packages
(i) All three men were in reaching distance of the drugs
(c) Distinguished from Ybarra v. Illinois: that case took place in a bar (much larger locale).
Probable cause must relate to that particular person, not generally to a group of people
in a room. Pat down warrant-authorized search (by 7-8 officers) of 9-13 pub patrons when
only “Greg” and the bar itself were warrant-authorized. Court held that “a person’s mere
propinquity to others independently suspected of criminal activity does not…give rise to
probable cause to search that person.”
(d) Distinguished from United States v. Di Re: Informant said that Buttitta would give fake gas
ration coupons to officer. Buttitta, in drivers seat, Di Re in passengers seat. All three men
were arrested and searched. Officer lacked probable cause to believe that De Ri had any
coupons because they had no information relating to him.
h) The Warrant “Requirement”
i) Introduction:
(1) Why have this requirement? Isn't "after-the-fact" review in suppression hearings or damage suits
both adversarial and in-depth, while warrant applications are ex parte and cursory?
(2) Requirements of a Warrant:
(a) Basic probable cause requirement
(b) must be "supported by Oath or affirmation."
(i) Often satisfied by specifying the facts giving rise to probable cause in a police officer's
affidavit that is attached to the warrant application.
(ii) Whiteley v. Warden: facially insufficient affidavits cannot be rehabilitated by testimony
of the affiant not disclosed to the issuing magistrate when the warrant was sought
(iii) Negligent or innocent falsehoods will not invalidate a warrant
(c) Must particularly describe "the place to be searched, and the persons or things to be
seized."
(i) description must permit an officer "with reasonable effort to ascertain and identify the
place intended."
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 (ii) What if the police search the wrong place and find contraband?
1. "The validity of the search depends on whether the officers' failure to realize the
overbreadth of the warrant was objectively reasonable."
(iii) "Plain view" doctrine also comes into play; police can seize items not
mentioned in the warrant application.
(d) Magistrate must be "neutral and detached."
(i) Coolidge v. NH: requirement was not met when state's attorney issued a general search
warrant for a case he was conducting.
(ii) Court has invalidated warrants where magistrate received a fee, but not for when a fee
was given and a warrant refused.
ii) Execution of Warrants:
(1) Wilson v. Arkansas: absent some law enforcement interest in establishing the reasonableness of
an unannounced intrusion, the Fourth Amendment requires police to knock and announce
themselves before entering premises to execute a warrant.
(2) Richards v. Wisconsin: "in order to justify a 'no-knock' entry, the police must have a
reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the destruction of evidence."
(3) United States v. Ramirez: "Excessive or unnecessary destruction of property in the course of a
search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of
the search subject to suppression."
iii) United States v. Banks: No-Knock Warrant Exception—danger OR destruction of evidence
(1) Facts: Officers, attempting to execute a search warrant for cocaine, called out "police search
warrant" and received no answer. After 15 or 20 seconds, they broke the lock and entered. The
man in the apartment was in the shower and did not hear.
(2) Holdings:
(a) "After 15 or 20 seconds without a response, police could fairly suspect that cocaine would be
gone if they were reticent any longer." (this was reasonable)
(b) Facts known to the police "are what count in judging reasonable waiting time..."
(c) Absent exigency, the police must knock and announce, and then receive an actual refusal or
wait out the time necessary to infer one.
iv) United States v. Grubbs: (Anticipatory Warrants)
(1) Facts: "Anticipatory" search warrant was conditioned on a videotape of child pornography being
delivered to defendant's residence. Warrant shown to defendant did not notify him of this
triggering condition—couldn’t tell from the face of the warrant what the triggering event was;
therefore, it was almost like he was not given a warrant. Grubbs moved to suppress based on this
fact.
(2) Holdings:
(a) Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment.
(i) Such warrants, which are issued in advance of a “triggering condition” that makes them
executable, are constitutional and do not need to describe that condition on their face
(ii) Magistrate must still determine:
1. That it is now probable that
2. contraband will be on the described premises
3. when the warrant is executed.
(b) Warrant in Katz was anticipatory.
(c) There must be probable cause to believe that the triggering condition will occur, not if it
occurs that the contraband is likely to be there.
(d) Warrant here met the "particularity" requirement: place to be searched and persons or
things to be seized. No need to describe the conditions precedent to executing the warrant.
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i) Exigent Circumstances
i) Mincey v. AZ:
(1) Facts: Narcotics Squad knocked on Mincey’s door. Earlier in the day, Officer Headricks had set
up a controlled buy with D. Officers knocked on door, it was opened, and Headricks slipped
inside the apartment, going to D’s bedroom. (Nine other officers were at the door.) As police
entered the bedroom, they heard fire from a gun and then Headricks stumbled out, fatally injured.
Evidence from the apartment was seized and used at trial. The search of the apartment lasted for
FOUR DAYS, with no warrant.
(2) Holdings:
(a) Q: Was the search constitutionally permissible? - NO
(i) Searches conducted outside the judicial process are per se unreasonable.
1. Katz held that “searches conducted outside the judicial process, w/out prior approval
by judge or magistrate, are per se unreasonable under the 4th Amendment”
(ii) AZ recognized an exception to this for homicide scenes. Court refuses to adopt this per
se exception.
1. A warrantless search must be “strictly circumscribed by the exigencies which
justify its initiation” (Terry v. Ohio)
2. There was no exigent circumstance here—no loss of life or limb was threatened
by the circumstances surrounding the search.
a. Here, all the people in Mincey’s apartment were accounted for and the 4-day
search did not commence until all the bodies/people were removed
b. Further, the extent of the search here was certainly not warranted: opening
drawers and ripping up carpets can hardly be rationalized in terms of the
legitimate concerns that justify an emergency search
(b) Possible exigencies which might, by objective reasonableness standards, allow for a
warrantless search or seizure:
(i) “Hot pursuit” of a fleeting suspect—Warden v. Hayden: “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.”
(ii) Imminent destruction of evidence: burning marijuana that can be smelled form outside
the door; drunk driving test for BAC, etc.
(iii) “Community caretaking”—situations where the elderly or disabled have not
been heard from for days or weeks and their residences must be entered to see if they are
“OK.”
(c) Note case: Flippo: Court suppressed evidence where police entered vacationing pair’s cabin
to find body of petitioner’s wife. Police “processed the scene” for over 16 hours.
(3) Note:
(a) Court has said that in Mincey and Flippo that there may have been exigent circumstances to
justify entry but not for the prolonged search.
ii) Welsh v. Wisconsin:
(1) Facts: Jablonic saw Welsh drive off the road into a field. Welsh stepped out of the car, and
appeared drunk or sick. Jablonic asked if Welsh needed help and offered to call the police.
Welsh wandered away to his home, nearby. Police came to the scene, identified the car as
Welsh’s and went to his home. While there, Welsh’s stepdaughter opened the door, and the
officers, without a warrant, went upstairs to find Welsh drunk and naked in bed.
(2) Holdings:
(a) The burden is on the government to prove the exigent circumstances necessary to effectuate a
warrantless home entry search.
(b) Court determines that only arguable exigency was destruction of evidence. Offense here is
noncriminal, so this entry was not warranted.
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 (i) “When the government’s interest is only to arrest for a minor offense, that presumption of
unreasonableness is difficult to rebut…”
(c) An important factor to be considered in exigent circumstances cases: “gravity of the
underlying offense for which the arrest is being made.” Less serious means that it is less
likely that an exigent circumstance existed to effectuate the warrantless home entry and
arrest.
(d) So, the offense in question was apparently not serious enough to justify the intrusion.
iii) Brigham City, Utah v. Stuart: (2006)
(1) Facts: Police were called to the scene of a loud party at 3:00 a.m. They knocked on the door and
received no response. Going around the back of the house, they saw some juveniles drinking in
the back yard. They went to the screen door and observed and heard a violent fight in the
kitchen. Police then entered, broke the fight up, and made arrests.
(2) Holdings:
(a) Holding: Police may enter a home without a warrant when they have an objectively
reasonable basis for believing that an occupant is seriously injured or imminently
threatened with such injury.
(b) One exigency which justifies entry: render emergency aid to occupants of private
property who are seriously injured or threatened with such injury.
(i) Unlike Welsh, there was ongoing violence within a home.
(c) The officer’s subjective motivation is IRRELEVANT
(i) We only care about what was objectively reasonable.
(d) “Nothing in the Fourth Amendment required the officers to wait until another blow rendered
someone ‘unconscious’ or ‘semi-conscious’ or worse before entering.”
j) “Plain View” and Automobile Searches
i) Introduction
(1) If an officer is in a position he is authorized to be in and can physically gain control over an
item, a warrantless seizure can be legally affected if supported by probable cause to believe
the item was involved in a crime or contraband.
(2) NY v. Class: Officers pulled a car over and were looking for the VIN of the car. Officer first
looked inside a door, but the VIN was not there. Officer then looked for the VIN on the dash, but
had to move some papers. In doing so, the officer saw a gun protruding from beneath the seat.
He seized it.
(a) Court held that there was no reasonable expectation of privacy in the VIN, which was
required to be in plain view by federal law.
(b) It was constitutionally permissible for the officer to enter the car to find the VIN—while
there, anything in plain view could be seized with probable cause present. The gun was seen,
there was probable cause to believe it was contraband.
ii) Arizona v. Hicks:
(1) Facts: Officers investigating a shooting entered an apartment (man shot through floor of
apartment above him). One officer noticed expensive stereo equipment which looked out of
place. He turned over a Bang and Olufsen turntable to find its serial number. After calling the
number in, the officer found that the turntable was stolen property and immediately seized it.
(2) Holdings:
(a) Q: Was the search of the stereo equipment (a search beyond the exigencies of the original
entry) reasonable under the 4th and 14th Amendment? - NO
(b) Mere recording of the serial number was neither a “search” nor a “seizure.” This did
not meaningly interfere with the defendant’s possessory interest.
(c) Moving the equipment was a “search.”—question remains whether the search was
reasonable.
(d) Plain View Doctrine: “Police may seize evidence in plain view without a warrant.”
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 (i) It makes no sense to suggest that the object could be seized but not moved to be inspected
if “plain view does apply.”
(e) Probable cause is normally required for a warrantless seizure, but there are some
exceptions…(minimally intrusive seizure and “operational necessities”)
(i) Investigative detention of vehicle transporting illegal aliens;
(ii) Seizure of luggage so drug-sniffing dog can be used.
(f) “A dwelling place search, no less than a dwelling place seizure, requires probable cause.”
(g) Truly cursory inspection—merely looking at something already exposed—is not a “search.”
(i) Different here b/c officer moved the turn table and that constituted a search
(h) Court holds that there was no probable cause here, officer only had a reasonable suspicion
that the stereo equipment was stolen.
(3) Notes:
(a) If an officer was 1) behaving legally, 2) legally in a place where he can gain physical
control, and 3) has probable cause, A WARRANTLESS SEIZURE MAY BE
AFFECTED.
(b) Looking into a house from the street does not even raise “plain view.” The officer can
enter the house if what he saw gives him both probable cause and exigent circumstances
(OR if he obtains a warrant).
iii) Horton v. California:
(1) Facts: Petitioner attended a coin show and then robbed a coin show patron of three specifically
described rings. Pursuant to a warrant, officers searched defendant’s home, looking only for the
proceeds of the robbery. During the course of the warrant search, officers found weapons in
plain view. These were seized and used at trial.
(2) Holdings:
(a) Q: Whether the warrantless seizure of evidence of crime in plain view is prohibited by the
Fourth Amendment if discovery of the evidence was not inadvertent?
(b) A: No, inadvertence is not a necessary condition.
(c) Court notes two conditions to satisfy a warrantless seizure:
(i) Item must be in plain view and its incriminating character must be immediately
apparent.
(ii) Officer must be lawfully located in a place from which the object can be plainly seen
and also must have a lawful right of access to the object itself.
(d) Court sees no problem with the explicit violation of “Warrants…particularly describing…”
(i) If a warrant describes the area or a specific exception applies, there should be no
problems.
(ii) Exigent circumstances might allow for seizure in many of these cases.
(iii) Search was authorized by the warrant; seizure was authorized by “plain
view.”
iv) California v. Acevedo:
(1) Facts: Police saw a man enter an apartment carrying a package containing marijuana. Acevedo
entered the apartment and left 10 minutes later with the package. He placed the package in the
trunk of a car and drove away. Fearing loss of evidence, officers in the car stopped him,
searched the bag, and found the marijuana.
(a) Chadwick: need a warrant to open a closed package (in this case, a foot locker)
(b) Carroll: established an exception to the warrant requirement. No need for a warrant to
search a car because of exigent circumstances—the car could drive away. (Whiskey was
found in the upholstery of the seats.)
(c) Chambers: existence of exigent circumstances relating to automobile to be determined at
the time the automobile was seized.

34
 (d) Ross: allowed a “probing search” of the car, including compartments and containers within
the car, so long as the search is supported by probable cause.
(e) Sanders: Court held that Chadwick should be extended to apply to a suitcase actually being
transported in the trunk of a car.
(2) Holdings:
(a) Old view: In a Ross situation, no warrant was needed. In a Sanders situation, the police
needed a warrant. What gives?
(b) Q: Whether the Fourth Amendment requires the police to obtain a warrant to open the sack
in a movable vehicle because they lack probable cause to search the entire car? (Or, “Under
the Fourth Amendment, may police conduct a warrantless search of a container within an
automobile if they have probable cause to believe that the container holds evidence?”)
(i) A: No.
(c) Sanders-Chadwick rule was unclear. Court prefers a bright-line approach.
(d) Court holds that “police may search an automobile and the containers within it where
they have probable cause to believe contraband or evidence is contained.”
(3) Notes:
(a) CA v. Carney: Mobile homes are more like a car than a home. Exigency exception applies.
(b) Four searches: a home, a bag on the street, same bag in a car, glove compartment of car
(i) First one would get extra protection.
(ii) Last three would not get extra protection.
(c) Notice that a warrant is still required to search Chadwick’s footlocker. Chadwick has not
been overruled.
k) Arrests
i) Introduction
(1) Arrests should be subject to the most stringent legal standards. Records of arrest are retained and
disseminated. The result of this is often lost employment opportunities and future law
enforcement scrutiny.
(2) Substantial civil damages have been awarded to persons improperly arrested
(3) Three main sources of legal rules governing arrests:
(a) Common law:
(i) Arrests for misdemeanors were prohibited without a warrant.
(ii) Exception: breach of the peace.
(iii) Warrantless arrests for felonies were generally allowed, so long as the arrestor
had “reasonable grounds” to believe a felony was being committed and that the arrestee
had committed it.
(b) Statutes
(i) Warrantless arrest for misdemeanors is authorized when the offense is committed in the
officer’s presence.
(ii) Certain offenses (domestic violence, abuse of order of protection) may not need to be in
the officer’s presence.
(c) The Constitution: all custodial arrests must be based on “probable cause.”
(i) United States v. Watson: Federal post inspectors received a tip that Watson was in
possession of stolen credit cards. A tipster signaled that Watson possessed such cards at
a restaurant, and officers moved in and made a warrantless arrest. Watson had no stolen
cards. They then asked to search Watson’s car, and stolen cards were found there.
1. Probable cause existed here—officers were acting in accordance with authority
granted to them by federal statute relating to stolen mails.
a. Congress has “plainly decided against conditioning warrantless arrest power on
proof of exigent circumstances.”
b. Only probable cause is needed b/c the statute was on point
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 c. Probable cause + statute = proper arrest
2. Authors note that Watson “plainly allows warrantless arrests outside of homes.”
3. Powell concurrence: First states that an arrest is “essentially a seizure” and that the
Constitution should “impose the same limitations upon arrests that it does upon
searches.” However, agrees that burden placed on law enforcement would be too
great and that “history and policy reasons” justify warrantless arrest based on
probable cause.
4. Marshall dissent: Notes that, historically, some of today’s felonies were treated as
misdemeanors in the past. (This would imply a higher standard for arrests.)
ii) Scope of the Arrest Power
(1) County of Riverside v. McLaughlin:
(a) Court held that a defendant arrested without a warrant and held in custody must receive,
within 48 hours, a judicial determination of whether his arrest met the probable cause
standard.
(b) Court noted that within 48 hours may not always pass—individual could also prove that
probable cause determination was delayed unreasonably (purpose of gaining additional
information to justify arrest, ill will, etc.)
(2) Payton v. NY: Court struck down a NY statute that authorized warrantless entries into private
homes for the purpose of making a felony arrest.
(a) Fourth Amendment is concerned with homes, especially.
(b) “For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.”
(c) If police cannot get an arrest warrant, wait until the subject has left the home, and then
use the warrant to effect a search.
(3) Steagald v. United States: Question was whether an arrest warrant justified the search of the
home of someone other than the arrestee. The Court held that it did not.
(a) Warrant authorized police to seize Lyons. They relied on the authority to enter the home of a
third person based on their belief that Lyons might be there. He was not, but cocaine was.
(b) “Since warrantless searches of a home are impermissible absent consent or exigent
circumstances, we conclude that the instant search violated the Fourth Amendment.”
(4) MAIN POINT: In public, you don’t need a warrant, but in the home (private) you do need
a warrant to arrest someone!
iii) Atwater v. Lago Vista (2001)
(1) Facts: Seatbelt violation is subject to a $25-50 fine in TX. The crime is a misdemeanor.
Atwater was driving in her car with her two small children when she was observed by officer
Turek not wearing her seatbelt (none of the kids were, either). Atwater was pulled over, and
Turek arrested Atwater and took her to jail. (A friend watched the kids.) Atwater sat in a jail
cell for one hour and was released on $310 bond. She claimed that her arrest was an
“unreasonable seizure.”
(2) Q: Does the 4th Amendment limit a police officer’s authority to arrest w/out warrant for minor
criminal offenses? - NO, the 4th Amendment does not forbid a warrantless arrest for even a
minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine
(3) Holdings:
(a) Neither party disputed that Atwater had probable cause to arrest Atwater.
(b) There was no evidence that Turek conducted the arrest “in an extraordinary manner,
unusually harmful” to Atwater’s privacy interests.
(c) History of Common Law:
(i) Common law extended authority to effectuate a warrantless arrest for misdemeanors
outside of “breach of the peace” in many instances.
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 (ii) Too many exceptions to constitute a general prohibition against warrantless arrest for a
misdemeanor.
(d) Atwater argued for a modern arrest rule that forbids custodial arrest, except upon probable
cause, when conviction does not ultimately carry any jail time and when the government
shows no compelling need for immediate detention.
(i) Line might be between “jailable” and “fine-only” offenses.
(ii) Court rejects this—how is the arresting officer to know what will always be fine-only?
(e) The arrest and booking were “inconvenient and embarrassing” but not “extraordinary.”
l) Searches Incident to Arrest
i) Introduction:
(1) Should the arresting officer also be allowed to search the person of the arrestee without first
obtaining a search warrant?
(2) Can the officer search the place where the arrest was made?
(3) Carroll: searching the person of the arrestee is permissible and “whatever is found upon the
person or in his control, which it is unlawful for him to have and which may be used to prove the
offense” is properly seized.
ii) Whren v. United States: Court held that a police officer’s motive for making a traffic stop (and
accompanying brief detention) does not affect the constitutionality of the stop, so long as there was
probable cause to believe that the traffic violation had occurred.
(1) An officer’s subjective motivation for placing you under arrest is immaterial for a search
incident to arrest
(2) An officer can pull you over for violating some traffic laws as long as you have violated the law
(a reasonable person can say you violated even a seat belt law), and the officer pulled you over
with the intent to search your car is irrelevant)
iii) Chimel v. California:
(1) Facts: Police had an arrest warrant (not a search warrant) for petitioner in connection with a
coin shop burglary. Cops went to his house, received consent to enter, and waited for petitioner.
When he walked in, they showed him the warrant, asked to look around, were denied permission,
and then searched the house anyway. They basically tore the house apart.
(2) Holdings:
(a) Q: Whether the warrantless search of the petitioner’s entire house can be constitutionally
justified as incident to that arrest.
(b) A: No.
(c) Terry v. Ohio: scope of the search must be justified by circumstances that rendered it
permissible. “Stop and frisk” was sustained under that test as a justified protective search for
weapons.
(d) Justifications:
(i) need to remove any weapon the arrestee might seek to use to resist arrest or escape
(ii) need to prevent the concealment or destruction of evidence
(e) Scope of protective searches: “There is ample justification, therefore, for a search of the
arrestee’s person and the area ‘within his immediate control.’ ”
(f) The search here “went far beyond the petitioner’s person and the area from within which he
might have obtained either a weapon or something that could have been used as evidence
against him.” So, the search was illegal.
(i) Instructed Chimel’s wife to open up drawers and move content of drawers around to look
for evidence of the burglary
(3) Dissent: The Fourth Amendment proscribes not “warrantless” searches but “unreasonable”
searches. There were exigent circumstances here—the wife could have ditched the stolen goods
when the cops left.
(4) Notes:
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 (a) Searches incident to arrest CANNOT be made w/out a warrant EXCEPT:
(i) You can search the “grab area” for both weapons (safety) and evidence of the crime
iv) Automobile Incident to Arrest Cases:
(1) United States v. Robinson: valid warrantless seizure of man driving with a revoked license.
Search of man found heroin in a crumpled cigarette package in his pocket. Court upheld that this
was a “reasonable” search…(exception founded on two distinct propositions…)
(i) Search may be made of the person of the arrestee by virtue of a lawful arrest.
(ii) Search may be made of the area within control of the arrestee.
(b) Police we not going to find evidence of the crime of driving w/out a license in a cigarette box
(2) Maryland v. Buie: Protective sweeps upheld: “as a precautionary measure and without
probable cause or reasonable suspicion, [officers may] look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be immediately launched.”
(3) New York v. Belton: Search of lawfully arrested occupant’s automobile upheld. “when a
policeman has made a lawful arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of that automobile—
including examining the contents of any containers found there.”
v) Thornton v. United States:
(1) Facts: Police saw a car, ran its plates, and determined that the plates were on the wrong vehicle.
The car was pulled over, and the driver got out and began to walk away. Police approached the
man, now out of the car, and asked to pat him down. Police found drugs and arrested the man.
Police then searched the man’s car and found an illegal handgun.
(2) Holdings:
(a) Justification for search: officer safety and destruction of evidence
(b) Court states that being next to a vehicle presents the same concerns as being in the
vehicle.
(c) Belton allows police to search the passenger compartment of a vehicle incident to a
lawful custodial arrest of both “occupants” and “recent occupants.”
(d) Rule: “So long as an arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner
was here, officers may search the vehicle incident to arrest.”
(3) Scalia concurrence: holds on reasonableness grounds, not some truly phony “justification” of
safety
(a) First concern: suspect might escape or retrieve a weapon. Highly unlikely.
(b) Second concern: officer should not be penalized for taking the sensible step of securing the
suspect in his squad car first. Court rejects this because there is no necessity for the search to
protect safety if the suspect is in handcuffs in a squad car.
(c) Third concern: These searches are reasonable in general. Court does not want to go down
this slippery slope.
(d) “I would therefore limit Belton searches to cases where it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.” Only value is uncovering
additional evidence in these circumstances.
vi) Knowles v. Iowa (1998): search with no arrest
(1) Facts: Police stopped Knowles for speeding and issued him a citation. They then conducted a
full search of his car. Officer conceded at a hearing that he had neither consent nor probable
cause to effectuate the search. He found pot pipes. The court held this to be unconstitutional.
(2) Holdings:
(a) Two justifications to search incident to arrest:
(i) Officer safety
(ii) Preservation of evidence
(b) Neither of these justifications applies here. Maybe ordering a suspect out of a car could
protect safety, but a full search is not justified.
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 (c) No further evidence of the crime here (speeding) could be uncovered by conducting a full
field-search.
(d) Full field search as incident to arrest is allowed—this is a bright line rule (Thronton).
With no arrest, there can be no full search of a car.
vii) Arizona v. Gant (2009) – Falkoff says Gant overrules sub silentio Belton/Thornton
(1) Facts: Gant was apprehended by AZ state police on an outstanding warrant for driving with a
suspended license. After the officers handcuffed Gant and placed him in their squad car, they
went on to search his vehicle, discovering a handgun and a plastic bag of cocaine. At trial, Gant
asked the judge to suppress the evidence found in his vehicle because the search had been
conducted without a warrant in violation of the Fourth Amendment's prohibition of unreasonable
searches and seizures. The judge declined Gant's request, stating that the search was a direct
result of Gant's lawful arrest and therefore an exception to the general Fourth Amendment
warrant requirement (using Thornton and Belton).
(2) Q: Is a search conducted by police officers after handcuffing the defendant and securing the
scene a violation of the Fourth Amendment's protection against unreasonable searches and
seizures? - NO
(3) Holding:
(a) Old answer from Belton/Thornton was that you could search the compartment whenever
(doesn’t matter where or why—you get the search the passenger compartment of the vehicle)
(i) Belton – you can search the entire passenger compartment
(ii) Thornton – even if the suspect is incapacitated, you can search the passenger
compartment
(b) NOW you can ONLY search the passenger compartment if you don’t have a warrant in two
circumstances:
(i) Police have reason to believe that evidence concerning the crime of arrest will be
discovered in the passenger compartment (Robinson – cigarette box)
(ii) When passenger compartment really is in the grab area of the suspect (suspect must
be near to the grab area; not handcuffed in the back of a squad car)
m) Stops and Frisks
i) Terry v. Ohio:
(1) Facts: Three men were observed by a police officer “casing” a store for a robbery. It was early
afternoon. An officer observed this and decided to approach the men. He asked them what was
up, and one mumbled something. The officer turned Terry around, so that they faced the other
two, and Terry was patted down. The officer felt a pistol and tried to recover it. He could not,
so he ordered the men inside a store, removed Terry’s overcoat, and found a loaded .38. Terry
and the others were arrested, charged, and convicted of carrying concealed weapons.
(2) Holdings:
(a) Basic question: Whether in all the circumstances in this encounter, Terry’s right to personal
security was violated by an unreasonable search and seizure?
(b) Court refuses to make any kind of distinction between a “stop and frisk” and a “search and
seizure.” This was a search and a seizure. Only question is reasonableness…
(c) Exclusionary rule discussion…
(i) The rule is the principal mode of “discouraging lawless conduct.”
(ii) In some contexts, the rule is ineffective as a deterrent.
(iii) Police may not have prosecution as a goal—in such cases, the exclusionary rule
does no good to uphold individual privacy rights.
(d) Specific question: Whether it is always unreasonable for a policeman to seize a person and
subject him to a limited search for weapons unless there is probable cause for an arrest?
Answer: No.
(e) Reasonableness of the search: Two inquiries
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 (i) Whether the officer’s actions was justified at its inception
(ii) Whether it was reasonably related in scope to the circumstances, which justified the
interference in the first place.
(f) Reasonableness of the search: Standards
(i) Balance the need to search [or seize] against the invasion, which the search [or seizure]
entails.
(ii) Officer must be able to point to specific and articulable facts which, taken together with
rational inferences drawn from those facts, reasonably warrant the intrusion.
(iii) Objective standard: would the facts be available to the officer at the moment of
the seizure or the search “warrant a mane of reasonable caution in belief” that the action
taken was appropriate? (In other words, was the officer reasonable in believing that the
suspect was armed?)
(iv)A search for weapons in absence of probable cause to arrest, however, must be
strictly circumscribed by the exigencies which justify its initiation.
(g) Main justification: assure the officer that the person he is dealing with is not armed.
ii) Notes and Questions:
(1) Terry significantly changed existing law by employing a balancing test to hold that police could
subject individual criminal suspects to a Fourth Amendment intrusion without probable cause
(a) Difference between a STOP and a SEARCH
(i) Stop can be whenever the officer has reasonable suspicion that criminal activity is afoot
1. You are NOT automatically allowed to search that person, but you can when you
think he/she may have weapons
(ii) Search can ONLY be where the officer has a reasonable suspicion that he is in danger
(that the person he stopped has a weapon)
(b) However, there comes a time when a Terry stop can become unreasonable and
unconstitutional
(i) No bright-line rule
(ii) Must make decisions or reasonableness on a case-by-case analysis
(iii) 20 minutes for a Terry stop was “reasonable” and thus constitutionally
permissible
(2) Florida v. Royer:
(a) Facts: Officers in an airport noticed an individual who fit the “drug courier profile”—
appearance, mannerisms, luggage. His luggage was labeled with a name not his own.
Officers approached him and spoke with him. He became nervous and used an assumed
name. The officers asked him to accompany them to a room 40 feet away. The detectives
brought Royer’s luggage to the room; after asking for the key to the luggage (Royer
complied) about 15 minutes had passed. Drugs were found in the luggage.
(b) Holdings:
(i) This procedure violated the Fourth Amendment.
(ii) This was “a more serious intrusion…than is allowable on mere suspicion of criminal
activity.”
(iii) Police could have asked to search without taking him to a separate room or used a
drug dog to dispel their suspicions
(3) VA v. Moore (2008)
(a) Facts: VA police stopped Moore after receiving a radio call alerting them that he was driving
on a suspended license. VA state law specified that for such a violation only a citation and
summons to appear in court were to be issued. The officers decided to arrest Moore instead.
After reading him his Miranda rights, they asked for and received consent to search his hotel.
While at his hotel, they decided to search his person and found cocaine. He was arrested and
charged with possession and intent to distribute cocaine.
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 (b) Q: Does the 4th Amendment require the suppression of evidence obtained incident to arrest
when the arrest violates a provision of state law? – NO
(c) Holding:
(i) The existence of probable cause gives an arresting officer the right to perform a
reasonable search of the accused to ensure the officer’s safety and to safeguard evidence
(ii) States may impose stricter search/seizure requirements, but when “states go above
the 4th Amendment minimum, the Constitution’s protections concerning search and
seizure remain the same”
1. Because the 4th Amendment was not written with the intent to incorporate individual
states' arrest statutes and because the arrest was based on probable cause, Moore had
no constitutional grounds to have the evidence suppressed
iii) The Meaning of REASONABLE SUSPICION
(1) The Standard
(a) “Reasonable suspicion” has come to define the legal standard applied to Terry-style
encounters.”
(b) It has never been given a precise definition—it is yet another “consider all the
circumstances” inquiry.
(c) Alabama v. White: The Court discussed the standard in the context of anonymous tips.
“Less demanding than probable cause…” Could be met with “information that is different in
quantity or content” and “less reliable” than that required to show probable cause.
(2) Florida v. J.L.: Anonymous tip alone enough to establish reasonable suspicion? No.
(a) Facts: Anonymous tipster told police that a black man in a flannel would be standing at a bus
stop carrying a concealed weapon. Police saw three men at a bus stop, one fitting the
description. They approached, frisked one man, and recovered a gun.
(b) Holdings:
(i) This was a violation of the Fourth Amendment.
(ii) White acknowledged that there are times when an anonymous tip, sufficiently
corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to
make an investigatory stop.” This was not that situation.
1. The anonymous call concerning J.L. provided no predictive information and therefore
left the police without means to test the informant’s knowledge or credibility.
(iii) The reasonable suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person. This would lead to
bald finger pointing and searches of anyone accused.
(3) Illinois v. Wardlow: How should a suspect’s flight on sight of the police be factored into the
reasonable suspicion equation?
(a) Facts: Officers, driving in an area known for narcotics, saw a man on the sidewalk with a
brown bag in his hand. As police approached, the man appeared to spot the police and then
take off running. Officers caught the man and found a gun in the bag.
(b) Holding: The flight in the high crime area gave police a reasonable suspicion to stop D
(i) Terry analysis applies…”An officer may conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.”
(ii) The Fourth Amendment requires at least a minimal level of objective justification in
making the stop.
(iii) Factors to consider:
1. Suspect takes off running.
2. “High crime area”
(iv)Flight, by its very nature, is not “going about one’s business”—Terry recognized that
officers could detain an individual to determine whether an innocent or criminal motive
caused the apparent flight.
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 1. However, flight is not a failure to cooperate like in Bostick case
a. You still don’t have to answer if you’ve been using drugs (that doesn’t cause a
rise to a reasonable suspicion)
(v) Determination of reasonable suspicion must be based on common sense judgments and
inferences of human behavior
n) “Special Needs”
i) Introduction
(1) Courts often use an interest-balancing approach (aka Terry) to uphold administrative inspections,
regulatory searches, and other kinds of governmental action involving “special needs” beyond
those to be found in the typical law enforcement context.
(2) Brown v. Texas provides the basic approach: “consideration of the constitutionality of such
seizures involves a weighing of the graving of the public concern served by the seizure, the
degree to which the seizure advances a public interest, and the severity of the interference with
individual liberty.”
(3) Circumstances where no probable cause is required for a search:
(a) Search probationer’s homes on “reasonable grounds”—Griffin v. WI
(b) Work-related search of an employee’s desk, office, file cabinet—O’Connor v. Ortega
ii) Roadblocks
(1) No individualized suspicion involved—everyone is subjected to the stop and search.
(2) United States v. Martinez-Fuerte: Court approved of suspicionless stopping of vehicles at a
permanent checkpoint on a highway leading from the Mexican border. “Intrusion is quite
limited.”
(3) Michigan Department of State Police v. Sitz: roadblocks used to check for drunk drivers
upheld. All cars were stopped. Magnitude of the drunken driving problem and State’s interest in
eradicating it were cited.
(4) Delaware v. Prouse: Court refuses to uphold random, suspicionless stops to check drivers
license and registration but comments that states might use “spot checks that involve less
intrusion.”
(a) Officers would have too much discretion for who to pull over
(b) Police cannot stop a car for basically no reason at all
(5) Indianapolis v. Edmond:
(a) Facts: Police program involved roadblocks to stop interdiction of unlawful drugs. Cops
would stop the car, do a visual open-search, and have a drug dog sniff the car. Total duration
of the stop—five minutes or less. Respondents filed a lawsuit to seek an injunction.
(b) Holdings:
(i) Court refuses to uphold this checkpoint. “In none of the [prior cases] did we indicate
approval of a checkpoint program whose primary purpose was to detect evidence of
ordinary criminal wrongdoing.”
1. Primary purpose of stop here distinguishes it.
2. Problem here is not border safety or drunk driving.
(ii) Balancing test: “in determining whether individualized suspicion is required, we must
consider the nature of the interests threatened and their connection to the particular law
enforcement practices at issue.”
1. Primary purpose was “general crime control”—this is not sufficient.
(6) Illinois v. Lidster: Hit and run accident happens on Wednesday at noon and the police set up a
roadblock one week later on Wednesday at noon to ask drivers two simple questions: “Were you
here a week ago at a noon? Did you see an accident?”
(a) HELD: This was held to be constitutional b/c there is a difference between police asking you
questions trying to get info about YOU and police trying to get info about SOMEONE ELSE

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LIMITS ON THE EXCLUSIONARY REMEDY
1) The “Good Faith” Exception
a) United States v. Leon:
i) Facts: Confidential informant notified the PD that Armando and Patsy were dealing drugs out of a
house on Price Drive. Informant had witnessed this. As to respondent Leon, evidence established
that Del Castillo listed him as his employer and that Leon had been arrested on drug importation
changes several years earlier. Officer Rombach observed persons with prior drug involvement
entering and leaving the Prentice Drive apartment, and, based on this affidavit information, obtained
a warrant. The facially valid warrant was used to search and recover large quantities of drugs (but a
small quantity at Prentice Drive). The District Court determined that the warrant was faulty and
granted a motion to suppress some of the evidence. Rombach had acted in good faith.
ii) Holdings:
(1) Q: Whether the Fourth Amendment exclusionary rule should be modified so as not to bar the
use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable
reliance on a search warrant?
(2) A: Yes. Court establishes “good faith” exception.
(3) The exclusionary rule was put in place solely as a deterrent; the accused has already been
wronged and this cannot be cured.
(a) B/c the exclusionary rule is geared towards the police, it doesn’t make sense to kick it into
play when it is a judge making the decision
(4) Court points to social costs of the exclusionary rule
(a) Interferes with truth-finding function
(b) Leads to lesser sentences because of plea bargaining.
(5) Deference to the magistrate?
(a) Does not preclude inquiry into the knowing or reckless falsity of the affidavit
(b) Magistrate must be determined to be neutral
(c) Affidavit must be read to show probable cause
(6) Court notes that applying the exclusionary rule in a case like this one will have no deterrent
effect on a magistrate. This being true, there is no place for application of the rule under the
circumstances. (Penalizing the officer for the magistrate’s mistake is inappropriate.)
(a) Judge is a more neutral arbiter
(b) When judge makes a mistake about probable cause, it is really unintentional
(c) As long as officer is effectuating/executing a reasonable warrant made by a judge, there
is a “good faith” exception
(7) Officer’s reliance on magistrate’s issuance of warrant must be OBJECTIVELY
REASONANBLE
(a) “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a
warrant are misled by information in an affidavit that the affiant know was false or would
have known was false except for his reckless disregard of the truth.”
(b) A warrant may be so facially invalid (does not describe place or items to be seized) that
officers cannot reasonably presume it valid.
iii) Brennan dissent:
(1) Allowing this evidence in would effectuate a judicial violation of the Fourth Amendment.
(2) Every right must have a remedy.
(3) Costs of the exclusionary rule are quite low.
b) Notes and Questions:
i) Bivens v. Six Unknown Agents: Court appeared to hold that some kind of damages remedy is
constitutionally required for a Fourth Amendment violation.
ii) Dickerson v. United States: A federal statute purported to overrule Miranda. The Court held the
law unconstitutional and stated that Miranda is a constitutional decision and binding on legislatures.
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 iii) Illinois v. Krull: Court applied the good faith exception to a search pursuant to an unconstitutional
state statute (legislators). Court analogized this to Leon. Exclusionary rule is meant to deter police
officers, not judges or legislators.
iv) Arizona v. Evans: Traffic stop based on an invalid outstanding warrant. Although the warrant was
invalid due to this clerical error, the arrest was made in good faith. Court applied good faith
exception to situation where officer made an arrest based upon a non-existent warrant (clerical error
by court employee). Drugs incident to search were admissible.
v) Herring v. US (2009): Police from another police station relied on incorrect information provided
by a fellow police officer. Officer that messed up the warrant was from a different police station.
(1) HELD: Evidence of a crime does NOT have to be excluded from a case if police are relying on
false information by a fellow police officer. Arrest was unconstitutional b/c there was no
warrant, however the Krull/Leon rule applied
(2) Falkoff believes this case was decided incorrectly b/c this police department CAN be deterred if
the exclusionary rule is enforced (makes them be sure their warrants are correct)
c) Note on State Constitutional Law
i) A number of state courts, construing their own constitutions, have adhered to the position that
officers’ good faith is irrelevant when reviewing a magistrate’s finding of probable cause.
ii) State courts are free to conclude that their constitutions require more than the Fourth Amendment.
iii) The Fourth Amendment represents a constitutional floor below which no state court may go.
2) “Fruit of the Poisonous Tree” Doctrine
a) Fruit of the Poisonous Tree Doctrine:
i) Doctrine says from evidence any evidence that is gathered directly as a constitutional violation
PLUS any evidence that was gathered indirectly that came from the same unconstitutional act
b) Wong Sun v. United States:
i) Facts: Petitioners charged with violation of federal narcotics laws (transportation and concealment
of imported heroin). After having Hom Way under surveillance for weeks, an undercover officer
arrested him and found heroin. Way informed the police that Blackie Toy sold heroin at his laundry.
An undercover visited James Wah Toy at his laundry; Toy ran when the officer informed him of his
identity—Toy didn’t have any drugs but told police to go to Yee’s house. With information from
Toy, agents went to Johnny Yee’s house and found heroin there. Yee and Toy were taken to the
police station and informed the police of Wong Sun and went to Sun’s home. No drugs were found
there. Toy and Wong Sun were arrested and made statements with no attorneys. Four pieces of
evidence were admitted at trial pursuant to the illegal arrests and searches:
(1) Statements made by Toy in his bedroom upon arrest
(2) Heroin surrendered by Johnny Yee
(3) Toy’s unsigned pretrial statement
(4) Wong Sun’s similar statement
ii) Holdings:
(1) Fruits of an unlawful arrest are inadmissible. What are “fruits” in this case?
(a) Toy’s arrest
(i) There were neither reasonable grounds nor probable cause for Toy’s arrest.
1. Flight was not enough
2. “Blackie” Toy name not conclusive
(2) Fourth Amendment exclusionary rule prohibits admission of papers, effects, and physical
evidence AS WELL AS VERBAL STATEMENTS.
(3) Statements of Toy were fruits
(a) No independent act of free will in providing. Six or seven officers broke in!
(b) Circumstances do not equate with voluntariness

44
 (4) Independent Source Doctrine does not apply. (“If knowledge of [facts used to obtain evidence]
is gained from an independent source they may be proved like any others…” Silverthorne
Lumber Co.)
(5) Heroin surrendered by Yee were fruits and inadmissible against Yee
(6) Key question: “Whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.”
(7) Wong Sun’s reference to Toy in his unsigned statement is fruits and inadmissible against
him.
(a) Uncorroborated statement
(b) Out-of-court declaration made by declarant’s partner in crime
(8) Wong Sun’s statements are not fruits. Neither is the heroin, as related to Wong Sun.
(a) Statements are “so attenuated from the arrest as to be admissible.” They were voluntarily
given.
(b) Seizure of heroin did not invade the privacy or property rights of Wong Sun.
c) Exceptions to the Fruits Doctrine
i) Independent Source
(1) Even though police acted unconstitutionally (ex. Police broke into your house and stole your
address book, and in that book they found the phone numbers for the 3 drug dealers you do
business with, they call the drug dealers and got them to act as witnesses at your trial to state that
you bought drugs from them in the past; the initial break-in and search were unconstitutional and
the book will be excluded from trial, statements from other men will be excluded also)
(2) If the police do not have to rely on the source they gathered the info from unconstitutionally, but
have an independent source to rely on, they can get around the “fruits” doctrine
ii) Attenuation
(1) Simply b/c there is some kind of causal connection between the direct fruits of the
unconstitutional search and evidence gathered later, the court is not going to apply the
exclusionary rule if that connection is too attenuated
(2) Ex: Think of it as a “proximate cause” in the tort context
iii) Standing
(1) You can only get evidence excluded if YOU are the one that suffered an unconstitutional search
and seizure
(2) You do not have standing to raise the violation of someone else’s 4th Amendment rights in order
to keep the prosecution from introducing evidence against you for a violation of someone else’s
rights
(3) Two (2) Step Inquiry for Standing:
(a) You, as the claimant, must show that there was a constitutional violation of YOUR rights
(the police did something illegal to YOU)
(b) AND you must show that the illegal police conduct caused the police to find the evidence
that you are seeking to suppress (causal connection)
d) Notes on the Doctrine
i) Drugs seized from Yee could be used against Wong Sun because Wong Sun had no standing to
complain of Yee’s illegal arrest
(1) Search of Yee’s home may have violated Yee’s rights but not Wong’s (no standing)
ii) “Fruits” does not mean it was illegally seized but that DISCOVERY was caused by an illegal search
or seizure.
iii) Minnesota v. Carter: Court held that no defendant can complain of an illegal search of someone
else—meaning that if the police search Toy’s bedroom illegally, Yee cannot complain of that
illegality when the police later wind up in Yee’s bedroom.

45
 iv) But-for cause: Must analyze whether illegal search or seizure caused finding the evidence in
question
(1) Independent Source doctrine: Would the police have discovered the evidence through the use of
legally obtained facts or knowledge?
(2) Inevitable Discovery doctrine: Would the police have discovered the evidence in a short amount
of time (probability question) after the illegal search led to the actual discovery? If so, evidence
is admissible.
v) United States v. Ceccolini: Four months after illegally opening and searching an envelope, officers
used this evidence to arrest suspect. The Court held that the degree of attenuation was…sufficient to
dissipate the connection between the illegality and the testimony.
e) Murray v. United States:
i) Facts: Agents observing suspects hauling suspicious cargo, suspects were arrested, searched, and
found to be carrying marijuana. Officers used information obtained upon arrest, which led to a
warehouse. Officer rushed into the warehouse without a warrant and searched it, finding marijuana.
They left and obtained a search warrant, failing to mention the prior entry.
ii) Holdings:
(1) Independent Source Doctrine applies here.
(a) Doctrine should be applied to put police in the same place they would have been absent the
illegality, not a worse position.
(b) Where an unlawful entry has given investigators knowledge of facts X and Y, but fact Z
has been learned by other means, fact Z can be admissible because derived from an
independent source.
(2) Inevitable Discovery: “Since the tainted evidence would be admissible if in fact discovered
through an independent source, it should be admissible if it inevitably would have been
discovered.”
(3) Bottom line: “Knowledge that the marijuana was in the warehouse was assuredly acquired at the
time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant,
and if that later acquisition was not the result of the earlier entry there is no reason why the
independent source doctrine should not apply.”
iii) Notes
(1) Police are encouraged to lie to get warrants—“Old Reliable” told me about such and such (to get
a warrant)
(2) Nix v. Williams: Inevitable discovery…girl’s body found in ditch 2 ½ miles from search site.
“Had the police not illegally discovered the evidence in question, would they have kept
investigating long enough to find it legally?”
f) Hudson v. Michigan (2006):
i) Facts: Police obtained a warrant to search Hudson’s house for drugs and guns. They knocked and
announced their presence, waiting three to five seconds, and then burst in. Guns and drugs were
found. Petitioner sought to have these excluded as the fruits of an improper (illegal) entry.
ii) Holdings:
(1) Violation of a knock-and-announce warrant does not require the suppression of all
evidence found in the search.
(2) Knock-and-announce is a command of the Fourth Amendment in most cases. Exceptions:
(a) Circumstances present a threat of physical violence.
(b) Knocking and announcing would be futile
(c) Reason to believe that evidence would be destroyed. (Depends on the type of evidence)
(3) Suppression is a last resort—not the first impulse.
(a) Applicable when benefits outweigh social costs.
(b) Exclusionary remedy analysis separate analysis from baseline question of whether there is a
Fourth Amendment violation.
46
(4) Whether the preliminary misstep had occurred or not, the police would have executed the
warrant they had obtained and would have discovered the guns and drugs.
(5) Three primary interests in knock-and-announce
(a) Protection of human life
(b) Protection of property
(c) Protection of privacy
(6) Social costs here are huge—suppression of all evidence, amounting to a get-out-of-jail-free card.
(7) Deterrence effect of exclusionary rule in these cases is not worth a lot.
(8) Since Mapp, federal remedies and the likelihood of obtaining those remedies have increased
(§1983, more attorneys practicing civil rights law, etc.)
(9) Segura: if the probable cause backing a warrant issued later in time could be an “independent
source” for a search that proceeded after the officers illegally entered and waited, a search
warrant obtained before going in must have at least this much effect.

47
Chapter 6: The Fifth Amendment
1) Text and History
a) "No person . . . shall be compelled in any criminal case to be a witness against himself . . ."
b) Cruel Trilemma
i) Tell the truth and convict yourself
ii) Lie and face perjury charges
iii) Refuse to answer and be held in contempt
(1) If you don't have the 5th Amendment, you would be forced to do one of these three things
c) In theory, if you were innocent, there wouldn't be a problem; however, the 5th helps the innocent
d) Rights in the Fifth Amendment
i) Ban on double jeopardy
ii) Requirement of a grand jury in federal cases
iii) Right to due process of law
iv) Privilege against self-incrimination
e) Criminal defendants in the eighteenth century had no right to testify
f) If the government can never obtain incriminating evidence from suspects, the criminal justice system
may be unable to do its job.
2) Privilege Against Self-incrimination and its Justifications
a) Burr: Justice Marshall determined that when a fact is an essential part of a crime, the witness must
judge himself what his answer will be and determine if it is incriminating. If he says, on oath, that his
answer would incriminate himself, he cannot be compelled to testify.
i) The privilege attaches everywhere
ii) A witness may invoke the 5th Amendment privilege when his answer would incriminate himself
b) State and federal governments passed various statutes granting immunity from prosecution in order to
compel testimony.
c) The following cases address the following:
i) There is a statute at issue that is designed to compel a person to give testimony in one form or
another and still pass muster under the 5th Amendment:
(1) Is any immunity going to be enough to force someone to give testimony to incriminate him?
(2) What is the right amount of immunity?
d) Counselman v. Hitchcock:
i) Facts: Grand jury was investigating D, asked D to testify at a grand jury, D refused
ii) Holding: Court held that federal statute, granting immunity, was unconstitutional.
(1) They might use his testimony to derive further evidence from him
(2) Statute was not broad enough to immunize the witness from future charges to which the question
relates
iii) Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness
against himself.”
(1) This coverage goes beyond cases in which the witness is the defendant.
iv) “In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute
immunity against future prosecution for the offense to which the question relates.”
v) Doesn’t matter where you are testifying, but rather where your testimony is going to be used
e) Brown v. Walker: Court upheld a new immunity statute
i) Facts: Brown has to testify here since he cannot be criminally prosecuted for any of the conduct
about which he testifies to
(1) Congress can force you to testify given this statute
ii) If the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal
prosecution against the witness, the rule cease to apply…
(1) If the witness waives the privilege, and discloses his criminal connections, he is not permitted to
stop, but must make full disclosure. (Must be subjected to cross-examination)
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 (2) If prosecution is barred by a statute of limitations, the witness cannot claim the privilege.
(3) If the questioning may bring only disgrace or disrepute, the privilege does not apply.
iii) The privilege is unavailable unless the witness’s testimony could lead to some kind of
punishment.
(1) Providing immunity for the transaction/crime you are testifying about that incriminates you (this
kind of immunity is not going to be enough to force you testify)
(2) However, a statute that gives you immunity from the transaction/crime you are testifying about is
going to be adequate to force you to testify
f) Ullmann v. United States: reaffirmed Brown
i) Reaffirmed congressional power to extend immunity to state offenses.
ii) “The interdiction of the Fifth Amendment operates only where a witness is asked to incriminate
himself—in other words, to give testimony which will expose him to a criminal charge.”
iii) Douglas dissent:
(1) One mischief to be protected against is the risk of prosecution.
(2) Another is damage to human dignity and freedom of expression.
(3) Another is to protect against infamy
3) Kastigar v. United States:
a) Facts: Defendants refused to answer questions concerning fraudulent medical deferments in a grand
jury investigation. Immunity was conferred from the use of evidence derived from the testimony as well
as immunity from the use of the compelled testimony in subsequent criminal proceedings. However,
Kastigar continued to refuse to testify, so he was found in contempt.
b) Holdings: Compelled testimony is legitimate given the grant of immunity
i) “Use and derivative use” immunity: use of compelled testimony and evidence derived therefrom.
(1) Derivative use = use of evidence derived from your compelled testimony
ii) “Transactional” immunity: immunity from prosecution for offenses to which compelled testimony
relates. Considerably broader protection.
(1) Transactional use = use of your compelled testimony
iii) Court hold that mere use and derivative use immunity is coextensive with the Fifth Amendment
guarantees and sufficient to compel testimony over a claim of privilege.
iv) Court has held that federal prosecutors may not compel a witness to give testimony which could be
used to convict him of a crime in another jurisdiction.
v) Similarly, the privilege protects state witnesses against incrimination under federal was well as state
law.
vi) Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters
related to the federal prosecution, the federal authorities have the burden of showing that their
evidence is not tainted by establishing that they had an independent, legitimate source for disputed
evidence.”
(1) You can be forced to give these statements about a meth charge, and these statements can’t be
used against you for a meth trial OR any other evidence the government gather b/c they had your
statement
(2) However, the government can STILL charge you with meth dealing IF the government gets their
information from somewhere else (i.e., an independent source)
4) Contours of the Privilege
a) Notes
i) Immunity grants must be “co-extensive” with the privilege
ii) Compelling people to talk about the crimes they’ve committed is perfectly permissible as long as
their statements do not advantage the government in any subsequent criminal prosecution of the
witness.
iii) United States v. Balsys: Court held that the privilege does not extend to the risk of prosecution by a
foreign nation.
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 iv) THE CLAIMAINT MUST EXPLICITLY CLAIM THE PRIVILEGE
(1) Three exceptions…
(a) Police interrogation
(b) Excuses statutory reporting requirements for “inherently suspect classes”
(c) Cases in which exercising one’s rights would be penalized.
v) Once a witness answers a question, the witness cannot refuse to be examined further concerning the
general area of the answer—“Disclosure of a fact waives the privilege as to details.”
vi) As to each question asked, the issue is whether the answer might subject the witness to “a real
danger of further incrimination.”
b) The Meaning of “Person”
i) Verdugo: Aliens w/out significant contacts w/ the US do not have Constitutional Rights (at leats
under the 4th Amendment)
(1) Under this rationale, there are arguably no Constitutional Rights, including the 5th Amendment,
for illegal immigrants w/ no significant contacts w/ the US
(2) However, Boumediene may change that rationale
ii) Boumediene: The majority found that the constitutionally guaranteed right of habeas corpus review
applies to persons held in Guantanamo and to persons designated as enemy combatants on that
territory.
(1) However, there may be different “ambits” of “people” to which this right applies
(2) If Congress intends to suspend the right, an adequate substitute must offer the prisoner a
meaningful opportunity to demonstrate he is held pursuant to an erroneous application or
interpretation of relevant law, and the reviewing decision-making must have some ability to
correct errors, to assess the sufficiency of the government's evidence, and to consider relevant
exculpating evidence.
(3) However, instead of the 5th Amendment, Boumediene might be dealing more with just the habeas
corpus rights (Article 1, §9) rather than granting them full 5th Amendment protection
c) The Meaning of “Compulsion”
i) Most of the law concerning compulsion is in reference to police compulsion
ii) Court has found that jailhouse interrogation is sufficiently coercive to amount to compulsion.
iii) Court struck down a NY statute that conditioned state contractor contracts on waiver of Fifth
Amendment rights.
iv) Griffin v. California: Court forbade the prosecutor from commenting to the jury on the defendant’s
failure to take the stand.
(1) If a defendant chooses to be silent and invoke his 5th Amendment rights, a prosecutor
cannot bring up his silence to prove his guilt
v) Carter v. KY: Court concluded that defendants who choose not to testify also have the right to
have their juries instructed not to draw inferences from their silence.
vi) McKune v. Lile:
(1) Facts: Before being released from prison, inmate was forced to participate in a Sexual Abuse
Treatment Program. The program required him to complete a sexual history form, which could
reveal past crimes. Failure to do so would result in reduced jail privileges. These privileges, the
D earned while at prison (visitation rights, canteen, TV, minimum wage for prison job, fewer
roommates, safer prison).
(2) Holdings:
(a) These facts did not constitute compulsion under the Fifth Amendment.
(i) Prisoners have lesser rights.
(b) “Penalty cases”—losing a job or economic livelihood for asserting Fifth Amendment rights
—does not apply here.
(i) Termination of employment
(ii) Loss of professional license.
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 1. Telling a lawyer to talk or else he would lose his license would be compulsion
(iii) Ineligibility to receive government contracts.
(c) The prison is offering you these incentives if you participate in the SATP
(3) Stevens dissent:
(a) They are taking away your privilege if you do not participate in SATP, not granting you
privileges if you do
d) The Meaning of Incrimination
i) Refers not to the timing or context of the question but to the consequences of a truthful answer.
ii) What counts as criminal punishment? How serious must be risk of criminal punishment be?
iii) Legislative intent is a primary factor when determining whether something is a “crime”
iv) United States v. Ward: Two level inquiry whether a “crime”
(1) Did Congress indicate, either expressly or impliedly, a preference for one label or another?
(a) If the legislature said that they intended it to be “criminal,” then it applies
(2) If the statute was civil, then you must ask was the effect of the statutory scheme so punitive
either in purpose of effect to negate that intention?
(3) Factors to consider: involves affirmative disability or restraint, historically regarded as
punishment, etc.
v) Allen v. Illinois: Court found that Illinois Sexually Dangerous Persons Act was civil rather than
criminal in nature (5th Amendment did not apply). Benign purpose of “treatment rather than
punishment.”
e) The Meaning of Testimony
i) “Be a witness” means to give testimony
ii) Recall Schmerber: blood taken from defendant there did not constitute “testimonial” evidence.
iii) Schmerber suggests that physical evidence is not covered by the privilege, on the ground that it is
not communicative in the way that oral testimony is.
iv) Doe v. United States: Court held that forcing defendant to sign a form that would authorize foreign
banks to turn over his account records did not implicate the Fifth Amendment.
(1) “In order to be testimonial, an accused’s communication must itself, explicitly or implicitly,
relate a factual assertion or disclose information.”
(a) Asks whether the person is forced to disclose the contents of his own mind
(2) Not testimony: handwriting exemplar, voice exemplar, stand in a lineup, wear particular
clothing in a lineup.
(a) Privilege may apply not only to verbal communications but also to physical communications.
(3) Dissent: Question should be whether the person is compelled to use his mind to assist the
prosecution
v) Both sides of the debate agree on two things…
(1) Fifth Amendment applies to compelled, self-incriminating testimony.
(2) Physical evidence, like the blood sample in Schmerber, falls outside the definition of testimony.
vi) Vast majority of verbal statements will be testimonial.
vii) Pennsylvania v. Muniz: (see other brief below as well)
(1) Facts: Police picked up Muniz for drunk driving and brought him back to the police station.
They asked him a series of questions while he was slurring and drunk, and he specifically did not
respond to the “sixth birthday” question
(2) Holding: Is a purportedly drunk man’s answer to the question “What was the date of your sixth
birthday?” testimony?
(a) However, the court held that the sixth birthday question was testimonial
(b) It reveals something about mental state, so some justices felt that it was no more than a way
to demonstrate “mental coordination” and not subject to Fifth Amendment scrutiny.
5) POLICE INTERROGATION AND THE MIRANDA REVOLUTION
a) Introduction
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 i) The factual accuracy of statements made under extreme duress is obviously problematic where the
only means of halting an interrogation is to assent to the views of the interrogator.
ii) Bram v. United States (1897):
(1) Facts: Before examination took place, suspect was stripped and then told that Brown saw
suspect commit murder. Suspect then confessed.
(2) Holdings: This was not a voluntary confession. Issue is controlled by Fifth Amendment
command that no person “shall be compelled in any criminal case to be a witness against
himself.” Holding limited to federal cases.
(a) Hope, fear, or both operating on the mind—wouldn’t want to allow a statement into evidence
where the D would hope that he would get better treatment if he confessed
(b) A true confession cannot be entirely voluntary if it is induced with a promise
iii) Brown v. United States: inaugurated the voluntariness requirement for state cases
iv) Burge (2009—still being litigated) – Police engaged in torture to get testimony. They hooked
suspects up to “the telephone” (shocked the suspect until he would confess). Obviously, torture is
coercion. Burge faces civil charges.
b) Pre-Miranda Cases
i) These cases are trying to balance these interests:
(1) Assure the voluntariness of confessions
(a) Massiah is coming down hard on this side of the balance
(b) While Miranda addresses pre-indictment
(2) Want to give police a fair opportunity to investigate crimes
ii) Massiah v. United States (1964):
(1) Facts: Police sent a wired informant to talk to Ds. Ds were entitled under the 6th Amendment to
the assistance of counsel whenever the D is interviewed by a prosecutor or the police AFTER
being indicted (after the legal process has formally begun)
(a) Restricted to that
(b) Doesn’t mean 6th Amendment doesn’t kick in earlier, but as of this decision, you have a right
to a lawyer after you are indicted
iii) Escobedo v. Illinois (1964): 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 lend itself to eliciting incriminating statements,
the suspect has requested and been denied an opportunity to consult w/ his lawyer, and the police
have not effectively warned him of his absolute constitutional right to remain silent; then the accused
has been denied his “assistance of counsel” in violation of the 6th Amendment
c) Miranda v. Arizona: focus on custodial interrogation
i) Facts: Court was called upon to consider the constitutionality of a number of instances, ruled on
jointly, in which defendants were questioned “while in custody or otherwise deprived of their
freedom in a significant way”—none of these suspect were given warnings of their rights at the
outset of the interrogation
ii) Holding: “The prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to preserve the privilege against self-incrimination.”
(1) Custody: “taken into custody or otherwise deprived of his freedom of action in any significant
way”
(a) Concerned with “incommunicado” interrogation—suspect is alone with police.
(2) Court is satisfied that the principles “embodied in the privilege apply to informal compulsion
exerted by law enforcement officers during in-custody questioning.”
(3) Accused must be “apprised of his rights and the exercise of those rights must be fully honored.”
iii) Specific procedural safeguards: (court fears that D won’t understand his rights)
(1) Person must be warned that he HAS A RIGHT TO REMAIN SILENT
52
 (a) He has the right not to talk—offsets the coercive atmosphere of police custody
(2) Person must be warned that ANY STATEMENT HE DOES MAKE MAY BE USED AS
EVIDENCE AGAINST HIM
(a) Advises to him why this is important—what repercussions of what you say may have
(3) Person must be made aware of the fact that HE HAS THE RIGHT TO AN ATTORNEY,
EITHER RETAINED OR APPOINTED
(a) You have the right to an attorney so you can understand what the 5th Amendment is about
(b) If you choose to engage in a fight against the state, this will make it fair
(c) One will be appointed at the state’s expense b/c your right would be meaningless if you
couldn’t afford it
iv) Procedure AFTER the warnings:
(1) If the individual indicates a desire to remain silent, the interrogation must cease. (Any
statement made after this affirmation cannot be other than the “product of compulsion”.)
(2) If the individual states that he wants an attorney, the interrogation must cease until an
attorney is present.
(3) If the interrogation continues without the presence of an attorney and a statement is taken, a
HEAVY BURDEN rests on the government to demonstrate that the defendant knowingly and
intelligently waived his rights.
(4) An express statement that the individual is willing to make a statement and does not want
an attorney followed closely by a statement could constitute a waiver.
(5) For purposes of the privilege, there is no distinction between admissions and confessions—both
are inadmissible.
v) NOTE: Miranda said that you can have an effective alternative outside of these exact words that
could replace the Miranda warnings
d) Notes:
i) Colorado v. Connelly: Defendant approached a police officer and confessed to a murder. Officer
then gave defendant his Miranda warnings, and the defendant confessed again. It was later found
that the defendant was schizophrenic.
(1) Conviction upheld.
(2) “Absent police conduct causally related to the confession, there is simply no basis for
concluding that any state actor has deprived a criminal defendant of due process of law.”
(a) His confession was voluntary; therefore, not compelled
6) THE SCOPE OF Miranda
a) What is “custody?”
i) Miranda is applicable only to custodial interrogation.
ii) Orozco v. TX: Court applied Miranda to the questioning of a suspect in his bedroom at 4 a.m. by
police.
iii) Estelle v. Smith: Court applied Miranda to the testimony of a psychiatrist at the penalty stage of a
capital crime based on the psychiatric exam where the defendant was not read his rights.
iv) Right does not apply to a grand jury witness.
v) Right also does not apply when an investigation has focused on a suspect but police have not made
an arrest.
vi) Berkemer v. McCarty:
(1) Facts: Police pull over drunk driver. Driver was asked to leave his car; he did and was having
trouble standing. At this point, officer concluded that driver would be charged and “his freedom
to leave was terminated.” Driver was never told he would be taken into custody (not technically
arrested). He told the officer that he consumed two beers and several joints.
(2) Holdings:
(a) Court concluded that this was not “custody.”
(b) Reasoning:
53
 (i) Detention of a motorist for a traffic stop is temporary and brief.
(ii) Quite different from a stationhouse interrogation, which is the focus of Miranda
(iii) Circumstances are not such that the motorist feels at the mercy of police.
(iv)Traffic stop is public, to some degree.
(v) Driver is confronted by one or two police, not several.
(vi)“Less police dominated” circumstances.
(c) Once ARREST occurs, Miranda restrictions apply, no matter how minor the crime that
prompts the arrest is
(3) Subjective intent of police is immaterial
(a) Even if they are ready to arrest you, believe there is probable cause to arrest, etc.—if you are
NOT under arrest, they don’t have to give you Miranda warnings
(b) Just asking someone if they would like to come down to the police station to answer a few
questions is NOT an arrest and thus not subject to Miranda warnings
vii) Minnesota v. Murphy:
(1) Facts: Murphy admitted rape and murder to his parole officer and attempted to persuade the PO
that further treatment was unnecessary. PO ratted him out. PO never gave Miranda warning
when Murphy reported for his meeting.
(2) Holdings:
(a) Murphy was never “in custody” for purposes of Miranda.
(b) Murphy was familiar with his PO, unlike a stationhouse interrogation situation.
(c) No “unfamiliar atmosphere…or interrogation environment.”
b) What is “interrogation?”
i) Rhode Island v. Innis (RI Supreme Court 1980):
(1) Facts: Respondent, suspect in a murder, was picked up and arrested after being spotted by an
informer. Upon arrest, officers read Innis his Miranda warnings, twice, and Innis invoked his
Miranda rights. In the car on the way to the station, officers made comments about a missing
shotgun, referring that it could be found by a little girl and she could hurt herself. They basically
tricked Innis into illiciting an incriminating response. Although not questioning the arrestee, he
responded to this conversation by telling the officers to turn the car around to find the gun (he
alerted them as to where it was located).
(2) Q: Was the conversation of the officers “interrogation” under Miranda?
(3) Holdings:
(a) This was NOT interrogation.
(b) Concern of Miranda was the “interrogation environment.” Custody would “subjugate the
individual to the will of his examiner.”
(i) Miranda is supposed to protect against police coercion instead of police trickery
(ii) Trickery is OK!
(c) Interrogation reflects more than custody itself.
(d) Definition of interrogation: express questioning or its functional equivalent.
(i) The court said that this is neither
(ii) Anything that the police should know is “reasonably likely to elicit an incriminating
response” from the suspect.
(iii) Focus is on the perceptions of the suspect, not the intent of the police.
1. It’s not coercive if the suspect doesn’t think he is being coerced
(iv)However, the focus must also be on what the police should have known would be the
likely outcome of the interrogation.
(v) Any knowledge the police have regarding the unusual susceptibility of a defendant to a
particular form of questioning can be taken into consideration.
(vi)However, you can do anything you want as long as you don’t ask a question!

54
ii) Illinois v. Perkins: Does the police officers’ intent determine whether “interrogation” has taken
place?
(1) Facts: Undercover agent placed in a cell with Perkins. Perkins revealed that he committed a
murder to the officer. Officer never gave Perkins any Miranda warning before this revelation.
Court holds that statements were admissible.
(2) Holdings:
(a) Focus is on “custodial interrogation” in the Miranda context. There must be a “police-
dominated” atmosphere and some compulsion. These elements are not present when an
incarcerated inmate speaks to someone he believes to be a fellow inmate.
(b) Coercion is determined from the perspective of the suspect; coercive atmosphere is lacking
here.
(c) When one does not know he is conversing with police, how can he argue that he was
compelled by the police to give the statement?
(d) Strategic deception = OK
(i) Miranda is meant to protect against coercion, NOT deceit
(e) Perkins had no reason to feel that the undercover agent had any legal authority to force him
to answer questions—no compulsion.
iii) Notes
(1) Recall that the Fourth Amendment does not consider conversations with undercover agents as
“searches.”
(2) Pennsylvania v. Muniz: defendant arrested for drunk driving was taken back to station to
complete paperwork. The paperwork was incident to defendant’s arrest. Did these
“administrative questions” constitute interrogation?
(a) Court held that this was “interrogation”
(b) Court also held that this fill in the “routine booking exception”—exempts from Miranda’s
coverage questions to secure “the biographical data necessary to complete booking or pretrial
services.”
iv) Waiving Miranda
(1) You cannot waive your Miranda rights if they have NOT been given to you
(2) The court is somewhat less protective of suspects who invoke their rights than what you would
expect: Court’s analysis will depend on if you are waiving your right to remain silent OR
waiving your right to a lawyer
(3) Edwards v. Arizona
(a) Facts: Edwards was picked up for murder, was being questioned, asked for a lawyer,
questioning stopped when lawyer got there. The next morning two police officers went to
question Edwards when his attorney wasn’t present and he confessed.
(b) Holding: The confession could not be admitted
(i) A suspect may not waive his right to counsel once he INVOKES the right
(ii) Different from waiving your right to remain silent b/c you can waive it after invoking it
(iii) This happens to deter police coercion
(iv)If an officer starts a conversation with the defendant which according to a reasonable
officer is likely to result in the defendant making incriminating statements, then that
conversation will be considered police interrogation
1. Unless the defendant voluntarily initiates the conversation, all other questioning will
be seized after a defendant asks for the assistance of a counsel.
(4) Oregon v. Bradshaw
(a) Facts: Bradshaw was arrested and asked for a lawyer. Police started taking him to the squad
car and then Bradshaw asked “what can they do to me now?” Police told him the possible
punishment for the crime and then Bradshaw confessed.

55
 (b) Holding: They can do this b/c the officer reinitiated the questioning since he asked “what
can they do to me now?”
(i) Therefore, Bradshaw waived his right to counsel
(c) Notes: Invocation of your rights has to be UNAMBIGUOUS!
(i) “Maybe I should talk to a lawyer” – NEVER good enough b/c ambiguous
(5) NY v. Quarles: Suspect was caught while wearing his gun holster. The cop asked, “Where’s
your gun?” Quarles tells him and the cop finds the gun
(a) Holding: This was permissible.
(i) The Public Safety Doctrine protects this type of questioning to protect the safety of
the public
(ii) The Doctrine acts as an exception to the Miranda warnings requirement
v) Fruit of the Poisonous Tree Doctrine: 5th Amendment v. 4th Amendment
(1) The Fruit doctrine does not apply in the same manner between the 4th and 5th Amendments
(a) Violations of Miranda may not necessarily lead to the exclusion of those fruits
(b) Violations where there is coercion in violation of the 5th Amendment will be like a fruit of
the poisonous tree
c) Miranda’s Constitutional Status
i) Dickerson v. United States:
(1) Facts: Congress enacted 18 USC § 3501, which laid down a rule that admissibility of statements
made during custodial interrogation should turn solely on whether they were voluntarily made,
based on a number of factors (totality of the circumstances). In other words, the Miranda
warnings were no longer made mandatory by the statute.
(2) Issue: Whether the Miranda Court announced a constitutional rule or merely exercised its
supervisory authority to regulate evidence in the absence of congressional direction.
(3) Holdings:
(a) Miranda is a constitutional holding. Therefore, it binds all jurisdictions in the United States
and Congress may not legislatively overrule Miranda
(i) The Miranda opinion states that its intent is to “give concrete constitutional guidelines for
law enforcement agencies and courts to follow.”
(ii) Court in Miranda concluded that additional legislative safeguards could be made to
protect the right against self-incrimination. However, these safeguards were required to
be “at least as effective in appraising accused persons of their right to silence and in
assuring a continuous opportunity to exercise it.”
(iii) Cases like Harris, Roberson, and Quarles all present “modifications” of the rules
of Miranda that are a normal part of constitutional law.
(b) § 3501 explicitly eschews the warnings which Miranda stated were constitutionally
compelled
(c) Miranda explicitly rejected the totality of the circumstances test, so § 3501’s determination to
resurrect this test cannot stand.
(d) The requirement that Miranda warnings be given does not, of course, dispense with the
voluntariness inquiry.
(4) Scalia dissent:
(a) The justices in the majority are on record as holding that a violation of Miranda is not a
violation of the Constitution.
(b) Marbury held that an Act of Congress will not be enforced by the courts if what it prescribes
violates the Constitution. The Court holds on these grounds and does so in explicit
contradiction to its post-Miranda precedents.
(c) Miranda was contrary to history and precedent
(i) Court in Miranda began by proclaiming the doubtful proposition that the Fifth
Amendment privilege extended to the station house.
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 (ii) Court made up the Miranda rules of its own accord.
(d) “There is a world of difference, which the Court recognized under the traditional
voluntariness test but ignored in Miranda, between compelling a suspect to incriminate
himself and preventing him from foolishly doing so of his own accord.”
(e) “The only good reason for having counsel there is that he can be counted on to advise the
suspect that he should not speak.”
(f) “The Court has…concluded that it is possible…for the police to violate Miranda without also
violating the Constitution.”
(g) Unlike the Fourth Amendment, the Fifth Amendment includes an explicit exclusionary
component.
(h) Prophylactic rules discussion…
(i) Court has, on many occasions, fashioned rules of its own accord to define the scope of
constitutional protections and the circumstances in which they apply.
(ii) “…the Constitution by no means vest in the courts ‘any general power to prescribe
particular devises in order to assure [no judicial vindictiveness]…”
(iii) Miranda was pure legislation and the Court does not have that power
(iv)Only Congress has been given the power which the Miranda Court employed.
(i) Courts are still frequently called upon to make the voluntariness inquiry…why not do it in all
cases? (For example, voluntariness remains the constitutional standard to govern the
admissibility of statements taken in violation of Miranda, to be used for purposes of
impeachment.)
(5) Notes:
(a) Courts had to do this b/c if Miranda was not compelled by the Constitution, the Supreme
Court wouldn’t be able to tell the state courts what to do (state courts are independent)
ii) Missouri v. Seibert:
(1) Facts: Police protocol in Rolla, MO called for custodial interrogation that included no Miranda
warnings until a confession was produced. Officer Clinton arrested Patrice Seibert, refrained
from giving her a Miranda warning, left her alone in an interview room for 15 to 20 minutes,
questioned her for 30 or 40 minutes, squeezing her arm and repeating “Donald was also to die in
his sleep,” getting a confession from Seibert, giving her a 20 minute break, reading Miranda
warnings, and then getting a second confession. All of this took place at the police station. The
interview was conducted by the same officer on both occasions. Seibert sought to exclude both
her pre- and post-warning confessions.
(2) Holdings:
(a) “Failure to give the prescribed warnings and obtain a waiver of rights before custodial
questioning generally requires exclusion of any statements obtained.”
(b) The threshold issue: When question-first occurs “whether it would be reasonable to find
that in these circumstances the warnings could function ‘effectively’ as Miranda requires.”
(i) Answer: No.
(c) FN2: After the Harris exception to Miranda (for impeachment), many police organizations
encouraged questioning either without warnings or continuing after warnings have been
given.
(d) Purpose of question-first: get a confession the suspect would not make if he understood his
rights.
(e) Elstad: allowed a non-warned confession to be admitted. Court argued that this case is
different from the instant case because there were “[no] earmarks of coercion” and the officer
did not really know if there was custody.
(i) In other words, this allowed for a “good faith” Miranda exception.
(ii) Also, questioning in that case took place first at the suspect’s home and then at the
station. “…a reasonable person in the suspect’s shoes could have seen the station house
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 questioning as a new and distinct experience, the Miranda warnings could have made
sense as presenting a genuine choice whether to follow up on the earlier admission.”
(f) Here, the facts suggest that earlier questioning was merely a continuation of the questioning
that revealed the first confession. Done by same officer, same location, no large break in
time.
(i) "The admissibility of postwarning statements should continue to be governed by Elstad's
principles unless the deliberate two-step strategy is employed”
(ii) “Then, the post-warning statements must be excluded unless curative measures are
taken before they were made."
(g) Court holds that this post-warning confession is inadmissible.
(3) Breyer concurrence: Should be a simple rule here: “Courts should exclude the ‘fruits’ of the
initial unwarned questioning unless the failure to warn was in good faith.”
(4) Kennedy concurrence: An officer may not realize that a suspect is in custody. If question-first is
used “postwarning statements that are related to the substance of prewarning statements must be
excluded unless curative measures are taken before the postwarning statements are made.”
(5) O’Connor dissent: Good to avoid focus on the subjective intent of the officer. Would use the
voluntariness standard. If first statement was involuntary, court must evaluate whether the taint
dissipated through change or circumstances or passage of time [to determine admissibility of the
second statement].
iii) United States v. Patane: failure to give Miranda warnings does not require the suppression of
the physical fruits of unwarned, but voluntary, statements.
(1) Facts: Respondent arrested and partially advised of his Miranda rights (officers only got to
“right to remain silent…” and Respondent stopped them and said that he knew his rights.
Respondent was arrested for possessing a Glock, and his statements about the gun being in his
bedroom led officers to recover it. The Glock was used as evidence at trial.
(2) Question: Whether the fruits of an unwarned statement are admissible?
(3) Holding:
(a) Although the testimony itself was inadmissible (you can’t waive your Miranda rights until
you’ve been read them), the fruit of the un-Mirandized testimony (the Glock) was admissible
(b) Miranda warnings were merely intended to prevent violations of the Constitution, and since
Patane’s un-Mirandized testimony was not admitted at trial, his 5th Amendment protection
against self-incrimination was not violated
(i) Patane’s statements were not forced by the police
(c) “The Self-Incrimination Clause…is not implicated by the admission into evidence of the
physical fruit of a voluntary statement.”
(d) Police do not violate the Constitution (or even Miranda) for mere failure to warn.
(e) “The Clause cannot be violated by the introduction of nontestimonial evidence obtained as a
result of voluntary statements…”
(f) There is nothing to deter in police behavior in failing to provide a warning. This is unlike the
“fruit of the poisonous tree” doctrine of the Fourth Amendment. There, the search itself is
the harm. Here, the harm is the admission at trial.
(4) Kennedy concurrence: Admission of nontestimonial fruits does not run the risk of admitting into
trial an accused coerced incriminating statement against himself.
(5) Souter dissent: The majority’s decision creates an incentive for police to omit Miranda warnings
before custodial interrogation.

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INVESTIGATING COMPLEX CRIMES

1) Introduction
a) Types of crimes in this section are different: securities fraud, public corruption, high-level drug
distribution, various forms of racketeering.
b) Involve sophisticated covert investigative techniques used relatively less frequently.
c) In general, the role of preventative detention has expanded since 9/11.
d) In general, the issues in this section have been resolved in favor of law enforcement.
2) Electronic Surveillance and the Search of Electronic Data
a) Title III of the Omnibus Crime Control and Safe Streets Act of 1968
i) Enacted in response to Katz (phone booth tap was an unreasonable “search”) and Berger (order
authorizing wire tap was struck down because it did not describe the time period).
ii) Statute regulates “nonconsensual” interception through the use of electronic, mechanical, or other
device to obtain the contents of any wire, oral, or electronic communication.
iii) Sets forth what is required to receive a court order in federal court.
iv) Provides some constraints for wiretaps:
(1) Wiretaps need to be used for specific crimes
(2) Police officers need to exhaust other techniques and prove they were ineffective
(3) Must have a specific time duration
(4) Notice must be given
(5) Remedies for violations
(6) Exclusionary rule
(7) Minimization – can only “listen” for so long when it is a conversation not about the crime that
the police are investigating
b) Wiretapping and Related Electronic Surveillance
i) Procedural and substantive safeguards:
(1) Must obtain a judicial warrant before this type of investigation
(2) Application must be authorized by high-ranking Justice Department official
(3) Applications must be in writing and under oath.
(4) Must include details: person committing the offense, type of communication to be intercepted,
facilities from which communication is to be intercepted.
(5) Application must include statement of the period of time of the interception, not to exceed 30
days.
ii) Remedies
(1) Both civil and criminal for violation of the statute
(2) Statutory exclusionary rule for evidence obtained in violation of statute.
(3) “Minimization” requirement—surveillance must be conducted in a way “as to minimize the
interception of communications not otherwise subject to interception under this chapter…”
(4) To satisfy minimization: officers must stop listening when they determine that a particular
conversation is not pertinent to the investigation.
c) Scott v. United States: application of the “minimization” requirement of Title III
i) Facts: Supposed DC narcotics ring which was being run out of the home of Geneva Jenkins.
Jenkins’s telephone had been used to make narcotics-related calls, some by her roommate, Thurmon.
Phone tap took place from January 24 through February 24. Nine co-conspirators involved.
Virtually all phone conversations were intercepted, but only 40% involved narcotics transactions.
“Minimization” requirement satisfied?
ii) Holdings:
(1) Court holds that government’s approach in this case did not violate the “minimization”
requirement.

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 (2) Focus is not on the officers’ motives when they listened to all of the conversations. Focus should
be on their actions, applying an objective standard.
(a) “In a case such as this, involving a wide-ranging conspiracy with a large number of
participants, even a seasoned listener would have been hard pressed to determine with any
precision the relevancy of many of the calls before they were completed.”
(b) Conversations with mother discussed the conspiracy tangentially, so it cannot be said that it
was unreasonable for officers to continue to intercept these calls after the caller was
identified.
d) The Search of Electronic Files
i) Title III’s core provisions apply only to the interception of wire, oral, and electronic communications
as they are being made or transmitted, and not to the search and seizure of electronic
communications after they have reached a destination and are held in electronic storage.
ii) Government access to some communications of this type (like a copy of a friend’s e-mail that you
download from your online account to your personal home computer) is not governed by statute but
by the FOURTH AMENDMENT.
iii) The Electronic Communications Privacy Act (“ECPA”) was enacted to fill some gaps.
(1) The Fourth Amendment generally requires the government to obtain a warrant to search a home,
but it does not require the government to obtain a warrant to obtain the stored contents of a
network account.
(2) The Fourth Amendment generally permit the government to issue a subpoena to a network
provider ordering the provider to divulge the contents of an account.
(3) ECPA addressed this imbalance by offering network account holders a range of statutory privacy
rights against access to stored account information held by network service providers.
e) Electronic Surveillance Privacy Act
i) Control the government from snooping
(1) Meant to insure that investigators follow a certain set of requirements before wiretapping your
phones and listening to your conversations
ii) E-mails are the same as if you are trying to intercept a phone call
(1) Protected by the 4th Amendment -- need a warrant
iii) E-mails that are sitting on an ISP server are NOT protected by the 4th Amendment
f) FISA (Foreign Intelligence Surveillance Act)
i) Sets parameters for wiretapping involving a foreign company or foreign agent
ii) Congress tells the executive branch that they understand that there are extraordinary events for
national security, and will pass a law that will allow executive to wiretap (eavesdrop on
conversations) between a foreign source and US citizen (bigger concern)
iii) Allows the gov't to be able to get a warrant very easily (have to go to this court to get warrant when
US citizen is involved talking to a foreign source)
(1) Don't have to go to a normal court, just have to go to a Foreign Intelligence Surveillance Court
that gives out the warrant and does it in secret
g) (KEITH CASE) United States v. United States District Court (1972)
i) Facts:
(1) Omnibus - need a warrant for a wiretap
(2) The United States charged three individuals with conspiracy to destroy government property
(a) One of the defendants, Larry 'Pun' Plamondon, was also charged with the dynamite bombing
of an office of the Central Intelligence Agency in Ann Arbor, Michigan
(3) In response to a pretrial motion by the defense for disclosure of all electronic surveillance
information, Nixon's attorney general, John Mitchell, claimed he authorized the wiretaps
pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and was not
required to disclose the sources.

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 (4) Though warrantless, the Act allows for an exception to prevent the overthrow of the government
and when "any other clear and present danger to the structure or existence of the Government"
exists.
(5) The Government contended that since the defendants were members of a domestic organization
attempting to subvert and destroy it, this case fell under the exception clause.
(6) Judge Damon Keith of the United States District Court for the Eastern District of Michigan
disagreed and ordered the Government to disclose all of the illegally intercepted conversations to
the defendants.
ii) Holding:
(1) The Supreme Court upheld the prior rulings in the case, holding that the wiretaps were an
unconstitutional violation of the Fourth Amendment and as such must be disclosed to the
defense
(2) The Court held government officials were obligated to obtain a warrant before beginning
electronic surveillance even if domestic security issues were involved
(a) The "inherent vagueness of the domestic security concept" and the potential for abusing it to
quell political dissent made the Fourth Amendment protections especially important when
the government engaged in spying on its own citizens.
(3) This established the precedent that a warrant needed to be obtained before beginning
electronic surveillance even if domestic security issues were involved
(4) Note that the decision applied only to domestic issues; foreign intelligence operations were
not bound by the same standard
(a) The governing law for electronic surveillance of "foreign intelligence information" between
or among "foreign powers" is the Foreign Intelligence Surveillance Act (FISA) of 1978
iii) Notes:
(1) Youngstown (Steel Seizure Case)
(a) Must see if Congress approved of the President's actions
(b) We have 4th Amendment and the proscriptions of when the gov't can act w/out a warrant
(2) In Keith, President argues Article 2 authority outweighs the 4th Amendment requirements
(a) Court in Keith rejects this. They say that they are just dealing with the government trying to
spy on US citizens in the United States
(b) They do not address foreigners
3) Undercover Agents and Entrapment
a) Introduction
i) Early police forces were patterned after London police—they were organized on the theory that
police should be visible to deter crime.
ii) Covert police practices have gradually become the norm. This method is the principal mode of
investigation in place in the U.S. today.
iii) Constitutional restrictions on overt search and seizure tactics had the unintended consequence of
promoting covert techniques.
iv) Typical situation: Buy-and-bust. One officer sells drugs to a suspect, another officer subsequently
arrests the suspect.
v) The Defense of Entrapment: principal legal restriction on undercover investigations
(1) Sorrels v. United States: Court adopted the defense by statutory construction when it held
Congress could not have intended to permit law enforcement officers to instigate criminal acts by
otherwise innocent people.
(2) Two version of the defense:
(a) Subjective: Majority view. Focuses on the defendant’s “predisposition” to commit crimes.
(The defense will be successful if the individual was induced by the government to act and
had no prior predisposition to commit the crime in question.)
(i) Question for the jury.
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 (ii) Can open the door for testimony on reputation, character, prior convictions, etc.
(iii) Prosecution normally has burden of proving predisposition beyond a reasonable
doubt.
(b) Objective: Minority view. Looks at the conduct of police. Asks whether the inducements
used would have caused even a normal (law-abiding) citizen to react in a criminal manner. If
so, the defense applies.
(i) Question of law for the judge.
(ii) No opening the door.
(iii) Burden could rest with defendant.
b) Jacobson v. United States:
i) Facts: Petitioner convicted under Child Protection Act for knowing mail receipt of child porn. He
alleged entrapment—Government agents had been sending him mailings for the 26 months
preceding his arrest. Court of Appeals affirmed and determined that the Government had met its
burden of proving beyond a reasonable doubt that Petitioner was predisposed to break the law.
Supreme Court reverses.
(1) Feb. 1984: Petitioner purchases two magazines that include photos of nude preteen and teenage
boys.
(2) Jan. 1985: Petitioner received letter from the “American Hedonist Society.” Petitioner returned
mailer survey and indicated that he was somewhat interested in pre-teen sex.
(3) May 1986: Petitioner again received a mailer, this time from the Postal Service, and responded
that he was interested in teenage sexuality.
(4) Petitioner received a letter from “HINT”: Government used “mirroring” strategy to reflect
Petitioner’s expressed interests.
(5) March 1987: “Produit Outaouais” mailed Petitioner a brochure advertising photos of young boys
engaged in sex acts. Petitioner placed an order that was never filled.
(6) Far Eastern Trading Company: Petitioner ordered Boys Who Love Boys, a controlled delivery
of a photocopy of the magazine was delivered to his home, and he was arrested.
ii) Holdings:
(1) Government overstepped the line between setting a trap for the “unwary innocent” and the
“unwary criminal.”
(2) “The prosecution must prove beyond a reasonable doubt that the defendant was predisposed to
commit the criminal act prior to first being approached by Government agents.”
(3) Sole piece of preinvestigation evidence is the 1984 purchase of Bare Boys. This is scant proof of
Petitioner’s predisposition to commit the crime.
(4) Petitioner testified that he did not know until the magazines arrived that they would depict
minors.
(5) “Law enforcement officers go too far when they “implant in the mind of an innocent person the
disposition to commit the alleged offense and induce its commission in order that they may
prosecute…”
iii) O’Connor dissent:
(1) Petitioner was offered two opportunities to buy child porn through the mail. Both times, he
ordered. Both times, he asked for opportunities to buy more.
(2) Court has previously held that a defendant’s predisposition is to be assessed as of the time the
Government agent first suggested the crime, not when the Government agent first became
involved.
(3) Majority holds that Government conduct may be considered to create a predisposition to commit
a crime, even before any Government action to induce the commission of the crime. This
changes the entrapment doctrine.

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