Criminal Procedure 4th Amendment: 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. Steps in 4th Amendment analysis: 1. Was there a search or seizure? 2. If yes, was search or seizure reasonable? 3. If not reasonable, is there a remedy available to the victim (exclusionary analysis)? A. Searches 2 requirements for searches: 1. Government action (government actor). 2. Encroachment on protected interest. Katz: The test for encroachment on a protectable interest is whether the person has an expectation of privacy, which requires: 1. An actual (subjective) expectation of privacy (hard to prove- defendant will always claim that he had this) 2. A reasonable (objective) expectation of privacy (most important element). Considerations for whether theres a reasonable expectation of privacy (balancing test): a. Property concepts o The defendants legal (not practical) right to access, legal right to exclude, functional security features (e.g. lock). b. Societal customs What may be sufficient to find government action: Need a state or federal actor. Does not mean that a search by a private person will never constitute government action. State action must be ties to the search itself- subsequent prosecution is not sufficient. A nexus between a private actor and the government: private actor acted within scope of government authority; pervasive regulation of private actors; use of government property; concrete directives by government; encouragement, endorsement, or participation by government. The purpose of the state actor is irrelevant. He doesnt have to be concerned with criminal matters, as long as hes a state actor. The governments state of mind/ bad faith/ pretext is irrelevant to whether theres a search. 2 lines of cases with searches: 1. Misplaced loyalty doctrine Katz: the government must exploit the defendants risk of voluntary loyalty. 2. Voluntary loyalty cases Any information that people divulge, they do so at the risk of exposing the information. The government does not have to exploit the information; they can collaterally take the information. What a person knowingly exposes and/or voluntarily conveys to the public, even in his own home or office, is not protected.

Question to ask: Was the information revealed to the world? The distinction is important because with misplaced loyalty the government must exploit the defendants risk, and with voluntary loyalty, the government does not have to. - Search for an analogy to the mail, phone, e-mail, etc. People never assume the risk of illegal government searches of someone elses things. e.g. A and B share a storage unit. A assumes the risk that B is an informant, stupid, or will consent to a search, but A never assumes the risk that the government will conduct an illegal search of Bs things. The risk that is assumed is that the police will come in lawfully. The reason for the police entering does not have to be related to the source of the arrest and is irrelevant, as long as the entering is lawful.

Curtilage v. Open Fields: Steps in curtilage analysis: 1. Is it curtilage or open fields? - Curtilage: the land immediately surrounding and associated with your home. The intimate activity associated with the sanctity of the home is extended to the curtilage. - People have a reasonable expectation of privacy in curtilage, but not in open fields. - Factors to whether land is curtilage: a. The proximity of the area claimed to be curtilage to the home. b. Whether the area is included within an enclosure surrounding the home. c. The nature of the uses to which the area is put. d. The steps taken by the resident to protect the area from observation by people passing by. 2. If curtilage, is there an exception to the curtilage rule (i.e., the sidewalk/pathway rule)? - Pathways to the door from the sidewalk (even if they go through curtilage), which are used by the general public, are not protected. - Driveways leading to garages attached to the home are curtilage. Driveways leading to unattached garages are not curtilage. - There is no curtilage for structures on open fields. The government can come all the way up to the structure and look in, but cannot search it. Cases and examples: 1. Olmstead: The governments use of wiretaps did not constitute a search because there was no physical intrusion on the defendants property (trespass doctrine). 2. Katz: Overrules Olmstead. The government placed a wiretap on top of a public telephone booth and listened to and recorded the defendants conversation. The court found that the wiretap was a search that intruded upon the defendants privacy interests. The 4th Amendment protects people, not places, and what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. What the defendant sought to protect was the uninvited ear, not the intruding eye, and did not shed his right to do so because he made his calls from a place where he might have been seen. Hypo: Defendant was talking loudly, government could have heard the conversation if they were standing next to the booth, government still used the wiretap. The defendant would still prevail. Just because the government could have seized on the opportunity to hear the conversation, does not mean that the recorded conversation can be used. The defendant assumed the reasonable risk that people outside the booth would hear him, but not that the booth would be bugged.

Just because the defendant may have thrown away some of their privacy (assume some risk), does not mean that they have dispensed with all of their privacy rights. e.g. Just because Katz talked loudly in the booth, does not mean that he assumed the risk of the bug.

3. Lewis and Hoffa: The defendant had no privacy interest in incriminating conversations had with undercover agents. The defendants disclosures were a result of their misplaced confidence that the informants would not reveal the conversations, not caused by the unilateral action of the informant. 4. Smith v. Maryland: People have no reasonable expectation of privacy in the telephone numbers dialed from their home telephones. 5. Pg. 157 Problem 3: Defendant has a party and leaves drugs on the table. Assumes risk that an officer in plain clothes will come in the house and see the drugs. Does not assume the risk that the government will install a camera before the party. Does not assume the risk that a cop in uniform will just come in the house. Assumes the risk that people will leave the party and tell cops about the drugs.

6. Pg. 158 Problem 5: Undercover officer tapes defendants drug sale with a hidden video camera: The 4th Amendment does not protect visual data. 7. Olson: Overnight guests have a protected privacy interest in the dwelling. Social guests only have an expectation of privacy in areas that they have permission to use. 8. The majority of courts hold that trespassers have no reasonable expectation of privacy. 9. Car passengers have no reasonable expectation of privacy when asserting neither a property nor a possessory interest in a car or the property inside. 10. Time, addresses, IP addresses, e-mail addresses, and phone numbers are not protected. The substance (content) of e-mails, letters, and phone conversations is protected. Internet surfing- the initial webpage you visit isnt protected; any subsequent pages visited from the initial webpage are protected. 11. Greenwood: The defendant did not have a reasonable expectation of privacy in the garbage bags left on the sidewalk for trash collection. The defendant assumed the risk that the bags contents would be exposed to the public, and thus voluntary conveyed the bags contents to the public. It is common knowledge that plastic garbage bags left on the street are readily accessible to the public. The defendant could not have reasonable expectations of privacy in items he discarded. 12. The use of narcotics detective dogs, which find only illegal drugs, does not violate reasonable expectation of privacy. The searches only expose to the public the defendants contraband, and cases indicate that the 4th Amendment protects only legal behavior, not illegal behavior. Noncontraband items that would otherwise remain hidden from public view are not exposed. The information obtained is limited and the property owner is not subjected to more intrusive investigative methods. 13. Knotts: The defendant was suspected of drug manufacturing and the police worked with the store to place a tracking device in a container of ingredients to make drugs. The

defendant bought the container, put it in his car, and drove home. The police tracked the defendant by sight, but also lost the defendants car and used the tracking device to locate the defendants car. The police tracked the beeper to outside the defendants home. The court held the defendant had no reasonable expectation of privacy. The government surveillance by beeper amounted to the following of an automobile on public streets, which a person has no reasonable privacy expectations in. Nothing about the inside of the defendants home was revealed, as the beeper was tracked to the land outside of the home. People travelling on public roads have no expectation of privacy in their movements. People voluntarily convey their location and movements to the world. Court finds that defendant assumed the risk of the government following him, but not of the government putting the beeper in the container. The inquiry is whether the police, in the aggregate, could have followed the defendant to his home and tracked the location of the container.

Karo: the same situation as Knotts, except that after driving his car into the garage, the defendant left in his car and the police tracked the beeper to inside the house. The defendants reasonable expectations of privacy were violated because the monitoring indicated that the beeper was inside the house, a fact that could not be visually verified. - When the police track a beeper without knowing whether the defendant left with or without the beeper, using the beeper necessarily reveals new information and the inside of the home, because the police would have no way of knowing the location of the beeper merely through visual surveillance. - Reasonable expectation of privacy is violated If the government gets more new information by use of the beeper that could be obtained with just visual surveillance. Corroboration is not new information. - The size of the container that holds the beeping device matters. e.g. if the tracking device is in a car, reasonable expectation of privacy is not violated if the defendant leaves without the car, because visual surveillance would reveal that the car is still in the home. - Reasonable expectation of privacy is violated when the car/person/etc. leaves. Knotts inquiry: 1. Does the tracking device go into a protected area (protected area is anywhere that the police cannot visually track)? 2. Protected route- did something leave that could have held the beeper? If so, at the point of exit, the continued use of the tracking device necessarily gives the police more information. 14. Aerial surveillance: Factors supporting no violation of reasonable expectation of privacy: Aircraft is legally entitled to fly at that altitude. No interference with normal use of curtilage. No intimate details revealed. Use of surveillance device in the general public. 15. Kyllo: The use of a thermal-imaging device to detect heat coming from homes that use heat lamps to grow pot constituted a search. The device revealed information about the inside of the home that was not available through the naked eye. It did not matter that no intimate details were revealed, because the 4th Amendments protection of the home is not tied to the measurement of the quantity or quality of the information obtained. In the home, all details are private details. - Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a

constitutionally protected area constitutes a search, at least where the technology in question is not in general public use. B. Reasonableness The defendant must first establish that there was a search before reasonableness is analyzed. The government has the burden of showing that the search was reasonable.

Search Warrants Search warrants provide detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searched than the hurried judgment of law enforcement officers. Searches conducted with a warrant are per se reasonable (assuming that the search was within the scope of the warrant). Searches conducted without a warrant are per se unreasonable. Warrants themselves make searches reasonable, but without them, the search is not necessarily unreasonable. Searches may be unreasonable if the warrants, although themselves are reasonable and valid, arent executed properly. To get a search warrant you must have: 1. Affidavit 2. Probable cause There must be probable cause to believe both that the items listed for seizure in the warrant are in fact evidence of specified criminal activity and that these items are presently located at the premises for which the search warrant is being sought. 3. Particularity The neutral magistrate can draw reasonable inferences from the affidavit, but cannot build inferences on inferences. 4 corners rule: probable cause must be written only on affidavit and not supplemented by oral testimony (federal rule).

Challenging Warrants Warrants can be challenged by: 1. Arguing that the supporting affidavit on its face did not establish sufficient probable cause to support the issuance of the warrant. 2. Challenging the accuracy or veracity of the statements in the affidavit which on their face establish probable cause. Where the defendant makes a substantial preliminary showing that a false statement (or omission) knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the 4th Amendment requires that a hearing be held at the defendants request. Allegations of negligence of innocent mistake are insufficient. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affiants false material set to one side, the affiants remaining content is insufficient to establish probable cause, the search

warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit (Franks). There is an assumption that the facts in the affidavit to establish probable cause will be a truthful showing. Truthful does not mean that every fact in the affidavit be correct, but that the information is believed or appropriately accepted by the affiant as true. Warrant Execution The common-law knock and announce principle is part of the reasonableness inquiry. The police do not have to knock and announce if knocking and announcing would be: 1. Dangerous (there is a threat of physical violence, to the police or anyone else) 2. Futile 3. Or Inhibit the effective investigation of the crime (e.g. if officers have reason to believe that evidence will likely be destroyed if advance notice were given). Depending on the circumstances of the case, individuals may be detained and handcuffed while the search warrant is being conducted. In inherently dangerous situations, individuals may be detained for up to 2-3 hours. The length of the detention without cause depends on the dangerousness of the situation. Police may not use excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Search warrants must be executed within the time period prescribed by the issuing magistrate, not to exceed the period established for execution of a search warrant in the applicable jurisdiction (10 days for federal law). Warrants become invalid or stale when probable cause dissipates. The particular exigency (e.g. the destruction of evidence), will determine the time the police has to wait after knocking and announcing before entering (wait time). Before 5 seconds, the cops cannot come in, and after 15 seconds cannot come in. The exigent need of law enforcement will trump a residents interest in avoiding all property damage. There is a preference for daylight searches, but police can constitutionally search at night. The use of excessive force or unnecessary property destruction violates the defendants rights, but does not trigger the exclusionary rule. Warrants may only be executed once. If warrant only has residence named to be searched, police do not need suspicion to detain or stop people in the residence, but particularized reasonable suspicion that the occupants are participating in a crime is needed to frisk them. If warrants includes all persons and/or vehicles on the property, in addition to the residence, the search must be of cars reasonably owned and used by the residents on the premises, but all people can usually be searched. Curtilage and the owners vehicles are searchable even if the warrant only includes the residence. If the warrant only includes the car, the residence cannot be searched. The scope of the search is limited to the items listed in the warrant (e.g. cant open a small drawer to find a big thing). Just because you take something not listed in the warrant does not mean everything seized in invalid.

Sneak and peak searches (the defendant is not present) are ok so long as there is notice in a reasonable amount of time (7-10 days). Police do not have to give immediate notice of the warrant to the defendant. The federal exclusionary rule does not apply to knock and announce violations. The evidence obtained in the search will not be excluded.

Probable Cause Probable cause for a search requires: 1. That the fruits, instrumentalities or evidence of crime exist 2. And that they can be found at the place to be searched. Probable cause for an arrest requires: 1. Proof that a crime was committed 2. And that the person to be arrested committed it. Probable cause exists where the facts and circumstances within the arresting officers knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed (Carroll). Probable cause does not mean more probable than not. It is fair probability or reasonable belief. You can consider with probable cause: the neighborhood and race/ethnic identity of the area and the defendants prior criminal record (factors are relevant but not dispositive). Refusal to consent to a search is not probable cause to search.

Gates: Overrules Spinellis test for evaluating the reliability of a government informant or anonymous tipster. An anonymous note was received by the police and described how the defendants fly to Florida and drive back with drugs. The police observed the defendants behavior, which corroborated the note for the most part. Alone, the note was insufficient for probable cause because there was no information that the note was reliable, truthful, and had a solid basis for the predictions. There was probable cause. The observations of the officers, standing alone, was sufficient to establish probable cause; the letter was corroborated by the officers observations; the letter contained predictions about the future, not easily predictable; and there was a fair probability that the writer obtained the information from the defendants or someone they trusted. Tips from concerned citizens (an individual not associated with the criminal behavior) is assumed to be reliable and credible. Tips from government informants (cops know their identity) and anonymous tipsters (cops dont know their identity) are presumed unreliable. The test should be an evaluation of the totality of the circumstances. The general credibility and veracity of the individual, the reliability of the information, the basis of their knowledge (how they acquired the information) are relevant factors, but are not all required. More detail on the basis of knowledge and the persons batting average makes the person more reliable. Corroboration by police informants facts and self-verifying detail (what they say will happen happens) bolsters the credibility of the informant. The task of the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the

veracity 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. The standard for review of an issuing magistrates probable cause determination is that so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the 4th Amendment requires no more.

Warrantless Searches and Seizures Warrantless searches and seizures are per se unreasonable subject to the exceptions.

A. Plain View Exception This exception deals with seizures, not searches, and allows you to seize evidence of a crime thats in plain view.

3 requirements: 1. The evidence must be in plain view. 2. The items incriminating character must be immediately apparent (a subjective standard) 3. The officer must be lawfully located in a place from which the object can be plainly seen AND she must have a lawful right of access to the object itself. The discovery of the evidence not need to be inadvertent. The officers may have an idea that the evidence could be discovered in the place searched.

Limits on the exception: Police must stop the search after they find the items listed in the warrant- they cant linger searching for more evidence of crimes. Police cannot trespass to be in plain view. Officers cannot move objects. Plain feel doctrine: In a frisk, if you feel a weapon, you can seize it. If you dont feel anything, you cannot continue to frisk (you cannot exceed the scope of the frisk). You cannot stack probable cause in home searches. In a search for one crime, if you find probable cause for another crime, you must get another warrant. Ex: Can you seize a bookmaking document (e.g. Excel) while searching for child pornography? If the computer is not listed in the warrant, cannot seize because its criminal nature is not immediately apparent. If the computer is included in the warrant, you can search computer files reasonably related to child pornography. Files like Excel cant be searched because child pornography probably wont be in there. Issue is whether the computer file is like a book or a drawer. The government wants it to be like a book. If the book cover says child pornography, you can look at the entire book. If it is like a drawer (think a see through drawer), and the drawer says child porn, the government cannot search. There is a new 4th Amendment moment when the cops have to actually open the file. The warrant is only to see file names, not the underlying documents/information in the files.

Horton: Pursuant to a warrant, the police searched the defendants residence for fruits of a robbery and the weapons used to commit it. While police were searching for jewelry, they found guns in plain view and seized them. The officer testified that while he was searching for the stolen jewelry, he was also interested in finding other evidence connecting the defendant to the crime, so the seized evidence was not discovered inadvertently. The court held that inadvertence is not required for the plain view exception and the guns were properly seized pursuant to this exception. The guns incriminating character was immediately apparent, the officers were lawfully in the defendants residence pursuant to a valid search warrant, and the guns were in plain view. B. Search incident to legal arrest When the police make a legal arrest, they have the right to make a search incident to that arrest. A legal arrest is one where there is probable cause that the defendant committed a crime or there is a warrant. SILA justifications- peoples safety and destruction of evidence. Police officers may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony (in or outside of the officers presence) or a misdemeanor (in the officers presence- cannot arrest for a misdemeanor committed outside the officers presence). There can be a reasonable seizure even if state law is violated. If the state gives the defendant more rights (e.g. cant arrest for not wearing a seatbelt), 4th Amendment rights are not violated if the police do this. Pretext and subjective intentions play no role in ordinary, probable cause analysis. Absent exigent circumstances, the police may not enter a house without a warrant to arrest. The police can enter a home without a search warrant, but with an arrest warrant, but cannot search unless they get a search warrant. Deadly force is permissible only when the suspect poses a threat of serious physical harm to either the officer or to others.

Chimel: The search incident to a lawful arrest cannot extend beyond the defendants person and the area within his immediate control (aka the grab area- the area from within which he might have obtained either a weapon or something that could have been used as evidence against him). Police obtained an arrest warrant to arrest defendant for burglary. No search warrant had been issued, and police searched the entire house pursuant to SILA, while the defendant protested to the search. The search was unreasonable. There was no justification or exigency for searching the entire house. A SILA may generally extent to the area that is considered to be in the possession or control of the arrestee, for police officers have strong interests in ensuring the arrestee does not have access to weapons. Police may conduct a SILA of the arrestees person and the area within his immediate control, the area from which he might gain possession of a weapon or destructible evidence. SILA applies to all people, regardless of how dangerous they look. The grab area extends from the area that the defendant is arrested and the path along which the defendant is escorted out of the house.

The police may escort the defendant out of the HOUSE and come back to search the grab area. The police may conduct a sweep of the house if theres suspicion that there are others in the house that pose a danger. Buie: Police can also open doors to see if theres other individuals in the house, and can open doors on the way out along the grab area, if police have reasonable suspicion. Chimel does not require that police have any requisite state of mind or belief in order to search the grab area. Most courts say cell phone contents incident to arrest can be searched. Generally, a SILA cannot be justified based on evidence revealed during the search itself. The search may be conducted at the police station.

Gant: The police may search a VEHICLE incident to a lawful arrest only when there is reasonable belief that (i) the arrestee (must be the arrestee) is unsecured and within reaching distance of the passenger compartment at the time of the search, or (ii) when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. Police officers arrested the defendant, handcuffed him, placed him in the back of a patrol car, then conducted a search of the defendants vehicle. The search was unreasonable because there was slight possibility that the defendant would be able to access the vehicle and slight likelihood of discovering offense-related evidence. The defendant was arrested for driving with a suspended license. The interior of the car, including containers and glove compartment, can be searched but the trunk cannot (interior = everything except the trunk). Gant tells you how to initially get into the car, but once you are in, anything can be searched. Reasonable belief is probably less than probable cause- theres already the automobile exception that allows searches where theres probable cause. C. Automobile exception Where the police have probable cause to believe than an automobile contains the fruits, instrumentalities, or evidence of crime, they may search the vehicle without a warrant.

Carney: Defendant was suspected of exchanging drugs for sex. The police conducted surveillance on the defendants motor home and spoke with a boy who corroborated the suspicions. The police conducted a search without a warrant or consent and found drugs. The defendant was arrested and a subsequent search of the mobile home was searched while in police custody. The search was reasonable. Mobile homes can be viewed as vehicles or as automobiles. The ready mobility of the automobile justified lower expectations of privacy; also, the area to be searched is in plain view and is subject to pervasive driving regulations. The defendants home was readily mobile, was licensed to operate on public streets, services in public places, and subject to regulation and inspection. There are lower expectations of privacy in automobiles because of their ready mobility and the pervasive schemes of regulation. Factors in deciding if its a home or automobile: location, readily mobile or on blocks, if its licensed, if its connected to utilities, if it has convenient access to a public road. Look for something to show that a reasonable officer would realize that it wasnt mobile. If, at the time the car is seized the warrant exception applied (there is probable cause), the police can wait up to 3 days to search.

Acevado: Closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception can also be searched. Police intercepted bags of cocaine and let them be delivered, while monitoring their movement. Police observed the defendant enter the residence where the cocaine was located. The defendant left carrying a brown paper bag about the size of the bags of cocaine. The defendant put the bag in his trunk, and the police pulled the defendant over, opened the trunk and bag, and found cocaine. The search was reasonable. Closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception may also be searched because of their presence in the vehicle, if the search is supported by probable cause. Do not need a warrant to search inside the vehicle, whether the probable cause is general or specific to a container in the vehicle. You need a warrant for closed containers outside of the vehicle (the seizure and opening of the container are 2 different 4th Amendment moments). Probable cause with the vehicle exception defines the scope of the search. The scope of the search is limited to the target of the officers reasonable belief. Officers can game and wait for you to get into the car with the container, but they still must have probable cause to search the car generally. Probable cause must exist at the time of the search. With vehicle searches, probable cause CAN be stacked. Once probable cause for an offense that youre not searching for is found, you can search for evidence of that offense. Police can get into the trunk through the vehicle exception, but not SILA. The scope of SILA is limited to the interior of the car. While searching the interior of the car, you find probable cause to search the trunk, you can stack probable cause and search the trunk. D. Consent Some courts treat consent as an exception to the warrant requirement and others treat it as part of the search analysis (there are no reasonable expectations of privacy when consent is given). Either way, the analysis is the same. Bustamonte: An officer pulled over a car of 6 people, including the defendant, because the car had a busted headlight. Only one of the 6 had identification and the officer had everyone step out of the car. 2 more officers were called. None of the people were threatened with arrest and the cars driver gave consent to search the vehicle. The driver opened the trunk and glove compartment of the vehicle. The officer found 3 stolen checks underneath one of the seats. The consent was valid and the search was reasonable. A search authorized by consent is wholly valid, but the state had the burden of proving the consent was, in fact, freely and voluntarily given. The question of whether consent to a search was in fact voluntary, or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. Consent by not be coerced, by express or implicit means, by implied threat or covert force. In analyzing whether coercion occurred, consider subtly coercive police questions and the possibly vulnerable subjective state of the person who consents. Proof of knowledge of the right to refuse consent is not a necessary prerequisite to demonstrating a voluntary consent. Otherwise, it would be very hard for the state to prove voluntariness and easy for defendants to simply testify that he did not know he could refuse to consent. The state need not prove an intentional relinquishment or abandonment of a known right or privilege.

The standard for proving consent was valid is that consent was in fact voluntarily given and not the result of duress or coercion, express or implied. Police officers have no duty to advise people that they are free to go before seeking consent.

Rodriguez: Police were called to investigate an assault by the defendant on his ex-girlfriend. Police arrived at the ex-girlfriends residence, and obtained her consent for her to go with the police to the defendants residence to unlock the defendants residence. The ex-girlfriend called it our apartment and said she had clothes and personal belongings there. There was no arrest or search warrant. The ex-girlfriend gave officers permission to move around the living room, and the police found drugs lying on the table. A search may validly conducted where voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises. Common authority rests on the mutual use of the property by persons generally having joint access or control for most purposes. The burden of proving common authority rests with the state. There may be apparent common authority. Reasonableness does not demand that the police be in fact correct, but rather only that warrants are supported by probable cause. Even if a person affirmatively states that they live at a residence, the factual determinations must be judged against an objective standard. The questions is whether the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If yes, the search is valid. Authority can be sole, common (shared), limited (e.g. landlord, hotel manager), or for specific purposes. Sole authority can be transformed into common authority, and vice versa. Randolph: The defendant and wife were separated. After wife called the police, they arrived at their home. The wife said there were drugs in the home and gave consent to search. The husband was present and expressly refused to consent to the search. The search was unreasonable because the defendant possessed common authority over the house, was present, and objected to the polices entry. There is no common understanding that one cotenant generally has a right or authority to prevail over the express wishes of another. His disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. The consent of one who possesses common authority over premises or effects is valid as against the absent nonconsenting person with whom the authority is shared. Common authority is not synonymous with a technical property interests, but rests rather on the mutual use of the property by persons generally having joint access or control for most purposes, so that 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 the area to be searched. Shared tenancy is understood to include an assumption of risk on which officers are entitled to rely. Shared social expectations are a key factor in consent analysis. The reasonableness is in significant part a function of commonly held understanding about the authority that coinhabitants may exercise in ways that affect each others interests. A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable to him on the basis of consent given to the police by another resident. The question is whether customary societal understanding accords the consenting tenant authority powerful enough to prevail over the co-tenants objection.

The person granting consent may define its terms and scope. Consider the hierarchy of people (e.g. parent trumps child). With equals (e.g. husband and wife), the person objecting wins and police cannot search based on consent. Factors in evaluating voluntary consent- defendants awareness of right to refuse consent, education, intelligence, custodial status (if theyre arrested), duress, coercion. There can only be voluntary consent with a lawful arrest. If the arrest is unlawful, there cannot be consent. Cops can say what they will do (e.g. get a warrant) if the person doesnt consent and this will not render the consent invalid, but they cannot bluff (they must reasonably believe that a warrant will be issued) otherwise the consent is invalid. Police can use discretion (e.g. offer to make a deal for a lesser charge) to obtain consent. The perspective on the analysis is from the reasonable officer. Police cannot use pre-text (the primary purpose is avoiding the objection) to remove the objecting party from the premises, so that you can search.

E. Stop and Frisk Encounter: No cause required. Seizure: Probable cause of criminal activity allows you to make an arrest. Stops and arrests are both seizures, but arrest is the core seizure. Stop: a mini, Terry seizure. The standard for a stop is that there is reasonable suspicion of criminal activity. Reasonable suspicion of criminal activity allows you to make a stop. Search where there are no reasonable expectations of privacy: no cause required. Search: Need probable cause to search. Frisk: a mini, Terry search. The standard for a frisk is that there is reasonable suspicion that the person is armed and dangerous.

The reasonableness of Terry is a function of need vs. intrusion. Terry: A plain clothes police officer was patrolling an area for pickpocketers and shoplifters and had 35 years of experience as a detective. The officer noticed 2 people pass by the same store repeatedly and look in the windows, and suspected them of casing the store. The officer approached the men and asked for identification, and the men mumbled something. The officer grabbed the defendant and patted down the outside of his clothing. The officer felt a gun in the defendants overcoat. The officer removed the overcoat because he couldnt access it without removing it and removed the gun. The officer never placed his hands beneath the suspects outer garments. The officer did not have probable cause to arrest. The officer seized the defendant and subjected him to a search when he took hold of him and patted him down. The search and seizure were reasonable. The officer had interests of general crime control and prevention and of assuring that the suspects didnt have weapons that could be used against him. The officers actions were designed to further only his interests in his immediate self-protection. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. To assess the reasonableness of the officers actions, first focus on the governmental interest which allegedly justified intrusion upon the constitutionally protected interests of the private citizen. The police officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The facts must be judged against an objective standard from the perspective of a reasonable officer. Where a police officer observes unusual conduct which leads him to reasonable conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. An accurate description of a subjects readily observable location and appearance is reliable only in the limited sense that it helps identify the person the tipster has accused. However, it does not show the tipster has knowledge of concealed criminal activity. The reasonableness inquiry requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. To pull over a car, police must have reasonable suspicion of criminal activity (any criminal activity will do). If a vehicle is validly stopped, and the officer has reason to believe that the passenger is armed and dangerous, then the officer may frisk the passenger in the stopped vehicle. Included in the stop is the demand for the driver to step out of the car, and passengers are considered stopped when the driver is stopped. To search the car, the police need more than reasonable suspicion of criminal activity. However, police can get into the car pursuant to Terry to search for weapons if they have a reasonable suspicion that the person is armed and dangerous (similar to the grab area), and the person does not need to be within the cars grab area. If there is reasonable suspicion that the person is armed, there is a rebuttable presumption that they are dangerous, and the burden is on the defendant to show that their refusal to consent didnt show he was dangerous. The defendant will want the standard to be probable cause, and the prosecution will want reasonable suspicion. The scope of patdowns is limited to those directed at locating weapons or contraband. If the police are immediately sure its a weapon, they can remove it. (Plain feel doctrine). Police can only grope containers where they reasonably think that the item sought will be, whereas in SILA you can open containers even if they couldnt hold a weapon.

TLO: Defendant was caught smoking in the school bathroom by the principal. The principal demanded to search the defendants purse and drugs were found. The search was reasonable. Discovery of rolling papers and a list of people who owe me money gave rise to reasonable suspicion that the defendant was selling drugs. The legality of searches in the public school setting is still based upon reasonableness under the totality of the circumstances, but officials have greater latitude. The reasonableness inquiry considers (i) whether the action was justified at its inception, and (ii) whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of the student by a school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student had violated or is violating either the law or the rules of the school. Such a search will be permissible when the measures adopted are reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. The school cases only apply to public schools because there must be a government actor. The search does not apply outside of the school context.

There is a broader scope and lighter standard with school searches. School officials can go through pockets, purses, etc.

Redding: The defendant student was questioned by the principal. He showed her knives, lighters, pills, etc. and said he received reports that she was handing out the pills. The principal searched the defendants bags and found nothing. The defendant was sent to the nurse and strip searched down to her bra and underwear, and no pills were found. The search was unreasonable. The search of the backpack and outer clothing were justified because if the student was reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in her bag. The strip search was extremely intrusive, the over the counter pills posed limited threats, there was no indication of danger to the students from the power of the drugs or their quantity, and there were no specific facts indicating that she was hiding pills in her underwear. There must be a reasonable suspicion of danger or of resort to underwear for hiding of evidence of wrongdoing before a search can go from the outer clothing and bags to the undergarments. To conduct a strip search, there must be reasonable suspicion of danger of whats hidden or distinct justifications that the item is in its location. The school setting requires some modification of the level of suspicion of illicit activity needed to justify a search, and for searched by school officials a careful balancing of governmental and private interests suggests that the public interest is best serve by a standard of reasonableness that falls short of probable cause. Regarding the required knowledge component of probable cause for law enforcement officers evidence search is that it raises a fair probability or a substantial chance of discovering evidence of criminal activity. The lesser standard for school searched could be described as a moderate chance of finding evidence of wrongdoing.

Other investigatory searches and seizures: In addition to authorizing a frisk, Terry also authorizes police to make a stop which is a form of seizure. Mendenhall: Defendant was observed behaving suspiciously at an airport by DEA agents. The defendant displayed the characteristics of persons unlawfully carrying narcotics. The agents approached the defendant, asked for identification, and saw that her airline ticket was in a different name than her ID. The agents asked the defendant if she would accompany them to the airports DEA office for further questioning, and she did so, although did not give a verbal response. The agents asked to search the defendant and told her she had a right to decline to do so, and the defendant consented. Another agent arrived, confirmed that the defendant gave consent, and herself informed the defendant of her right to refuse consent. Drugs were found on the defendants person. The defendant was not seized, either in being stopped initially or in being taken for more questioning (both moments should be analyzed); it was merely an encounter. The events took place in a public concourse; the agents wore uniforms and did not display weapons; they approached the defendant and identified themselves as federal agents; they asked to see the defendants ID and for her to accompany them for further questioning, and obtained consent to search. It does not matter that she was not informed that she was free to leave, because the voluntariness of her responses does not depend on her being so informed. Because the search of the defendants person was not preceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention.

There can be consent as long as the arrest is lawful; there can never be consent with an unlawful arrest. An unlawful arrest taints all subsequent searches. When an encounter becomes a stop: objective standard; would a reasonable person have believed that he was free to leave? Both the officers and persons subjective beliefs are irrelevant. If the person has no reasonable suspicion that theyre not free to leave, the reason for the stop is irrelevant. A person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained. A person has been seized only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even when the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, the physical touching of the person, or the use of language or tone of voice indicating that compliance with the officers request might be compelled. In the absence of such evidence, an inoffensive contact between police and citizens is not a seizure. When a police officer makes a traffic stop, the passenger of the vehicle (as well as the driver) is seized within the meaning of the 4th Amendment, and may challenge the constitutionality of the stop. The question is whether a reasonable person in that situation would have believed himself free to terminate the encounter with the police. Bostick: Standard for when people are not free to leave for external reasons (e.g. theyre on a moving bus): would a reasonable person feel free to cut off the conversation?

Hodari D: Police officers saw a group of teens, approached them, and the teens fled. The officers chased the defendant. The defendant was looking behind as he ran, saw a cop as he was almost upon him, and tossed away a package. A moment later, the officer tackled the defendant and handcuffed him. The package contained drugs. The defendant had not been seized when he dropped the drugs. The defendant had been untouched by the officer when he discarded the package. The police officer following the defendant in a cruiser did not convey the message that he was not free to disregard the police and leave. To constitute an arrest, the mere grasping or application of physical force with lawful authority, whether or not it succeeds in subduing the arrestee, is sufficient. Constructive detention will constitute an arrest where there is mere touching, however slight, by the party making the arrest for that purpose, even though the suspect is never physically controlled. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. Mere words will not constitute an arrest, while no actual, physical touching is essential. An assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission. The test for seizure is that there is either (i) show of authority from the government AND (ii) force) OR submission. Passive acquiescence is enough to establish submission. The test for existence of a show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict movement, but whether the officers words and actions would have conveyed that to a reasonable person. Would a reasonable person feel free to cut off conversation (if in a Bostick situation) or leave? A seizure can end after the person had been briefly seized (e.g. the suspect runs away). While the very presence of a police car driving parallel to a pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. Police chase can be a factor in considering reasonable suspicion, but isnt in itself dispositive. A frisk requires reasonable suspicion that the defendant is armed and dangerous, which may not be apparent from the chase.

But-for causation analysis is used for physical force and whether police caused it.

Royer: Officers observed the defendant at the airport and found he met a drug courier profile (carrying heavy luggage, young, casually dressed, appeared to be pale and nervous, paid for the ticket in cash, only wrote a name and destination on the luggage tag). The officers approached the defendant and asked if he had a moment to speak with them. Upon request, but without oral consent, the defendant produced his ID and ticket, whose names didnt match. The officers asked the defendant to accompany them, which he did. The defendant was taken into a small room. Without his consent, the luggage was retrieved and brought into the room. The officers asked if he would consent to a search of the luggage, and the defendant opened it and drugs were found. What began as a consensual inquiry escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions. The defendant was never informed that he was free to leave and reasonably believed he was being detained. Had the defendant refused to consent to the search, the police would have held his luggage and sought a warrant. An investigatory detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. The method used should be the least intrusive means reasonably available to verify or dispel the officers suspicion in a short period of time. The state has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. Statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act or free will. Reasonable suspicion involves something more than an inchoate and unparticularized suspicion or hunch, but considerable less proof of wrongdoing by a preponderance of the evidence. Probable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Terry stop is less demanding than that for probable cause. Reasonable suspicion should be determined using the totality of the circumstances standard- based upon the whole picture the detaining officers must have a particularized and objective basis for suspecting that the particular person stopped of criminal activity. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Its dependent upon both the content of information possessed by police and its degree of reliability. The subjective, pre-textual motivations for the stop are irrelevant. By itself, meeting a drug courier profile is insufficient to establish probable cause or reasonable suspicion. There is no rigid time limitation on Terry stops. You must consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. Examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it. Hibel: The officer was called to the scene after an assault was reported. The officer found a man and asked for identification. The man refused and taunted the officer. The officer continued to ask and was refused. After warning the defendant that he would be arrested if he didnt comply, and the defendant didnt provide identification, he was arrested. The arrest was

pursuant to a stop and identify statute which permitted an officer to ask or require that a suspect reveal his identity. The stop, the request, and the requirement of a response did not contravene the 4th Amendments guarantees. Questions concerning a suspects identity are routine and accepted as part of many Terry stops. Knowing the suspects identity serves government purposes such as knowing the persons criminal history, knowing if they have the right person, etc. The request for identity has an immediate relation to the purpose, rationale, and practical demands for a Terry stop, but does not change the nature of the stop itself (its duration or location). The stop must be justified at its inception and be reasonably related in scope to the circumstances which justified the initial stop. Buie (amends Chimel): The police obtained an arrest warrant for the defendant. The police arrived at the defendants residence and fanned out throughout the first and second floors. One officer shouted into the basement, ordering anyone to come out. The defendant came out, was arrested, searched, and handcuffed. Then, an officer entered the basement in case there was someone else down there and found evidence of the crime and seized it. Until the point of arrest, the police had the right, pursuant to the authority of the arrest warrant, to search anywhere in the house that the defendant might have been found. However, once the defendant was found, the search was over and there was no longer the particular justification for entering any rooms that had not yet been searched. This doesnt mean the rooms couldnt be entered, as police have interests in ensuring there arent other people who pose a danger. The search warrant was not required. As an incident to arrest, the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched. Beyond that, there must be articulable facts which, taken together with reasonable inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. A protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. A Terry frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. A person may be temporarily detained while their residence is being searched. The limited intrusion on the personal security of the person was justified by such substantial law enforcement interests that the seizure could be made on articulable suspicion not amounting to probable cause. In balancing privacy interests and law enforcement concerns when police secure a residence and restrict the owners movements while waiting to search, consider whether the police had probable cause to believe evidence of a crime exists, whether the evidence is likely to be destroyed, the exigency of the circumstances, whether police made reasonable efforts to reconcile their law enforcement needs with privacy interests, and the length of time the restraint was imposed. Police may order drivers and passengers of vehicles to exit the vehicle with the requisite suspicion. Retelle: Police were unaware that the suspects have moved from the residence 3 months before the search. During the search, police found plaintiffs naked in bed and ordered them

out of the bed. Plaintiffs stood naked for a few minutes before being allowed to dress. The officers actions were reasonable. The detention only occurred for a limited amount of time and lasted no longer than necessary for the police to determine that they werent the suspects. The police had interests in ensuring there were no weapons beneath the covers and in remaining in control of the situation. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonger and unnecessary period of time. With Terry, Long, and Buie there was reasonable suspicion of something. In the cases below, there is no reasonable suspicion, but there are some special needs that justify the search. Prouse: The policeman stopped a vehicle to check the drivers license and registration, but was not acting pursuant to any standards or procedures for doing so. The officer smelled pot in approaching the vehicle and saw pot in plain view on the car floor. The stop was unreasonable. The state has interests in ensuring people are fit to operate vehicles and are following regulations and laws while driving. However, there was no probable cause to believe the driver was violating a driving law. There is a grave danger of police abuse and unbridled discretion. There were no standards governing the reasons for stopping and the procedures for conducting the stop. Standards protect against arbitrary police stops. The seizure is less intrusive if conducted on neutral grounds. There were other ways to accomplish the states interest. Where there is no probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations- or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregisteredthere is no legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver to check his license and registration. The defendant will focus his case on the scope of the intrusion and the prosecution on the need for the intrusion. Roving stops (suspicionless stops) are unconstitutional. When used by trained law enforcement officers, objective facts can be combined with permissible deductions from particular facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. The use of canine sniffs on vehicles stopped for violating traffic laws is permissible. Edmond: The city set up checkpoints for vehicles to interdict unlawful drugs. The police followed a particular procedure, a predetermined number of vehicles to be searched was established, the stop was brief, and the officers did not have discretion to determine the cars to be stopped. The checkpoints were unreasonable because the primary purpose of the checkpoint is to advance the general interests in crime control. Checkpoint cases have recognized only a limited exception to the general rule that a seizure must be accompanied by some measure of individualized suspicion. Checkpoints that have been upheld have been designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. In determining what individualized suspicion is required, consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. The interest of a checkpoint cannot be advancing general interest in crime control. There must be a showing that the state chose the checkpoint location, time, etc. strategically in order to serve their stated interests.

Reasonable suspicion cannot be built on a failure to consent (a theme in the 4th Amendment). If a person approaching a roadblock makes a u-turn that is against the law, the police may pull them over. The intrusiveness of the stop depends on the nature of the stop. The sequencing protocol, locations chosen, etc. go to the intrusiveness.

Lidster: Police may set up a checkpoint designed to obtain information about an accident that occurred in the area from the motoring public. The primary purpose of the stop was to elicit information about a crime that already occurred, not to prevent general crime. F. Border searches Flores-Montano: A customs inspector inspected the defendants vehicle, sent the vehicle for a second search, and the gas tank sounded solid. The car was then raised, disconnected, examined, and drugs were found. The search was reasonable. The governments interest in excluding unwanted persons and effects is at its peak at the border. The expectation of privacy is less at the border than in the interior. The search was brief and did not cause safety concerns or extensive property damage. The governments authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a fuel tank. Except at the border and its functional equivalents, officers on roving patrol (suspicionless stops) may stop vehicles only if they are aware of specific articulable facts that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. Immigration roadblocks are permissible within 100 miles inside the border. Outside of the 100 miles, there must be reasonable suspicion of criminal activity. Within the 100 miles, need reasonable suspicion of an immigration violation, which allows the officer to stop the car. Within 100 miles, fixed checkpoints are permitted as long as theyre looking for immigration violations and meet other requirements for checkpoints. Functional borders (e.g. airports) can set up checkpoints. Routine searches of outer clothing, luggage, trunk, and glove box (property and the vehicle) are constitutional. No suspicion is required. People are on notice that these types of searches occur at the borders. If the search is really severe and destructive, reasonable suspicion is required. However, reasonable suspicion is needed for a strip search and searching body cavities. People can be held for 1-2 hours at the border; this is a routine stop. After 2 hours, there must be reasonable suspicion. Between 2 and 24 hours, need reasonable suspicion and the police must offer to x-ray the person or provide laxatives. Can search laptops and look at the files at the border. G. Special needs Allows the government to search or seize without probable cause and sometimes even without reasonable suspicion, and applies especially in safety and administrative cases.

Earls: The public schools policy required all students to take a drug test and submit to random drug testing to participate in extracurricular activities. The test was conducted using urine samples and detected only illegal drugs. The policy was reasonable. Students have reasonable expectations of privacy in their urine. Taking urine is a search and testing it is another search. Students privacy interests are limited in the public school environment where the state is responsible for maintaining discipline, health, and safety. The degree of intrusion was minimal, as only a faculty member listened to the student pee. The test results were kept

in confidential files. The results were not turned over to police and did not lead to the imposition of discipline or academic consequences. The government had important concerns in preventing drug abuse by children. Particularized or pervasive drug problems have not been required to be proven before allowing the government to conduct suspicionless drug testing. Reasonableness does not require the least intrusive means, but only reasonably effective means. Reasonableness usually requires a showing of probable cause, but may be inappropriate in administrative cases because probable cause is peculiarly related to criminal investigations. In the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. Use special needs where there is no individualized/particularized suspicion. Ferguson: The state was concerned about drug use by pregnant women and implemented a policy of testing women suspected of using drugs who received treatment from the state hospital. If the woman tested positive, she was forced to enroll in a drug counseling program. Threats of law enforcement involvement was made to women who refused to be tested and who refused to comply with treatment. The policy was unreasonable. The hospital sought to test and give the police the results without the womens knowledge or consent. People have reasonable expectations of privacy that their test results will not be given to third parties. The policy was used to coerce patients into substance abuse treatment. The purpose was indistinguishable from general interest in crime control. Prosecutors were highly involved in the day-to-day operations of the program. While the ultimate goal may have been to help women seek treatment, the immediate objective was to generate evidence for law enforcement purposes to reach that goal. There was a specific purpose of incriminating the patients. There was no misplaced loyalty because people at hospitals dont think they can leave when asked to give a urine sample. In the cases where the testing has been upheld, the use of the adverse test was to disqualify an individual from a particular benefit, not to disseminate the results to a third party without authorization. Parole/Probation: When stated by statute or in the conditions of parole/probation, its permissible to allow searches of the home of the parolee/probationer without a warrant and without probable cause, with only reasonable suspicion, because they have notice of the potential search. H. Exigent circumstances Stuart: Police arrived at defendants residence after being called about a loud party. Upon arriving, they heard shouting from inside the house and proceeded down the driveway to investigate. Officers observed 2 juveniles drinking beer in the backyard and entered the backyard. Officers observed through a screen 4 people trying to restrain someone. The person restrained was spitting up blood and being restrained. The officer opened the door and announced his presence, but no one noticed and the officer entered the home. The entry was reasonable. The officer could reasonably find that the person was in need of help and could be substantially injured. There was ongoing violence occurring within the home. The officer did not have to wait to enter until the situation became dire. There were 2 4th Amendment moments, one when the officer entered the yard and one when the officers entered the home. The exigencies of the circumstance make the needs of the law enforcement so compelling that the warrantless search is objectively reasonable.

Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. The inquiry is from the perspective of the reasonable officer, and the subjective views are irrelevant. 3 types of exigency: (i) public safety (requires probable cause that someone is in danger), (ii) hot pursuit, (iii) destruction of evidence. The government cannot impermissibly create the exigency. There is a circuit split on whether the officer intended to create the exigency or actually created the exigency. Was it reasonable to anticipate that the officer would create the exigency? Police cannot use this exception if they missed an opportunity to obtain a warrant. Police cannot ignore a clear opportunity to get a warrant. Hot pursuit is an exigent circumstance. It means some sort of chase, but it does not have to be a dramatic chase throughout the public streets. Need (i) probable cause that a felony had been committed and the felon is in the area being searched, (ii) pursuit, and (iii) probable cause that the fleeing felon is aware that he is involved in a pursuit, in order to enter a protected area without a warrant and without cause. If the defendant is in his house, there is no pursuit. Destruction of evidence: evaluate the gravity of the offense and the destructibility of the evidence. Need probable cause that it is evidence of the crime. Officers can enter curtilage under this exigency if the evidence is evidence of a crime.

Police Interrogations and Confessions Fifth Amendment: No person shall becompelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law Sixth Amendment: In all criminal proceedings, the accused shall enjoy the right tohave the assistance of counsel for his defense. A. Pre-Miranda Doctrines Torture is bad because it deprives people of human dignity and the confessions are not trustworthy. The 4th and 15th Amendment Due Process Clauses governed the police practices and admissibility of confessions in state and federal court, respectively. The Due Process approach does not require physical coercion- it can be mental or psychological coercion. The confession must be made freely, voluntarily, and without compulsion. Look at the totality of the circumstances and balance the defendants particular characteristics with the degree of police brutality. There must be some degree of police overreaching, that the police knew or should have known about the defendants weaknesses. The Due Process standard still applies today to confessions, but the test does not protect people from wrongdoings at the police station. McNabb-Mallory rule: The 6th Amendment is violated if a person is held more than 6 hours and not taken before a magistrate, and any statement made after this period is inadmissible. Even if the defendant was given Miranda rights and made a knowing, voluntary, and intelligent waiver, the evidence may still be excluded under M-M if the defendant has not been arraigned within 6 hours of the arrest. Before the 6 hours is up, the evidence is admissible, and after the 6 hours, the defendant must be arraigned or M-M waived for the evidence to be admissible. M-M applies only in federal courts.

Pre-Miranda 6th Amendment right to counsel- Massiah: Defendant was indicted, retained a lawyer, and was released on bail. A co-defendant agreed to hide a radio transmitter under his car seat and broadcast conversations to the police. Statements by the defendant broadcast to the police were introduced. The defendants Sixth Amendment rights were violated. There was no search because of misplaced loyalty. M-M does not apply because the defendant was not in custody. Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of the person charged with crime. A confession deliberately elicited by the police after an indictment is made, and therefore at a time when the defendant is entitled to a lawyers help, denies the defendant effective representation by counsel. The period from indictment to trial is critical. Escobedo (overruled): The Massiah right to counsel was extended to arrestees who are not yet indicted. Once the police process shifts from investigatory to accusatory, so that the purpose of the process is to elicit a confession, then the adversary process begins to operate for Sixth Amendment purposes. The very fact that confessions are elicited during the stage between arrest and indictment makes it critical that the defendant be afforded the right to counsel. The defendants rights were violated where the police began to focus on the defendant in custody as a particular suspect, failed to effectively warn the defendant of his right to remain silent during the custodial interrogation, and denied the defendants request to consult with counsel. Kirby: Overrules Escobedo. The right to counsel applies only to critical stages of a prosecution that occur after the commencement of adversarial judicial proceedings. The event of arrest does not qualify as this type of proceeding. The inquiry is whether the defendant is the focus of the investigation and if there is a legal proceeding. Massiah rights apply to indicted persons who are not in custody, and to indicted persons who are questioned surreptitiously by government agents, whereas Miranda rights do not apply to persons in either category. B. The Fifth Amendment and Miranda Limitations: There must be a criminal matter looming. If the government grants you immunity, you cannot claim the 5th Amendment privilege. You cannot claim the privilege if the statute of limitations has run on the crime that you have been convicted of. There must be some degree of compulsion. You cannot claim the privilege if youve been acquitted because youre protected from prosecution by double jeopardy. The atmosphere of custodial interrogation carries its own badge of intimidation. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his own free choice. The Fifth Amendment privilege against self-incrimination is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will.

When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against selfincrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and in the absence of other fully effective measures, the following measures are required. The person must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings are given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. 1. If a person in custody is to be subjected to interrogation, he must be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it- the threshold requirement for an intelligent decision as to its exercise. Such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. The warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to recognize it. Because the Fifth Amendment privilege is fundamental and the warning is so simple to say, if no warnings are given, there is no inquiry into whether the defendant was aware of his rights. 2. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequence of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. The warning may serve to make the individual more acutely aware that he is faced with a phase of the adversarial system, that he is not in the presence of persons acting solely in his interest. 3. The right to have counsel present in the interrogation is indispensable to the protection of the Fifth Amendment privilege. The need for counsel to protect the privilege extends not merely to pre-questioning counseling, but also to have counsel present during the questioning. An individual need not make a pre-interrogation request for a lawyer; his failure to make the request does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings have been given. An individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have a lawyer with him during the interrogation under the system for protecting the privilege. The warning is an absolute prerequisite to interrogation. 4. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore his request on the basis that the individual does not have or cannot afford a retained attorney. Without the additional warning that a person will be appointed a lawyer if he cannot afford one, the admonition of the right to counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to retain one. The warning is an absolute prerequisite to interrogation.

5. Once warnings have been given, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his privilege; any statement taken after the person invokes the privilege cannot be other than the product of compulsion, subtle or otherwise. If the individual states that he wants an attorney, the interrogation must cease until the attorney is present. At that time, the individual must have an opportunity to confer with the attorney and have him present during any subsequent questioning. If police authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the persons privilege so long as they do not question him during that time. 6. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests with the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. An express statement that an individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. The fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights and only made the statement after the compelling influence forced him to do so. 7. No distinction can be drawn between statements which are direct confessions and statements which amount to admissions to part or all of an offense. The Fifth Amendment privilege only prevents a defendant from being compelled in any criminal case to be a witness against himself. If the person is never prosecuted, the privilege does not apply. No arraignment is required. Requires actual police presence. Miranda court was concerned about the intimidating environment and suspects having the odds stacked against them. The warnings cure the imbalance of power in the police station.

C. Mirandas application Miranda applies in custodial interrogations. There must be both custody and interrogation. The defense has the burden of proving custody and interrogation. Then the burden shifts to the prosecution to show adequate warnings were given and a valid waiver was made. 1. Custody The duty to give Miranda warnings arises only when police interrogate a person who is in custody. The concepts of custody and interrogation are distinct and must coexist during the custodial interrogation in order to give rise to Miranda rights and duties. 2 inquiries for custody: a. What were the circumstances surrounding the interrogation? b. Given those circumstances, would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and leave. The court must apply an objective test to determine the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest? The perspective is that of a reasonable, objective suspect.

Custody can be either (i) a formal arrest, or (ii) a restrain on movement of the degree associated with a formal arrest. The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officer or the person being questioned. It is the compulsive aspect of custodial interrogation, and not the strength or content of the governments suspicions at the time the questioning was conducted, that leads to Miranda duties. A policemans unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time. A police officers subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether an individual is in custody. The same principles apply if an officers undisclosed assessment is that a person being questioned is not a suspect. An officers knowledge or beliefs may bear upon the custody issues if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant only to the extent that they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his freedom of action. The objective standard is meant to clarify the custody test, so that police officers do not have to make guesses about a persons subjective experiences before deciding they may interrogate a person. A persons prior history with law enforcement and the persons age are irrelevant. However, most courts have modified the standard to be a reasonable adolescent. Age is a factor for waiver though. Routine traffic stops do not create custody under Miranda because it is presumptively temporary and brief, circumstances surrounding the stop are not such that the person feels completely at the mercy of the police, the typical stop is public, and the atmosphere is substantially less police dominated than in other situations. A voluntary interview at the police station may not qualify as custody if the interview does not exhibit restraint on freedom of movement of the degree associated with a formal arrest. A noncustodial situation is not transformed into a custodial one simply because the questioning took place in a coercive environment. Being in jail is neither a necessary nor sufficient condition for custody analysis. 4th Amendment factors for whether a stop was a seizure or arrest can be applied in the Miranda custody-arrest analysis. Just telling someone that theyre under arrest does not necessarily mean that an objective person wouldnt believe that theyre not free to leave. Miranda warnings go away between 2-6 hours. If a person is in jail to begin with, for the custody analysis, ask about the relative confinement, whether theyre taken from their typical environment, if theres some new disequilibrium, if theyre more confined, etc. Even more intrusive government behavior is needed. 3 types of custody cases: (i) ordinary citizen, (ii) prisoner, (iii) a hierarchical relationship (e.g. military and supervisor, principal and student). The reading of the Miranda warnings is irrelevant to the custody analysis and does not create custody.

2. Interrogation

Police may violate Miranda by impermissible interrogation in 3 situations: (i) by interrogating a person in custody without giving Miranda warnings, (ii) by interrogating improperly after warnings without obtaining a valid waiver of rights, or (iii) by violating the duty to cut off questioning and interrogate in violation of Miranda after the person in custody invokes the right to remain silent, the right to counsel, or both. Innis: Police suspected the defendant of using a shotgun to commit murder. Police arrest the unarmed defendant, the defendant was advised of his Miranda rights three times, the defendant invoked his right to counsel, and was placed in a patrol car and driven to the station. On the way to the station, the police officers make comments to each other, but not to the defendant, regarding the missing shotgun. The police talked about the handicapped children in the area and it would be a shame if one of the children discovered the shotgun and was killed. The defendant interrupted the conversation and directed the officers to the gun. There was no interrogation. There was no express questioning. This was nothing more than a dialogue between the officers; the officers did not know that the defendant was particularly susceptible to an appeal of his conscience concerning the safety of handicapped children, so it was not reasonably likely to elicit an incriminating response; the remarks were brief; and the remarks were not particularly evocative. The starting point for defining interrogation is in Miranda where the court stated that by custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Interrogation is not limited to express questioning. Miranda was concerned about the use of psychological ploys and surreptitious police means, and these techniques of persuasion, although not express questioning, may amount to interrogation. Miranda safeguards come into play whenever a person in custody is subjected to either (i) express questioning, or (ii) its functional equivalent. Interrogation refers also to any words or actions on the part of the police (other to those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The functional equivalent portion focuses on the perceptions of the suspect, rather than the intent of the police. The question is whether a reasonable officer would know that an incriminating response could be elicited. Interrogation is either express interrogation or its functional equivalent (some word or actions). Ex: Police have husband in a room at the station and is arrested, wife insists on going into room to speak with police, police want her to stay away, and police accompany her into room for safety reasons and record the conversation. No action because police did not seek to use the wife as a tool and went into the room for reasons other than to gain information. Exceptions to interrogations (i) questions asked that are normally attendant to booking or custody (where to get food), (ii) undercover agents, and (iii) public safety. Quarles: Police spotted a suspect in a relatively empty grocery store at night, he ran, and the police caught and frisked him, finding an empty shoulder holster. The defendant was handcuffed and asked about the location of the gun. The public safety exception to Miranda applied. The police believed the defendant recently disposed of the gun in the supermarket and posed a danger to customers, the area was public, the officers only asked questions about the missing gun before reading Miranda, no questions about the ownership and purchase of the gun were made until after Miranda was read.

Guidelines: (i) immediate necessity, (ii) concreteness- belief that the suspect will know what youre asking them, (iii) legitimate public danger, (iv) question must be tailored to the danger; police cannot ask more questions than necessary.

When an undercover agent questions a suspect in custody, such questioning does not constitute an interrogation under Miranda. The essential ingredients of a police dominated atmosphere and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. It is the premise of Miranda that the danger of coercion result from the interaction between custody and official interrogation, which is not present when the suspect believes the listener has no power over him. When the agent carries neither badge nor gun and wears not police blue, but the same prison gray as the suspect, there is no interplay between police interrogation and police custody. Police questions that are normally attendant to arrest and custody do not qualify as interrogation. Routine booking questions, such as name, address, and weight, are used to secure the bibliographical information needed to complete the booking. Do you know the date of your sixth birthday? was not routine because it called for a testimonial response, called for the defendant to explicitly or implicitly relate a factual assertion or disclose information, and it subjected the defendant to the cruel trilemma of self-accusation, perjury, or contempt. 3. Adequate warnings 2 types of warning cases- bad phrasing cases and mid-stream warning cases. Whenever custodial interrogations take place, the prosecution must prove that the Miranda warnings were given before interrogation occurred. Even where the warnings were given, the defendant may argue that the warnings were inadequate because they did not reasonably convey the Miranda rights. The warnings may be inadequate if they are phrased so as to provide incomplete or misleading information about the rights. If a court determines that the Miranda warnings were inadequate, then the post-warning statement is inadmissible. Proysock: The defendant was given a version of the Miranda warnings, with the right to appointed counsel separated from the right to counsel before and during the interrogation. The defendant argued that he was not properly advised of his right to consult with a free attorney before and during interrogation and was not explicitly informed of his right to counsel before further questioning. The Miranda warnings were adequate to convey his right to a free lawyer during and before interrogation. No talismanic incantation is required to satisfy Miranda. The exact words of the Miranda opinion are not required to be delivered. Rather, courts examine whether the warnings to determine if the reference to the right to appointed counsel was linked to some point in the future after the police interrogation. Youre entitled to counsel at trial- problematic because links right to counsel to some future event. Represent to a lay person may mean representation at trial. Must use will not may Cannot use in accordance with the law. Eagan: Defendant was read a version of Miranda rights which alluded to the right to free counsel if and when you go to trial. The defendant signed a waiver and made an initial statement. The next day, the defendant was read the standard Miranda warnings and signed a waiver and made a second statement. The first warnings were adequate in their totality to

convey his Miranda rights. The if and when you go to trial described the procedure for obtaining counsel. Miranda does only requires that police not question a suspect who invokes his right to counsel and police cannot give the counsel, unless the suspect waived his rights, which the defendant did. The necessary inquiry is whether the warnings reasonably convey to a suspect his rights as required by Miranda. Bright line rule- you have to finish saying the warnings. The nature of the right to remain silent is that you have the right to stop questioning. Seibert: The police officer made a conscious decision pursuant to interrogation techniques to withhold Miranda warnings. The defendant was interrogated for 30-40 minutes, where she made incriminating statements. The interrogation stopped for 20 minutes, and the same officer gave warnings then resumed a second interrogation and obtained incriminating statements that repeated the same information obtained from the first interrogation. Both statements were inadmissible, as no Miranda warnings were given before the first interrogation and the midstream recitation of warnings before the second interrogation did not effectively comply with Miranda. The interrogation was in the stationhouse; the questioning was systematic, exhaustive, and managed with psychological skill; the break between interrogations was only 15-20 minutes; the interrogator was the same; the interrogations took place in the same location; the defendant was not advised that her prior statement could not be used; no steps were taken to dispel the image that the second interrogation was merely a continuation of the earlier questioning; the defendant would have viewed it unnatural to refuse to answer what she just confessed to. Just as no talismanic incantation in required, the mere recitation of the litany does not suffice to satisfy Miranda in all circumstances. The inquiry is simple whether the warnings reasonably conveyed to a suspect his rights as required by Miranda. The threshold question when interrogations question first and warn later is whether the warnings effectively advised the suspect that he had a real choice about giving an admissible statement or that he could choose to stop talking if he had talked earlier. If the warnings could reasonably be found to be effective, the issues of waiver and voluntary statement can be analyzed. If not, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning. By any objective measure, it is likely that if the interrogators employ the technique of withholding warnings until after the interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. Upon hearing the warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. Midstream warnings are likely to mislead and deprive the defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. There is an emphasis on the nature of the break between the interrogations. Look at the totality of the circumstances: the length of time, same officer, same room, same subject matter, curative instruction (that nothing from the first interrogation can be used against you), etc. Pluralitys approach for 2-tier interrogations asks whether there was a sufficient break between the bad interrogation and the reading of warnings. Kennedys concurrence asks first whether it was in bad faith, if not the break is irrelevant, and if so, ask whether there was a sufficient break. The suspect does not have to have made a confession during the first interrogation.

The 2 tier approach can make either the warning or waiver invalid.

4. Waiver If there is custodial interrogation, there must be warnings. If the suspect invokes the Miranda rights, the interrogation must stop. If the suspect waives the rights or is equivocal (e.g. silence), the interrogation may begin. So long as the defendant is read and knows the warnings, if the defendant has not invoked, the interrogation may begin without an express, unequivocal waiver. A confession by itself constitutes a waiver. Even when the required Miranda warnings are given, the prosecution must prove by a preponderance of the evidence that the suspect voluntarily, knowingly, and intelligently waiver his or her Miranda rights. Voluntariness is from the perspective of a reasonable officer. Knowingly and intelligently- some circuits use the standard the officers knew or should have known that it wasnt knowingly and intelligently waived, and other circuits say its the subjective point of view- whether the defendant actually could waive knowingly and intelligently. The police can use trickery to convince a suspect to talk, but cannot trick them that Miranda says something that it does not. If there is a waiver, it becomes stale if there is an intervening event (e.g. passage of a night, new evidence brought to the attention of a suspect, conference with a lawyer). The age of a minor from the perspective of a reasonable officer is relevant to waiver, but not to custody. If there is a waiver, the lawyer is present and the cops know, the cops do not have to tell the suspect that the lawyer is there. With the different police actions, ask whether it would be contrary to the goals of Miranda and the police tactics it tried to prevent. Follow up questions (e.g. should I contact a lawyer?) are relevant to waiver. The proper police conduct is to repeat the warnings and do not answer the question. Midstream warnings- can claim that the waiver was involuntary but the use of 2-tier interrogations was proper. Ex: cop A interrogates, reads Miranda, does not get waiver. Cop B comes in, thinks theres been a waiver and interrogates. Cop B realizes theres no waiver, reads Miranda. Under Kennedys approach, cannot attach warnings because not made in bad faith. To evaluate whether there was a valid waiver in 2-tier interrogations, look at the same circumstances in determining whether there was a sufficient break between the warnings.

The inquiry has 2 distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made knowingly and intelligently, with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court conclude that the Miranda rights have been properly waived. Spring: An informants tip provided police with information that the defendant committed an unrelated homicide. The police arrested the defendant for selling illegal firearms, read his Miranda rights, the defendant waived, and the police questioned the defendant regarding both

incidents. 2 months later police read his Miranda rights, the defendant waived, and was questioned regarding the murder. The defendants waiver was valid and the defendants awareness of all crimes about which he may be questioned was not relevant to determining the validity of the waiver. The waiver was voluntary and there was no traditional indicia of coercion. There was no evidence or indication that the defendant failed to understand the basic privilege or the consequences of speaking freely to the police. Tradition indicia or coercion: the duration and conditions of detention, the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control. Absent evidence that the suspects will was overborne and his capacity for self-determination critically impaired because of coercive police misconduct, his waiver of Fifth Amendment privilege was voluntary under Miranda. The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Miranda warnings ensure that a waiver of the privilege is knowing and intelligent by requiring that the suspect be fully advised of his rights, including the critical advice that whatever he chooses to say may be used as evidence against him. Mere silence by law enforcement officials as to the subject matter of the interrogation has not been held to be trickery sufficient to invalidate a suspects waiver of Miranda rights. A valid waiver does not require that an individual be informed of all information useful in making his decision or all information that might affect his decision to confess. The additional information, in some circumstances such as here, could only affect the wisdom of a Miranda waiver, not its knowing nature. An explicit oral or written waiver is not necessary under Miranda. They are strong indications of a waiver, but are neither necessary nor sufficient to establish waiver. The question is not of form, but rather whether the defendant voluntarily, knowingly, and intelligently waived. In some cases, waiver can be inferred from a suspects silence, actions, and words. Requests for counsel, accompanied by announcements of willingness to speak with police, followed by statements are a waiver. Just because you invoke counsel does not mean that you have done so for all purposes, especially where the Miranda warnings make clear that anything said can be used against you. Police do not have to inform a suspect that his sister called regarding a lawyer she retained for him. A waiver will not be invalidated because such information was not conveyed. Events occurring outside the presence of the suspect and entirely unknown to him have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Deliberate or reckless withholding of information is only relevant to the waiver inquiry if it deprives the suspect with knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.

5. Invocations of Miranda rights If a person in custody receives the Miranda warnings and invokes either the right to counsel or the right to remain silent, Miranda requires the police to case questioning immediately. However, police officers are not required to inform a person in custody the duty to cut off questioning. It is assumed that once a person is notified of their rights, if they want, they will affirmatively assert their rights. In the absence of such notice, the police may assume that the suspect does not wish to exercise them and may attempt safely to seek and obtain waiver. The analysis:

a. Did the defendant effectively communicate an invocation to the interrogating officer after the warnings? b. If so, did the officer cut off questioning immediately without further waiver seeking or interrogation? c. If so, did later circumstances establish the lawfulness of another attempt to seek waiver? Invocation does not necessarily establish permanent immunity from interrogation. The consequences of an invocation depend on whether a person invokes the right to silence or the right to counsel. a. Unambiguous invocation requirement Davis: Defendant was questioned, and during questioning said maybe I should talk to a lawyer. The interrogator stopped, informed the defendant of his rights to counsel, and the defendant said No, I dont want a lawyer. The statement maybe I should talk to a lawyer was not an invocation. The statement was vague, so the police were not required to stop questioning. If a suspect requests counsel at any time during an interview, he is not subject to further questioning and the rule requires courts to determine whether the accused actually invoked his right to counsel. This is an objective inquiry. If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the questioning does not have to cease. Rather, the suspect must unequivocally request counsel. The suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstance would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, the questioning need not stop. When a suspect makes an ambiguous or equivocal statement, it will be good police practice to clarify whether or not the suspect actually wants an attorney, but this clarification is not required. The police must understand that the defendant understood the Miranda rights to start interrogations, for someone who neither invokes nor waives- just stares back. The Miranda rights are not invoked generally. Either Mirandas right to counsel, Mirandas right to counsel, or both are invoked. b. Waiver seeking after invocation i. Invocation of right to silence

Mosley: Defendant was arrested, read Miranda, said he did not want to answer any questions regarding the crimes, questioning ceased, a few hours later defendant was again read Miranda, and defendant waived Miranda. The police honored the defendants right to cut off questioning and properly sought waiver. The break between interrogations was 2 hours, the second occurred at a different location, the second interrogator was different from the first, the topic of the second was different, there was no mention of the first interrogation or the subject matters discussed, and Miranda warnings were promptly given. Miranda proscribes different consequences for different kinds of invocations: an invocation of silence does not trigger the requirement of a lawyers presence before interrogation can

occur, but if the individual states that he wants an attorney, then the interrogation must cease until an attorney is present. The right to silence sends the message that the suspect needs to reassert control over the situation/dialogue, and can be remedied with a change of situation. The right to counsel sends the message that the person is not equipped to handle custodial interrogations by themselves. A critical Miranda safeguard is the right of the suspect to cut off questioning. This gives the suspect leverage, evens the playing field, and allows the suspect to control the duration and subjects of interrogation. Invoking silence- if theres a subsequent break, the only thing that police can do is re-read Miranda and waiver seek. The cooling off period and whether the readings are attenuated are relevant inquiries. Invocation of right to counsel

ii.

Edwards: The defendant was interrogated and told that the prosecutors wanted to discuss a deal with him. He said that he wanted a lawyer before making a deal. The next day, police told the defendant he had to talk with them and the defendant said he didnt want to talk with anyone. The police then said they wanted to question him, read Miranda, and the defendant waived and made incriminating statements. The waiver was invalid. The police, not the defendant, initiated the second conversation, no counsel was present, the defendant said he did not want to talk, and overall, the defendant was subjected to custodial interrogation at the instance of the authorities. Although after being initially advised of his Miranda rights, an accused may himself validly waive his rights and respond to interrogations, additional safeguards are needed where the accused asks for counsel. When an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by should only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel had been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police. Invoking the right to counsel- if invoked, the cops cannot initiate the interrogation, but if you start talking, police can re-warn and waiver seek. The invocation lasts for 14 days in the suspects natural circumstances, and after this period the police can waiver seek, even if youre seeking to question the suspect about a different crime. Bradshaw: In asking what is going to happen to me now, the defendant initiated further conversation. It envinced a willingness and desire for general discussion about the investigation and was not merely a necessary inquiry arising out of the custodial relationship. The initiation nullified the invocation of the right to counsel. The police may not waiver seek for interrogation regarding a different crime once the right to counsel is invoked. A persons invocation of silence, unlike his request for counsel, does not raise the presumption that he is unable to proceed without the advice of a lawyer. Invoking the right to counsel implies that the suspect does not feel comfortable answering questions without an attorney, and this discomfort is what Edwards sought to eliminate. After a person invokes the right to counsel, any further interrogation without counsel having provided will surely

exacerbate whatever compulsion to speak the person may be feeling. It was irrelevant that the second interrogation involved a different officer and different subject matter. The duty of police to cease interrogation continues after the defendant had spoken with counsel. When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Massiah Doctrine Miranda- 5th Amendment right to counsel. Massiah- 6th Amendment right to counsel. Miranda lawyer- the lawyer at interrogation. Massiah lawyer- the lawyer at trial. Miranda- triggered upon custodial interrogation. Far more elastic than adversarial proceedings. Can apply pre-indictment or post-indictment. Massiah- triggered upon formal adversarial proceeding (indictment, information, complaint, etc). An interrogation can trigger Miranda, Massiah, or both. Both must be analyzed. Miranda right to counsel protects you from questioning about any offense (Mosley). Waiver seeking after invoking the right to counsel is improper; invoking the right to counsel is invoking a general right. Offense specific nature of the Massiah right- Massiah doesnt protect you from questioning about matters unrelated to the subject matter underlying the formal adversarial proceeding. In Massiah, no need for an overt police presence; undercover police/agents, subterfuge, surreptitious means etc. violate Massiah. However, in Miranda, you need overt police presence; Mirandas goal was to create equilibrium between police and suspect. Miranda- custody, interrogation, warnings, waiver, invocation, cooling off period between rewaiver seeking, etc. Look to adversarial proceedings to trigger Massiah, focus on government deliberate elicitation (not government interrogation), consider whether warnings were adequately conveyed, whether waiver was voluntary, knowing, and intelligent, whether invocation was ambiguous, implications of invocation, etc. Massiah- focused on how to protect suspects from stationhouse interrogations. Sacred period between formal adversarial proceedings and trial. Deliberate elicitation from government. Absence of waiver of Massiah rights. Government should not act to interrupt the communication and relationship between the defendant and counsel in trial preparation period. Brewer v Williams: Resurrection of Massiah. Arrest warrant issued for D because he was seen carrying child into his car in Des Moines on Christmas eve, car found 160 miles from DM (in Davenport) and car abandoned, D turned himself in on advice of DM counsel, arraigned, counsel in other city appointed to represent him, DM authorities travelled to pick him up, told D not to talk with police, detective refused to let other city counsel travel to DM, lawyer told detective he could not interrogate, during trip D said when he got back to city hed say what

happened, detective learned D was former mental patient and deeply religious, conversation turned to religion, detective talked about how D could give the parents a proper Christian burial but they had to act quickly because the body would decay by spring, detective gave him a few minutes to think, D tries to direct detective to shoes and blanket, D directed detective to body. Defendants 6th Amendment rights were violated in car when subjected to speech. 1. Had formal adversarial proceedings commenced against the defendant? Yes- had been arraigned. 2. Did the government deliberately elicit incriminating statements/information from suspect? Yes- No counsel present, detective sought isolation of defendant, refused to let counsel travel with them, knew defendant was a Christian, and bragged later that he hoped it would lead to an incriminating statement. 3. Were adequate warnings given? Did Williams waive his right- knowing, voluntary, and intelligent waiver? Government must prove waiver. Same standard as Miranda, and government must prove valid warnings and waiver. Here no waiver- no warnings given, defendant didnt want to talk until got back to city, 6th Amendment right to counsel violated, lawyers at both end of journey, no adequate warnings before the incriminating speech given. Miranda violation? There was custody. Was there an interrogation? Innis found the polices conduct was not the functional equivalent of interrogation; in Innis detectives had no special knowledge about suspects vulnerabilities. Here, police knew about defendants mental health and religious beliefs. No Miranda warnings were read. If detective believed that girl was still alive, public safety exception could be applied and questioning would not be interrogation. Brewer cont.: Judicial proceedings had been initiated against the defendant because he was arraigned and committed by the court to confinement in jail. The detective deliberately and designedly set out to elicit information from the defendant. The detective purposely sought to isolate the defendant from lawyers to obtain as much incriminating evidence as possible. The defendant did not waive his rights. His behavior indicated that he did not want to speak without the advice of counsel, and his statement that he would speak when he got to DM indicated that he wanted the presence of counsel before any interrogation occurred. The defendant had secured counsel at both ends of the trip, was advised by counsel, and counsel told police to not interrogate him. The defendant expressly and implicitly asserted his rights. Once adversary proceedings have commenced against an individual, he has the right to legal representation when the government interrogates him. To prove a waiver, the government must prove the intentional relinquishment or abandonment of a known right or privilege. Adversarial judicial criminal proceedings: formal charge, preliminary hearing, indictment, information, or arraignment. Although the Innis court said that the concepts of interrogation and deliberate elicitation are distinct and not interchangeable, the factors that found interrogation did not exist in Innis were opposite to those facts in Brewer, suggesting that an interrogation may have been found on the facts of Brewer. Cobb: police may question an indicted individual about any uncharged offense that requires proof of a fact not required by the definition of the charged offense. Police may question an indicted defendant about uncharged offenses that are factually related to the charged offense; the definition of offense is the double jeopardy definition. Kuhlmann: Defendant was arraigned on robbery and murder, put in cell with Lee, Lee agreed to be police informant, to listen to defendant and report information about co-conspirators, Lee

didnt ask questions, police told Lee to just keep his ears open, defendant was put in a cell overlooking scene of crime, defendant recounted story given to Lee, Lee told defendant that doesnt sound like good story, defendant told Lee real story few days later, Lee told police. There was no deliberate elicitation. It was a sheer coincidence that defendant was placed in cell overlooking crime. Scraping away the fact of placement of defendant in that cell, a reasonable person would not find it likely the conduct would lead to elicitation. The defendant was not placed in the particular cell by design. The defendants statements were unsolicited and spontaneous. The primary concern of Massiah is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. The Sixth Amendment is not violated when, by luck or happenstance, the state obtains incriminating statements from the accused after the right to counsel has attached. The defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. Factors that make an informant a government agent: (i) an agency relationship between the government and informant, in order for the informants conduct to constitute state action, and (ii) the determination of an informants status will turn on factual inquires into the extent of police involvement with the informant. When the government knowingly exploits an opportunity to confront the accused without counsel being present, where the informant deliberately elicits information, it should be equated to the intentional creation of an opportunity to circumvent the right to counsel, even if the defendant initiated the meeting. If the statement was obtained by luck or happenstances, there is no Massiah violation. 6th Amendment is not violated if government learns of incriminating evidence by luck or happenstance. Analogous to Miranda- dont punish government if suspect blurts out incriminating statements. Its a windfall for the govt. Analyzing deliberate elicitation- from objective perspective- would the reasonable person find it likely that a planned course of conduct would lead to elicitation of incriminating evidence by this suspect. It is from the reasonable officers perspective, knowing what they knew about this suspect. Listening post exception to Massiah doctrine: Massiah applies to surreptitious questioning. Government informant can be present, but cannot engage in deliberate elicitation of statements in Massiah (unlike in Miranda when they can jump in to a full interrogation). Deliberate elicitation is impermissible after formal adversarial proceedings if no valid warnings and waiver. Securing waiver of Massiah- give warnings. Miranda warnings will suffice for purposes of conveying Massiah rights. Dont need to give Miranda and Massiah warnings. If someone has been given Miranda warnings after a formal adversarial proceeding, and they waive their Miranda warnings, theyve waived Miranda and Massiah rights.

Questions about invocation- When are massiah rights invoked? Government cannot engage in deliberate elicitation of a suspect about the offense underlying the formal adversarial proceeding outside the presence of the lawyer when Massiah rights invoked. Waiver seeking: 2 situations where government is barred from reading warnings and waiver seeking: (i) suspect is subject to formal adversarial proceeding, read rights, invoked Miranda rights to counsel. It is treated as invocation of Massiah rights to counsel. Police cannot engage in any deliberate elicitation that includes covert or overt police questioning. (ii) After the arraignment or initial formal proceeding where defendant makes request for counsel. Traditionally, the moment when one requests counsel at formal adversarial proceeding, would

be invocation of rights and precludes further waiver seeking. Montejo overruled this bright line rule. Waiver inquiry: was the accused, who waived his 6th Amendment rights during postindictment questioning, made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of the decision to forgo the aid of counsel? Whatever warnings suffice for purposes of Miranda will suffice in the context of postindictment questioning. The states decision to take an additional step and commence formal adversarial proceedings against the accused does not substantially increase the value of counsel to the accused at questioning or expand the limited purpose that an attorney serves when the accused is questioned by authorities. The Miranda warnings suffice to make the accused aware of their right to counsel. So long as the accused is made aware of the dangers and disadvantages of self-representation during postindictment questioning by use of the Miranda warnings, his waiver of Sixth Amendment right to counsel at such questioning is knowing and intelligent. Montejo: Defendant was arrested, received Miranda warnings, waived Miranda rights, and made incriminating statements. A few days later, the defendant was brought before a judge in a preliminary hearing and was appointed counsel. The counsel was automatically appointed and the defendant made no comment about wanting counsel. Later that day, the defendant was asked by police to help them search for the weapon, was read Miranda rights, and interrogated. The defendants rights were not violated when the police sought a waiver after the preliminary hearing. The Jackson rule and its progeny were designed to prevent police from badgering someone who has expressly asserted their rights. The marginal benefits of Jackson are outweighed by its costs and was overruled. Jackson: the defendant made an express request for counsel at arraignment. Police officers may not initiate and interrogation after a defendants assertion, at an arraignment or other similar proceeding, of his right to counsel. The court treated the request for counsel at arraignment as an invocation of the Sixth Amendment right to counsel. Montejo- mild, sub-verbal, acquiescence invocation of the right to counsel. Government came back and waiver sought, gave warnings, defendant waived Miranda right to counsel. Treated as waiver of Massiah rights as well. Under old standard, government could not even seek a waiver after invocation. Shatzer-14 day period after period you can re-warn in Miranda counsel situation- may do something to Massiah. When invoke Massiah right to counsel, cannot be waiver seeking absent initiation. Montejo- When does one invoke their massiah right to counsel? Standing up and acquiescing is not sufficient. Government can continue to waiver seek. If one is assertive in their rights, and clearly deliberately invokes Massiah, this will preclude the government from further waiver seeking. Massiah- triggered by formal adversarial proceeding, where Massiah attaches; government cannot deliberately elicit; deliberately elicitation after Massiah rights are invoked may be ok if valid waiver; waiver requires reading of Miranda warnings; when Massiah invoked (either at arraignment or after) government cannot continue to waiver seek if invocation is clear and assertive, if less than that, government may not deliberately elicit right away but can only waiver seek. Massiah rights can be invoked, waived, or if mild/acquiescing, government can talk to you but only to waiver seek. Can deliberately elicit if waiver, cannot do anything if invokes, can do something in between if mild.

For defendants who do not have viable Miranda or Massiah claims, a Due Process claim will be the only basis for arguing that the statements are inadmissible. Defendants lack Miranda arguments when they waive their rights, when they confess while not in custody, when they are interrogated by secret agents, and when they face impeachment on the stand with Mirandadefective statements. Defendants who qualify for Massiah rights may lose them through waiver. The test is a totality test, which incorporates the factor of police compliance with Miranda. Statements must be a product of rational intellect and free will. 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. Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause. Coercion can be mental a well as physical, and need not result in physical harm to the defendant. A pre-trial judicial hearing is required to determine the voluntariness of the statement because a jury cannot be expected to produce a fair and reliable finding on this question during the trial on the issue of guilt. The prosecutor bears the burden of proving that a confession does not violate Due Process by a preponderance of the evidence. If a confession is admitted at trial and is later held to be unconstitutional by Due Process standards, its admission may be found to be harmless error only if the prosecution shows that it was harmless beyond a reasonable doubt. The Exclusionary Rule The exclusionary rule prevents the state from using evidence seized in violation of a defendants constitutional rights to convict the defendant of a crime. Remedies- Implications for government for violating Fourth, Fifth, Sixth, or Fourteenth Amendment rights. Exclusionary rule justifications: fundamental fairness, judicial integrity, deterring police misconduct. ER recognized in Weaks case. Napp incorporates ER to the states. Logical to incorporate b/c 4th A incorporated, ER is integral to 4th A, so ER should be integrated. The Exclusionary Rule requires a violation of a 4th, 5th, 6th, or 14th Amendment rights. Violation is a necessary condition, but is not a sufficient condition; violation of rights isnt enough to suppress fruits of violation. Deterrence: Do the benefits of ER outweigh its costs? The only motive for ER is cost benefit analysis- it deters bad police misconduct. Benefits of ER- deter police misconduct, not bad judicial misconduct. Weighed against cost of ER- criminal goes free, police become more risk averse, society is losing- they have an interest in catching criminals. Balance the 2 to determine whether ER should apply. Marginal benefit of ER must outweigh marginal cost. Are police already deterred by alternative remedies? Will the ER encourage more deterrence or have no effect on police conduct?

Alternative remedies- controversial b/c directly affect how ER is applied. Alternative remedies weaken the ER.

(1983 suits- only applies to state officials, usually only individuals. Individual can assert qualified immunity; Federal- Bivens suits- in effect the same as 1983 suit; Criminal trial- police prosecuted for violating citizens constitutional rights.) 1. Impeachment Benefits of suppression are extremely high when the evidence that would be used to prove an element of a crime is excluded because it was seized pursuant to an unlawful search. This is a big police deterrent. ER as applied to the governments case in chief is extremely beneficial. If government wants to use evidence seized ancillary to the evidence, to use in a different crime. Can government use unlawfully gained evidence for impeachment purposes at trial (as opposed as prima facie evidence of a crime)? Costs- dont want people to perjure themselves in criminal trials. Good to expose liars as such. Benefits of excluding evidence for impeachment purposes- e.g. 75% deterred from unlawful behavior by exclusion of evidence, 25% not, focus on 25%- will the exclusionary rule in impeachment purposes deter those 25% from engaging in misconduct? Is there any marginal deterrent benefit from extending the ER to impeachment context? No, of course not. Police are not thinking about trial procedure; just thinking about establishing elements of crime. Theres no marginal deterrent benefit of extending ER. Evidence gained unlawfully may be used to impeach trial testimony. With a 4th Amendment violation, the fruits may be used in any impeachment context. With a 5th Amendment Miranda violation, fruits can only be used to impeach defendants testimony, not other witnesses. Defendant will be on notice and can tailor trial testimony accordingly, whereas other witnesses would not know what was said. 2. Forum Exception ER only applies in the context of prosecutions case in chief. Dont exclude in other government hearings (e.g. grand jury, sentencing, parole revocation, civil). 25% of officers will not be deterred by threat of suppression in civil hearings, grand jury, etc. if not deterred by exclusion during the prosecution case in chief. No marginal benefit of exclusion. 3. The good faith exception Applies only where there are at least 2 entities: an active entity, who executes the search/seizure or interrogates, and a secondary entity, who provides information to the active entity. The active entity relies on the secondary entity. Leon- The judge was negligent in issuing warrant, executing police officer acted reasonably in relying on judges determination. Search violated Fourth Amendment because there was no probable cause. The acting entity acted perfectly reasonably; another entity acted unreasonably. ER is to deter police, not judicial, misconduct. No marginal deterrent benefit. Police officer acted reasonably in relying on negligent information provided by a non-police entity.

Good faith exception applies when the legislature enacts an unconstitutional law. Acting pursuant to this law, police conduct unlawful search, and police acted reasonably in relying on legislative determination (the secondary entity). Secondary entity acted merely negligently. Herring- secondary entity is another cop. Acting cop acts reasonably on another polices negligence. ER should be applied. Intra-police reliance can satisfy good faith reliance to trigger ER. Officers can launder their negligence through other officers. E.g. can call another officer and tell them he has probable cause to search a trunk and in good faith the other officer searches the trunk. Look to whether the acting officer was reasonable and secondary entity was no worse than negligent. If acting officer was negligent or worse, the exception does not apply. If secondary entity acted recklessly or worse, the exception does not apply. 4. Standing The Fifth Amendment privilege against self-incrimination is personal and can only be asserted by the person whose rights have been violated. Although not phrased in such person terms, Fourth Amendment rights are person rights which cannot be vicariously asserted. Bright line case- Police search As residence, find evidence that incriminates B, and does not know B was involved in the crime- B does not have standing. Bright line case- Police search As residence looking for evidence of As crime- A has standing. Problem area- Police searches accomplice or third partys house looking for evidence to incriminate you. Rakas: Police officers pulled over a car thought to be involved in a robbery and searched the glove compartment and under the seat, and found bullets. The search violated the 4th Amendment because there was no probable cause to search the car. The passengers of the car (not the driver) sought to exclude the evidence. The passengers of the car did not have standing to challenge the admissibility of the evidence. The court rejected the defendants target theory, that anyone at whom a search was directed would have standing to challenge the admissibility of evidence; this rule would allow a widespread number of people to have standing and provide few benefits. The defendants, as merely passengers in the car, had no reasonable expectations of privacy in the areas searched, the glove box and under the seat. Passengers would not normally have reasonable expectations of privacy in these areas. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third persons premises or property has not had any of his Fourth Amendment rights infringed. Since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rules protections. In order to be a person aggrieved by an illegal search and seizure, one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

The issue of standing involves 2 inquiries: (i) whether the proponent of a particular legal right has asserted injury in fact, and (ii) whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. The inquiry turns on whether the disputed search and seizure have infringed upon an interest of the defendant which the Fourth Amendment was designed to protect. The inquiry for 4th Amendment purposes asks whether the person had legitimate expectations of privacy in the area searched. Legitimate expectation of privacy means more than a subjective expectation of not being discovered. Legitimate expectations must have a source outside the 4th Amendment, either by reference to concepts of real or personal property or to understandings that are recognized and permitted by society. Expectations of privacy need not be based on a common-law interest in real or personal property, or on the invasion of such interest. Property interests alone may not be sufficient to establish REP. Whether the ER will apply depends on a cost-benefit analysis. Defendants did not challenge the stop of the car and the opening of the car door. They challenged the search of the glovebox and under the seat. Passengers could still challenge the legitimacy of the stop and that the police did not have the requisite suspicion to stop, because the passengers also would not feel free to leave. Someone with REP does not have to be physically present to have their rights violated. If defendants could have proven by a preponderance of the evidence that they owned the items seized or had a possessory interest in the glovebox or under the seat, they would have standing. Analyze the specific area that police searched to see if the defendant had REP in the area searched or the thing seized. Having a key, possessory or ownership interests, sole occupancy, and right to access and exclude are factors in analyzing REP.

Olson: Defendant was an overnight guest at an apartment, had clothes there, and was on the premises with the permission of the owner. The defendant was arrested in the apartment, and the arrest was invalid because there was no arrest warrant and no probable cause to arrest. The defendant had standing to challenge the evidence seized in the apartment concurrent with the arrest. As an overnight guest, the defendant had reasonable expectations of privacy in the apartment. Staying at anothers house is a longstanding practice recognized by society. The guest will probably have freedom to access the property. Defendants may not have REP in short, overnight visits for commercial purposes. The purely commercial nature of the transaction, the relatively short period of time on the premises, and the lack of any previous connection between the defendant and owner, are factors to consider. REP has not been found where the defendant asked a friend to carry his drugs in her purse. REP has been found in shared office space, where there was understanding that ones desk and belongings were private. There is a special relationship associated with overnight stays- guests access more of the house, entrust their belongings with the owner, are more vulnerable. If the search is based on consent, but police exceed the scope of consent, the defendant may have standing to challenge the evidence. REP of an overnight guest is contextual and extends only to those areas where REP exists. Overnight guests usually have REP. Day guests- ask whether theyre social or business guests. Business guests will have harder time of proving REP. Several people can have REP in the same item (e.g. multiple people have a key), but government can use misplaced loyalty.

Payner: The government investigated the financial activities of a bank. An undercover agent lured the vice president out to dinner, and at the same time, the police entered the apartment where the VP was staying, took his briefcase, and made copies of the documents. The 4th Amendment was not violated because the documents were voluntarily conveyed to the VP. The court then declined to use its supervisory powers to suppress the evidence. The costbenefit analysis weighed in favor of not using the exclusionary rule. Old rule- automatic standing. If you can establish possession, you have standing. Use immunity- anything you say to establish possession at a motion to suppress hearing cannot be used at the merit trial, but can be used for impeachment purposes. 5. Fruit of the Poisonous Tree The FPT rule prevents police from using evidence derived from direct evidence obtained illegally. Ex. Illegal search of As car. Find note about B selling drugs. Get warrant to search Bs home and search Bs house. Search of Bs house is legal because it was conducted pursuant to a warrant grounded on probable cause and particularity. Dont care that PC is based on good police behavior, only that its reliable. B cannot suppress the evidence found in his house. If the warrant says police can also search As house, the search of As house is valid because a warrant was issued. As motion to suppress will not be based on the search of the house, but based on the illegal search of the car and the information gathered to obtain the warrant. The search of As house is lawful, but the information gained in the search is the fruit of the unlawful search of the car and is inadmissible. Either way, B has no standing and no remedy because the search of Bs house was lawful behavior. To analyze fruit of the poisonous tree, list chronological events, determine constitutional violations, causation, standing, and attenuation. Wong Sun: Toys declarations and the contraband taken from Yee were the fruits of the agents illegal actions and should not have been admitted as evidence against Toy. The statement did not result from an intervening independent act of a free will and was not sufficiently an act of free will to purge the primary taint of the unlawful invasion. With Wong Suns statement, he was released on his own recognizance and voluntarily returned several days later to make the statement. The connection between the unlawful arrest and the statement had become so attenuated as to dissipate the taint. 1- Arrest of Toy 2- Gives up Yee, admits to drugs 3- Yee says drugs are from Toy and Sea Dog 4- Arrest Wong Sun 5- Wong Sun confesses 1 is unconstitutional because there is not probable cause to arrest. 3 is unconstitutional because they illegally entered the house. Direct result of 1 are 2-5. Direct result of 4 is 5. Yee has no standing because his rights werent violated. Toy has standing to challenge everything because it flows from unlawful moment 1. 2-5 are fruits of the poisonous tree. Wong Sun has no standing to challenge 2 and 3, but has standing to challenge 5.

The attenuation doctrine applies with 5 and the evidence will be admitted. If 5 is attenuated from 4, it is attenuated from 1. Attenuation- objective test designed to put police in the status quo. Proximate cause. Factors in analyzing include the show of force, how upset the defendant was, time passed, same room, consultation with a lawyer, etc. Brown: Police illegally arrested the defendant because they lacked probable cause for the arrest. The defendant was taken to the stationhouse, read Miranda, and interrogated. Later that night, the defendant was again read Miranda and interrogated a second time. Defendants did not challenge the statements as unlawful, but challenged them as fruits of the illegal arrest. The court held that the statements made were inadmissible. The first statement was separated from the illegal arrest by merely 2 hours, and there was no intervening event. The second statement was the fruit of the first statement. The illegality and questioning had a quality of purposefulness. All evidence is not fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the question is 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. Exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, does not alone sufficiently deter a Fourth Amendment violation. Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness, but that it be sufficiently an act of free will to purge the primary taint. It thus mandates the consideration of a statements admissibility in light of the distinct policies and interests of the Fourth Amendment. The Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure that the 4th Amendment has not been unduly exploited. The Miranda warnings are an important factor in determining whether a confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is the threshold requirement, and the burden of showing admissibility rests on the prosecution. The Fifth Amendment Miranda violation does not suppress physical fruits of an illegal search from information gained as a result of the violation; there is automatically no attenuation and it is admissible. If the fruits are more incriminating statements, these are treated under the 2-tier warnings analysis, not under the exclusionary rule. With a Fourth Amendment violation leading to physical fruits, it is very hard for attenuation to apply and a really long chain of events is required. With those leading to testimonial fruits, not as much attenuation is required (e.g. Wong Sun). If the suspects 4th Amendment rights are violated and he makes more testimonial statements, there must be a sufficient break. If a different person makes the testimonial statements, the mere reading of the Miranda rights and waiver will be sufficient attenuation as long as they

arent the original victim of illegality and the police dont refer to the underlying illegality, the first violation. Rawlings: the confession was sufficiently attenuated from the illegal arrest where (i) the defendant received the Miranda warnings mere moments before he gave the incriminating statements, (ii) defendant was detained for a period of 45 minutes at his house and was free to move about the first floor, (iii) the statements were spontaneous reactions to the discovery of drugs in a purse, weighing heavily in favor of finding that the defendant acted of free will unaffected by the initial illegality, (iv) the conduct of the police did not give rise to the level of conscious or flagrant misconduct, and (v) defendant did not argue that his admission to owning the drugs was anything but voluntary. Nix: Continuation of the Christian burial speech case. The defendants statement was inadmissible, but the body was admissible pursuant to the inevitable discovery rule. The independent source doctrine did not apply because the search party did not actually find the body. The state gained no advantage at trial and the defendant suffered no prejudice by admitting the evidence; it merely put the state back at the status quo. The inevitable discovery doctrine applied where evidence showed that search parties in the area would have found the body within 3-5 hours after the confession. Independent source rule: Allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. Inevitable discovery: If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale has so little basis that evidence should be received. Fruit of the poisonous tree consists of (i) attenuation, (ii) inevitable discovery, and (iii) independent source. Goal of FPT is to put police back to the status quo when cost-benefit analysis supports it. Independent source doctrine requires (i) independence- no communication between the 2 sources, and (ii) lawfulness. Inevitable discovery requires (i) independent investigation, (ii) lawful investigation, and (iii) discovery of evidence would have been inevitable had it not been for the underlying violation. Government does not have to show the 2nd line/search was in active pursuit for inevitable discovery. Government has the burden of showing the exceptions apply.

Law and order- arrest then immediate Miranda Does overnight guest have rep in place or in things at the place.