ARREST, SEARCH AND SEIZURE

1. Introduction to the Exclusionary Rule:

a. WOLF v. COLORADO: pp 218 Supreme Court holds that the Fourth
Amendment does not require the exclusion of evidence from trial in state court for
state crimes when the evidence was illegally seized under the Fourth Amendment.
The Court reasons that 30 states currently do not require exclusion. Court
stipulates that other measures should be taken to ensure police do not violate
peoples fourth Amendment rights. Dissent does not believe these other methods
will be effective; the only way to make sure peoples Fourth Amendment rights
are protected is to exclude evidence gathered in violation of it.
b. MAPP v. OHIO: pp 220 Police officers break into a suspects house without a
warrant; evidence gathered therefrom was used in court to convict her. Court
overrules Wolf v. Colorado. Fourth Amendment now excludes evidence procured
in violation therefrom from admission in state courts in state matters. Court
reasons that Wolf must be overruled because other states have been moving
toward applying the exclusionary rule and the other methods of enforcement
suggested in Wolf have proven unworkable. Dissent argues that it is not for the
majoritys ruling deprives the states of their power to decide their laws; 14th
Amendment does not give the Supreme Court the right to do that.
c. Notes: pp 238
i. Are there other limitations which might well be imposed upon the
exclusionary rule?
1. Kaplan: The Limits of the Exclusionary Rule:
a. Exclusionary rule should not apply in the most serious
cases (treason, espionage, murder, armed robbery and
kidnapping by organized groups) because the political costs
of the rule would not be in proportion to the benefits.
b. Exclusionary rule should be inapplicable to cases where the
police department has taken its fourth amendment
responsibilities seriously as evidenced from published
regulations and history of conduct.
ii. Should the Court instead abolish the exclusionary rule entirely on the
ground that the deterrence function stressed in Leon is more generally
not served by exclusion?
1. Burgers Dissent in Bivens v. Six Unknown Named Agents:
Lack of general deterrent efficiency because:
a. No direct sanction over police officer who violates the 4th
Amendment.
b. Police have no stake in successful prosecutions.
c. Policemen are not trained in the standards of conduct they
are to follow.
d. There are large areas of police activity that do not result in
criminal prosecutions.
iii. Statutory Reliance:

1. Initially: MICHIGAN v. DeFILLIPPO: Exclusionary rule

required suppression of evidence obtained in searches carried out
pursuant to statutes subsequently held unconstitutional when the
statutes, by their own terms, authorized searches under
circumstances which did not satisfy the traditional warrant and
probable cause requirements of the Fourth Amendment.
2. Later: ILLINOIS v. KRULL: Unless a statute is clearly
unconstitutional, an officer cannot be expected to question the
judgment of the legislature that passed the law.
a. Dissent OConnor:
i. History and Court interpretation of 4th Amendment
support the Exclusionary Rule to the 20th c.
equivalent of the act of authorizing the writ of
assistance.
ii. Sound distinction between legislature and judicial
officer because a legislatures unreasonable
authorization of searches may affect far more
people.
iii. Politicians are more subject to political pressures
that may threaten the 4th Amendment.
iv. Scope of the Courts good faith exception is unclear.
iv. What if a police officer at the time of his search or seizure had relied
upon law then authorizing such action, but that law as not in a statute
but rather in an appellate court decision since disapproved by a
Supreme Court case per the Courts current retroactivity doctrine
relates back to the time of the officers conduct?
1. State v. Ward: Good faith reliance upon the pronouncements of
this court is on a par with the good faith reliance upon an
apparently valid statute in Krull.
v. Should the fruits of constitutional but yet illegal arrests and searches
be excluded?
1. United States v. Caceres: Failure of an IRS agent to follow IRS
electronic surveillance regulations did not require suppression
because the Court did not wish to step on the Executives toes to
regulate IRS conduct. The Court preferred to risk the occasional
erroneous administration.
vi. Although an illegal arrest or other unreasonable seizure of the person
is itself a violation of the Fourth and Fourteenth Amendments, the
exclusionary rule sanction comes into play only when the police have
obtained evidence as a result of the unconstitutional seizure.
1. Gerstein v. Pugh: Illegally arrested defendant is not himself a
suppressible fruit.
d. Notes on the Dimensions of the Exclusionary Rule: pp 248
i. Evidence obtained by government agents, used as basis for questions
to grand juries:

1. U.S. v. Calandra: A grand jury witness may not refuse to answer

questions on the ground that they are based on evidenced obtained
from him in an earlier unlawful search.
a. No realistic expectation of deterrence.
i. A prosecutor would be unlikely to request an
indictment where a conviction was unlikely.
b. Brennan Dissent: To compel the defendant to testify in the
first place under penalty of contempt thwarts his Fourth
Amendment protection.
ii. Evidence obtained by government agents, used in criminal case after
conviction:
1. Verdugo v. United States: Illegally seized evidence should not be
admissible after conviction for consideration by the judge in
determining the sentence imposed.
a. Later distinguished by United States v. Schipani: no
appreciable increment in deterrence would result from
applying a second exclusion at sentencing after the rule has
been applied at the trial itself.
2. Pennsylvania Board of Probation and Parole v. Scott: No
exclusionary rule if you know about someones parole status.
Exclusionary rule is applicable only in criminal proceedings, not
parole hearings.
a. Dissent Souter: Police probably know someones parole
status when they go after him, which is significant because:
i. Police do not want to jeopardize a recommitment by
rendering evidence inadmissible, so there would be
a deterrence factor if the exclusionary rule applied;
ii. Likelihood of trial is far less than parole revocation
iii. Police and parole officers cooperate to an extent
that they should not be treated differently.
iii. Evidence obtained by government agents, used in quasi-criminal or
civil case:
1. Plymouth Sedan v. Pennsylvania: The exclusionary rule applies
to forfeiture proceedings after 35 cases of plate glass were seized
for being imported without paying customs.
2. United States v. Janis: Police seized cash used in an illegally
gambling ring and notified the IRS which made a levy against
some of the seized cash. Defendant won motion to suppress the
money/evidence which was improperly obtained, but the Supreme
Court held that the government still did not need to return the cash.
3. I.N.S. v. Lopez-Mendoza: Exclusionary rule is inapplicable in
civil deportation hearings. Deportation will still be possible when
evidence not derived directly from the arrest is sufficient to support
deportation;
iv. Evidence obtained by private persons, used in criminal proceedings:

1. Burdeau v. McDowell: Exclusionary rule does not apply to

evidence obtained by a private actor. However, if it is found that
the private actor was sufficiently influenced and supported by the
state, the exclusionary rule will apply to any evidence obtained by
the private actor.
v. Evidence obtained by virtue of conduct of nonpolice government
employee, used in criminal proceedings:
1. Arizona v. Evans: Some government searches covered by the
Fourth Amendment are nonetheless inappropriate occasions for use
of the exclusionary rule. In this case, the defendant was searched
pursuant to a standing warrant that a court clerk should have
removed from the system. The Court held that the fruits of the
search should not be excluded because there would be no deterrent
effect.
vi. Evidence obtained by foreign officials, used in domestic criminal
proceedings:
1. United States v. Verdugo-Urquidez: Mexican citizen brought to
trial in U.S. for drug crimes.
a. Non-U.S. citizens brought to trial here are not covered by
the Fourth Amendment for evidence gathered by foreign
officials because they do not possess sufficient willful
connection to this country to be considered part of the
people and thus protected by the Fourth Amendment.
b. Dissent: By bringing them here for trial, we make them part
of the people.
2. Protected Areas and Interests: pp 254
a. KATZ v. UNITED STATES: pp 254 Defendant was convicted of transmitting
wagering information across state lines by telephone. Police got the information
by placing a device on the outside of the telephone booth Defendant was using so
that they could listen to his conversation. Katz Test: 1. Does the defendant have
an expectation of privacy? 2. Is that expectation one that society finds reasonable?
Here, Defendant had the expectation of privacy in a closed telephone booth that
society would find reasonable.
b. Notes: pp 258
i. Fourth Amendment Interests:
1. Katz Holding:
2. Unites States v. Place: detention of travelers luggage for 90
minutes an illegal search and seizure because
a. Violated possessory interest in luggage and
b. Liberty interest in proceeding with itinerary
3. Soldal v. Cook County: Disconnected trailer home from utilities
and hauling it off of landlords property subject to 4th Amendment
even though no search took place.
ii. Garbage:
1. CALIFORNIA v. GREENWOOD: Narcotics found in garbage.
Court held that respondents exposed their garbage to the public

sufficiently to defeat their 4th Amendment claim. No reasonable

expectation of privacy in discarded items. (Dissent: Trash bag is a
common repository demanded by law for throwing things away;
inevitably associated with an expectation of privacy.)
2. Should Greenwood apply even when the defendant has
resorted to extraordinary means to ensure that his garbage is
not perceived by others?
a. United States v. Scott: IRS agents reassembled shredded
documents recovered from the garbage. Greenwood still
applies.
iii. Curtilage v. Open Fields:
1. Open Fields:
c. OLIVER v. UNITED STATES: Police entry and
examination of a field is free of any 4th Amendment
restraint (Hester not overruled by Katz). Case by case
approach would be unworkable.
i. Dissent: 1. Decision not consistent with Katzs
holding that a phone booth is protected because it is
not a person, house, paper or effect. 2. Criminal
trespass laws dictate societys expectations of
privacy. Proposed Rule: Private land marked in a
fashion sufficient to render entry thereon a criminal
trespass under the law of the state in which the land
lies is protected by the Fourth Amendments
proscription of unreasonable searches and seizures.
2. Curtilage:
d. FLORIDA v. RILEY: Anyone could legally fly a
helicopter that low over the property; anyone could have
seen the illegal activity. Helicopter in no way interfered
with defendants use of his land.
i. Concurrence: Rileys expectation that his curtilage
was protected from naked-eye aerial observation
from that altitude was not a reasonable one.
ii. Dissent: Plurality ignores Katz. Legality of position
is not dispositive because the question should be
whether public observation of curtilage is so
commonplace that expectation of privacy is
unreasonable.
iii. Dissent: Reasonableness depends on frequency.
iv. Other Premises: pp 263
1. Business and commercial premises are covered by the Fourth
Amendment:
a. See v. City of Seatle: The businessman, like the occupant
of a residence, has a constitutional right to go about his
business free from unreasonable official entries upon his
private commercial property.

2. Private areas in public places:

a. State v. Bryant: Police officer who positioned above a rest
room observed criminal conduct from above a bathroom
stall. This is a search.
3. Detention Facilities:
a. Hudson v. Palmer: Prison contraband shakedown case.
Prisoners have no expectation of privacy.
v. Vehicles:
1. Cardwell v. Lewis: Police seized a car from a public parking lot
and a scraping of paint was taken from it. The paint scraping was
not a search; no expectation of privacy.
2. New York v. Class: Moving papers to view a VIN number is not a
search. Gun uncovered in the process is a search, but a reasonable
one.
vi. Effects:
1. BOND v. UNITED STATES: Brick of meth found in carry-on
luggage after an exterior grope-inspection. Court held that personal
luggage is an effect and that a physical inspection is more intrusive
than a visual one like in Riley. Finally that a passenger has a
reasonable expectation that their luggage will not be groped in an
exploratory manner. Dissent: Squeezing does not differ from
treatment other passengers are likely to give the parcel.
vii. Enhancing the senses: (see Kyllo)
c. KYLLO v. UNITED STATES: pp 265 Defendant convicted of growing
marijuana in his house with heat lamps. Federal agent got the information
necessary for the warrant by focusing a heat detector on his house to conclude that
an abnormal amount of heat was coming from part of his house. Majority held
that even though this scan did not penetrate to reveal the interior of Defendants
house, Defendant still satisfies Katz because he has an expectation of privacy
within his house and society finds that reasonable. Majority wanted to protect the
sanctity of the home against the increased use of technology from without.
d. Notes and Questions: pp 269
i. Katz vs. Kyllo:
ii. The canine nose:
1. United States v. Place: Privacy interest in the contents of luggage
at airport. However, because a canine drug sniffer does not need to
open the bag, and does not require private items to be revealed, it
is not a search subject to the 4th Amendment.
2. Illinois v. Caballes: Reaffirms Place and applies it to a dog sniff of
a vehicle during a traffic stop.
3. United States v. Jacobsen: Where police lawfully came upon a
white powder in a package originally opened by private parties, an
on the spot the test of a trace of the powder which would reveal
only whether or not it was cocaine was not a search.
iii. Weapons detector:
iv. Electronic Trafficking:

1. United States v. Knotts: Use of a beeper in a bottle of chemical

normally used to make drugs did not constitute a fourth
amendment search.
2. United States v. Karo: Two issues:
a. Question: Whether installation of a beeper in a container of
chemicals with the consent of the original owner constitutes
a search or seizure within the meaning of the fourth
amendment when the container is delivered to a buyer
having no knowledge of the presence of the beeper.
i. Answer: No. The mere transfer of the can
containing an unmonitored beeper infringed no
privacy interest because it conveyed no information
that the recipient wished to keep private, thus was
no search. If there is nothing to search, a seizure is
impossible.
b. Question: Whether monitoring a beeper falls within the
ambit of the fourth amendment when the reveals
information that could not have been obtained through
visual surveillance.
i. Answer: Yes. It would be an unreasonable search to
enter a residence without a warrant to verify that the
container was there.
v. Photographic Magnification:
1. Dow Chemical Co. v. United States: Aerial photography of a
chemical companys industrial complex is not a search. Open areas
of an industrial plant complex of over 2000 acres is not analogous
to curtilage of a dwelling for Fourth Amendment purposes. There
could have been a different result if the interior of the buildings or
trade secrets were revealed.
a. Powell Dissent: Dow Chemical has taken all possible
precautions to protect information claimed to constitute
trade secrets from the public, so they have a reasonable
expectation of privacy in their commercial facilities.
vi. Enclosed space detection system: Machine that detects heartbeats of
people in enclosed spaces. Is this more like Katz or more like the dog
sniff?
vii. Facial character recognition: They scanned everyones face at the
superbowl.
viii. Gas chromatography: Essentially an electronic canine that takes an air
sampling to detect drugs or explosives. Is this like the canine nose?
ix. Passive Alcohol Sensor: A flashlight with a built in breathalyzer that can
analyze a drivers breathe without their participation or consent. The
device must be held within 10 inches of the suspect while they are
exhaling.
e. WARSHAK: pp S93-97

f. ANDRESEN v. MARYLAND: pp 276 State authorities got a search warrant for

Defendants law and corporate offices to obtain specified documents pertaining to
a fraudulent sale. Defendant argued that the evidence should be excluded pursuant
to the 5th Amendment prohibition against forced self-incrimination because the
Court could not compel him to provide those documents with a subpoena. The
Court disagreed, holding that personal papers may be admitted in evidence
against someone if they were obtained through a valid warrant. The Court
drew a distinction between the two methods of obtaining the evidence by noting
that, with a warrant, the Defendant was not compelled to do anything, and
therefore was not forced to incriminate himself. Brennans Dissent: Precedent
says the opposite of the Courts holding.
3. Probable Cause:
a. SPINELLI v. UNITED STATES: pp 282 Defendant challenged the validity of
the warrant used to seize the evidence that helped convict him. The warrant was
obtained through an affidavit that stated 1) that the FBI had tracked his
movements 2) that an apartment he visited had two phones 3) that the Defendant
was a known bookie and 4) that an informant told police that Defendant was
operating an illegal bookmaking operation. The Court concluded that the notable
inquiry was Can it fairly be said that the tip, even when certain parts of it have
been corroborated by independent sources is as trustworthy as a tip which would
pass Aguilars tests without independent corroboration? Here, the Court held the
informants tip not sufficient to provide a basis for finding probable cause because
there were no underlying circumstances that would make the informant credible
and there was not enough detail in the informants testimony to provide an
inference of credibility.
i. Precedent: Aguilar Test:
1. Must set forth underlying circumstances that will allow the
magistrate to issue an independent assessment of the informants
conclusion;
2. Affiant-officers must attempt to support their claim by something
more than noting that the informant is credible.
ii. Precedent: Draper v. United States: Case where the informants tip was
enough to provide an affidavit worthy of probable cause because the tip
described the Defendants course of action, clothing, and train arrival time
with such great detail as to permit an inference of credibility.
b. ILLINOIS v. GATES: pp 285 Anonymous letter drug sale case. Letter led to a
warrant to search Defendants home which uncovered 350 lbs of marijuana.
i. Precedent: Trial judge suppressed the evidence because the warrant could
not pass Spinelli for probable cause. First prong not met because there was
no basis for concluding that the anonymous person was credible; the
police were only able to corroborate innocent details in this case. Second
prong was not met because the letter gave no indication of the basis of its
writers knowledge of Defendants activities.
ii. Rationale/Holding: Reversed. The Court abandons the Spinelli/Aguilar
test because they give anonymous tips much less worth than they should
be given. Instead, the Court re-adopts a totality of the circumstances

analysis wherein the issuing magistrate makes a common-sense decision

given all the circumstances. Affiant must provide the magistrate with
substantial basis for determining probable cause. Court notes that
Draper is a great example of what would fail the Spinelli test, but is
nevertheless probable cause.
iii. Whites Concurrence: Would uphold the warrant, but would do so within
the Aguilar-Spinelli framework. Court could reasonably infer that the
informant was trustworthy because the corroboration was of suspicious,
not entirely innocent, activity.
iv. Brennan Dissent: Would not uphold the warrant, and would keep the
Aguilar-Spinelli framework.
c. Notes and Questions: pp 295
i. MASSACHUSETTS v. UPTON: Search warrant of a hotel room
produced the identification of people whose homes had recently been
burglarized; other items reported missing were not found. A few hours
later, an unidentified woman called in a tip that there was a motor home
full of stolen stuff. She implicated the thief and her boyfriend as the one
who purchased the goods from the thief but refused to identify herself
because she was worried for her safety. She also indicated that she wanted
to turn the Defendant in because they had broken up and she wanted to
burn him. Magistrate issued a warrant and the Supreme Court upheld the
warrant. Rationale: Informant provided a motive for her attempt at
anonymity and for furnishing the information.
ii. Probable Cause is Also Required for Warrantless Arrests and
Searches.
iii. Probable Cause for Search Requires a Somewhat Different Kind of
Conclusion than Probable Cause for Arrest:
1. Arrest: Substantial probability that a crime has been committed
and that the person to be arrested committed it.
2. Search: substantial probability that certain items are the fruits of
crime that these items are presently to be found at a certain place.
a. Staleness: When a sufficient amount of time has passed
that it is no longer probable that these items will be at a
certain place, probable cause has become stale and is no
good.
i. Schmidt v. State: No probable cause to search
defendants car for drugs when the affidavit said
defendant, who was then under medical attention,
said that he had been sniffing cocaine because the
reference of time was ambiguous; no knowledge of
how long defendant had been under medical
attention.
ii. United States v. Sleeves: No probable cause to
search for clothing, ski mask, hand gun, money and
money bag used in robbery 3 months earlier

because it was not likely that the items would still

be in the place to be searched.
iv. Premature Evidence:
1. United States v. Grubbs: Anticipatory search warrant was issued
upon an affidavit that a delivery of a package containing a video of
child porn would be made at Defendants residence and that the
warrant would be executed after. Court upheld this warrant,
holding that anticipatory warrants are no different from ordinary
warrants, both requiring the magistrate to determine 1) that it is
now probable that 2) contraband, evidence of a crime, or a fugitive
will be on the described premises 3) when the warrant is executed.
v. Police Probable Cause Decisions are Subject to After-the-Fact Review
by a Judicial Officer Upon a Motion to Suppress Evidence Found
Because of the Arrest or Search:
1. United States v. Clyburn: Fourth Amendment does not require
that the basis for probable cause be established in a written
affidavit, so magistrates may consider sworn oral testimony in
making probable cause determinations during warrant proceedings.
2. Whiteley v. Warden: A bad affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant but left
out of the affidavit.
vi. Does it Follow that the Defendant May Not Challenge an Affidavit
Which is Sufficient on its Face?
1. Franks v. Delaware: A defendant may challenge than an affidavit
which is sufficient on its face.
a. Rationale: 1) A ban on impeachment could take all
meaning from probable cause requirement 2) A hearing
before a magistrate will not always discourage lawless or
reckless misconduct 3) Alternative sanctions will not
always be a sufficient cure 4) Allowing an evidentiary
hearing will not diminish the importance of the warrantissuing process 5) post-search hearing will not confuse the
issue of guilt 6) this does not extend the exclusionary rule
to a new area.
d. Notes on the Informers Privilege: pp 299
i. McCRAY v. ILLINOIS: Defendant arrested and found to have heroin on
his person. At suppression hearing, officer testified that the informant
supplied reliable information in 20 cases. Court affirmed conviction,
holding that an officer does not need to release the identity of an informant
if they rely on good faith credible information supplied by a reliable
informant in order to obtain probable cause for a warrant. This privilege
does not extend to trial.
1. Douglas Dissent: This encourages seizures without warrants; there
is no way to determine credibility unless the informant is
produced.

ii. Irving Younger, The Perjury Routine: Nothing in the Due Process
Clause of the Fourteenth Amendment requires the magistrate to assume
the arresting officers are committing perjury. However, McCray almost
guarantees police perjury because all the policeman need say is that an
unnamed reliable informant told him that the defendant was committing
a crime.
iii. People v. Darden: When the reliable anonymous informants tip is the
only thing establishing probable cause, the prosecution should be required
to produce the informant before the judge for a private interrogation as
part of the suppression hearing.
e. Common Enterprise:
i. MARYLAND v. PRINGLE: pp 301 Police stopped a car with three
occupants for speeding. Defendant was the front seat passenger. Driver
consented to a vehicle search which yielded $763 from the glove
compartment and five plastic baggies containing cocaine from behind the
backseat armrest. All three were arrested and transported to the police
station. Later, Defendant confessed. Motion to suppress was denied.
1. Issue: Did the arresting officer have probable cause to believe that
the Defendant was the one in possession of the drugs?
2. Holding/Rationale: There was probable cause that all any or all
three of the occupants had knowledge of, and exercised dominions
and control over the cocaine. A car passenger, unlike a tavern
patron, will often be engaged in a common enterprise with the
driver.
ii. Notes and Questions: pp 304
1. The Pringle Court has Accepted Both of the Following
Propositions:
a. There is probable cause that the three men were jointly in
possession of the drugs;
b. There is probable cause the Pringle alone was in possession
of the drugs.
2. Can There Be Probable Cause That Two People Committed a
One Person Crime?
a. Yes: State v. Thomas: Police obtained warrants to search
the homes and cars of two men who were known to have
contact with a rape/murder victim, even though only one of
them could have done it. The Court held this permissible,
noting that there is no numerical precise degree of certainty
required to show probable cause.
f. Notes on Other Sources of Probable Cause: pp 305
i. Information From an Alleged Victim of, or Witness to, a Crime: Prior
reliability does NOT need to be shown for victims or witnesses, but it
DOES need to be shown for informants.
1. Critical question: Is the general description given by the victim
or witness sufficient to justify the arrest of any one person?

a. Brown v. United States: Description was of a heavily built

black man driving a maroon 1954 Ford wearing a brown
jacket, 55 and a cream colored straw hat. The suspect was
511, wearing blue and a felt hat, but was still arrested.
Court still held the victim description sufficient.
ii. Direct Observations by Police:
1. Brooks v. United States: Officer observed two men with prior
convictions for larceny carrying a brand new console in a
commercial area at 6:30pm. Suspects said it belonged to their
mother and they were taking it to be repaired; later changed story
to say it had been given to them by an unknown person. Court held
that there was probable cause; police must act under the standards
of a reasonably cautious and prudent police officer.
iii. Information and Orders From Official Channels:
1. Whiteley v. Warden: Officer arrested Defendants pursuant to a
description on a police bulletin. The warrant was not issued on
probable cause, and the arrest was thrown out. An honest arrest
made under the mistaken belief of probable cause is not good
enough.
iv. Collective knowledge:
1. Some courts hold that pieces of knowledge can be pieced together
amongst officers to determine probable cause. Other courts have
not allowed collective knowledge based on the possibility of
determining legality of a search after the fact by determining if
disparate pieces of information held by different officers added up
to probable cause.
4. Search Warrants: pp 307
a. Issuance of the Warrant: pp 307
i. The Neutral and Detached Magistrate Requirement:
1. Coolidge v. New Hampshire: State Attorney General was
authorized by state law to issue warrants. He issued a warrant to
search defendants car in the course of a murder investigation that
he was leading. The evidence was excluded and the warrant was
thrown out because, as the person leading the investigation cannot
be neutral.
2. Connally v. Georgia: Magistrate was not neutral where he was
paid $5 for issuing a warrant and nothing for denying one.
3. Rooker v. Commonwealth: Judge who issues a warrant based on
an affidavit that he did not read is not neutral because he merely
serves as a rubber stamp.
4. Shadwick v. City of Tampa: Upheld city charter provision
authorizing municipal court clerks to issue arrest warrants for
municipal ordinance violations. Court held that an issuing
magistrate must meet a two part test:
a. He must be neutral and detached

b. He must be capable of determining whether probable cause

exists.
5. United States v. Davis: You cannot keep going to a different
magistrate until you get a favorable ruling.
ii. Particular description of the place to be searched:
1. Steele v. United States: It is enough if the description is such that
the officer with a search warrant can, with reasonable effort
ascertain and identify the place intended.
2. State v. Blackburn: If an officer finds some but not all of the facts
from the description, the search will be upheld if there could be no
real doubt as to which premises was intended.
3. Maryland v. Garrison: An overly broad warrant can still be good
if executed by the officers in good faith.
iii. Particular description of the things to be seized: This prevents general
searches and the seizure of things believed to be, but not actually, within
the scope of the warrant.
1. Go-Bart Importing Co. v. United States: To prevent the issuance
of warrants on loose, vague or doubtful bases of fact, we get these
general principles:
a. A greater degree of ambiguity will be tolerated when the
police have done the best that could be expected under the
circumstances;
b. A more general type of description will be sufficient when
the nature of the objects to be seized are such that they
could not be expected to have more specific characteristics;
c. A less precise description is required of property which is,
because of its particular character, contraband;
d. Failure to provide all of the available descriptive facts is
not a basis for questioning the adequacy of the description
when the omitted facts could not have been expected to be
of assistance to the executing officer;
e. An error in the statement of certain descriptive facts is not a
basis for questioning the adequacy of the description if the
executing officer was nonetheless able to determine, from
the other facts provided, that the object seized was that
intended by the description;
f. Greater care in description is ordinarily called for when the
type off property sought is generally in lawful use in
substantial quantities;
g. A more particular description than otherwise might be
necessary is required when other objects of the same
general classification are likely to be found at the particular
place to be searched;
h. The greatest care in description is required when the
consequences of a seizure of innocent articles by mistake is
most substantial, as when the object to be seized are books

or films or indicia of membership in an association, or

where the place to be searched is an attorneys office;
i. The mere fact that some items were admittedly improperly
seized in execution of the warrant does not mean that the
warrant was not sufficiently particular;
j. The Fourth Amendments particularly requirement does not
require particularity with respect to the criminal activity
suspected;
k. Some leeway will be tolerated where it appears additional
time could have resulted in a more particularized
description, where there was some urgency to conduct a
search before the defendant had the opportunity to remove
or destroy evidence sought.
iv. Particular Description, Reliance on Affidavit: Is there a valid warrant
search where a defect in the warrant can be overcome by a sufficient
description in the supporting affidavit.
1. Groh v. Ramirez: The fact that the application adequately
described the things to be seized does not save the warrant from its
facial invalidity. Unless the particular items described in the
affidavit are also set forth in the warrant itself, there can be no
written assurance that the Magistrate actually found probable cause
to search for, and to seize, every item mentioned in the affidavit.
b. Execution of the Warrant: pp 311
i. Time of Execution (10-day Rule): Statutes and court rules commonly
provide that a search warrant must be executed within a certain time, such
as 10 days.
1. United State v. Nepstead: Provided that the probable cause
recited in the affidavit continues until the time of execution, giving
consideration to the intervening knowledge of the officers and the
passage of time.
2. State v. Neely: Probable cause for search warrant not stale when it
issued, warrant may be lawfully executed at any time within 10day statutory period.
3. State v. Miller: Where violation of statutory 10-day rule but
probable cause had not dissipated, suppression not necessary, as
the letter, not the spirit, of the law was broken.
4. Daytime Executions of Warrants are the Default:
a. Gooding v. United States: Night time searches involve a
greater intrusion than ordinary searches and therefore
require a greater justification may well be a constitutional
imperative.
5. Sneak-and-Peak Search Warrants:
a. Berger v. New York: Two limitations:
i. The court should not allow the officers to dispense
with advance or contemporaneous notice of the

search unless they have made a showing of

reasonable necessity of the delay;
ii. The Court should nonetheless require the officers to
give the appropriate person notice of the search
within a reasonable time of the covert entry.
6. United States v. Villegas:
ii. Gaining Entry:
1. Preference for Knocking:
a. Wilson v. Arkansas: Recognized the common law doctrine
which recognized a law enforcement officers authority to
break open doors of a dwelling, but generally indicated that
he first ought to announce his presence and authority.
2. No-Knock Entry Test:
a. Richards v. Wisconsin: To justify a no-knock entry:
i. Police must have a reasonable suspicion that
knocking and announcing their presence would be
dangerous or futile or;
ii. That it would inhibit the effective investigation of
the crime by allowing the destruction of evidence.
b. United States v. Banks: Resolved two issues remaining
from the Wilson notice requirement:
i. How long a wait is necessary before the police may
reasonably conclude they have been refused
admittance?
1. In absence of exigent circumstances, the
issue is simply whether the occupants
failure to admit the police fairly suggested a
refusal to let them in. Essentially, whether it
reasonably appeared to the police that an
occupant has had time to get to the door. The
amount of time varies.
ii. What shorter wait will suffice because of what kind
of exigent circumstances?
1. It depends on the exigency claimed. Where
there is risk that the suspect will attempt to
flush evidence down the toilet, it is
reasonable to suspect imminent loss of
evidence after the 15-20 second wait.
iii. Search of Persons on the Premises:
1. YBARRA v. ILLINOIS: Search warrant executed to search a bar
where a bartender was purportedly selling drugs. Officers
proceeded to pat down the patrons and found heroin in Defendants
coat pocket. Court threw out this search as not covered by the
warrant. There was no probable cause in the warrant or when
police executed the warrant to search Defendant. A persons mere
propinquity to others independently suspected of criminal activity

does not, without more, give rise to probable cause to search that
person.
2. LOS ANGELES v. RETTELE: Police executed a warrant and
caused the suspects to get out of bed and stand in the room naked
while they conducted the search. The warrant was stale because the
people the warrant was meant to search had sold the house to the
people who were in it. They sued the police in a 1983 action but
lost because:
a. Police should not have broken off their warrant upon
finding white occupants because people of different races
often live together and;
b. Having the occupants stand naked was reasonable because
clothing and bedding can conceal weapons.
iv. Detention of Persons on the Premises:
1. MICHIGAN v. SUMMERS: Officers were about to execute a
warrant to search a house for narcotics when they saw the
Defendant (owner) leaving the house. The police detained the
Defendant while they searched the premises. After they found
narcotics in the house, the police arrested him and found more
narcotics on his person while doing a search incident to arrest. The
Court upheld the search (largely on Terry grounds), holding that
because the police officers had the valid governmental interests of
1) preventing flight if the search of the house yielded narcotics, 2)
minimizing the risk of harm to the officers and 3) the orderly
completion of the search may be facilitated if the occupants of the
premises are present. This outweighs the small personal interest in
free movement while the search is happening. Stewart Dissent:
Terry related cases require some governmental interest independent
of the ordinary interest in investigating crime and apprehending
suspects, which was not present here.
2. MUEHLER v. MENA: 1983 case where police executed a
warrant for deadly weapons and evidence of gang membership at a
home where a suspect in a drive-by shooting lived. The police
detained Ms. Mena and three other occupants in hand cuffs for the
entire 2-3 hour search. The Court held that this detention was
reasonable because the governmental interest outweight the
marginal intrusion because such a search is inherently dangerous
and the use of handcuffs minimizes the risk of harm. This was
more reasonable because there were multiple persons. Kennedy
Concurrence: Added two cautions: 1) If the search is so long that
the handcuffs cause real pain or discomfort, the detainees must be
attended to and 2) the restraints should be removed if a reasonable
officer could ascertain that there is no danger.
v. Intensity and Duration of the Search: Police officers can only look
where the items described in the warrant could be concealed. Basically,
that means you cannot look in the refrigerator for a stolen car.

vi. Seizure of Items not Named in the Search Warrant:

1. Coolidge v. New Hampshire: Officers may seize items not named
in a warrant during a search if it is immediately apparent that the
items are evidence so long as the discovery is inadvertent.
2. HORTON v. CALIFORNIA: A police officers affidavit provided
probable cause to search Defendants home for the proceeds of a
robbery. Upon execution of the warrant, the items described were
not found, but the guns used in the robbery (but not named in the
warrant) were found, and seized. Defendant argued that this
evidence must be excluded because its seizure was not inadvertent
according to the Coolidge rule. Court held that the evidence need
not be excluded because 1) The fact that an officer is interested in
an item of evidence and fully expects to find it in the course of a
search should not invalidate its seizure of the search is confined to
an area and duration by the term of a warrant and 2) the
inadvertent requirement is ridiculous because one can officer has a
lawful right of access, no additional fourth amendment interest is
furthered by requiring that the discovery must be inadvertent so
long as the search does not go beyond the time/space parameters of
the warrant.
vii. Presence of Third Parties: Where police enter a home with a warrant to
search for stolen property, the presence of third parties to identify the
stolen property is permissible.
1. Wilson v. Layne: Presence of members of the media present in a
home as police executed an arrest warrant is unconstitutional.
Third parties must somehow aid in the execution of the warrant to
be permitted.
viii. Delivery of Warrant: Many jurisdictions require the officer executing a
search warrant must deliver a copy of the warrant at the place to be
searched. However, there is probably not constitutional requirement to do
so.
1. Groh v. Ramirez: Fourth Amendment was violated when the
police handed over at the conclusion of the search a copy of the
warrant that did not in fact specify the things to be seized.
c. Special Problems: Computer Searches:
i. State v. Evers:
ii. How Should a Warrant Authorizing a Computer Search Describe the
Things to be Seized?
1. Unites States v. Riccardi:
iii. Compare:
1. United States v. Hudspeth:
2. People v. Gall:
iv. United States v. Hargus:
v. Arizona v. Hicks:

vi. Given that Execution of a Search Warrant Must be Limited in

Intensity According to the Items Named in the Warrant, What Does
this Meaning the Context of a Computer Search?
1. United States v. Comprehensive Drug Testing, Inc.:
2. Commonwealth v. McDermott:
3. United States v. Carey:
4. United States v. Gray:
vii. United States v. Gourde:
viii. Points from Michaels Outline:
1. Riccardi: You need to be precise in specifying what you are
going to search in the computer.
2. Hudspeth: You can search a computer even if its not
mentioned directly in a warrant.
a. Gall: You can physically take the computer to search it.
3. Hargus: If you take the computer you are going to need a
second warrant to actually search it.
4. Hicks: The mere recording of serial numbers does not need to
be mentioned in the warrant.
5. What about deleted files? Is there a reasonable expectation of
privacy in a deleted file?
d. The Preference for Warrants: pp 321
i. The Supreme Court has long expressed a strong preference for searches
made pursuant to a search warrant; however, the majority of police
seizures and searches are made and upheld notwithstanding the absence of
a warrant.
1. California v. Carney: Allowing warrantless search of vehicles
because of the diminished expectation of privacy in them.
2. Colorado v. Bertine: Inventory searches upon arrest do not
require warrants.
3. United States v. Watson: A warrant is never needed to arrest in a
public place because a contrary holding would encumber criminal
prosecutions with endless litigation with respect to the existence of
exigent circumstances, whether it was practicable to get a warrant,
whether the suspect was about to flee and the like.
ii. The Preference for Warrants is Commonly Explained on the Ground that
it, More so Than the Post-Search Suppression Process, Prevents Illegal
Searches:
5. Warrantless Arrests and Searches of the Person: pp 322
a. UNITED STATES v. WATSON: pp 322 Informant told a Federal Postal
Inspector that the Defendant had supplied him with stolen credit cards and had
agreed to furnish additional cards at their next meeting. The postal inspector
arrested the Defendant in a restaurant at the next meeting without a warrant. The
Court upheld the warrantless arrest because, even though the postal inspector had
time to secure a warrant, he was permitted under 18 U.S.C.3061 to make a
warrantless arrest provided he had probable cause to do so, which he had here.
The Court acted on the presumption that Congress was acting within the

Constitution when they made that provision. Powell Concurrence: Logic would
dictate that there needs to be a higher requirement for an arrest than a search
because it is a greater infringement upon ones liberty, but history dictates
otherwise and the court must bow to precedent. Marshall Dissent: No need to
create a new exception because this arrest was valid as an exigent circumstance
because the suspect could have destroyed the evidence before a warrant could be
obtained. Probable cause to arrest does not go stale.
b. Notes and Questions: pp 325
i. Searchszr 5.1: Study indicated that , while nearly 50% of all arrests are
made within two hours of the crime as a result of a hot search of the crime
scene or a warm search of the general vicinity of the crime, very few
additional arrests occur immediately thereafter. Thus, the need to arrest
before an arrest warrant can be obtained is likely to be considerably less
apparent that the need to search before a search warrant can be acquired.
ii. Watson Dissenters: The privacy of our citizens will be better protected
by ordinarily requiring a warrant to be issued before they may be arrested.
1. Counter: Magistrates would not have the time to take on search a
work load without becoming more than a rubber stamp because
they are theoretically taking a few minutes to review each warrant
application.
iii. Is the Preference for Arrest Warrants Nonetheless Justified on the
Ground That, at Least the Police Must Make a Record Before the
Event of the Basis for their Actions?
1. Justice Without Trial: The reality is that this system encourages
police who find fruits to a crime without a warrant will submit a
reconstruction of events that is manipulated in such a way that any
magistrate will find probable cause. Basically, this encourages the
police to lie.
iv. Should the Arrest of a Person Sated at Arrest to be for One Offense or
Resulting in Booking for that Offense be Upheld on the Ground that
the Police Actually Had Sufficient Evidence of a Quite Different
Offense?
1. Wainwright v. New Orleans:
2. Devenpeck v. Alford:
3. Whren v. United States:
v. There are generally two limitations to warrantless arrest power of
police regarding misdemeanors: 1) the offense must have occurred in
the officers presence and 2) The offense must constitute a breach of the
peace.
1. ATWATER v. CITY OF LAGO VISTA: pp 327 Petitioner was
driving with her daughter when police pulled her over for driving
without a seat belt. This was not the first time this officer had
approached this suspect about the issue. Texas law permitted the
officer discretion to choose between a custodial arrest and issuance
of a citation, and the officer chose arrest. Petitioner sued in a 1983

action. The Court held that warrantless arrests for misdemeanors

not amounting to a breach of the peace are permissible.
vi. GERSTEIN v. PUGH: pp 331 A policemans on-the-scene assessment of
probable cause provides legal justification for arresting a person suspected
of crime, and for a brief period of detention to take the administrative
steps incident to arrest. However, after the suspect is safely in custody, a
state must promptly provide a fair and reliable determination of probable
cause as a condition for any significant pretrial restraint on liberty.
vii. COUNTY OF RIVERSIDE v. McLAUGHLIN: pp 333 What is
prompt under Gerstein? Courts must allow flexibility because there are
often unavoidable delays. However, where an arrested individual does not
receive a probable cause determination within 48 hours, the burden shifts
to the government to demonstrate the existence of a bona fide emergency
or other extraordinary circumstances.
6. Warrantless Entries and Searches of Premises:
a. CHIMEL v. CALIFORNIA: pp 363 Police came to Defendants home with a
warrant to arrest but not a warrant to search. Officers asked permission to search
the entire house, but the Defendant rejected; police nonetheless performed the
search, found fruits which were introduced at Defendants trial (where he was
convicted). Issue: Whether a warrantless search of the petitioners entire house
can be constitutionally justified as incident to that arrest. Holding/Rationale:
There is ample justification for a search of the arrestees person and the area
within his immediate control. Here, the Court held that the scope of the search
was unreasonable. Two rationales for searching incident to arrest, 1.) Weapon a)
to resist arrest b) to effectuate or c) protect police; 2.) To prevent concealment or
destruction of evidence.
b. Notes on Search of Premises Incident to and After Arrest Therein: pp 365
i. What is the Area Under Defendants Control?
1. People v. Perry: Search of a dresser drawer in a 10x12 motel
room falls within Chimel because it was within the area from
which the defendant could have obtained a weapon or something
that could have been used as evidence against him.
ii. Chimel Also Requires Attention to the Question of When, if Ever,
Officers May Look into Other Areas of the Defendants Home After
the Defendant has Been Placed Under Arrest There:
1. When is it necessary for the arrestee to put on street clothes?
a. Giacalone v. Lucas: Defendant was arrested at the front
door and went into his bedroom to change into street
clothes. Court held that police could look into the dresser
drawer Defendant was about to open, and the gun found
therein is admissible. Dissent: Defendant had told police
that he was ready to go immediately, thereby showing that
he wished to limit the police intrusion into his home.
2. When the officers are acting for their own protection:
a. Maryland v. Buie: As an incident to the arrest the officers
could look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be

immediately launched (note: this is a protective sweep, not
a full search). Beyond that, there must be articulable facts
which would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual
posing a danger to those on the scene.
3. When the officers are seeking other offenders:
a. People v. Block: Police knock on door; when it is opened,
they smelled burning marijuana. Officers arrested people in
the living room and then went to check the bedrooms.
Court held that, because the upstairs light was on, the
police had a reasonable cause to believe that other
participants may be present.
iii. Sometimes, a warrantless entry of premises will be permissible
incident to and following an arrest elsewhere:
1. Washington v. Chrisman: Campus policeman arrested an
underage student as he left a campus dormitory carrying a halfgallon bottle of gin and accompanied him to his room so that he
could obtain his identification, where the officer observed
marijuana seeds and a marijuana pipe. The Court upheld the
search, holding that it is not unreasonable under the Fourth
Amendment for an officer to monitor the movements of an arrested
person following arrest.
c. Notes on Warrantless Seizures While in Premises to Arrest: pp 358
i. If an Officer is Lawfully Present Within Premises to Make an Arrest,
he May Observe Certain Items Not Within the Immediate Control
of the Arrestee Which Will Nonetheless Be Subject to Warrantless
Seizure Under the So-Called Plain View Doctrine: Note: This
doctrine may not be used to extend a general exploratory search from on
object to another until something incriminating finally emerges.
ii. Arizona v. Hicks: Police entered the premises from which a weapon was
fired, and police noticed expensive stereo components, which police
suspected were stolen. Officer recorded their serial numbers (moving
some of the components in order to do so) and seized the equipment after
learning that they had been taken in an armed robbery. The Court held that
moving the equipment was an unreasonable search.
d. KING: S70: Hot Pursuit: Undercover cop saw someone they suspected being
involved with drugs. Radioed into the officers apprehending defendant. Knew he
entered one apartment, smelled drugs from that apartment, it was the wrong
apartment, arrested everyone. This was fine.
e. Notes on Warrantless Seizures While in Premises to Arrest: pp 359
i. VALE v. LOUISIANA: Officers had 2 arrest warrants for Defendant.
They observed him come out of his house, and watched what they
believed to be an illegal drug deal. The officers arrested Defendant before
he reentered the house, and told him that they were going to search the
house to see if anyone else was present; they found narcotics. The Court

held that few warrantless searches of a dwelling can withstand

constitutional scrutiny even if there is probable cause. The Court declined
to hold that an arrest on the street could provide its own exigent
circumstance so as to justify a warrantless search of the arrestees house.
The officers could have and should have gotten a warrant. Black Dissent:
Here, the police were faced with the choice of risking the immediate
destruction of evidence or entering the house and conducting a search.
Their conduct was reasonable.
ii. What Should the Offices Have Done in Vale?
1. Consider: United States v. Grummel: Defendant picked up a
package known to contain heroin at the post office and was
arrested once he re-entered his home. Defendants mother was
properly told that she could either remain in the premises while
another officer obtained a warrant or leaving the premises because
the officers needed to ensure the evidence would not be destroyed.
2. SEGURA v. UNITED STATES: Police confirmed that they had
seen a drug deal, then went to the Defendants apartment building.
Police made a warrantless entry of the apartment and remained
there until a search warrant was issued 19 hours later
3. Illinois v. MacArthur: Defendant refused to allow police to
search his trailer. One officer left to get a warrant and the other
officer refused to let the defendant reenter the trailer without being
accompanied by an officer. The Court held that this restriction was
reasonable because 1) the police had probable cause to believe that
the trailer contained evidence of a crime and contraband 2) the
police had good reason to fear that, unless restrained, the defendant
would destroy the drugs before they could return with a warrant 3)
the police mad reasonable efforts to reconcile their law
enforcement needs with the demands of personal privacy and 4)
the police imposed the restraint for a limited period of time.
iii. United States v. Rubin: List of things that can convince a court to uphold
a warrantless search: 1) the degree of urgency involved and the amount of
time necessary to obtain a warrant 2) reasonable belief that the contraband
is about to be removed 3) the possibility of danger to police officers
guarding the site of the contraband while a search warrant is being sought
4) information indicating the possessors of the contraband are aware that
the police are on their trail and 5) the ready destructibility of the
contraband and the knowledge that efforts to dispose of the narcotics and
to escape are characteristic behavior of persons engaged in narcotics
traffic.
iv. Is it permissible for police to engage in a subterfuge which cases an
occupant to remove the evidence to another place where a warrantless
search is permissible?
1. State v. Hendrix: It was proper for police to telephone a residence
with an anonymous false tip that police were on their way there

with a search warrant, which caused the defendant to attempt to

remove the evidence.
v. Homocide Scene Exception: When police are summoned to the scene of
a homicide, police may remain on the premises without a warrant to
conduct a general investigation into the cause of the death.
1. Mincey v. Arizona: Police were not summoned and the search
continued for four days. Court held that the seriousness of the
offense itself does not create an exigent circumstance under the
Fourth Amendment.
2. Thompson v. Louisiana: Court invalidated a two-hour general
search of premises to which police were summoned because of
defendants attempt to get medical assistance after shooting her
husband.
3. Flippo v. West Virginia:
vi. BRINGHAM CITY v. STUART: The need to assist persons who are
seriously injured or threatened with such injury is an exigency sufficient to
obviate the warrant requirement.
7. Warrantless Seizures and Searches of Vehicles and Containers: pp 370
a. CALIFORNIA v. CARNEY: pp 370 Police saw Defendant and another enter a
motor home parked on downtown lot. The youth who entered with Defendant told
police that Defendant had given him marijuana in exchange for sexual contacts.
Defendant was arrested and the motor home was seized. Subsequent inventory
search of the motor home revealed additional marijuana. There is a vehicle
exception because vehicles are readily mobile and there is significantly less
expectation of privacy than a home or office. Defendant argued that the
warrantless seizure of the motor home was unconstitutional because it is a home,
not a vehicle. The Court refused to draw distinction between which vehicles
should get more or less constitutional protection. Stevens Dissent: The police
could have and should have gotten a warrant. There was no indication was in
danger of leaving, and mobility alone should not be enough to justify abandoning
the warrant requirement. A motor home can have as much expectation of privacy
as a house because it is designed to be a place where people live.
b. Notes and Question: pp 375
i. Maryland v. Dyson: No separate exigency requirement for the
automobile exception.
ii. Florida v. White: Upheld the warrantless seizure of a car under the state
forfeiture law on probable cause that vehicle was contraband. The need is
equally weighty when it is the vehicle itself, rather than its contents, that is
the contraband the police wish to seize.
iii. Chambers v. Maroney: What is required, even if no warrant need first be
obtained, is probable cause to search a particular automobile for particular
articles.
c. CALIFORNIA v. ACEVEDO: pp 376 Man entered house with fedex package
known to contain marijuana. Defendant entered house and left with package that
police had probable cause to believe contained some of that marijuana. Defendant
put package in trunk. Police had probable cause to search the package, but not the

car. Can police search the car to get to the package? Yes. Wherever it could be,
you can look. If you have probable cause to search the bag, you may search the
car to get the bag. The Fourth Amendment does not compel separate treatment
for an automobile search that extends only to a container within the vehicle.
Scalias Concurrence: The search of a closed container, outside a privately
owned building, with probable cause to believe that the container contains
contraband, and when it in fact does contain contraband, is not one of those
searches whose Fourth Amendment reasonableness depends upon a warrant.
Stevens Dissent: There is an automobile exception but not a luggage exception.
Police should have to get warrants.
d. Notes and Questions: 382
i. Wyoming v. Houghton: Police stopped a driver for speeding and
searched a purse that a passenger said belonged to her, wherein they found
narcotics. The Supreme Court upheld the search, holding that there is no
need for individualized probable cause within a vehicle. Stevens Dissent:
Here, the states legitimate interest in effective law enforcement does not
outweigh the defendants privacy interests. There is a legal difference
between a driver and passenger.
ii. If there is a general rule that absent exigent circumstances search
warrants are needed for the search of containers not sufficiently
connected with vehicles, are there exceptions?
1. Sanders: There are containers, such as a kit of burglar tools that
by their very nature cannot support any reasonable expectation of
privacy because their contents can be inferred from their outward
appearance.
2. Texas v. Brown: Warrantless search of opaque party balloon found
to contain narcotics. Court upheld the search because a balloon of
this type could only be used to transport narcotics.
3. Illinois v. Andreas: Customs agents found marijuana inside a table
shipped into the country; it was repackaged and delivered to
Defendant with police posing as delivery men. The arrest without a
warrant was upheld because the defendant could have no valid
privacy interest in the contents of a previously lawfully searched
container. Brennan Dissent:
e. GANT: S75 Defendant was arrested for having a suspended license. He was hand
cuffed and put in the back of a police cruiser. They then went back to the car and
searched it and found a thing of cocaine in the backseat. Issue is was the search
good. Search was not good. It would have been if there was a danger of the
evidence being tampered with, but because the time had passed, there was no
danger. Could have gotten a warrant. No danger.
f. UNITED STATES v. ROBINSON: pp 343 Defendant pulled over for driving
without a license. Arresting officer patted down defendant, felt something but did
not know what it was. He pulled it out of the defendants pocket; it was a
crumpled pack of cigarettes. Officer could not tell what was inside but knew it
wasnt cigarettes. Upon opening it, he found heroin. This was a search incident to
arrest. There is probable cause to search incident to arrest when there is probable

cause to arrest, but not probable cause to search. Court held that in the case of a
lawful custodial arrest a full search of the person is not only an exception the
warrant requirement but it is also a reasonable search under the Fourth
Amendment. Marshall Dissent: With this holding, there is a risk that a police
officer, lacking probable cause to obtain a search warrant, will use a traffic arrest
as a pretext to conduct a search.
g. Notes and Questions on Unnecessary, Pretextual, and Arbitrary Arrests: pp
338
i. Gustafson v. Florida: Marijuana cigarettes found on petitioners person
in a search incident to his arrest. Petitioner, in attempting to exclude the
evidence, argued that the offense he was accused of was benign or trivial
in nature compared to Robinson and there were no police regulations
requiring the officer to take the petitioner into custody. The court
nonetheless upheld the search under Robinson. Stewart Concurrence:
Petitioner could have argued that custodial arrest for a minor traffic
offense was a violation under the 4th and 14th Amendments, but he
conceded the Constitutional validity of his arrest.
ii. ATWATER v. CITY OF LAGO VISTA: pp 339 Plaintiffs second
argument was for a modern arrest rule forbidding custodial arrest, even
upon probable cause, when conviction could not ultimately carry any jail
time and when there is not compelling need for immediate detention. The
Court declined to hold for a rule that would allow a case-by-case
determination of government need, because that would bring everything
within judicial review. Besides, an officer on the street may not be able to
tell what is a jailable offense, and regardless, its not like the country is
seeing a serious problem of these kinds of arrests. OConnor Dissent:
The penalty attached to an offense provides the clearest and most
consistent indication of the governments interest. Absent exigent
circumstances, where there is probable cause that a fine-only offense has
been committed, no custodial arrest.
iii. Would the result in Atwater be different had there been a state law
proscribing custodial arrest in the case of seat belt violations?
1. United States v. Mota: Custodial arrest for such infractions is
unreasonable, and thus unlawful under the Fourth Amendment.
2. United States v. Oliver: Requiring a materiality representation by
a responsible official of the United States Attorneys Office strikes
a proper and adequate balance between protecting the secrecy of
the grand jurys investigation and subjecting an individual to an
unjustified arrest.
3. Moore v. Commonwealth: The search is not consistent with the
Fourth Amendment.
iv. Compare with Atwater the situation regarding arrest of a person as a
material witness:
1. Bacon v. United States: A material witness may be arrested to
ensure his testimony at trial if there is a probable cause showing

that 1) the testimony is material and 2) it may become

impracticable to secure his presence by subpoena.
2. United States v. Awadallah: FBI agent who works closely with a
prosecutor in a grand jury investigation may satisfy the personal
knowledge requirement.
v. As for the pretext arrest issue raised by the Robinson Dissenters, it
was finally addressed by the Supreme Court in Whren v. United
States: Plainclothes police officers in a high drug area became suspicious
of a truck when they changed direction to follow the truck and the truck
suddenly turned without signal and drove off at an unreasonable speed.
Police caught up and saw through the window that Whren had two plastic
bags full of what appeared to be crack cocaine. Convicted notwithstanding
the claim of a pretextual stop. Court held that as a general matter, the
decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.
vi. Whren tactic commonly used today in the war on drugs: Police are on
the watch for suspicious travellers, and once one is spotted, it is only a
matter of time before some technical or trivial offense produces the
necessary excuse for pulling him over.
vii. (Dissent) United States v. Botero-Ospina: The majoritys standard frees
a police officer to target members of minority communities for the
selective enforcement of otherwise unenforceable statutes.
viii. Donald A. Dripps: Police should have to account for why they are
making a custodial arrest for someone who exceeds the speed limit by four
miles per hour.
h. Notes and Questions on Other Searches of the Person: pp 350
i. Full searches of an arrested person and his carried personal effects
are more typically made when that person has been delivered to the
place of his forthcoming detention. Typically upheld for two reasons:
1. As a delayed Robinson search incident to arrest;
2. As an inventory incident to booking to safeguard the property of
the accused and to ensure that weapons and contraband are not
introduced into the jail.
ii. United States v. Edwards: Police took paint chips from Defendants
clothing without a warrant after he was arrested. Court held that this was
acceptable because once a defendant is lawfully arrested and in custody,
the effects in his possession at the place of detention that were subject to
search at the time and place of his arrest may lawfully bse searched and
seized without a warrant even though a substantial period of time has
elapsed between the arrest and subsequent administrative processing on
the one hand and the taking of the property for use as evidence on the
other. Stewart Dissent: The police had ample time to get a warrant and
had no exigent circumstances. Accordingly, they should have gotten a
warrant.

iii. After Robinson and Edwards is a person in custody following a lawful

arrest fair game for a search for evidence of crimes other than the
crime for which the arrest was made?
1. People v. Trudeau: Defendant was under arrest for breaking and
entering; shoes were taken and matched to the scene of a murder.
The Court held that seized shoes inadmissible because there was
no evidence to believe the shoes were linked to the crime.
iv. Schmerber v. California: Attempt to secure evidence of blood-alcohol
content without a warrant as part of a search incident to arrest is
permissible where there is no time to seek a warrant because time will
cause the blood-alcohol level to drop soon after drinking ceases.
v. Winston v. Lee (applying Schmerber): Court held that the proposed
court-ordered surgery on defendant for the purpose of removing a bullet
expected to show that defendant was the robber hit by the victims gunfire
would constitute an unreasonable seizure. Reasonableness of surgical
intrusions must be calculated on a case-by-case basis. Privacy interest
balanced against societys interests in conduct in the procedure. Here, the
operation would intrude substantially upon the respondents protected
interest and the state did not demonstrate a compelling need for it because
there was already considerable evidence against the defendant.
vi. United States ex rel. Guy v. McCauley (other scientific tests and
intrusion after arrest): Post-arrest search of womans vagina which
yielded narcotics violated suspects due process because it was not
conducted by skilled medical technicians.
vii. Knowles v. Iowa: Where a police officer uses his discretion to issue a
citation rather than conduct a custodial arrest, there is no permissible
search incident to arrest because 1) the threat to the officers safety is
substantially less if he is merely issuing a citation and 2) there is no need
to discover evidence.
1. BUT State v. Greenslit: Upheld a search of person incident to
issuance of notice to appear for present use of marijuana.
viii. Cupp v. Murphy: Suspect voluntarily came into the police station for
questioning when police noticed blood under his fingernails. Police then
had probable cause to arrest but did not. Court upheld that warrantless
taking of scrapings from underneath his fingernails under Chimel, but
emphasized that, a full Chimel search would not have been justified in this
case without a formal arrest and without a warrant. Marshall
Concurrence: Only other real option was detaining Murphy while a
warrant was sought, which would have produced the same result. Douglas
Dissent: There was time to get a warrant, and because Murphy would
have been detained while the warrant was sought, there was no danger of
losing the evidence.
i. COLORADO v. BERTINE: pp 393 Defendant was arrested for DUI. His car
was impounded and inventoried. There was no probable cause to search the
vehicle. The search was ok because it was an inventory search, not an
investigatory search. The inventory makes sure that protects owners property,

insures against claims of loss and protects police from danger. Rule will not work
if the search is done in bad faith (inventory for the purpose of finding fruits).
Marshall Dissent: The decision to not park and lock was the police officers,
not the departments, but the park and lock was more appropriate because the
respondent was stopped for a traffic offense and not likely to be in custody for a
significant length of time.
j. Notes and Questions: pp 398
i. Evidence found in an otherwise lawful inventory must be suppressed
if the prior impoundment of the vehicle was not justified:
1. Dyke v. Taylor: Search of car outside courthouse while driver
inside to post bond was improper as there is no indication that
police had purported to impound or hold the car or that there were
authorized by any state law to do so.
2. State v. Simpson: Defendant arrested at home, impoundment of
his truck lawfully parked in front of house illegal.
ii. Florida v. Wells: Inventory of a locked suitcase found in an impounded
vehicle was unlawful under Bertine because there was no police with
respect to opening closed containers during an inventory search.
iii. Inventory cannot be upheld when the department has no policy or
when the only standard practice identified is that of the individual
officer:
1. Majority Rule: U.S. v. Ford: If purported department policy was
not in writing but testified to by the inventory officer, it is
sufficient.
iv. Ex parte Boyd: Vehicle inventory invalid where there was a four-day
lapse of time between the impoundment and the inventory. The purposes
of conducting the inventory (safety, record against theft claims etc) are not
served if you wait that long.
8. Stop and Frisk and Some Other Warrantless Searches pp 408
a. TERRY v. OHIO pp 399: Two men appeared to be casing a store for a robbery.
Officer asked the men their names, they mumbled responses. Then the officer
patted down Terry and discovered a concealed firearm. There was no probable
cause for arrest or a search. Why can the officer stop and frisk? There is
reasonable suspicion; a lesser standard than probable cause.
i. Fourth Amendment Analysis: The amendment is divided into clauses.
The first clause is a reasonableness clause (there are places where you can
act reasonably without probable cause and still have a legal search), the
second is a probable cause clause (for warrants)
1. Reasonable to do what you did even if you couldnt have gotten a
warrant. This is grammatically constitutional under this clause.
ii. Why is it reasonable? The governments interests of 1) effective crime
prevention and detection and 2) immediate interest of the police officer to
protect himself outweigh the public interest of 1) being secure in their
person.
iii. Prosecution says this is not protected by the 4th Amendment. No seizure
because theres no arrest.

1. Court disagrees: defines a seizure: Whenever a police officer

accosts an individual and restrains his freedom to walk away, he
has seized that person.
iv. Defendant says: You cant seize me until there is probable cause for
arrest.
1. Court disagrees: That formulation does not work because the
police face dangerous situations on the street. You can make a
seizure on less than probable cause.
v. Holding: This is a search and seizure without probable cause for arrest or
a warrant, but it is nonetheless permissible.
vi. Rule: Police officer can go up to and address a person whenever they
want; the person is then free to walk away if they do not want to talk to
you.
1. When can you seize them? If you stop them and, after an initial
inquiry, have a reasonable suspicion that criminal activity is afoot.
(probably presently afoot)
2. When can you search? Must reasonably conclude in light of
experience that the person you are dealing with is armed and
presently dangerous.
b. The Significance of the Stop-And-Frisk Cases: pp 406
i. Police Action Short of Seizure:
1. FLORIDA v. BOSTICK: Guy on a bus when two police officers
stopped him and questions. Police had no articulable suspicion
regarding the Defendant, but nonetheless requested consent to
search Defendants luggage. Defendant complied and the drugs
seized were used against him to obtain his conviction. Defendant
says he was essentially seized because, since he was on a bus, he
was not free to simply walk away; defendant says there was no
voluntary consent. Supreme Court remands the case to determine if
a seizure occurred under the correct legal standard; refuses to adopt
special standard for buses: Whether a reasonable person would
feel free to decline the officers request or otherwise terminate the
encounter. Marshall Dissent: 1) A passenger unadvised of his
rights and otherwise unversed in constitutional law has no reason
to know that the police cannot hold his refusal to cooperate against
him 2) Not reasonable to say that the respondent could have
terminated the encounter because he would have had to squeeze by
an armed police officer to get off the bus, where he may have
checked luggage and he had no idea when the bus was going to
leave.
2. United States v. Drayton: Bus driver turned bus over to police
during a scheduled stop. Police conducted search of Defendant
without advising him of his right to refuse the search. Court held
that there was no seizure because there was no application of
force, no intimidating movement, no overwhelming show of force,
no brandishing of weapons, no blocking of exits, no threat, no

command, and not even an authoritative tone of voice. Souter

Dissent: The threatening presence of several police officers in an
enclosed space may overbear a normal persons ability to act
freely.
3. California v. Hodari D.: Suspect flees on foot upon seeing police,
tosses away crack cocaine, which is retrieved by police and used to
convict him. Defendant said that this was an illegal seizure. Court
held that there was no seizure where the defendant did not submit
to the authority of the police, so defendants fruits were not
protected. Stevens Dissent: This would have been an illegal
seizure if the Defendant had not thrown the drugs, so it should not
become a legal seizure just because the Defendant threw the drugs.
4. Hypo:
5. BRENDLIN v. CALIFORNIA: Issue: Whether an officer making
a traffic stop seizes the passengers as well as the driver. Court held
that no reasonable person would conclude that they were free to go
if they were the passenger in a car that was stopped in a traffic
stop.
6. Is Race Relevant?
ii. Grounds for Temporary Seizure for Investigation:
1. UNITED STATES v. CORTEZ: Two part test: 1) The
assessment must be based upon all the circumstances, drawn from
probabilities and weighed in terms of how it is understood by those
versed in the field of law enforcement and 2) The assessment of
the whole picture must yield a particularized suspicion that the
individual being stopped is engaged in wrongdoing.
2. SIBRON v. NEW YORK: Officer, while patrolling his beat
observed the Defendant continuously at Time Square conferring
with known drug users. Court held that this, without more, was not
sufficient for a reasonable search because, unlike in Terry, there
was no danger of violence here, and because the situation did not
appear to be fast moving, the officer could have gotten a warrant.
3. FLORIDA v. J.L.: An anonymous caller told police that a young
black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun. There was no reason to suspect the
Defendant apart from the tip. A frisk produced a fire arm. The
Court held that the fire arm must be excluded because the search
was not reasonable. An anonymous tip alone seldom
demonstrates the informants basis of knowledge or veracity.
Kennedy Concurrence: Anonymous tips can be reliable, but the
state provided no basis for reliability here.
4. Harris: S 86
5. United States v. Sokolow: Agents stopped Defendant at an airport
and knew that the Defendant had $2100 in $20 bills, was traveling
under a fake name to a city known for illicit drugs, stayed there
only 48 hours (even though a round trip took 20 hours), appeared

nervous, and checked no luggage. Court held this was enough for a
reasonable suspicion that Defendant was a drug courier. Marshall
Dissent: Reflexively relying on the normal habits of a drug courier
and applying them without considering police experience is
dangerous.
6. United States v. Hensley: Terry is less useful to combat crime
already committed. Court held that reliance on a flyer which has
been issued on the basis of articulable facts of reasonable suspicion
justifies a stop to pose questions or detain the person briefly while
obtaining further information.
7. ILLINOIS v. WARDLOW: Defendant saw the police then turned
and ran away. Officers gave chase and a stop and frisk yielded an
illegal handgun. The Court held that the stop did not violate the
Fourth Amendment. A persons presence in a high crime area is not
enough to justify a stop, but officer are not required to ignore the
high crime nature of the area in determining whether or not a stop
is warranted. The neighborhood combined with the unprovoked
flight was enough. Stevens Concurrence/Dissent: The totality of
the circumstances must dictate the result, but there was not enough
here; unprovoked flight + high crime neighborhood is still not
enough.
iii. Permissible Extent and Scope of Temporary Seizure: pp 420
1. (Time Limits) United States v. Sharpe: A federal drug agent saw
an apparently overloaded camper truck traveling in tandem with a
Pontiac. The police attempted to make a stop. The Pontiac pulled
over but the truck continued on. The police detained the driver of
the Pontiac for 20 minutes while other officers pursued the pick-up
truck. The Court held that this was consistent with the Fourth
Amendments brevity requirement.
2. Hiibel v. Sixth Judicial District Court: Defendant was convicted
under Nevadas stop and identify statute. The Court held that
Terry requires such cooperation.
3. ILLINOIS v. CABALLES: Defendant was stopped by a state
trooper for doing 71 in a 65 zone. Officer walked a drug sniffing
dog around Defendants car, and the dog detected narcotics. The
Court held that a lawful stop becomes unlawful if not timely, but
here, because walking the dog alongside of the car did not make
the length of the stop unreasonable, it was permissible.
4. SEARCHSZR 9.3(b): Terry mad it unmistakably clear that the
only exception to the usual rule that a search for evidence requires
full probable cause is that an officer in a Terry context could upon
reasonable suspicion that the suspect was armed and dangerous
make a limited frisk of the suspects person.
a. This was extended to the suspects car in Michigan v.
Long.

5. Ohio v. Robinette: Defendant was stopped for speeding. Deputy

asked to search the car, Defendant consented and a small amount
of marijuana and a single pill were found. Court held that the
officer did not need to tell the driver that he could refuse the
search. Stevens Dissent: The officers failure to tell the Defendant
that he was free to leave would dictate that a reasonable person
would not believe that they were free to leave, the seizure was at
that time illegal and so the evidence should be suppressed as the
fruit of a poisonous tree.
iv. Temporary Seizure of Effects: pp 428
1. United States v. Van Leeuwen: Permissible to temporarily detain
the mail while an investigation is being made. However, detaining
the mail indefinitely will eventually become an unreasonable
seizure of papers and effects under the Fourth Amendment.
2. United States v. Place: Temporary detention of luggage is a caseby-case issue. If the search is sufficiently quick and not invasive,
no Fourth Amendment violation.
v. Other Brief Detention for Investigation: pp 437
1. DAVIS v. MISSISSIPPI: 24 black youths were detained for
questioning in connection to a rape. The police essentially rounded
up every black youth of the correct age group in the town. The
court held that the fingerprints should be excluded as fruits of a
poisonous tree. However, if this had not been custodial but rather
scheduling fingerprinting, it may have been permissible.
2. United States v. Dionisio: Subpoena is not a seizure.
3. Dunaway v. New York: Defendant was picked up for questioning
and put in an interrogation room. Court held that The mere facts
that petitioner was not told he was under arrest, was not booked,
and would not have had an arrest record if the interrogation had
proved fruitless obviously do not make petitioners seizure even
roughly analogous to the narrowly defined intrusions in Terry.
Detention for custodial interrogation intrudes so severely on
interests protected by the Fourth Amendment as necessarily to
trigger the traditional safeguards against illegal arrest. White
Concurrence: This should not mean that Terry is a rare exception.
Rehnquist Dissent: Petitioner was in no way threatened or
restrained by police; he could not have reasonably believed he was
under arrest.
9. Administrative Inspections and Regulatory Searches: More on Balancing the Need
Against the Invasion of Privacy: p 435 These cases represent two kinds of departure
from the traditional probable cause requirement 1) As in Terry, require individualized
suspicion. The other 2) require no individualized suspicion, but instead require that the
seizure or search be conducted pursuant to some neutral criteria which guard against
arbitrary selection of those subject to procedures.
a. Safety Inspections:

b.

c.

d.

e.

i. Camara v. Municipal Court: When dealing with fire, health and housing
code inspection programs directed at dwellings, if an occupant did not
consent to an inspection, probable cause to issue a warrant to inspect must
exist if reasonable legislative or administrative standards for conducting
an area inspection are satisfied with respect to a particular dwelling. This
warrant must show that a specific business has been chosen on the basis of
a general administrative plan derived from neutral sources.
Border Searches: No warrant needed. No exigent circumstances. Total
exception!
i. United States v. Ramsey: Court upheld an inspection of mail entering the
U.S. because 1) searches are considered reasonable simple because some
person or item is entering our country from the outside and 2) No warrant
is needed for this search and it is not based on exigent circumstances.
Vehicle Checkpoints:
i. Almeida-Sanchez v. United States: Roving patrols can only stop and
search vehicles for illegal aliens on probable cause, but only Terry-type
reasonable suspicion is needed for patrols to engage in the more modest
interference of stopping motorists and inquiring briefly as to their
residential status.
ii. Delaare v. Prouse: Absent reasonable suspicion, the police may not stop
individual vehicles for the purpose of checking the drivers license and the
registration of the automobile. However, as a possible alternative, police
may question all oncoming traffic at roadblock-like stops.
iii. Michigan Dept of State Police v. Sitz: Upheld the sobriety checkpoint
program because 1) intrusion on motorists is slight 2) program sufficiently
limited officers discretion 3) program addressed the very serious drunken
driving problem 4) checkpoints were reasonable alternatives to the
problem.
Terrorist Checkpoints: Searching/x-raying bags large enough to carry explosives
and randomly selecting some passengers for more intense searches are acceptable.
i. MacWade v. Kelly: Must balance these considerations: 1) sufficiently
immediate threat 2) A subway rider has full expectation of privacy in his
containers 3) Searches were minimally intrusive 4) The program was
reasonably effective.
Search of Students:
i. New Jersey v. T.L.O.: Struck a balance between student and schools
respective legitimate interests: 1) School officials do not need a warrant
before searching a student who is under their authority 2) ordinarily, a
search of a student by a teacher or other 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 has violated or is violating
either the law of the rules of the school 3) search will be permissible in its
scope when the measures adopted are reasonably related to the objectives
of the search and not excessive intrusion in light of the age and sex of the
student and nature of the infraction.

f. Drug Testing: Lower courts have upheld drug testing by government or private
employers on individualized suspicion, but the Supreme Court has upheld testing
in cases without individualized suspicion in some instances.
i. National Treasury Employees Union v. Von Raab: Suspicion less
testing of employees who apply for promotion to positions directly
involving the interdiction of illegal drugs or to positions that require the
carrying of fire arms is acceptable. The governments interest in
preventing the promotion of drug users to positions where they might
endanger the integrity of boarders or life of citizenry outweighs the
diminished expectations of privacy of someone who applies for these
positions.
ii. Skinner v. Railway Labor Executives Assn: Upheld blood and urine
testing of railroad employees following major train accidents and the
breath and urine testing of employees who violate certain safety rules
because 1) the special danger of operating this machinery under the
influence 2) the diminished expectation of privacy that attaches to the
fitness of covered employees and 3) the limited discretion of railroad
employers had regarding who and when to test.
iii. Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls: Upheld random testing policy to middle
and high school students participating in any extra-curricular activity
because 1) students voluntarily subject themselves to the testing through
participation 2) the nature and immediacy of the governments concern due
to the nationwide drug epidemic and 3) it is a reasonable effective means
to deter drug use in schools.
g. Supervision of Probationers and Parolees; Special Needs vs. Balancing of
Interests:
i. SAMSON v. CALIFORNIA pp 439: Parolee was observed by police
officer walking down the street. Officer asked him whether he had an
outstanding parole warrant, parolee said no. Officer searched parolee
solely on the basis of his status as a parolee (state law provides for this).
Found methamphetamine. Parolee convicted. Issue: Whether a condition
of release can so diminish or eliminate a released persons reasonable
expectation of privacy that a suspicion less search by a law enforcement
officer would not offend the Fourth Amendment. Holding/Rationale:
Probationers and parolees do not have the same absolute liberty that the
rest of the citizenry enjoys. Police do not have to ignore the reality of high
recidivism. Parolee knew that he could be subjected to suspicion less
searches as a condition of his parole. States interest is substantial:
Overwhelming interest in supervising parolees because parolees are more
likely to commit future criminal offenses. This search did not offend the
Fourth Amendment.
ii. Notes and Questions: pp 448
1. May DNA Testing Statutes Encompass Persons Merely
Arrested for a Crime as is Now Authorized by Legislation at
the Federal Level and in Some States?

a. OHagen: The taking of a buccal cheek swab is a very

minor physical intrusion upon the person. No more
intrusive than a fingerprint
2. Would a System of Universal DNA Testing Likewise Pass
Muster?
10. Consent Searches: pp 449
a. The Nature of Consent:
i. SCHNECKLOTH v. BUSTAMONTE: Habeas Corpus case. Traffic
stop. Defendant gives consent to give search car; police found stolen
checks. Consent is invalid if given under duress. Supreme Court says
police do not need to explain to a suspect that they may refuse consent.
This dispenses with probable cause and warrants. Waiver here is similar to
trial waiver, where the defendant must knowingly waive rights. Waiver is
fine; search is not excluded; conviction upheld.
1. What is a valid consent? Standard is traditional. You do not need
to know that you have a choice to consent.
2. What factors go into voluntariness? Must be free from undue
coercion.
a. Location where the consent is given.
b. Is the defendant in custody?
3. What is coercion?
a. Physical threats
b. Psychological threats
c. Duration of interrogationsleepless nights, food
deprivation, length of interrogation
4. Marshall Dissent: A prosecutor may not rely on a purported
consent to search if the subject of the search did not know that he
could refuse to give consent. What good is a right if you do not
know you have it?
ii. Custody; Warning of Fourth Amendment Rights:
1. United States v. Watson: Failure to give the defendant Fourth
Amendment Warnings is not given controlling significance where
the defendant had been arrested and was in custody BUT his
consent was give on a public street.
2. Gentile v. United States: Denied Cert to review a case where
consent was obtained from the defendant during a stationhouse
interrogation AFTER giving of Miranda Warnings but BEFORE
Fourth Amendment warnings.
iii. Consent by Deception:
1. Lewis v. United States: Upheld evidence obtained where officer
acted undercover nd obtained a consent which the defendant would
not have given had he known the officers true identity.
2. Krause v. Commonwealth: Police wishing to look for drugs told
occupant that a woman reported being raped by defendants
roommate and they needed to see if the interior of the house
matched the victims description.

3. United States v. DiModica: Police could have gotten a warrant,

but instead told defendant that his wife was badly injured and
asked to come inside to talk to him.
iv. Scope of Consent:
1. Florida v. Jimeno: Standard is neither the suspects intent not the
officers perception thereof but rather, that of objective
reasonableness. An officers statement that he was looking for
narcotics made it objectively reasonable for the police to conclude
that the general consent to search defendants car included
containers in that car which might bear drugs.
b. Third Party Consent: pp 457
i. ILLINOIS v. RODRIGUEZ: Girlfriend gives consent to search
boyfriends apartment. There was no actual authority here because they
were broken up. This is different from husband/wife cases. Question is
whether the police believe that she actually had reasonable authority. The
general rule to satisfy the reasonableness requirement is not that they
always be correct, but that they always be reasonable. The issue here was
not whether the right to be free of searches has been waived, but whether
the right to be free of unreasonable searches has been violated. Law
enforcement officers may assume they have permission to enter a premises
when the facts would objectively warrant a man of reasonable caution that
the consenting party has control over the premises.
1. Marshall Dissent: Third party consent searches are not based on
an exigency and therefore serve no-compelling social goal. You
can get a warrant or come back later.
ii. Notes on Who May Consent:
1. Husband-Wife:
a. United States v. Duran: Defendants wife could consent to
search a separate building on their farm which defendant
used as a gym.
i. Rule: A spouse presumptively has authority to
consent to a search for all areas of the homestead.
The non-consenting spouse may rebut this
presumption only be showing that the consenting
spouse was denied access to the particular area
searched.
2. Parent-Child:
a. Generally: If a child is living at the home of his parents,
the head of the household may give consent to a search of
the childs living quarters.
i. Adult Child sometimes reaches contrary conclusion.
b. Reverse: A child may not give consent to for a full search
of parents house.
3. Landlord-Tenant; Co-Tenants:
a. Chapman v. United States: A landlord may not consent to
a search of his tenants premises.

b. Stoner v. California: Hotel employees may not consent of

the search of ap articular room during the period in which it
has been rented by a guest.
c. State v. Thibodeau: Where two or more persons occupy a
dwelling place jointly, the general rule is that a joint tenant
can consent to police entry and search of the entire house,
even though they occupy separate bedrooms.
4. Employer-Employee:
a. Gillard v. Schmidt: Consent invalid to search defendants
desk because the rule turns on the persons reasonable
expectation of privacy in an area.
b. Commonwealth v. Glover: Factory owner could consent
to search of items on top of work bench, as it is not an area
assigned to defendant or used exclusively by him.
5. Bailor-Bailee:
a. Frazier v. Cupp: Defendant let a bailee use his bag to store
clothes. Police seized the bag and found evidence to use
against bailor. This is fine. You assume the risk of search if
you let someone use your bag.
iii. Notes on Limits on Third Party Consent: pp 462
1. Antagonism: What if a wife calls police into the house and points
out incriminating evidence because she is angry with her husband?
a. State v. Gonzalez-Valle: Where the motive of the
defendants wife in consenting of the search was clearly
one of spite, she had no right to waive her husbands
protection against unreasonable searches and seizures.
b. Commonwealth v. Martin: While they are both living in
the premises the equal authority does not lapse and revive
with the lapse and revival of amicable relations between
spouses.
2. Defendants Instructions: If the defendant had previously
instructed the third party not to allow a search, should those
constructions be controlling?
a. People v. Fry: No valid search where police knew husband
had instructed wife not to allow the search.
b. People v. Reynolds: Valid search where police did not
know that husband told wife not to allow the search.
3. Defendants Refusal or Failure to Consent:
a. Georgia v. Randolph: Wife is at the door consenting to the
search and husband is not consenting to the search. Court
says this is an invalid search because a social caller in this
situation would not think they could enter. Since the cotenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail
over a present and objecting co-tenant, 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.
i. Roberts Dissent: A more reasonable approach
would be to adopt a rule acknowledging that shared
living space entails a limited yielding of privacy to
others, and that the law historically permits those to
who we have yielded our privacy to in turn
cooperate with the government.
ii. Thomas Dissent: This is a case of evidence
obtained by a private person, not a police search.
11. A Return to Exclusionary Rule Issues:
a. UNITED STATES v. LEON: pp 225 Search warrant that was bad because the
magistrate should not have issued it. Officers acted on the bad warrant with good
faith. Defendant moves to suppress. Court holds that the exclusionary rule is not
meant as a remedy, but as a deterrent to ensure that police do not violate the
amendment. Rule: If police reasonably rely on a bad warrant, they are still
allowed to include the evidence at trial. Rationale: Since the exclusionary rule
works as a deterrent, if the police are reasonably relying on what they thought was
a good warrant, throwing it out will not deter them.
i. Defendant is going to have two problems with this:
1. This will make it possible for magistrates to get sloppy.
2. Court says that they are not trying to deter magistrates, but the
police
a. Law will become stagnant because there will be no more
litigation; if we are using a reasonableness standard, cases
will not come to bar as to what is and is not reasonable.
ii. Incentive to get a warrant from this case because, if there reasonableness,
even a bad warrant will be upheld.
iii. Blackmun Concurrence: This is a provisional holding. We must change
it if later evidence shows we were wrong.
iv. Brennan Dissent: Admission of illegally obtained evidence implicates the
same constitutional concerns as the initial seizure f that evidence. The
amendment should be read to condemn not only the initial unconstitutional
invasion of privacy, but also the subsequent use of any evidence so
obtained.
1. The deterrence theory is misguided and unworkable because 1) the
Court has frequently bewailed the cost of excluding reliable
evidence. Criminal will thus go free not because the constable
blundered, but because the official compliance with the Fourth
Amendment makes it more difficult to catch criminals.
b. Notes: pp 236
i. Massachusetts v. Shephard: Detective prepared an affidavit for a search
warrant to search for specified evidence of a homicide, but because it was
Sunday, could only find a warrant form for controlled substances. Judge
said he would fix it, but failed to change the part that authorized a search
for controlled substances. Evidence was suppressed in the state court

because the warrant failed to particularly describe the items to be seized.

Court held that this falls within Leon because there was an objectively
reasonable basis for the officers mistaken belief that the warrant
authorized the search that they conducted.
ii. Groh v. Ramirez: Affiant correctly stated the items to be seized but
mistakenly entered in the space for that specification a description of the
place to be searched. Court held that no reasonable officer could believe
that a warrant that plainly did not comply with that requirement was valid.
A cursory glance at the warrant would have revealed the fatal flaw.
iii. Are there other limitations might well be imposed upon the
exclusionary rule?
1. Two Proposals from John Kaplan:
a. The rule not apply in the most serious casestreason,
espionage, murder, armed robbery, and kidnapping by
organized groups because the political costs of the rule, and
the disproportion between the magnitude of the
policemans constitutional violation and the crime in which
the evidence is to be suppressed are sufficient reasons to
modify the rule.
b. The exclusionary rule should be inapplicable to cases
where the police department in question has taken seriously
its responsibility to adhere to the Fourth Amendment.
iv. Should the Court instead abolish the exclusionary rule entirely on the
ground that the deterrence function stressed in Leon is more generally
not served by exclusion?
1. Burger in Bivens Dissent: Lack of deterrent efficacy because 1)
the rule does not apply any direct sanction to the individual official
2) Police have no stake in successful prosecutions 3) Policemen do
not have the time, inclination or training to read and grasp the
nuances of the appellate opinions that ultimately define the
standards of conduct they are to follow 4) There are large areas of
police activity which do not result in criminal prosecutions.
v. Michigan v. DeFillippo: Unless a statute is clearly unconstitutional, an
officer cannot be expected to question the judgment of the legislature that
passed the law.
c. HUDSON v. MICHIGAN: pp 241 Police executed a warrant for drugs and fire
arms at defendants home but only waited three to five seconds before entering.
Defendant moved to suppress evidence, arguing that the forced entry was
premature. Court denied the claim. Applying this standard to no-knock entries
would flood the courts. Reasonable suspicion is enough to get past the knock.
There is not much deterrent value here by excluding. Civil liability will be
effective. The social costs of applying the exclusionary rule to knock-andannounce violations are considerable; the incentive to such violations is minimal
and the extant deterrents against them are substantial.
i. Kennedys Concurrence: Two Points: 1) Knock-and-announce
requirement protects rights and expectations linked to ancient principles in

our constitutional order. This decision should not be misinterpreted to

think that the court finds them trivial 2) Continued operation of the
exclusionary rule is not in doubt.
ii. Breyers Dissent: Without such a rule, police know that they can ignore
the Constitutional requirements without risking suppression of evidence
discovered after an unreasonable entry. No reason to believe civil remedial
measures will be enough. Mapp is law, not Wolf.
1. Places to decline to apply the exclusionary rule:
a. Where there is a specific reason to believe that
application of the rule would not result in appreciable
deterrence:
i. Leon (bad warrant executed in good faith)
ii. Evans (Clerical errors by court employees)
iii. Walder (impeachment purposes)
b. Where admissibility in proceedings other than criminal
trials was at issue:
i. PA Bd of Probation and Parole v. Scott (Parole
revocation proceedings)
ii. Lopez-Mendoza (deportation proceedings)
iii. Janis (civil tax proceedings)
iv. Calandra (grand jury proceedings)
v. Stone v. Powell (Habeas Corpus proceedings)
d. HERRING: S58
DUE PROCESSINCORPORATION REVIEW
1. The Ordered LibertyFundamental Fairness, Total Incorporation and Selection
Incorporation Theories:
2. The Problem of Bodily Extractions: Another Look at the Due Process and Selective
Incorporation Approaches:
POLICE INTERROGATIONS AND CONFESSIONS
1. Historical Background: pp 539
a. The Third Degree (And Torture): The third degree is the infliction of physical
pain or mental suffering to obtain information about a crime.
i. Methods: prolonged incommunicado questioning, extreme psychological
pressure, bright lights, forced standing, slapping with rubber hose, hitting
with phone book, water cure, mock executions.
b. Police Professionalism and the Rise of the Police Interrogation Manual: The
Third Degree led to a fundamental distrust of police. Police reformers wanted to
assert control over the problem. They began writing police interrogation manuals
that stressed psychological methods over physical techniques.

i. Lieutenant Kidd said only three possible outcomes to the third degree:
1) He will tell anything desired 2) he will go insane 3) he will die.
ii. What if a suspect asks to remain silent?
1. Officer would pretend to concede to the request and then after
some more psychological conditioning, ask him more innocuous
questions and then gradually get back to questioning about the
offense.
iii. What if the suspect asks for a lawyer?
1. Officer will suggest that the subject save himself or his family the
expense of any such professional service if he is truly innocent.
c. The Interests Protected by the Due Process Voluntariness or Totality of
Circumstances Test for Admitting Confessions: These were the pre-Miranda
focus.
i. First Rules: A confession was admissible so long as it was free of
influence which made it untrustworthy or probably untrue.
1. The Due Process Voluntariness Test was also called the Totality of
the Circumstances Test because it took into account almost every
factor involved in the case.
2. Three underlying values or goals (reasons to exclude
confessions): 1) which were of doubtful reliability because of the
police methods used to obtain them 2) which were produced by
offensive methods even though the reliability of the confession
was not in question 3) which were involuntary in fact.
a. Ashcraft v. Tennessee: Conviction was reversed where a
confession had been obtained after some thirty-six hours of
continuous interrogation of the defendant by police.
b. Watts v. Indiana: Court reversed three convictions resting
on coerced confessions without disputing the accuracy of
that checked with external evidence they are inherently
believable and were not shaken as to truth by anything that
occurred at trial.
c. Rochin v California: Use of involuntary verbal
confessions in state criminal trials is constitutionally
obnoxious not only because of their unreliability. They are
inadmissible under the Due Process Clause even though
statements contained in them may be independently
established as true. Coerced confessions offend the
communitys sense of fair play and decency.
3. Pre-Escebedo and Pre-Miranda police practices revealed to
render a confession involuntary:
a. Malinski v. New York: Stripping off defendants clothes
and keeping him naked for hours.
b. Lynumn v. Illinois: Informing defendant that state
financial aid for her infant children would be cut and her
children taken from her if she failed to cooperate with
police.

d.

e.

f.

g.

c. Rogers v. Richmond: Bringing in defendants infirm wife

for questioning
d. Haynes v. Washington: Repeatedly rejecting defendants
requests to phone his wife until he gave police a statement.
e. Ward v. Texas: Removing defendant form jail to distant
place to thwart his relatives efforts to secure his release.
f. Leyra v. Denno: Using hypnosis.
g. Spano: Using a childhood friend as bait to get him out of
trouble.
The Shortcomings of the Voluntariness Test:
i. Miller v. Fenton: Voluntariness of a confession is not a factual issue but a
legal question meriting independent consideration in a federal habeas
corpus proceeding. Admissibility turns on whether techniques used for
extracting the confession are compatible with a system that presumes
innocence and assure that a conviction will not be secured by inquisitorial
means as on whether the defendants will was in fact overborne.
The McNabb-Mallory Rule: Supervisory Authority Over Federal Criminal
Justice vs. Fourteenth Amendment Due Process: Cannot admit evidence if
there is too much time between the arrest and the preliminary hearing. This rule
was later superseded by the broader Miranda rule. Excluded because police
violated the statute mandating a maximum holding time. Because this is
legislatively based, it is not based on the Constitution.
The Right to Counsel and the Analogy to the Accusatorial, Adversary Trial:
i. Crooker v. California: Petitioner had attended one year of law school and
told police that he knew he rights. He contended that by persisting in
interrogation after denying his specific request to contact his lawyer the
police violated his due process right to legal representation, and therefore
his confession was not voluntary. The Court rejected. No right to
representation at the pretrial stage. (Sixth Amendment was not yet
incorporated to the States.)
1. Douglass Dissent: The right to have counsel at the pretrial stage
is often necessary to give meaning and protection to the right to be
heard at the trial itself.
ii. Cicenia v. La Gay: Petitioner unsuccessfully asked to see his attorney,
and the attorney, who was at the police station, unsuccessfully attempted
to see the petitioner. Murder conviction still upheld.
iii. Spano v. New York: The right to counsel attaches once a person is
formally charged.
Massiah and Escobedo: The Court Closes in on the Confession Problem:
i. Massiah v. United States: Defendant had his attorney present at
interrogation, was indicted, pled not guilty and was released on bail.
Defendant gets in his friends car; friend is wearing a wire and gets
Defendant to say incriminating things. Evidence must be excluded.
Defendant was denied his right to counsel. Although this case is held to its
own facts, essentially, the right to counsel attaches at indictment.

ii. Escebedo v. Illinois: Defendant is arrested and asks to speak to his

attorney while he is in police custody but before he has been formally
charged with a crime. Released. Re-arrested because the other suspect
named him as shooter. Defendant named other suspect as the shooter (thus
incriminating himself as a conspirator). Rule from this case is unclear. Are
they talking about the right to remain silent or the right to counsel? Court
determines that the evidence must be excluded. Holding is at the top of
557 and REALLY confusing.
1. We hold, therefore, that where, as here, the investigation is no
longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogations that lends
itself to eliciting incriminating statements, the suspect has request
and been denied an opportunity to consult with his lawyer, and
police have not effectively warned him of his absolute
constitutional right to remain silent, the accused has been denied
the assistance of counsel in violation of the sixth amendment to the
constitution as made obligatory upon the states by the fourteenth
amendment, and that no statement elicited by the police during the
interrogation maybe used against him at a criminal trial.
h. A Late Arrival on the Scene: The Privilege Against Self-Incrimination: pp
559
i. Malloy v. Hogan: Fifth Amendment is applied to the states.
2. The Miranda Revolution:
a. MIRANDA v. ARIZONA: pp 566 Prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.
i. Procedural Safeguards:
1. Prior to questioning, person must be warned that he has a right to
remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.
2. Defendant may waive effectuation of these rights, provided the
waiver is made voluntarily knowingly and intelligently.
3. If he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking there can be
no questioning.
4. If the individual is alone and indicates in any manner that he does
not wish to be interrogated, the police may not question him.
ii. Class Notes:
1. Only custodial interrogations require the warnings.
a. Warnings:
i. Remain silent
1. Before this case, it was thought that the right
to remain silent only applied to cruel

trilemma under judicial compulsion.

Previously, merely being in police custody
would not count. Now, the 5th Amendment
reaches custodial interrogations. (This is a
big leap; extending the 5th Amendment
beyond judicial compulsion. Malloy gets us
there. Also, the compulsion part is gotten
from the manuals
2. You have the right to refuse interrogation at
any time.
ii. Can and will be used against you if you speak
1. Even exculpatory statements
iii. Right to an attorney (whether or not you can
afford one)
1. When do you get an attorney? You can get
one now and consult with him and have him
present during interrogation.
a. If you are having one appointed, this
will likely mean no interrogation.
2. Is this a 6th Amendment right to counsel? 6th
Am right attaches for defense in all criminal
prosecutions. Custodial interrogation does
not apply. This is a 5th Amendment right to
counsel to really effectuate the right to
silence.
b. What are the other effective measures? Congress or state
legislature can come up with something else that will solve
this problem, and that would be ok. What would those
things be?
b. Applying and Explaining Miranda: pp 597
i. The Adequacy of Warnings:
1. Duckworth v. Eagan: Defendant denied involvement in a murder,
but agreed to go to police headquarters for questioning. He was
read a waiver that said that he had a right to an attorney, but that
they have no way to provide a defendant with an attorney, but that
one would be provided when he went to court. Defendant signed
the waiver and again denied involvement. He was placed in a lock
up for 29 hours before being signing another differently worded
form and confessing. Court held that the initial form touched on all
the Miranda requirements. This was sufficient because Miranda
only requires informing suspect of his right to counsel and that if
police cannot provide counsel questioning will stop. This waiver
form did that, so its sufficient.
ii. Need for Police Admonitions in Addition to the Four Miranda
Warnings:

1. The consequences of silence: Many suspects will assume that

silence in the face of accusation is itself damning and will bode ill
when presented to a jury. Should suspects be advised that silence
cannot be used against them?
2. The right to be told that if he chooses to talk to the police at the
outset, he may terminate the conversation at any time: Should
he be explicitly informed of such a right? The standard FBI
Miranda card has this in it.
3. The right to be made aware of the subject matter of the
questioning:
a. Colorado v. Spring: Court held that a suspects awareness
of all the possible subjects of questioning in advance of
interrogation is not relevant to determining whether the
suspect voluntarily, knowingly, and intelligently waived his
Fifth Amendment privilege. Here, defendants confession to
a murder that he did not know he would be questioned
about is admissible.
c. Notes and Questions:
i. Custody vs. Focus:
1. Beckwith v. United States: Expressly rejected the focus test of
Escobedo. Miranda specifically defined focus (p. 571) for its
purposes, as 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.
2. Stansbury v. California: Court held that an officers subjective
and undisclosed view concerning whether the person being
interrogated is a suspect is irrelevant to the assessment whether the
person is in custody.
ii. What Constitutes Custody or Custodial Interrogation?
1. Criminal Procedure, the Burger Court and the Legacy of the
Warren Court: Problems have arisen regarding what to classify
questioning on the street. Most courts have concluded that absent
special circumstances, questioning on the street, in a public place
or in a persons home or office is not custodial.
a. Sometimes whether a person goes to the station on his own,
agrees to accompany the officer may not be custodial.
b. Custody is an objective test. But how would reasonable
people in the suspects situation have perceived their
circumstances?
iii. What Constitutes Interrogation Within the Meaning of Miranda? Pp
608
1. RHODE ISLAND v. INNIS: Patrolman arrested defendant at 430
am, suspecting him of murdering a cab driver. Defendant was
unarmed, and was advised of his rights. Defendant asked to speak
to a lawyer. While en route to the police station, two police officers
had a conversation about how they needed to find the shot gun so

that no children hurt themselves with it. Defendant interrupted the

conversation and showed to officers where he had hidden the gun
because he did not want any children getting hurt. Convicted.
Appealed, arguing that the police had interrogated him without a
valid waiver to his right to counsel. Court held that Miranda
safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent.
Overhearing a conversation between two police officers does not
count. Cannot be said that the officers should have known that
their conversation was likely to elicit an incriminating response.
a. Burger Concurrence: Fears uncertainty in the test.
b. Marshalls Dissent: This is a classic interrogation
technique. The officers conversation was obviously staged
for the benefit of the defendant for the very purpose of
making him show them the gun.
c. Stevens Dissent: The definition of interrogation must
include any police statement that has the same purpose or
effect as a direct question. These statements were obviously
made to elicit the response they received.
iv. The Jail Plant Situation; Surreptitious Interrogation:
1. Illinois v. Perkins: Defendant was in jail and an undercover police
officer posing as another inmate gets him to admit to the killing.
Court holds that this is acceptable within Miranda because it was
not a custodial interrogation. Reason is that the compulsion and
stress that comes from a custodial interrogation is not present
where the defendant does not know he is being interrogated.
Miranda warnings are not required when the suspect is unaware
that he is speaking to a law enforcement officer and gives a
voluntary statement. There are no compulsion elements present
when an incarcerated person speaks freely to someone that he
believes to be a fellow inmate.
a. Marshall Dissent: Miranda was not solely concerned with
police coercion, but with any police tactics that may
operate to compel a suspect in custody to make
incriminating statements without full awareness of his
constitutional rights. This is why we have Miranda!
v. What Constitutes Testimonial Evidence? What Questions Fall within
the Routine Booking Question Exception to Miranda? More on What
Amounts to Custodial Interrogation within the Meaning of Miranda:
1. PENNSYLVANIA v. MUNIZ: Defendant was arrested for driving
while intoxicated and, without being given Miranda rights, was
asked to perform three field sobriety tests. Defendant performed
them poorly and admitted to drinking. At the booking station,
Defendant was told that he was being recorded, and both the
answers and delivery to the questions were incriminating (couldnt

give the date of his sixth birthday). Court only excluded his sixth
birthday response.
a. Why Munizs responses to the questions he was asked at
the booking center were admissible even though the
slurred nature of his speech was incriminating:
i. Physical inability to articulate words in a clear
manner is not itself a testimonial component of
Munizs responses to the questions.
b. More on what constitutes testimonial evidence. Why
the response ot the sixth birthday question was
testimonial:
i. This was excluded not because of delivery, but
because of the answers content. The trier of fact
could infer from Munizs answer (that he did not
know the date of his sixth birthday) that his mental
state was confused. This is testimonial.
c. The routine booking question exception to Miranda:
Why Munizs answers to the first seven questions he
was asked at the booking center are admissible even
though the questions qualify as custodial interrogation:
i. Munizs answers to the other questions are
nonetheless admissible because the questions fall
within a routine booking question exception which
exempts from Miranda coverage questions to secure
the biographical data necessary to complete booking
or pretrial services.
d. More on what constitutes custodial interrogation: Why
Munizs incriminating utterances during physical
sobriety tests conducted by the police were admissible.
i. Miranda does not require suppression of the
statements Muniz made when asked to submit to a
breathalyzer examination. These limited and
focused inquiries were necessarily attendant to the
legitimate police procedure and not likely to be
perceived as calling for any incriminating response.
vi. Physical or Demeanor Evidence vs. Evidence of Silence:
1. United States v. Velarde-Gomez: Defendant attempted to enter
the U.S. from Mexico at a California port of entry. Drug dog
alerted officers to the defendants gas tank. Search yielded 63lbs of
marijuana. Before advising defendant of his Miranda rights, agent
informed defendant that customs officials had found the marijuana
in his cars gas tank. Defendant did not physically respond.
Prosecutor at trial emphasized how calm and relaxed defendant
had been when told there was marijuana in his car.
a. Defendant was faces with a Catch-22: If he remained silent,
the government could his silence as powerful and

persuasive evidence that he was the drug carrier. If he

denied the existence of the drugs, the government would be
able to impeach him with the physical or other evidence
tending to discredit him.
vii. When Does a Response to an Officers Question Present a Reasonable
Danger of Incrimination?
1. HIIBEL v. SIXTH JUDICIAL COURT: Sustained Nevadas stop
and identify statute. Defendant refused to identify himself because
he thought his name was none of the officers business. This is not
a sufficient private interest. Even witnesses who plan to invoke the
Fifth Amendment at trial must answer their names when called to
take the stand. Only reason to not give name is if you think your
name alone will cause your arrest.
a. Stevens Dissent: Compelled statement at issue is clearly
testimonial. We should not assume the disclosure of
petitioners name would be used to incriminate him or that
it would furnish a link of chain evidence needed to
prosecute him.
viii. Questioning Prompted by Concern for Public Safety:
1. NEW YORK v. QUARLES: Man apprehended behind a
supermarket in the middle of the night. Missing gun. Police ask
him where it is and he tells them before his Miranda rights are
read. Courts refuse to exclude the evidence. They create a public
safety exception to Miranda. There is a public safety exception to
the requirement that Miranda warnings be given before a suspects
answers may be admitted into evidence, and that the availability of
that exception does not depend upon the motivation of the
individual officers involved.
a. If you were the attorney in this case, would you just raise
Miranda, or would you raise another claim? Note: You
should argue involuntariness AND Miranda where possible.
Is it better to win on involuntariness?
i. You could argue coercion: Police around him with
guns asking him where the gun is.
b. Marshall Dissent: Majority assumes the public was at risk.
Defendant was not believed to have an accomplice and the
police were confident enough in their safety to put away
their guns. The arrest took place in the middle of the night
when the area was deserted. Police would have found the
gun before anything bad happened without this
interrogation.
ix. Meeting the Heavy Burden of Demonstrating Waiver: Should Tape
Recordings of the Warnings and Police Questioning be Required?
1. Police were the first to push for recording questioning. Miranda
does not explicitly require recording. Most state courts have held

that uncorroborated testimony of an officer that he gave Miranda

warnings and obtained waiver is sufficient.
2. Exceptions: 7 states require law enforcement officers in certain
cases (generally homicide investigation) to make an audio or
videotape of all the facts of interviews or conversations with a
custodial suspect.
a. Alaska: Must tape when feasible. (Minnesota too)
b. Illinois Recommends taping and requires it sometimes.
c. New Jersey: Statewide mandatory recording requirement
when feasible for violent or dangerous offenders.
d. Maine: Requires recording in felony cases.
e. New Mexico: Requires recording in felony cases.
f. Wisconsin: Requires police to record all adult custodial
interrogation.
g. Massachusetts: Authorized the use of cautionary
instructions to the jury if police fail to electronically record
interrogations and this has led various police departments
in the state to voluntarily record their interrogations.
3. However, a majority of police departments still do not record
and oppose the practice of recording all together.
x. Implied Waiver:
1. NORTH CAROLINA v. BUTLER: Mere silence is not enough to
waive Miranda rights. Courts must presume that the defendant did
not waive his rights, but in at least some cases, waiver can be
clearly inferred from the actions and words of the person
interrogated.
a. Brennans Dissent: The very premise of Miranda requires
that ambiguity be interpreted against the interrogator. Only
the most explicit waiver of rights can be considered
knowingly and freely given.
xi. Why do so Many Suspects Waive Their Rights? Approximately 80% of
custodial suspects waive their rights.
1. People think they can outsmart the police: As long as a suspect
thinks he is better off trying to persuade police that they are not
guilty, they will talk to police.
2. To what extent is the high incidence of waiver of rights due to
the widespread use of pre-waiver police tactics undermining
Miranda?
3. To what extent is the high incidence of waiver due to the ease with
which courts find waiver?
a. Once the prosecutor process that the warnings were given
in a language that the suspect understands, the court will
find waiver in almost every case. The Miranda version of
the Fifth Amendment permits waiver to be made carelessly,
inattentively and without counsel.

xii. What About the Silent Types? Custodial suspects with felony records are
three or four times more likely to invoke their rights than those without
prior records. They would probably not talk even without Miranda
protection.
1. Qualified or Conditional Waiver:
a. North Carolina v. Butler p. 631: A suspect may refuse to
sign a waiver but nonetheless indicate that he is willing to
talk.
i. Are oral waivers effective in the face of such
objections?
1. Yes, many courts think so.
b. CONNECTICUT v. BARRETT: Suspect in custody was
thrice advised of his Miranda rights and indicated that he
would not make a written statement but that he was willing
to talk about the incident that led to his arrest. The Court
rejected the contention that respondents desire for counsel
before making a written statement served as an invocation
of the right for all purposes. The fact that some might find
his decision to speak but not write illogical is immaterial.
i. Brennans Concurrence: Barretts
contemporaneous waiver of his right to silence and
limited invocation of his right to counsel suggested
that he did not understand that anything he said
could be used against him.
2. What Constitutes an Invocation of Miranda Rights?
a. FARE v. MICHAEL C.: Juvenile was taken into custody
on suspicion of murder. He asked for his probation officer.
Officer refused and told the youth that he could speak
without his attorney if he wanted, or wait for an attorney if
he wanted. Court held the statements admissible. Asking
for a probation officer is not the same as invoking a right to
counsel.
i. Marshall Dissent: Probation officers have a
statutory duty to represent minors interest and,
indeed, are trusted guardian figures to whom a
juvenile would likely turn for assistance. A minor in
custody is not in a position to call for an attorney. A
juvenile will likely to turn to an adult who is
responsible for his welfare, such as a probation
officer.
3. The Scope of Second-Level Miranda Safeguardsthe
procedures that must be followed when suspects do assert their
rightsand The Distinction Between Invoking the Right to
Remain Silent and the Right To Counsel: The procedures that
must be followed when a suspect invokes his rights depends on

whether he asserted the right to remain silent or the right to

counsel.
a. MICHIGAN v. MOSLEY p. 635: After being given
Miranda warnings, suspect declined to talk about the
robberies (but did not request an attorney). After a two-hour
interval, a homicide officer questioned suspect about an
unrelated holdup murder. Suspect was again advised of his
Miranda rights, but this time he waived them and made an
incriminating statement. The statement was admissible. A
suspect must invoke the right to silence each time for
question with each crime.
b. Three factors seem to be minimal requirements for the
resumption of questioning once a suspect asserts his
right to remain silent:
i. Immediately ceasing the interrogation
ii. Suspending questioning entirely for a significant
period
iii. Giving a fresh set of Miranda warnings at the outset
of the second interrogation.
c. EDWARDS v. ARIZONA: Court held that once a suspect
has invoked his right to counsel he may not be subjected to
further interrogation until counsel has been made available
to him unless he himself initiates further communication,
exchanges or conversations with police.
d. Clarification of the Edwards Rule:
i. ARIZONA v. ROBERSON: Court held that once a
suspect effectively asserts his Miranda-Edwards
right to counsel, the police cannot even initiate
interrogation about crimes other than the one for
which the suspect has invoked his right to counsel.
4. S128-9; S116-27
xiii. Other Miranda Problems Discussed Elsewhere in the Book: pp 655
xiv. S140-52
xv. Can/Did Congress Repeal Miranda? Pp 676
1. 3501. Admissibility of Confessions
2. DICKERSON v. UNITED STATES: pp 677 3501 laid down a
rule that the admissibility of a custodial suspects arrest statement
should turn only on whether or not they were voluntarily made.
Court held that Miranda may not be in effect overruled by an Act
of Congress. This part of 3501 is no good!
a. Defendant was indicted for robbery. Moved to suppress
statement made to FBI agent because he had not received
Miranda warnings before being interrogated.
b. Issue: Did Miranda announce a Constitutional rule or
merely exercised it supervisory authority to regulate
evidence in the absence of congressional direction?

i. It was a rule!
c. Scalia Dissent: Majority claims to have the power to
expand the Constitution. Failure to comply with Miranda is
not failure to comply with the Constitution.
3. The Due ProcessVoluntariness Test Revisited: pp 700
a. Important: Although statements obtained in violation of Miranda may be used
for impeachment purposes, coerced or involuntary statements may not.
b. Colorado v. Connelly (pp 711): Coercive police activity is a necessary predicate
to the finding that a confession is not voluntary within the meaning of the Due
Process Clause: absent police conduct casually related to the confession, there is
simply no basis for concluding that any state action has deprived a criminal
defendant of due process of law.
4. Miranda, The Privilege Against Compelled Self-Incrimination and Fourteenth
Amendment Due Process: When Does a Violation of These Safeguards Occur?
a. CHAVEZ v. MARTINEZ: pp 671: 1983 suit involving an allegedly coerced
interrogation. Court held that the defendant was not deprived of a Constitutional
right. Police shot defendant five times. Police then questioned him in the hospital
as doctors were treating him. Defendant subjectively believed he would die and
that police would withhold treatment from him if he did not comply. Defendant
was never charged with a crime and his statements were never used against him.
Criminal case does not encompass the entire criminal investigatory process.
Failure to Mirandize is only a problem if you seek to prosecute. Defendants
testimony would clearly be inadmissible if used against him in a trial, but it is not
sufficient to prevail in a 1983 claim.
i. Scalia Concurrence: 1983 does not provide remedies for violations of
judicially created prophylactic rules such as Miranda.
ii. Stevens Dissent:
1. Matter of Fact: Interrogation of respondent was the functional
equivalent of an attempt to obtain an involuntary confession from a
prisoner by torturous methods.
2. Matter of Law: That type of brutal police conduct constitutes an
immediate deprivation of the prisoners constitutionally protected
interest in liberty.
iii. Kennedy Dissent: Two Issues in this case:
1. Whether failure to give a required warning under Miranda
was itself a completed constitutional violation actionable under
1983.
a. Agrees with Thomas. This, without more, is not actionable.
2. Whether an actionable violation arose at once under the selfincrimination clause when police, after failing to warn, used
severe compulsion or extraordinary pressure in an attempt to
elicit a statement or confession.
a. Had the officers inflicted injuries in an attempt to aid
interrogation, there would be a clear violation. That did not
happen here. However, the police may not prolong or
increase a suspects suffering against the suspects will.

Police here gave the impression that severe pain would

only be alleviated if the declarant cooperates. THAT is a
violation.
iv. Ginsberg Dissent: Would hold that the self-incrimination clause applies at
the time and place police use severe compulsion to extract a statement
from a suspect.
5. Notes and Questions: pp 682
a. United States v. Patane: p. 699 Patane is a person who should not have had a
gun that had a gun. Police began giving Miranda, Patane interrupted and Miranda
rights were not finished. Agent asked about the gun and Patane said it was in his
bedroom on a shelf. Patane was convicted of being a felon in possession of a
firearm in violation of federal law. Try to keep the gun out of evidence due to
lack of Miranda rights.
i. Rationale: Fruit from a poisonous tree (generally used in fourth
amendment cases). Can the gun be considered a violation of 5th
amendment? Self-incrimination Clause cannot be violated by the
introduction of non-testimonial evidence obtained as a result of voluntary
statements.
b. MISSOURI v. SEIBERT: pp 702 Case questioned the police tactic of getting a
bad confession, then Mirandizing the suspect, then getting a good confession.
Court held that a statement repeated after a warning in such circumstances is
inadmissible.
i. Rationale: Upon hearing 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.
ii. Factors: 1) The completeness and detail of the questions and answers in
the first round of interrogation 2) the overlapping content of the two
statements 3) the timing and setting of the first and second 4) the
continuity of the police personnel 5) the degree to which the interrogators
questions treated the second round as continuous with the first.
6. Massiah Revisted; Massiah and Miranda Compared and Contrasted: pp 721
a. BREWER v. WILLIAMS (WILLIAMS I): pp 722 Habeus Corpus case.
Retarded guy pointing out the little girls body. Police elicited information from
defendant against an agreement with his attorneys. Police convince Defendant to
show them where the girls body was; he did so. Here, Williams was deprived of a
right to counsel, which means at least that a person is entitled to the help of a
lawyer at or after the time that judicial proceedings have been initiated against
him. This happened here because Williams was arraigned.
i. In Massiah, it was an indictment that triggered the judicial proceedings.
ii. Because he had a right to counsel, the problem in this case is that he did
not validly waive his 6th Amendment right to counsel.
1. You CAN get a waiver, they just didnt get one here.
iii. What is the standard? Deliberately eliciting

iv. In this case, the prosecution will probably be able to show that they would
have gotten this evidence anyway, and so it will probably come in on
remand.
v. Whatever else it may mean, the right to counsel means at least that a
person is entitled to the help of a lawyer at or after the time that judicial
proceedings have been initiated against him whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.
b. Notes and Questions:
i. What Constitutes a Valid Waiver of the Sixth-AmendmentMassiah
Right? Pp 729
1. PATTERSON v. ILLINOIS: The waivers standard is the same for
the 5th Amendment right to silence as it is for the 6th Amendment
right to counsel.
c. Notes and Questions:
i. The No-Contact Rule: Should Prosecutors be Bound by the Ethical
Rule Prohibiting a Lawyer from Communicating With an Opposing
Party Represented By Counsel Without the Consent of the Other
Law? Pp 731
1. The rule is designed to protect laypersons from overreaching by
those who have superior legal skills and knowledge and to protect
the attorney-client relationship.
2. ABA says prosecutors should be held to the same standard.
ii. Passive vs. Active Secret Agents: pp 734
1. UNITED STATES v. HENRY: Court rejected the argument that
incriminating statements made by a jailhouse plant were not the
result of any affirmative conduct on the part of the government
agent to solicit evidence.
d. Once the Sixth Amendment Right to Counsel Arises, Does it Attach to All
Other Offenses Closely Related to the Particular Offense Charged?
i. TEXAS v. COBB: pp 738 Respondent confessed to burglary but denied
knowing anything about the disappearance of the homes occupants.
Waived his Miranda rights and confessed to murder; sentenced to death.
Lower court excluded confession because the 6th Amendment right to
counsel is offense specific. He was indicted for burglary and waived his
Miranda rights with respect to the burglary, not the murders.
1. Supreme Court overruled:
a. There can be no doubt that a suspect must be appraised of
his rights against compulsory self-incrimination and to
consult with an attorney before authorities may conduct
interrogation.
i. Police here followed Miranda dictates.
b. Constitution does not negate societys interest in the ability
of police to talk to witnesses and suspects, even those who
have been charged with other offenses.

2. Holding: When the Sixth Amendment right to counsel attaches, it

does encompass offenses that, even f not formally charged, would
be considered the same offense under the Blockburger test.
a. Blockburger test: Can attach to two separate offenses if
they are committed in the same act. (so murder/burglary
can both attach if they are part of the same crime)
LINEUPS, SHOW-UPS AND OTHER PRE-TRIAL IDENTIFICATION PROCEDURES
1. Introduction: Most exoneration comes from rape and murder. Lots of false convictions
come from lineups.
a. Clear patterns: For rape the dominant problem is eyewitness misidentification
(largely cross-racial misidentification)
2. Wade and Gilbert: Constitutional Concern About the Dangers Involved in
Eyewitness Identifications:
a. UNITED STATES v. WADE pp 745 Defendant was indicted for a bank robbery.
He was subjected to a police lineup without notice given to his counsel. Witness
identified Defendant in the line-up, and then again in court. Defendant makes a 6th
Amendment argument: If a conviction is made on a trial identification that in turn
is made on a suggested pre-trial identification, the trial is essentially happening at
the I.D. procedure and is over before they enter the courtroom.
i. Note: FN5 pp 745, forcing someone to participate in a line up does not
violate the self-incrimination clause; same with handwriting, blood
samples
ii. This means that the right to counsel here is not protecting selfincrimination, but rather its because it happened post-indictment. 6th
Amendment right to counsel includes all criminal proceedings and postindictment is during the criminal proceedings.
iii. What is the Constitutional basis? Right to confrontation.
1. Attorney is most likely to detect possible problems with the lineup
and either address them there or raise them at trial.
iv. Do you need a new trial? Test is from Wong Sun:
1. Prior opportunity to observe the alleged criminal act
2. Existence of any discrepancy between any pre-lineup description
and the defendant actual description
3. Identification prior to lineup of another person
4. Identification by picture of the defendant prior to the lineup
5. Failure to identify the defendant on a prior occasion
6. Lapse of time between the alleged act and the lineup identification.
v. Black Dissent: Would reverse if pretrial identification were used at trial.
In my view, the Fifth and Sixth Amendments are satisfied if the
prosecution is precluded from using lineup identification as either an
alternative to or corroboration of courtroom identification.
vi. White Dissent: This is just going to end with counsel mucking up police
investigations.
b. The Due Process Back-Up Test: pp 754

i. Stovall v. Denno: (half on 754 and half on 762) Victim is stabbed. Police
take the defendant to the hospital for identification. No line up. No formal
charges. Defendant is a black guy handcuffed in the room. Extremely
suggestive, but permissible because the police were not sure if she would
die and they needed to know if he was the robber. Why is it critical that
this exists? Right to atty whether or not it is suggestive. Applies to things
that Wade-Gilbert would not because it attaches to things before critical
stages.
3. The Court Retreats: Kirby and Ash:
a. KIRBY v. ILLINOIS: pp 755 Issue: Should the court extend the Wade-Gilbert
per se exclusionary rule to identification testimony based upon a police station
show-up that took place before the defendant had been indicted or otherwise
formally charged with any criminal offense? Defendant was arrested for robbery.
No counsel, no indictment. Identified at the police station. Holding/Rationale:
The Sixth and Fourteenth Amendments right to counsel attaches only at or after
the time that adversary judicial proceedings have been initiated against him.
i. Escebedo is an exception, but it does not apply here because 1) it was
meant to guard against self-incrimination, not right to counsel and 2)
Escebedo is limited to its own facts.
ii. Holding: We decline to impose a per se exclusionary rule upon testimony
concerning an identification that took place long before the
commencement of any prosecution whatever.
iii. Brennan Dissent: Purpose for this rule would be to guarantee effective
representation at trial. With a pre-arrest identification, the trial could be
effectively over before charges have been filed
RETROACTIVITY
1. The Retroactive Effect of A Holding of Unconstitutionality:
a. Notes:
i. Prime purpose of Mapp was deterrence, which would not be furthered by
applying it the new rule retroactively.
ii. Criteria for determining if there should be retroactive application:
(Linkletter-Stovall Standard)
1. The purpose to be served by the new standards
2. The extent of the reliance by law enforcement authorities on the
old standards
3. The effect on the administration of justice of a retroactive
application of the new standards.
iii. Wade-Gilbert: Because the use of unfair lineups could still be challenged
on due process grounds even if the law-changing decisions on lineups
were not applied retroactively, Stovall declined to give retroactive effect.
iv. Katz: New rule applied from the date of the challenge to the conduct
because police reliance on the rule was a major factor.
1. Johnson v. New Jersey: Katz should be given wholly prospective
application.

a. Harlans Dissent: Did not agree with the rationale that

permits the court to apply a new rule entirely prospectively
while making an exception only for the particular litigant
whose case was chosen as the vehicle for establishing that
rule. At minimum, the rule should also apply to tose cases
which are still subject to direct review.
b. Shea v. Louisiana:
c. S14-16
SCOPE OF THE EXCLUSIONARY RULES
1. Standing to Object to the Admission of Evidence:
a. Historical Background pp 872
i. Must the Person Asserting a Fourth Amendment Claim Have Been the
Victim of the Challenged Search or Seizure:
1. CA Abolishes: People v. Martin: Abolish the standing
requirement. The standing requirement virtually invites law
enforcement officers to violate the rights of third parties and to
trade the escape of a criminal whose rights are violated for the
conviction of others by the use of the evidence illegally obtained
against them.
2. Alderman v. United States: Federal courts still require standing.
ii. The Tension Between the Standing Requirement and the
Exclusionary Rule:
1. Joshua Dressley & Alan Michaels: Two competing views:
a. Atomistic Perspective: The Fourth Amendment is a
collection of protections of atomistic spheres of interest of
individual citizens.
b. Regulatory Perspective: The Fourth Amendment is
intended to safeguard the collective people, not individuals.
iii. The Use of the Federal Courts Supervisory Power to Overcome the
Standing Requirement:
1. United States v. Payner: IRS agents stole a bankers suitcase and
photographed the documents in it before returning the brief case.
Defendant was convicted. Court said the relevant question in
Payner was not whether the exclusionary rule should always be
applied when police illegality is somewhere in the picture, but
whether it should ever be applied.
iv. Automatic Standing:
1. Jones v. United States: Defendant convicted of drug offenses due
to possession. Lower court denied standing because defendant had
failed to assert a specific interest in the apartment or allege
ownership in the narcotics. Supreme Court reversed. Cannot put
someone in a position where admitting ownership will give
standing but act as a confession.

2. Simmons v. United States: Testimony given by a defendant in

order to establish his standing may not thereafter be used against
him at a trial on the issue of guilt.
3. United States v. Salvucci: The Jones/Simmons line not only
extends to protection against the risk of self-incrimination in all of
the cases covered by Jones, but also grants a form of use immunity
to those defendants charged with nonpossessory crimes.
v. Residential Premises: One with a preset possessory interest in the
premises searched may challenge the search even when not present while
search is conducted.
1. Jones v. United States: Defendant had permission to use his
friends apartment and a key to the apartment. Anyone legitimately
on premises where a search occurs may challenge its legality.
(Rejected by Rakas)
2. Minnesota v. Olson: Defendants status as an overnight guest
showed that he had an expectation of privacy in the home that
society is prepared to recognize as reasonable.
vi. Business Premises:
1. Mancusi v. DeForte: Reasonable expectation of privacy in your
business premises.
b. The Current Approach pp 877
i. Can a Passenger in a Car Other than His Own Challenge the Legality
of a Search of that Car?
1. RAKAS v. ILLINOIS: pp 877 Defendants didnt own the car, but
were passengers. Their rights were not violated.
2. RAWLINGS v. KENTUCKY: No standing to challenge a search
when defendant put drugs in someone elses purse and the purse
was searched. It does not matter that defendant asserted ownership
rights over the drugs because he had no privacy interests in the
purse.
ii. Can a Passenger in a Car Other than Her Own Challenge the Legality
of a Police Stop of that Car?
1. BRENDLIN v. CALIFORNIA: pp 880 When a police officer
makes a traffic stop, he seizes a passenger as well as the driver
within the meaning of the Fourth Amendment, and so a passenger
may challenge the constitutionality of the stop.
iii. Under What Circumstances Can a Guest or Visitor in Another
Persons Home Challenge the Legality of a Search of that Home?
1. MINNESOTA v. CARTER: pp 881 People who went to anothers
house to package drugs do not have a privacy interest in that
house. Overnight guests do
2. Note on Carter: pp 886
2. The Fruit of the Poisonous Tree pp 886
a. Historical Background and Overview:
i. Genesis of the Rule; The Doctrine of Attenuation:
1. The genesis of the taint or fruit of the poisonous tree doctrine:

ii.

iii.
iv.

v.

vi.

a. Silverthorne Lumber Co. v. United States: Government

could not use information obtained during an illegal search
to subpoena the very documents to be viewed. However, if
knowledge of them is gained from an independent source
they may be proved like any others, but the knowledge
gained by the Governments own wrong cannot be used by
it in the way proposed.
2. Nardone v. United States: Refused to permit the prosecution to
avoid an injury into its use of information gained by illegal
wiretapping because to forbid the direct use of methods but to put
no curb on their full indirect use would only invite the very
methods deemed inconsistent with ethical standards an destructive
of personal liberty.
Verbal Evidence as the Fruit of Illegal Search and Seizure:
1. WONG SUN v. UNITED STATES: Wouldnt have made the
statement but for his illegal arrest. But a but-for connection will
not do it. The question is whether the statement comes from an
exploitation of the illegality. Here, there was no exploitation
because Wong Sun returned voluntarily to the police station.
Independent Source; Inevitable Discovery: No taint if the evidence was
discovered through an unrelated means or would have eventually been
discovered without the illegality.
Confession as the Fruit of an Illegal Arrest:
1. BROWN v. ILLINOIS: Confession still admissible when
defendant was Mirandized after an illegal arrest.
2. Notes on the Brown-Dunaway Rule: pp 890
a. Taylor v. Alabama: Defendants confession was the
impermissible fruit of his illegal arrest even though
i. Six hours had elapsed between the illegal arrest and
the confession
ii. Defendant was advised of his rights three times
iii. Defendant was allowed to visit briefly with his
girlfriend and his neighbor shortly before he
confessed.
Identification of a Person as a Fruit of an Illegal Arrest:
1. UNITED STATES v. CREWS: Victim gave police a description
of attacker immediately after being assaulted and robbed in a
public restroom. Defendant was taken into custody, photographed
and released. Victim selected Defendants photograph as the man
that robbed her; positively identified defendant at a line-up.
Conviction. District court held the courtroom identification
inadmissible because it was obtained by exploiting the fruit of
defendants initial illegal arrest. Supreme Court overruled because
prior to his illegal arrest the police knew the defendants identity
had a a reason to believe he was involved in the robbery.
The Tainted Witness:

1. UNITED STATES v. CECCOLINI: pp 895 Police officer on a

social visit found an envelope with money and pink slips.
b. The Inevitable Discovery Doctrine: The Sequel to Brewer v. Williams: pp 896
i. NIX v. WILLIAMS (WILLIAMS II): Even if Defendant had not
directed police to the girls body, the police would have found it once the
snow thawed. No deterrence rationale if the same thing would have
occurred, only a little slower, especially since the idea is to put police in
the same position that they would be in if no misconduct occurred.
1. Rule: 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 rational has
so little basis that the evidence should be received.
ii. More on the Inevitable Discovery Exception and the Attenuation
Doctrine: pp 900
1. HUDSON v. MICHIGAN: pp 900 Violation of the knock and
announce rule should not lead to exclusion. Whether a preliminary
misstep had occurred or not the police would have executed the
warrant they had obtained and would have discovered the gun and
drugs inside the house.
3. Impeachment: pp 905
a. The Expansion of a Once-Narrow Exception:
i. Walder v. United States: Defendant can deny his crime without opening
the door to impeachment, but he cannot say that he has never possessed
narcotics when police have evidence of his possession in an unrelated
matter.
ii. HARRIS v. NEW YORK: Defendant took the stand in his own defense
and denied selling the heroin. Defendant was impeached with statements
made to police before he was Mirandized.
1. Rule: The privilege to testify in ones defense cannot be construed
to include the right to commit perjury.
iii. The Fourth Amendment vs. the Fifth:
iv. Oregon v. Hass: Defendant asserted his rights but police refused to honor
his request to see an attorney and continued questioning him. These
statements were still admissible to impeach the defendant.
v. UNITED STATES v. HAVENS: Defendant denied involvement in the
transportation of cocaine and was impeached by admitting illegally seized
evidence.
vi. The Court Refuses to Extend the Impeachment Exception to Defense
Witnesses Other than Defendant:
1. JAMES v. ILLINOIS: pp 908 Expanding the impeachment
exception to encompass the testimony of all defense witnesses
would not have the same beneficial effects. The threat of
prosecution for perjury is far more likely to deter a witness from
intentionally lying on a defendants behalf than the defendant. We
do not want to chill defendants from presenting their best defenses.

b. What Kinds of Constitutional or Other Violations are Encompassed Within

the Impeachment Exception?
i. New Jersey v. Portash: Testimony given by a person in response to a
grant of legislative immunity could not be used to impeach him at his
subsequent trial for extortion and misconduct in office.
ii. Mincey v. Arizona: Use of an involuntary of coerced statement even for
impeachment purposes would constitute a denial of due process of law.
iii. S138-140
c. Use of Defendants Prior Silence for Impeachment Purposes: pp 913
i. Doyle v. Ohio: Impeachment by Use of Defendants Silence After
Being Given Miranda Warnings: Use of defendants post-arrest silence
is impermissible. The use of silence to impeach would be fundamentally
unfair given the fact that Miranda warnings contain the implicit assurance
that silence willy carry no penalty.
ii. The English Warnings: What, if After Advising a Suspect of Her Right
to Remain Silent, the Officer Added: However, it May Harm Your
Defense Later if You Do Not Mention, When Questioned, Something
You Rely on in Court.
1. South Dakota v. Neville: Upheld the admissibility of a drunkdriving suspects refusal to take a blood-alcohol test.
iii. Use of Defendants Pre-arrest Silence for Impeachment Purposes:
1. Jenkins v. Anderson: Defendant claimed self-0defense at murder
trial; prosecutor was allowed to ask him why he had not
surrendered to the authorities until two weeks after the killing.
Court held that the self-incrimination clause is not violated by the
use of pre-arrest silence to impeach a defendants credibility and
Doyle presents no obstacle for no governmental action induced
petitioner to remain silent before arrest.
iv. Use of Defendants Post-Arrest Silence for Impeachment Purposes:
1. Fletcher v. Weir: In the absence of the sort of affirmative
assurances embodied in the Miranda warnings, a state may permit
cross-examination about post-arrest silence when a defendant
chooses to take the stand.
4. Burdens:
a. Notes and Questions: pp 919
i. How Common is Police Falsification? Very.
ii. Was there Police Perjury in the O.J. Simpson Case?
iii. State Variations:
1. New York Approach: Prosecution has the burden of going
forward. Burden of persuasion is on the defendant to rebut the
evidence and prove that the search was invalid.
2. Burdens on Both:
3. Majority: If the search was pursuant to a warrant, the defendant
has the burden of proof. If it was without a warrant, the defendant
must make a prima facie showing of that fact before the
prosecution is put to its burdens.

iv.
v.
vi.
vii.
viii.
ix.
x.

4. Both: In some jurisdictions, the prosecution has both burdens.

Practical Consequences of the Allocation: Might be extremely important
for conviction rates.
Constitutional Requirements:
Confessions:
Identification Testimony:
Standards of Proof:
Is Lego Inconsistent with the Philosophy Underlying Chapman v.
California?
The Trier of Fact:
1. Jackson v. Denno:
COLLATERAL ATTACK

In collateral attack it is the warden who is sued, because it is a custody issue Habeas
Corpus. Normally only used by those with serious convictions.
b Normal Appeals go from district to appeals to supreme court. Collateral attack starts after this
and goes into Federal court if originally state. (state and fed prisoners have means to use
collateral attack within those jurisdictions)
a
Supreme Court
Highest State Appellate Court\
Intermediate Court
\ U.S. Court of Appeals
Basic Trail Court
\ U.S. District Court
c Power
a Supreme Court Resources: Suspension Clause
b 28 U.S.C. 2241 (c) Power to grant writ, 2254 State custody, remedies in Federal
Court = even Fed District Courts can hear these cases.
c Rationale
i Deficiency of States Civil Rights Issues in the South
ii Supreme Court Resources limited, so power given to Federal District Courts
iii Ensuring Due Process Rights are given
iv Fed District Courts can have evidentiary hearings, and now can hear
retroactivity cases.
v Recent push to narrow habeas corpus claims because of swamped docket
d Cognizable Claims/ Scope
a 28 U.S.C. 2241 (c) (3) In custody in violation of the Constitution or laws or
Treaties of U.S., 2254
b Under 5th Waineright, Miranda
c Under 4th Bustomani, Stone
d Under 6th Gideon v. Wainwright, Williams v. Brewer
e Stone
i H: If the state has provided an opportunity for full and fair litigation of the 4th
Amendment claim, the constitution does not require state prisoners to be
granted federal habeas corpus relief.
ii R: The court used the balancing test for the exclusionary rule = utility of
exclusionary rule v. costs of extending it to collateral review. Here the court

determined the deterrent effect was not big enough to grant the exclusionary
rule. If there was a FULL and FAIR OPPORTUNITY at trial, then there is
no deterrent effect if the Federal District Courts examine the issue again.
f FULL and FAIR OPPORTUNITY do not need to actually litigate, you just need a
chance to be able to litigate.
Conditions on Exercise of that Power
a Custody - 2241
b Exhaustion of State Remedy 2254(b). Remedies within the state system need to be
completely exhausted for the Federal Courts to hear claims (comity).
i 2254 (b) (2) Federal Courts can deny writ of Habeas Corpus even if not
totally exhausted if it is deniable on the merits.
ii 2254 (b) (3) State waives exhaustion only if state expressly waives that
right.
c Forfeiture / Default
i Standard now is Cause and Prejudice need to show jury would come
out differently.
ii Fay v. Noia
1 F: 3 separate Ds. All involved in murder cases. All raise coercion of
confession issues, except Noia. The other two Ds take their appeal to
the state courts of NY.
2 PH: Because the other two appealed their case, they are granted federal
habeas corpus claims.
3 H: Not an exhaustion problem. Here it is a default issue. The rule is if
the D exhausted present state court remedies. Noia did not and now
has a default problem. He did not take the remedy when it was
available so now he cannot raise his claim.
4 R: Standard here is the deliberate bypass standard. The D
understandingly and knowingly did not take his appeal. Can also do
this by not objecting at trial. It also must be the D himself who waives.
This is a high standard of mental state. Since it is a forfeiture, even if
right violated it is not considered.
iii Wainright v. Sykes
1 F: The issue was over Grand Jury proceedings.
2 H: The waiver standard was too broad, so now it is cause and
prejudice. need to show the jury would come out differently.
d Bar to Habeas Corpus within the statute.
i 1 year statute of limitations from time of final decision
ii Cannot file subsequent writ of Habeas Corpus. 2244. Normally only get one
petition.
iii 2254 (d) cannot grant writ on claim adjudicated on merits in state court
proceedings, unless
1 It resulted in a decision contrary to Fed law, or applied unreasonably,
as determined by the Supreme Court
2 If it involves unreasonable determinations of the facts in light of
evidence presented in state court proceedings.

iv Jackson can raise the issue and if taken in light of the plaintiff and no
reasonable jury could find guilty, then should be freed.
v 2255 For Fed prisoners only. Can file motion in the same case with the same
judge. Does this ignore the suspension clause?
THE ROLE OF COUNSEL
1. The Strickland Standard: pp 144
a. STRICKLAND v. WASHINGTON: