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Constitutional Criminal Procedure Notes

January 12, 2015

14th Amendment

Source of constitutional protections

o Ex: coerced confessions, suggestive id

Incorporator of rights recognized in other amendments

o Bill of Rights and the states

Originally applicable only to fed gov

Potential change with adoption of 14th Amendment

Criminal law as state matter until mid-20th century

Incorporation debate

Fundamental rights no necessary relation of Bill of Rights to due process

Total Incorporation all of the Bill of Rights but no more

Selective Incorporation the not very selective synthesis

o Does not mean all fed components apply

6th Amendment right of jury applies to all non-petty criminal trials (state and fed)

But 12 persons? (6 people min.); Unanimous?

4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated and no warrants shall issue, but upon probably cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized

4th Amendment Exclusionary Rule

o Wolff v. CO (1949): 4th Amendment incorporated but no fed exclusionary rule
o Mapp v. Ohio (1961): Warren Court makes exclusionary rule applicable to states
o US v. Leon (1984): Mapp not overruled but good faith exception to exclusionary rule

Federally created exclusionary rule in violate of the 4th Amendment

o States are free to come up with own ideas for appropriate remedies
o Evidence will be kept out if obtained during violation
January 14, 2015
Mapp v. Ohio

[4th Amendment violations in inception and in execution]

Police looking for bomb suspect at Mapps house without warrant; Mapp calls attorney for help

Police barge in later; Mapp asks for the warrant, takes it and hides in her bra, police grapple and take it back
(probably not a real warrant; they did not introduce the warrant)
o Presence of a warrant changes the analysis
o Burden on the State if unreasonable search without a warrant
o D must show unreasonableness of search if there is a warrant

Searched whole house and found obscene materials

Probable cause? Warrant? Execution of the search also important

o If exceeds in scope and intensity
US v. Calandra

[Exclusionary Rule not at trial of criminal case

o Balance costs of exclusion against potential incremental gain of deterrence
o Result of balancing is nearly always no further exclusion]

Exception to Mapp; regarding grand jury

Reasoning: balancing test

Primary goal: how much deterrence will be get for extending this rule

Judicial integrity disappears

Hudson v. Michigan

4th Amendment violation but no exclusionary rule remedy

o Suppression of evidence has always been our last resort, not first impulse
o Do some 4th Amendment violation not require suppression?

CL knock and announce rule

o Exceptions: threat of physical violence, evidence would be destroyed if advanced notice were
given, or knocking/announce would be futile (reasonable)

Police knocked, announced, but only waited 3-5 seconds

Not all violations of the 4th amendment require exclusions
o Court: not the case for exclusionary rule remedy even though violated 4th amendment
o Not causal relationship
o If didnt violate knock and announce, then they would have found contraband anyway
No reasonable expectation of privacy
Opens door to pick and choose unreasonable and really unreasonable search and seizures

TX Exclusionary Rule 38.23

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws
of the State of Texas, or of the Constitution or laws of the US, shall be admitted in evidence against the
accused on the trial of any criminal case
a. Broader rule
b. Keep TX exclusionary rule in mind (should cite this in exclusion, as well as the 4th Amendment)
(b) Jury issue
a. In any case where the legal evidence raises an issues hereunder, the jury shall be instructed that if
it believes or has a reasonable doubt that the evidence was obtained in violation of the provisions
of this Article, then and in such event, the jury shall disregard any such evidence so obtained
January 21, 2015
Threshold Issues for 4th Amendment applicability

State action
o Private party searches do not implicate 4th Amendment absent agency relationship
o Need law enforcement (state/fed gov actor)
US v. Jacobsen (1984) p. 38
o 4th amendment no applicable when police search goes no further than search already conducted by
private party

Regardless of whether it was reasonable, tort action, etc. does not mean you have a 4 th
amendment claim; dont have exclusionary rule remedy
o FedEx workers (private carrier) found cocaine in package, rewrapped package, and alerted DEA of
the issues

Conclusion: no 4th amendment applicability b/c the search of the gov actor did not go
further than the private party actors

Even though DEA did field test to make sure it was cocaine that FedEx did not

Dont have reasonable expectation of privacy b/c it is an illegal drug as well

o TX has different approach

B/c TX extends to the action of law enforcement officer or other person, evidence
illegally obtained by private persons is subject to exclusion under TX law even though 4 th
amendment not applicable

Private individuals can discover and may still give claim to suppress evidence

Sufficient connection to US

Reasonable expectation of privacy

Standing (personal expectation of privacy)

US v. Leon (1984): good faith exception
Exclusionary rule

Strong medicine use sparingly

Not applicable to all violations

Purpose is primarily deterrence of police misconduct, NOT judges

Objective good faith reliance on warrant

Good faith exception not applicable despite warrant:

Scope of search authorized by warrant exceeded

o Warrants are particular

Officer misleads magistrate to obtain warrant

Magistrate wholly abandons neutral judicial role

No reasonably well trained officer could rely upon warrant

Good faith when police reasonably rely upon
(Expansion of good faith)

Warrant [Leon case]

Statute [DeFillippo, Krull]

DeFillippo: D is arrested by ordinance violation at time of arrest; later found unconstitutional

Statute authorized arrest

When case went to trial, ruling of statute being unconstitutional came out
o Krull:

Statute that authorized searches

Reasonably believe the statute authorizes police intrusion

Clear past precedent [Davis]
o Prior to Davis v. US (2011)

Belton case: Officer may have automatic search if probable cause on person/immediate
area of the person when threat of an officer in automobile

Including passenger compartment

Gant: fear officers would use traffic arrests to make searches and seizures without
probable cause
o Davis: police apply Belton and found firearm during traffic offense

Allowed to search the car

Officer following law as it existed at the time, but changed by the time case went to trial
Inaccurate information provided by non-law enforcement agency [Evans]
o Court moves away from judicial/legislative statutes
Inaccurate police info (unless systematically flawed) [Herring]
o Computer error done by police department, not court

January 26, 2015

After Herring (2009)

Exclusionary rule if police officer reasonably believes that probable cause exists or that law allows
warrantless search but the officer is wrong and there is no reliance on a statute warrant, prior clear
o Police just has to be reasonable, even if mistaken

Only unreasonably unreasonable factual or legal conclusions

o Egregious searches and seizures
Heien v. North Carolina (2014) (see TWEN post)

Traffic stop of car with only one working brake light; D consented to car search, which had cocaine

Appellate (state): reversed denial of suppression motion holding that relevant code requiring that cars be
equipped with a stop lamp means that a single functioning lamp suffices

No unreasonable search/seizure when it is based upon [officers own] reasonable mistake of law

The vehicle code requiring a stop lamp also provides that the lamp may be incorporated into a unit with 1 or
more other rear lamps and that all lamps must be in good working order
o Although the State Court of Appeals held that rear lamps do not include brake lights, the lack of
precedent interpreting the provision made it objectively reasonable to think that a faulty brake light
constituted a violations
Texas Exclusionary Rule: Article 38.23 [Good Faith]
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by law
enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on
probable cause

Gordon v. State of Texas (1990)

o Good faith only if warrant based on probable cause allowing defense to dispute the question of
probable cause to issue, foreclosed under the 4th Amendment good faith doctrine of Leon
o Still argue whether there was probable cause, even though there was a warrant issued by
magistrate if not issued by probable cause

(b) does not apply


Howard v. State of Texas (1981)

o Michigan v. Defillippo does not apply in TX

Police have right to rely on good faith on presumed validity of statute authorized arrest not
applicable under TX state law
Exploratory purpose (officers intent)
Threshold Issues for 4th Amendment applicability
[Requirements:] [Cont.]

State action

Sufficient connection to US
o US v. Verdugo-Urquidez

US agents search Mexican home of foreign national involuntarily brought to the US for trial

No 4th Amendment protection b/c it is a right of the [American] people, citizens, and those
who have a sufficient connection to America

Not applicable to aliens outside American territory;

Ds recent involuntary presence for trial not sufficient connection

Reasonable expectation of privacy
Standing (personal expectation of privacy)

Chapter 3: What is a Search?

Katz v. US (1967)

Facts: agents tapped into phone booth through electronic device

o Prior law: physical intrusion of area protected by 4th Amendment

Lower court: no physical intrusion into phone booth, thus no search; physical trespass standard overruled
o No search or seizure b/c did not physically trespass

4th Amendment protects people, not places (even public phone booth)
o Includes intrusions without physical invasion
o Reasonable expectation of privacy (instead of physical trespass)

Eliminated physical intrusion, even though device did not intrude

Does Katz mean

Where the action occurs is unimportant?

The use of sophisticated technology makes the finding of a search much more likely?

The lack of physical intrusiveness is irrelevant to whether a search occurred?

Property ownership is not related to whether there is a reasonable expectation of privacy?

Oliver v. US (1984)
Hester opens fields doctrine survives Katz

4th Amendment protects persons, houses, papers, and effects

Not open fields which are not the setting of intimate activities that the Amendment is intended to protect

CL curtilage (adjacent area to home) defined by locus of activities associated with the home within the 4 th
Amendment protection

Ds subjective expectation of privacy manifested by erecting high fences, posting no trespassing signs, etc.
is not enough
FL v. Riley (1989)

Surveillance by helicopter from 400 feet of partially covered greenhouse

o Not a search b/c helicopters not subject to low altitudes regulations applicable to other aircraft

Not sufficiently rare to make expectation of privacy in greenhouse reasonable

o No undue noise, wind created by chopper
o No intimate details of home or curtilage observed
Bond v. US

Ciraolo and Riley are different b/c they were only visual (not tactile) observation
o Physically invasive inspection is simply more intrusive than purely visual expectation

Bus passenger expects bag in overhead bin may be handled by other passengers or bus employees but not
that they will feel the bag in any exploratory manner
o Immigration officials checked IDs and touched bags above; one detected a brick in soft lined bag
o Consent was given later; was prior touching of outside of bag a search?

Sup Ct: violation (exploratory manner)

o Touching bag in a different manner than a passenger or bus employee would

Place: dog sniffs are unintrusive b/c it doesnt give any detail but merely observations

January 28, 2015

Is it a search?

Location/subject matter of what officers are trying to find

o FL v. Jardines

Protected areas are not equal: when it comes to the 4 th Amend, the home is first among
equals and front porch is the classic exemplar of [the curtilage] an area adjacent to
the home and to which the activity of the home life extends

o FL v. Riley: helicopter was nuisance, etc.
o FL v. Jardines

Touching is more intrusive than looking

Visual observation of home from public navigable airspace not a search b/c physically
nonintrusive but detectives had all four of their feet and all four of their companions
firmly planted on Ds curtilage

Tactile things are more intrusive; physicality matters

Motive that influences permitted scope
o What is the purpose of the officer
o Bond v. US

Baggage of passenger of the bus can be touched by any member of the public

The officer touched and manipulated it in an exploratory manner

Objective effect of officers actions, NOT hi subjective state of mind

o FL v. Jardines

Implied license for public to walk up to a home

If limited license

Subjective intent of officers repeatedly stated to be irrelevant in determining the 4 th

Amendment issues

Thus, search that is objectively reasonable is not vitiated by the fact that the
officers real reason for making the stop or search has nothing to do with the
validating reason

Motive irrelevant when there is a search for which there is an objectively reasonable basis;
ulterior motive does not make a valid search bad

Whether there was an objectively reasonable search depends upon whether the officers
had an implied license to enter the porch, which in turn depends upon the ____
Uncommon enhancement of senses
o The more routine and commonplace, the more likely the court will say it is not a search and seizure
Trespass revival
o Pre-Katz reasoning is not abandoned; see Jardines

Concurring judges: under Katz and reasonable expectation

If there is a trespass, then 4th Amendment applies

o Jones : GPS device installed when car parked in public

What if we didnt have to install the device that is to be monitored

o Technical view
Voluntary conveyance
o CA v. Greenwood: drug evidence in trash

Chapter 4: search
Kyllo v. US

Thermal imaging to detect heat emanating from a house

Warrantless use was unreasonable b/c the thermal imaging device, which is not in a general public use
was used to explore details of the home that would previously have been unknowable without physical

Got warrant after figured out was probably growing marijuana

o If probable cause is based on illegal search, then in bad faith and wont hold

Defense would want to use Katz: reasonable expectation of privacy

Prosecution would use: US v. Place: emanation outside, heat waves floating (dog sniffed odor)

Device conveys information of intimacy of the home


Great variation to what is acceptable and what is not

Smith v. MD

Pen registry installed on robbers phone at the phone companys place of business
o Deciphers the phone number being dialed

Obtaining info without a warrant

o No expectation of privacy b/c phone companies use pen registries frequently
CA v. Greenwood

Officials go through garbage, finding incriminating drug evidence

Greenwood voluntarily sets it out there and abandons the trash

o No reasonable expectation of privacy
US v. Jones

Rediscovery of physical trespass

Technical installation of GPS device was a seizure, even though it didnt affect operation of the car, car was
in a public place, etc.
Technical trespass requires a justification
Alito: If gov monitors that information (from voluntary GPS) for short period of time, then okay
o Where should we draw that line? What is short/brief time period?
o Cumulative effect of monitoring can become a search or a seizure

Zurcher v. Stanford Daily

Demonstration at the hospital; Stanford Daily member was taking pictures

Police obtained warrant; dont have to rely on Stanford Daily to help

o Did not get a subpoena, even though Stanford Daily wasnt being accused of a crime

Mere evidence: probative evidence, not fruit of crime, contraband, etc.

Disadvantage of getting a subpoena: person may be hostile, destroy/lose evidence, etc.

Advantage of subpoena: dont need probable cause

o Advantage of warrant: surprise attack, dont have to rely on the party

Disadvantage: show probable cause

Are there areas immune from search?

o Even if have probable cause?

If unreasonable, then court will override despite warrant based probable cause or
o There should be 1st Amendment protection (freedom of the press) and not allow officials to look for
themselves; should have to issue subpoena

Confidential sources

Mere evidence searches; Warden v. Hayden 255 US 298 (1968) formally abandoned
o Here, Photographer only had mere evidence; he wasnt involved with assaulting police
o Police shouldnt be allowed to do this, even if they think they have probable cause
o Majority rejects it

Advantages of search: surprise, officers dont have to depend on possible hostile 3 rd party who may assert
5th Amendment
o 5th amendment privilege: compelled by the state


Advantages of subpoena: grand jury doesnt have to have probable cause to summon witness
February 2, 2015
Chapter 5: Standing

Standing requirements purpose: personal state in the matter, dont have frivolous law suits

Can the person assert the claim?

US v. Payner

4th Amendment is a personal right; exclusionary rule applied only to individuals whose rights are violated

Supervisory authority cannot circumvent standing rules of 4th Amendment

o Federal court (not state)
o Standing is important limitation b/c prevents some people from 4th Amendment claim
o Simmons v. US: if charged with possession and want to establish standing

Shouldnt have to give up 5th Amendment right to get 4th Amendment claim

Exclusionary rule: testimony in suppression hearing cant

Facts: Payner conveyed documents to the bank, so doesnt have privacy

Gov did not have probable cause to particular individuals documents, since a lot of people have bank
accounts in the Bahamas

Bankers 4th Amendment rights (3rd party rights violate)

Gov seized and copied documents while bank VP was at dinner, including Payners
Standing abolished?

Only the word not the concept

Reasonable expectation of privacy in general: would police investigatory action infringe societal notions of
reasonable privacy [Katz]

Reasonable expectation of privacy (personal): is this D the one whose expectation of privacy was violated
Brendlin v. CA
MN v. Carter

Olson: invited overnight guests had standing and reasonable expectation of privacy
Carter: invited business associates do not
o Police got tip and looked through window; saw people packaging cocaine
o Brevity of visit? They were only at the apartment for 2.5 hours
o Commercial purpose? Not social guests
o Monkey business? Scalia suggested that it was monkey business

Now have to analyze the connection to the property

Standing is more ambiguous than it was before; something the state wanted to argue
o Prosecution argument; limits number of defenses to assert 4th Amendment claims
Standing or personal privacy expectation
February 4, 2015
Merits of 4th Amendment Issues
Ch. 6: Probable Cause
Brinegar v. US [not in book]:

(Paraphrased): Probable cause exists where arresting or searching officers know of facts and
circumstances based upon reasonably trustworthy info which is sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being committed [by the person to be
arrested] or that evidence of a criminal offense will be discovered in a particular place
o Not very helpful; does not provide much guidance
AguilarProbable Cause?

Officers swore they had received reliable info from a credible person and do believe that narcotics are
present at described premises
SpinelliProbable Cause?

On 4 of 5 days, D crossed bridge and parked in park lot of apartment buildings

o Apartment had 2 phones listed in another name
o Known to affiant & other officers as a gambler and bookie [hearsay]
o Confidential informant said D operating an illegal gambling operation from the apt

Lacks credible source, underlying circumstances, or any explanation

Gatesanonymous tip

Letter given to police about the couple that drives/flies to get drugs in Florida that is proven to be accurate

Totality of the circumstances

o Probable cause is practical, not technical

Dont need independent tests to be satisfied in every single case

No more two prong test

Deference owed to issuing magistrates probable cause determination not de novo review
o One year later in Leon, good faith exception made review unnecessary in most cases with a
Franks v. DE

Establishes the right to go behind the face of the affidavit

Facially valid probable cause showingcan it be challenged? Yes hearing on claim if substantial
preliminary showing of:
o False statement or one made with reckless disregard for the truth
o By police officer
o Necessary to probable cause determination

At hearing, Ds burden to prove by these three by a preponderance of evidence

o Must demonstrate those three things above
McCray v. Illinois

In trying to prove a false statement, is D entitle to subpoena, confront, and cross-examine the alleged

Cross examination might not apply to preliminary hearings on the admissibility of evidence
Evidentiary provisions to help not cross examine
Rule 508(c)(3) TX Rule of Evidence

Disclosure of informant if: info from informant is relied upon to establish the legality by which evidence was
obtained and the judge is not satisfied .

Judge is required to make disclosure in camera if requested by State and no counsel or party is permitted to
be present; record sealed and preserved for appeal

MD v. PringleProbable Cause?

Car stopped for speeding with 3 passengers; gets a warning

Consent search discovered cocaine under back armrest; all are arrested
o D later confesses that cocaine was his alone but moves to suppress confession as fruit of illegal

Possession case for Pringle (no proprietary interest or proximate to the drugs)
Whren v. US

Wont probe subjective motivation of the police officer

Cars are pervasively regulated that cop can always stop a car and then find something else wrong besides
traffic violation

More difficult to decide objectively what a similar police officer would do under the same circumstances

As long as there is an objectively reasonable basis for arrest/search, you will not be able to defeat the
validity of arrest/search by trying to demonstrate there was an improper motive
February 9, 2015
Misc. Probable Cause issues

Collective probable cause specific officer making arrest or search may lack it

Probable cause to arrest or search cases are interchangeable except for staleness issue
Ch. 7: Warrants
Benefits of Warrants

Determination of probable cause by neutral and detached magistrate

Freezes info about what was known, facilitating fair review

Opportunity for police to discovery deficiencies in info relied upon for probable cause

Proof of authorization to search and notice of scope of search permitted

o Officer given power; what and where they may look
o People subject to search have notice of what is allowed or not

Return on warrant facilitating review of reasonableness of execution of the search

See page 210 regarding parts of warrant
Warrants and burden of proof

My highlighted section on page 210


Neutral and detached magistrate

o Groh v. Ramirez: warrant lacks particularity b/c of police error putting description of place to be
searched in spot for specification of the search object

Specification in the supporting affidavit is insufficient

No cross-reference and affidavit was not included with the warrant; no description of the
items to be seized

Warrant MUST:

Be based on probable cause

Supported by oath/affirmation

Particularly describing place to be searched

Particularly describing things to be seized

Only the last is missing in the warrant but included in supporting affidavit

No qualified immunity (or good faith)

o Footnote 8 (p. 218): qualified immunity with good faith exception

Leon not applicable b/c no reasonable police officer could believe that warrant
authorized seizure

Herring: good faith reliance on erroneous computer entry stating that there was an
outstanding warrant; no suppression despite lack of probable cause or warrant
o Herring has all these defects and no probable cause
MD v. Garrison

Scope of warrant and reasonable mistake in execution

o Reasonable mistake
o Officers search apartment outside cope of premises named in warrant (2 apartments on that story
instead of 1)
o Seizure of contraband in plain view reasonable b/c mistake is reasonable
Ybarra v. IL

Does the scope of the warrant for tavern include everyone present?

Safety concerns for officer

o What can be done with bystanders who might be hostile to police investigation or implicated in
criminal activity?
o Just because youre in an area where police have warrant, doesnt mean you have to give up your
4th amendment rights
No prior knowledge of Ybarra; mere presence at scene that suspected place not sufficient to justify a search
of that person
DISSENT: protection of the police officers
Statute: follow statute = good faith

Wilson v. Arkansas

Gaining Entry

Wilson v. Arkansas: common law knock and announce requirement part of 4 th Amendment reasonableness
but unannounced entry may be reasonable
o Officer peril, destruction of evidence, escaped arrestee

But no exclusionary rule remedy for knock and announce violations (Hudson v. MI)

Richards v. WI: no blanket except to knock and announce for drug offenses but entry here was justified by
events at Ds door
o Reasonable suspicion
February 11, 2015
[If only thing obtained illegally in criminal cases is the defendant, criminal prosecution cannot be dismissed
as long as probable cause was made later on]
Arrest was illegal; not possible for D to be asked to be suppressed

Ch. 8: Arrests and Plain View Exception

Warrants and arrests
US v. Watson

Arrest for felony in public place not constitutionally required even if there was time to obtain a warrant
Warrants required?

Entry into home of person to be arrested

o Payton v. NY: search warrant not required when entry is into the home of the person named in the
arrest warrant

Payton not there; opened and weapons in plain view; seized

Dont need search warrant

o Riddick: son opened door, not valid consent to enter

Court: did need a warrant, arrest warrant is sufficient

Dont need search warrant as well

o Steagald v. US: entry into hoe of third party to arrest non-homeowner

Arrest warrant not sufficient to protect homeowners privacy interests

Search warrant also required b/c named a different person

If police have probable cause to arrest someone who is inside a dwelling

Wait while another officer gets warrant

Hot pursuit: if person emerges and then flees, then they can make warrantless
arrest (probable cause)

Warrants can now be obtained by phone

TX Code of Criminal Procedure

14.04: when felony has been committed where it is shown by satisfactory proof to a peace officer, upon the
rep of a credible person, that a felony has been committed and that the offender is about to escape, so that
there is no time to procure warrant, such peace officer may, without warrant, pursue and arrest the accused

o Warrantless arrest
o Peace officer or any other person can make the rest if a felony is committed in presence or view

OR misdemeanor ____

14.03: peace officer may arrest without warrant

o (1) persons found in suspicious places and under circumstances with reasonably show such
persons have been guilty of some felony or are about to commit some offense against the laws

Warrantless arrest

Ambiguous phrases for interpretation (suspicisou place)

(2) persons who the peace officer has probable cause to believe have committed an assault
resulting in bodily injury to another person and the peace officer has probable cause to believe that
there is danger of further bodily injury

Suspicious place
Johnson v. State: janitor, murder at apt complex

Janitor was not suspect until he started talking to the police more frequently; arrested him later
o Developed probable cause based on his conduct and words
o Suspicious place b/c murder was committed

Arrest occurred in a place where D had no reasonable expectation of privacy

Dyar v. State: D taken to hospital after one car accident

Hospital was suspicious place for warrantless arrest based on facts establishing probable cause to believe D
was driving while intoxicated
Cooper v. State

14.03: ridiculous case,

Parking lot fender bender at bar was suspicious place where police could make a warrantless DWI arrest,
even though it did not happen in presence of the officer
o D admitted drinking; had cut his chin apparently in accident in parking lot
o Parking lot in front of bar in wee hours of morning with intoxicated bleeding people walking around
wrecked cars constituted a suspicious place
Atwater v. City of Lago Vista

Mother and kids in car did not buckle seat belts

o In presence misdemeanor arrest without warrant valid
o Arrest not unreasonable if there is probable cause, even if arrest presents poor judgment
o Broad discretion whether to make a custodial arrest in the absence of a limiting local statute
o Even though intrusive and poor judgment

Police has discretion to give ticket or make a custodial arrest

County of Riverside v. McLaughlin

Court establishes 48 hour rule

o If arrested without warrant, probable cause determination must be made by magistrate by 48 hours
o Proceeding usually occurs as well; perhaps initial hearing
o Magistrate reviews complaint filed by officer and makes the assumption that allegations are truthful
and doesnt state probable cause
o The arrest itself is enormously intrusive; taken out of the community and confined

Probable cause makes that justification

Simply looks at the complaint

Probable cause review

Gerstein v. Pugh: warrantless arrest and continued detention requires prompt, informal, and non-adversarial
judicial review

County of Riverside v. McLaughlin: prompt means within 48 hours (or less if delay is malicious or for
obtaining more evidence)

If no probable cause determination with 48 hours, the State has the burden of showing bona fide emergency
or other extraordinary reason
Plain View

[Court: definitions can be different

o Plain view, no search and seizure was made
o Pre-supposed 4th Amendment action is taking place

During the course, officers observed something within the scope of their search/seizure

Immediately apparent that it constitutes evidence and can be seized]

Coolidge requirements

(1) The officers entry is justified in the place where the observation is made
o Warrant, probable cause, etc. (reasonable basis that complies with the 4th Amendment)

(2) Immediately apparent that the officers have discovered evidence

(3) Discovery is inadvertent (abolished in Horton)

o Court worried about pre-text and bad faith discovery
o Horton: inadvertence eliminated b/c doesnt add much to privacy protection

Only the scope of the search

AZ v. Hicks

Gun shot went through the floor and injured person below in apartment
o Went into Hicks apt looking for who shot the gun
o Had probable cause; no warranted needed (exigent circumstances)

Observation of 2 sets of stereo components is within plain view exception but moving the property to retrieve
seral number is not

Entry justified to look for gun shooter; scope of plain view limited by this purpose
Discovery of the serial numbers is not immediately apparent b/c it occurs during a search beyond
the scope of the justification for the entry

i.e. finding the shooter

Court: cannot just start searching
o Do other things first: warrant, consent to search, etc.
o Worth it to protect our liberty

Missing February 17 and 18

February 23, 2015
Chapter 11: Car Inventory, Roadblock & Boarder Stops and Searches
Automobile Inventory searches

Dont need probable cause or warrant b/c automobile exception

Not criminal investigation

Arrest drive or legal impoundment of car

The intrusion is small and the need is great


Second overtime parking ticket warned: vehicles in violation may be towed .

Police unlocked the card door and using standard inventory form pursuant to standard police procedures,
the officer inventoried the contents of the car, including the glove compartment, which was unlocked.
There he found marijuana contained in a plastic bag

This standardized caretaking procedure was [not] a pretext concealing an investigatory police motive
o Not criminal investigation

The inventory was not unreasonable in scope. Once the policeman was lawfully inside the car to secure
the personal property in plain view,
Inventory purposes

Protect owners property

Protect against false claims of mishandling property

Protect against misuse of any dangerous items

No probable cause or warrant needed

Whats left?

Pursuant to policy? Impoundment valid? Scope? Pretext?

CO v. Bertine
o Bertines argument = unreasonable and more intrusive than necessary

Why did they not just park the car somewhere?

Less intrusive options: record as backpack, no inventory record but just park car
o Police: inventory search is standard administrative search (department policy)

Guidelines usually mean theyre reasonable

Discretion given to police can be broad

o Court: courts job is to determine if police complied with the 4 th Amendment, not determine their
inventory method or policy used

[Administrative policy is really important

o See p. 381
o FL v. Wells: unreasonable to open a closed container as part of inventory search because there
was no admin policy authorizing search
o Court unwilling to sanction the approach if no policy at all]

Impoundment is justified: illegal parking, etc.

o Dealt with in admin policy

Benavides v. TX: impoundment of car legally parked 2 blocks from where D was arrested
o Inventory invalid because of no need for impoundment
o Besides removal from an accident scene or impoundment for parking violations . The police may
lawfully impound vehicles where the owner or driver requests or consents to the impoundment

Court: no justification for impoundment; wanted to see if there was evidence in the car

Found suicide note and other things [was going to kill wife and then self]

No probable cause or warrant

o The impoundment is lawful if the automobile is stolen abandoned, hazard, mechanically
defective that it is a danger
Scope of inventory search

Warrant not required

Autran v. TX: plurality opinion holds that search of closed container in inventory search of car violates TX
constitution Article I, Section 9 // 4th Amendment
o The interest in the protection of the suspects property, as well as the protection of the police from
claims of theft, can be satisfied by recording the existence of and describing and/or photographing
the closed container

Court: not reasonable in inventory search



Whren case:

Gill v. TX: evidence from inventory search of car invalid where backseat is removed
o Police got ___ company to open backseat to get into the locked trunk
Roadblock; sobriety checks

Everyone is being stopped (neutrality and similarly situated) and minimal intrusion
Michigan Dept. of State Police v. Sitz

There were administrative guidelines set up on where, when, etc.

o Makes it more reasonable

Those stopped = reasonable suspicion

o Less than probable cause, more than a hunch

Only 2 arrests of 126 that passed through before injunction and state had to put program on hold
o Court: drunk driving is a huge safety issue
o Dissent: rate of efficacy of the programs; just put police on patrol instead of making drivers stop

Court: not intrusive and reasonable

City of Indianapolis v. Edmond

Checkpoint where the primary purpose is the discovery of illegal narcotics

Car stopped and drug dog sniffs around 55 arrests for drug, 49 arrests for non-drug crimes out of 1161 cars
o Detecting drugs, not seeing if driver is impaired

Court: primarily about traditional law enforcement (narcotic offenses)

o Cannot be upheld
o Line between driving safety and having drugs (criminal offense) is not clear
Border search and seizures

No probable cause or no warrant required for routine searches and seizures

o Based on the fact that youre arriving in the country
o Reasonable b/c govs need is great
Near the border car searches

Almeida-Sanchez v. US: roving patrol (not checkpoint) for vehicle search violates 4th amendment
o Not treating everyone the same

US v. Ortiz: vehicle search at fixed checkpoint too intrusive after stop

o After car was stopped, they were searched by police with no probable cause
o Engaging criminal investigation without suspicion

US v. Brignoni-Ponce: roving patrol stop for brief inquiry as to citizen status invalid b/c roving requires at
least reasonable suspicion

US v. Martinze-Fuerte: fixed checkpoint stop for brief inquiry into citizen status approved
o Secondary referral system helps to minimize intrusion by reducing delay for all motorists and brief
further inquiry is minimal
o Court: helped speed up and limit detention of most, even if basis for further inquiry that was not
reasonable suspicion or probable cause

US v. Montoya de Hernandez
Extended detention until bowel movement and examine of fecal material after suspect had refused x-ray upheld b/c
officials had reasonable suspicion

Warrant for pregnancy test, x-ray, and rectal exam issued on less than probable cause
o Clear indication of criminal activity = reasonable suspicion and probable cause
o More than a hunch, less than probable cause
o 4th amendment language? Affected by admin law balance

Travel abroad: bags can be opened and searched without probable cause and a warrant
Admin Searches
Exceptions to probable cause

Reasonableness based on neutrality of treatment; everyone is treated the same way (primarily/initially)
The cornerstone of the 4 th Amendment is that individualized suspicion justifies official intrusion against a particular
person or place but admin search reasonableness depends on treating similarly situated persons the same
Camara balancing test

Weighs the need for search with degree of intrusion

Search may be reasonable without probable cause or warrant if minimally intrusive and necessary for
regulatory program
Intrusion vs. need

Intrusion is small in most admin searches b/c

o Neutrally apply all similarly situated
o Non-stigmatizing (daylight hours, non-uniformed officer)
o Often implied consent
o Search usually brief & not personal
o Pursuant to regulations that control discretion of the officer
Camara v. San Francisco
Ordinance violation to refuse safety inspection of building; Sup Ct upholds admin searches not based on
individualized suspicion but requires warrant if consent is refused

Purposes of admin warrant

o Assurance of authorization to search
o Notice of scope of search
o Probable cause (meaning warrant issued b/c of neutral reasons)

Camara lost in lower courts;

Admin warrants
o Provides assurance, search + scope, probable cause for the search
o Doing this to everyone who is similarly situated

Unlike search and arrest warrants allowing to single out person

NY v. Burger

No Camara warrant when

o Need for frequent unannounced inspections to further regulatory scheme

Reasonable to dispense with warrant requirement

o Statute or regulations provide warrant substitute
o Closely regulated industry history

Auto chop shop; make sure it is not a market for stolen cars/goods

Regular inspection program, statute that no warrant is needed, cannot refuse search,
Reduced expectation of privacy by an owner of commercial premises in a closely regulated industry
Special needs

Reasonable search: no warrant, no suspicion,

Public schools
o Minors have less than expectation privacy
o NJ v. TLO: warrantless search of student based upon reasonable suspicion

School official fully searched minor without warrant or probable cause at school

Based on reasonable suspicion

State is required to look out for welfare of children, provide safe environment, etc.
o Vernonia School District v. Acton

Random drug testing of student athletes through urine sample supervised by same sex

Reasonable b/c of need, especially for sports leaders and limited intrusion (in use of info
and method of collection)

Signed consent that they would agree in advance,

Results were not passed onto law enforcement; only school and sport

Limited the testing program to only student athletes (not every student)

Athletes are leaders, more involved with drug activity, dangerous for their
sport/injury or body,
o Pottawatomie v. Earls

Upholds drug testing

Drug testing program required for students wishing to participate in any extracurricular

Students required to take an initial drug test and are subjected to possibility of further
testing on random basis and if there is reasonable suspicion of drug use
Probation or parolees

Intrusion use of info is limited; method of collection is not intrusive

Need is the local school district evidence necessary? Drug abuse problem among Nations youth has hardly
abated since Vernonia was decided in 1995 it has only grown worse
Special needs


Committed to care of school

[We] must consider the nature

Drugs are nationally a problem; takes little to single out/tailoring to the specific school
Ferguson v. City of Charleston

Pregnant womens urine specimen taken as part of medical care at hospital turned over to law enforcement
for criminal prosecution for drug offenses and child neglect
o Staff: for health of mother and fetus, needed to get women off crack/cocaine
o Devised a program with advice/assistance from law enforcement
o Threatened with criminal prosecution if pregnant drug addict did not get clean (drug treatment

Like criminal investigation road block in Edmond, motive of criminal investigation matters even if there is
regulatory or health and safety justifications

District court: did not establish reasonable suspicion or probable cause

o Only not violating 4th amendment if there was consent

Appellate: reversed b/c searches were reasonable (random urine testing); dont need to reach issues of

Primary purpose of the program: health program, important for mothers health and to prevent crack babies

Court: involvement with law enforcement

Dissent (Scalia)
o Regarding secret gov agents or state action turning information over
o If private doctors, there probably wouldnt be an issue

But here it was a public hospital

March 2, 2015
Is stop and frisk reasonable?

Camara balancing of need and intrusion

o Need: necessary for crime prevention and detection to allow flexible limited intrusion with less than
probable cause
o Intrusion: police detention and possible frisk with less than probable cause reasonable only if
intrusion is limited in duration and scope

Terry vs. Camara

o Terry: criminal investigation; police need flexible responses to criminal activity

Detention that is a search and seizure

Reasonable on less than probable cause

Nature of investigatory stop involves exigent circumstance; not required to obtain warrant

A Terry stop

Brief stop? Intent of police? Actual frisk and suspicion requirement of officer
o Camara: various inspections are not stigmatizing, neutrally applied to people similarly situated
Terry v. Ohio

Is it a search?
o See footnote 13: State had argued that 4th Amendment only becomes applicable when police action
rises to level of arrest
o Detention and possible pat-down is substantial and stigmatizing intrusion upon the person

Facts: might be in process of a stick up, pats down coat of Terry and feels a gun (illegal to carry weapon)
o Terry arrested and gun introduced into evidence against him

Court: NOT ___ until arrest

o Search was less than probable cause
o 4th Amendment does not apply in this circumstance

Standard: reasonable suspicion, point out specific and articulable facts

More than intuition, but can be less than probable cause


Not practical to require officers acting on reasonable suspicion to obtain a warrant and constitution
does not allow warrants on less than probable cause

Justification of FRISK
o Double suspicion required: 1) stop or detain and 2) frisk

No automatic right as in search incident to arrest

Frisk allowed when officer has reasonable suspicion to detain AND has reason to
believe that he is dealing with an armed and dangerous individual

Sole justification is protection of officer

Not destruction of evidence as with search incident to arrest

Execution of Frisk
o Outer garment pat-down designed to discover weapons only upon reasonable suspicion

Pat down must precede and provide reason to reach and take item that might be a

Here, officer never reached into pockets of one man b/c did not detect anything that could
be a weapon during pat down
o Not for evidence but the safety of the officer
o Alternatives to a frisk: ask for ID (see if there is outstanding warrant), ask questions, ask for
consent for search, dog sniff
FL v. Bostick

Bus ride from Miami to Atlanta; officers come on bus at Ft. Lauderdale stop and ask to consent to search,
carrying zipper pouch with a pistol
o Bostick consents and cops find cocaine

Bosticks claim: detained b/c wasnt free to leave the bus // Terry

Court: Bostick was free to refuse

o b/c any confinement was result of Ds decision to take the bus and not stat action, the appropriate
standard is whether a reasonable person would feel free to decline
o no detention so long

CA v. Hodari

Hodari sees police vehicles in neighborhood and runs away; throws away drugs before officer tackled him
o Seizure (use of force with touching to restrain or attempt OR show of force which one submits)

But none happened here

o No reasonable expectation of privacy of abandoned property

IL v. Wardlow

Police go to high crime neighborhood; holding opaque bag, Wardlow runs and police chases him with the
o Officers restrain him = seizure
o Justified by at least reasonable suspicion (flight provides reasonable suspicion)

Person could refuse to talk to officer

March 4, 2015

Person can refuse consent to officers search without adding suspicion (but officer doesnt have to tell them
Florida v. JL

Anonymous tip of plaid shirt man at bus stop with a gun; frisked all three men standing there
o Unjustifiable, but probably not uncommon

Sup Ct: NOT reasonable suspicion; mere location of individual is insufficient

Contrast with AL v. White: reasonable suspicion from anonymous tip which involved a
more detailed tip with corroboration of predictive info

An accurate description of a subjects readily observable location and appearance will help the police
correctly id the person whom the tipster means to accuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.

Court rejects states pleas to adopt a firearm exception, which would justify a stop and frisk even without
reasonable suspicion

However, in dicta the Court states that danger alleged in an anonymous tip might justify a search without
reasonable suspicion if there is a report of a person carrying a bomb or where the reasonable expectation
of 4th Amendment privacy is diminished, such as airports and schools
Navarette v. CA

911 call by citizen who was forced off road by pick-up truck; gave the license plate, location traveling, etc.

Sufficient for officer to pull truck over

Eyewitness observation of possibly criminal act (drunk driving), credibility argument by using 911
system, which can be traced (not anonymous and more reliable), and crime and safety concern b/c
of reckless and possible drunk driving
o NOT like Florida v. JL
Dissent: location only like Florida v. JL
o Caller may still be unknown, spontaneity of tip questionable b/c had time to record complete license
plate number, impaired driver assumption is speculative and not supported by police surveillance

Is Terry stop available for completed crimes?

Terry: need for officers to act now or prevent person who just committed crime from leaving the scene

Navarette: issue not addressed b/c reasonable suspicion of ongoing crime

o Dissent suggests investigatory stop for claim of discrete incident is beyond scope of Terry

US v. Hensley: allowed Terry detention based upon suspects resemblance to person wanted for past crime
US v. Sokolow

When D was stopped in airport, DEA agents knew:

o He paid $2100 for 2 plane tickets in cash
o Traveled under a name that did not match the name of his listed phone number

Phone was under roommates name

o His destination was Miami (drug source city)
o Stayed for 48 hours, when flight from Honolulu to Miami takes 20 hours
o Appeared nervous
o Checked none of his luggage

DEA profile
o The fact that factors may be set forth in a profile does not somehow detract from their evidentiary
significance [for] a trained agent

Narcotics experts recognized

Terry: expertise of law enforcement may be entitled to greater weight than someone who
didnt have that training
o Dissent: reflexive reliance on a profile of drug courier characteristics runs a far greater risk of
subjecting innocent individuals to unwarranted police detention. This risk is enhanced by the
profiles chameleon-like way of adapting to any particular set of observations

Least intrusive means?

o D argued agents should have simply approached and spoken with him, rather than forcibly
detaining him relying on FL v. Royer

Use lease restrictive means, especially if based on __ suspicion

Taking out of public view and where lots of police officers are (intimidation) is more than
scope allows in Terry, unless there is reason

Beyond mere temporary detention

o That statement was directed at the length [and location] of

Hiibel v. NV

Facts: call tip to police station of man assaulting a woman; police saw man on side of road and asked for ID,
Hiibel refused and said he doesnt have to

NV statute:
o peace officer may [temporarily] detain any person whom officer encounters under circumstances
which reasonable indicate that the person has committed, is committing or is about to commit a

Must provide ID, but dont have to answer questions

If just asking questions, dont have to give Miranda rights

Precedent cases (re: vagrancy) and statutes

o No/different standards for police officers

HIIBEL: If officer has reasonable suspicion for criminal activity and investigates further, you must ID self
o Just provide name, dont even have to give ID card

NOT incriminating self

o Serves important law enforcement function

Ascertain who youre dealing with


Brown v. TX: statute unconstitutional for allowing officers to detain until person gave ID

5th Amendment issues as well (when compulsion by state official to give testimonial evidence

Disclosing name


Sibron v. NY

Terry cases: was there a detention? Force or authority where the individual has admitted? Did officer have
reasonable suspicion to detain? Reasonable bounds of detention? Officers taking reasonable measure to
confirm/dispel stop in the first place?

Second level of reasonalb suspicion (armed and dangerous) to justify outer garment pat-down frisk for
weapos for protection of officer?
o If went further, did officer reason in and perform taking?

Facts: officer observed Sibron with known drug addicts for hours; did not see drug exchange, etc.
o Voluntary detainment when asked Sibron to go outside
o Officer: do you know what Im after? Sibron puts hands in pocket, officer immediately reaches in
Sibrons pocket (no pat-down), and found drugs

Search cannot be justified as incident to a lawful arrest

Adams v. Williams

Tip that D had drugs and gun on his waist; officer approached vehicle and immediately reaches for gun
when D rolls down window of car

MI v. Long

Car suddenly swerved into ditch; driver seemed impaired, there was a hunting knife on the floor of the back
o Police said he may be dangerous
o [dissent: they werent going to let him back in the car anyway because he was impaired, how can
the hunting knife hurt the officer if they do let him back in the car]

Allows car frisk when officer has reasonable suspicion that individual is armed or has weapons in automobile
o May conduct search interior/parts of vehicle where there are weapons for their safety

Includes closed containers that may hold weapons

Terry expands: reasonable suspicion of D being armed and dangerous

March 16, 2015
Chapter 15: Consent to search
Consent searches: most common issues

Was it voluntarily given or coerced

o Coerced consent does not comply with 4th amendment unless some other justification

By person with [apparent] authority

o If given by 3rd party and evidence is obtained and used against D

Yes 3rd party can give valid consent

Search within limits of consent

o Facts specific
Scope of search

Reasonable for officer to believe that consent to search car allows opening containers within car but the
nature of the container may be relevant
o Breaking open locked briefcase without asking for further consent or for a key would be
Voluntary consent
Schneckloth v. Bustamonte

Was consent voluntary? Must the State prove that the suspect knew that he/she could refuse?

Knowledge of right to refuse merely one factor to be considered in determining voluntariness

Absence of coercion rather than voluntary consent would be more accurate description of voluntariness
Facts: traffic stop with 6 men in car; using brothers car, driver consents to search; found 3 stolen checks

Court: difficult for State to meet burden of knowledge of right to refuse consent
o // due process voluntariness law regarding confession (coerced confessions prior to Miranda)

Why not have something like Miranda warning?

Court says it is not practicable for searches

Searches normally occur in home, office, or on highway in informal situations not

inherently coercive atmosphere of custodial interrogation

Unlike Miranda; in police station surrounded by officers, directing questions at

you that call for incriminating response
o Froth with coercion in that environment that needs trial right protection
through the Miranda warning

Zerbst standard of voluntary waiver of known right applies to trial rights

o Guilty pleas, waiver of counsel
Bumper v. NC
Acquiescence to authority is not consent

go ahead when told there is a search warrant is not free and voluntary choice

What should an officer answer if asked what will happen if I refuse to consent?
o Bad answer: I will get a search warrant

Shows police authority

o Right answer: I will seek a search warrant

Better in court for police officer

Facts: grandmother consented to search, not knowing grandson was being charged with a crime

Court: State had to prove consent was actually freely and voluntarily given
Third party consent

Police officers may search jointly occupied premises if one of the occupants consent
o If the other is not present, it is allowed
o If the other is present and objects, there is not actual authority

See GA v. Randolph: unreasonable if one says yes and other says no

o However, factors and relationship of occupants to the property may change allowances

No requirement that police consult nearby Matlock (absent through police arrest) or wake
sleeping Rodriguez to ask his opinion
Fernandez v. CA

Authority to consent does not depend on ownership of the property if the 3 rd party has use, control, access,
etc. over the property then they can consent
o Assumes the risk

Facts: wife appears to be victim of domestic violence (probable cause) and arrested Fernandez; police came
back later and got consent from wife to search
o Husbands instruction not to search prior to his arrest does not prevent wifes valid consent
o Even if absence is deliberately procured through arrest to obtain consent from remaining tenant

Court: there was objectively reasonable basis to remove Fernandez, then his prior objecting of the search
consent does not matter
o No violation if arrest is objectively reasonable
o Wont question motive of police officers

Majority: irrelevant whether police could have gotten a warrant, since consent is an exception to probable
cause and warrants
o Homeowner may desire immediate police search to eliminate suspicion and allow officers to focus
attention elsewhere
o Should not invalidate consent just because a warrant could be obtained if consent to a search

Dissent: could have gotten a warrant, since they came back later
o By avoiding obtaining a warrant, state actors should assume risk of relying upon consent
o Domestic abuse avoided by exigent circumstances allowing arrest and securing premises
IL v. Rodriguez
Issue: whether a reasonable police officer would believe that the person consenting has that authority

NOT whether the person consenting has sufficient use, access, and control of the property
o [It would be invalid]

4th amendment does not require the police to be right but only reasonable

Facts: woman abused and brings police to the apartment, making it seem like she lived there
o Seized contraband and used against sleeping Rodriguez in trial
o Woman was ex-gf who moved out a month before, kept key to apartment

Court: reasonable for police to believe woman had authority (circumstantial)

o Invitation may be reasonable but further inquiry may be required in other cases

Dissent: reasonable mistake built into probable cause standard but home entry without a warrant is a
different question
o When warrant could have been obtained, state should assume risk of acting without one
Consent by deception

Deception as to identity does not destroy the validity of consent

Deception that leaves no choice not voluntary

o US v.Giraldo; consent to enter not valid when police officer pose as gas company employees and
falsely warn D of dangerous gas leak to get into home

This deception to get consent is invalid b/c it goes too far and gives homeowner no choice

When you knowingly inviting someone in, you lose a sense of privacy
Hoffa v. US
Facts: gov places secret agent in defense camp during ongoing trial; Hoffa charged with violations of Taft-Hartley Act
(union activities); Partin overheard plans of Hoffa to bribe jury

Hoffa raises:
o 4th Amendment: assumption of risk

Hoffa gave consent for Partin as a Teamster to hang out

o 5th Amendment: statements made by Hoff were not compelled

Hoffa himself made statements about getting one juror

o 6th Amendment: not in adjudicatory phase for juror tampering
Wired agents

Human bugging devices not within scope of federal wiretap statute

4th Amendment not applicable on basis of consent and assumption of risk as with unwired agents
o Assume risk that AND conversation will be broadcasted
March 18, 2015
Midterm review
March 23, 2015
Ch. 16 Confessions
5th Amendment: cant be compelled to self-incriminate

Burden of State to prove; dont put the person on the stand


Due process involuntary confession

o Coerced/involuntary confessions are not admissible for any purpose in criminal process, including

No derivative evidence

Regardless of the stage in the proceeding

o Applicable to any statement unlike Miranda requiring custodial interrogation and Massiah that
applies only after the adjudicatory process has begun

Broadest applicability

Broadest discretion

Confessions have huge effect on trials

Miranda insufficient or no warnings when required or failure to honor invocation

Massiah inducing statement after adjudicatory process has begun without valid counsel waiver

38.22 TX CCP: Miranda codification with additions (recording, writing, more warnings)

Common examples
o Physical brutality or threats of violence
o Prolonged incommunicado interrogation without food, sleep, clothing, etc.
o Promises of leniency by police officers
o Fabricated evidence presented to suspect

Difficult to prove; individual is isolated surrounded by police officers when detained

Miller v. Fenton

TX 38.22: confessions be admissible in writing or recorded

o Common to have a transcription then signed by defendant to make it a written confession

AZ v. Fulminante

Harmless error
o Claims immune from harmless error:

Coerced confession against D in criminal trial

Depriving D of counsel

Trying a D before a biased judge


If constitutional error, the conviction has to be reversed unless state can show it did not attribute to the

Structural error
March 25, 2015

CH. 17: The Path to Miranda

6th Amendment
Spano v. NY

Decided on basis of due process involuntariness (prolonged interrogation, request for counsel ignored,
deceptive use of friend)
o Fact based, due process analysis
o Judges urge 6th Amendment theory (right to counsel) b/c of interrogation without counsel after
indictment for capital offense

The confession should have been inadmissible based on 6th Amendment

Massiah v. US

There had been an indictment

o Prior had prolonged interrogation, other abuse
o Massiah, however, had not known that

Wasnt voluntarily making a statement because partner was undercover and wired while
talking about the incident
o When there is a charge, things change

Not just interrogation

Need to obey more formal rules

Post-indictment use of wired secret agent to induce D to make incriminating statements

This tactic does not violate the 4th Amendment on an assumption of risk theory
o Not considered compelled for 5th Amendment purposes
o After indictment, the 6th Amendment prevents deliberate elicitation of statements without counsel or

Waiver in this case was not possible b/c of secretive nature of the police action

Dissent: ___ doesnt apply

o Police officers, not attorneys

o Spano and Escobedo asked for attorney to be present

Massiah was talking to his friend in a car

o Complete absence of police coercive activity

He has no idea police were working with his friend


Massiah forgotten
o Overshadowed by Escobedo 2 weeks later, which appeared to push the right to counsel back to an
earlier point, post-arrest custody
o Escobedo had not been indicted but he affirmatively requested counsel and police officers
prevented counsel from visiting with client

Ignoring this request when D had become the focus of the investigation violated his 6 th
Amendment right to counsel

Escobedo was not indicted, but taken into custody and became the focus of the investigation
o No longer general questioning

Escobedo said he did not shoot the victim, which was admittance to being at the scene of the crime
Miranda v. AZ

Long list of D who had confessions that were not coerced in due process but admitted against them in trial
o None of them had warning of right to remain silent or request attorney
o Miranda was first on the list

Escobedo found a confession inadmissible under the 6 th Amendment when an affirmative request for
counsel by the suspect to see counsel (and counsels request to see client) was ignored
o Miranda, although argued 6th Amendment case, found that the 5 th Amendment was violated even
without an affirmative request for counsel (or to remain silent) if the police failed to warn the

Miranda warning
o Confession made during custodial interrogation inadmissible unless D waives the rights contained
in 4 warnings

Right to remain silent

Anything you say can be used against you

Right to counsel prior to any questioning

If you cannot afford an attorney one will be provided for you at State expense
o Giving Miranda warnings

Makes police look professional, officers use proof that they gave Miranda warnings in 14th
Amendment cases, relieves coerced confession allegations

Relieves coerced confession allegations

Dissent: nowhere in Constitution does it say if you dont give warning, then it is coerced
o Courts should not decide and create rules

Judicial legislation, an invention of idea of 5 judges
Prof Reamey slide

Bright line rule; if dont give warning when it is required, they will not let you state your claim (end of
o Other factors are irrelevant; per se rule
o Miranda was criticized on this basis

5th Amendment had not been mentioned

Massiah and Escobedo based on 6th Amendment

Reasoning: protect trial right and make sure that the confession was not compelled

Presumption that custodial interrogation was coercive if no warnings

Partial warnings

If gave only part of the Miranda rights, not adequate

o Must give all parts of the Miranda warning

Warnings are reinforcing; failure to give part of it is a failure of giving the Miranda rights
o Very technical rule
Custody slide

General, on the scene questioning is okay (police at scene of incident at a bar)

o Not in compelling/intimidating atmosphere like police station
o If not been taken into custody
What if police arrest and fail to give warning

Sometimes okay if dont question individual when arrested

Only have to give Miranda warnings prior to interrogation

o If arrested and give Miranda warning, but interrogated later, should give warning again

Any voluntary statement not prompted by police of any kind is not barred by inadmissibility
o Not state action inducing a statement
If given in English when the person doesnt understand the language

No, not sufficient

o Person did not comprehend; the words are supposed to mean something

Deaf person, intoxicated

If suspect makes a statement denying guilt

Sometimes when people deny guilt, they end up saying something useful to incriminate

If Miranda properly recited, can use statement

If 5th Amendment right to remain silent is invoked

If remain silent and tells they are invoking, then interrogation must seize

But for how long must the questioning cease?

o Certain circumstances where renewed questioning is allowed

If individual asks for attorney, interrogation must cease until attorney is present
What is required to show a waiver?

Express statement that individual is willing to make a statement and does not want an attorney COULD
constitute a waiver
o Need an expressed waiver
o If silent or respond with mhmm, then this does not constitute a waiver
Can the suspect change his mind?

Yes; if give some info can later invoke rights

o Does not waive rights
Will counsel be provided and participate?

Right of 5th Amendment to have counsel present at any questioning (interrogation), as well as consult prior to

Preliminary advice by attorney can be overcome by secret interrogation process

Myth of counsel participation

Mitigate dangers of untrustworthiness

Coercion by police reduced

If coercion by police, attorney can testify

Guarantee accuracy of statement if given

JUST ADVISE: dont talk to the police

o They cant make deals with you
o Dont have authority with charging criminals
Miranda and interrogation manuals

If Miranda warnings are given and suspect fails to invoke rights, police may:
o Isolate suspect, display air of confidence regarding suspects guilt
Does Miranda outlaw Mutt and Jeff?

Good cop, bad cop

TX Code of Criminal Procedure 38.22

Codifies Miranda
o Adds to Miranda rights that one can invoke rights at any time if one did not waive it
If electronically recorded, must record giving the warning
If written, Miranda warning must be on that document
Sec. 3c: Fruit of the poisonous tree rule
o Takes back some of what the statute gives to the D
o How statement can still become admissible

If violate only Sec 3c and in that statement, the D says something true

If it establishes the guilt of the D, the statement is admissible

o Corroboration can make the confession and the evidence derived from it admissible only if violation
of 38.22 is part of the statute that exceeds Miranda, not the part that codifies it

March 30, 2015

Ch. 18: Interrogations
[a lot of cases strengthening Miranda]

Beckwith v. US: D was the focus of the investigation but not in custody during IRS audit (tax fraud) at Ds
o Failure of Miranda warnings did not matter
o No characteristics of police domination, custodial interrogation

Orozoco v. TX: D was in custody at his home when multiple police officers present late at 4 am with D in
OR v. Mathiason

Even if there is law enforcement officer present, doesnt mean custody

D not in custody despite police station interrogation b/c D agreed to meet police officer at station (not the
officers place of employment) b/c it was convenient for D
o D came voluntarily; told he was free to leave and allowed to leave at end of interview
o No custody; thus no Miranda requirement

Officers false statement about having discovered Ds fingerprints at the scene of crime
o OR Sup Ct: contributes to coercive environment which makes Miranda rationale applicable

Whatever relevance this fact may have to other issues in case has nothing to do with
whether respondent was in custody for purpose of Miranda rule

Due process issue

o Broad view of Miranda
No Custody

CA v. Beheler: D not in custody although he was taken to police station by officers for questioning
o D voluntarily agreed to go

MN v. Murphy: Ds interrogation by his probation officer not custodial b/c D voluntarily arrived at an agreed
time that was arranged for Ds convenience and D was familiar with office b/c of previous meetings
o Free to leave
o Probation officer is not like a friend
o Failure to report or comply can be basis for revocation, even if it doesnt involve criminal conduct
IL v. Perkins

3 undercover officers posing as inmates discuss plans for sham escape and ask D if he was ever done
anyone; D in jail for different offense but talks about a murder he committed
o Despite direct question, suspect in jail
o Violation of 6th amendment
o Not violation of 5th amendment: suspect doesnt know hes dealing with an agent

No coercion of jail environment or police officer

Not compelled self-incrimination

No police dominated environment: no interplay between police interrogation and custody

o Hoffa: self-incrimination is not compelled merely b/c of misplaced confidence
o The only difference with Hoffa: jail custody doesnt matter when D is unaware of state officials
Strategic Deception

Miranda forbids coercion, not mere strategic deception by taking advantage

If in investigatory phase, Miranda may apply if custody and interrogation even if no charges filed
o Secret investigation does not include custody

If in adjudicatory phase and awaiting trial for the particular case of that phase
o Arms length adversarial
Undercover agent interrogation

IL v. Perkins: no charges had been filed with the subject of the investigation
o Perkins in the investigatory phase
Howes v. Fields

o Relevant factors

Determining whether an individauls freedom of movement was

Home in prison

Person already serving prison sentence generally not shocked when questioned in jail
o Vs. someone who is arrested at home and taken away

Factors for custody

D did not invite interview or consent to interrogation and was not advised that he was free to decline to

Lasted 5-7 hours in early morning

Factors against custody

Told he was free to leave (but had to be escorted by officer), not physically restrained or threatened, well-lit,
average sized room, comfortable, offered food/water, door sometimes left open

Court: not in custody

Federal overruling state

o When unreasonable application of established federal law
Berkemer v. McCarty

Facts: D admitted drinking 2 beers and smoking pot

Traffic stop is not custody b/c it is in public and brief (like Terry stops), which do not require Miranda
o Officers subjective decision to arrest is not decisive if not communicated
o Detainee not obliged to respond
o Unless detainees answer provide officer with probable cause to arrest him, he must then be

Focus is on person detained

o Would reasonable person feel free to leave under the circumstances?
RI v. Innis

Facts: cab driver who had been robbed id robber from pictures; probably murder of other cab driver
o Arrested D when he was standing in street; D was given Miranda warnings several time and asked
for attorney
o Police officers did not talk to him after; while driving him to station, police talk among each other
regarding murder weapon and how children in the area may find it and get hurt
o D tells police to turn around and shows where the gun is hidden

D had invoked right to counsel

o If this statement was interrogation, the attempt to interrogate would be failure to honor Ds request
for attorney

Court: statement wasnt directed to him or asked to him

Interrogation defined

Interrogation = express questioning or functional equivalent

Any words/actions on part of the police (other than those normally attendant to arrest and custody) that
police should know are reasonably likely to call for incriminating response
Conversation or manipulation?

Majority: showing of unusual susceptibility of suspect known to police would be a factor in determining
whether police action or statement was interrogation here
o Nothing in record to suggest that officers were aware that respondent was peculiarly susceptible to
an appeal to his conscience concerning the safety of handicapped children

Dissent (Marshall):
o Majoritys opinion of police convo = off hand

Dissent (Stevens): form of statements were critical in majoritys decision

PA v. Muniz

Exception to Miranda for express booking questions routine circumstances attendant to arrest or custody
o Observations of slurred speech in responding is incriminating but not testimonial

When was your 6th birthday? seeks testimonial content

o D was placed in predicament of admitting he did not know or giving incorrect info (both
o Court: answer to this question is not a testimonial response
Physical characteristics (hair sample, swab, breathalyzer, etc.) are not testimonial in nature
o Not under protection of the 5th amendment
Dissent (Rehnquist): field sobriety tests are non-testimonial and seek to test ability of body to function
o Why shouldnt the 6th bday question be allowed b/c it merely tests the suspects mental agility
rather than seeking the content of the answer
April 1, 2015

Ch. 19: Administration of Miranda

No extension to Miranda
CO v. Spring

After interrogating D once only about a firearms offense, officers in a 2 nd interrogation began with firearms
but changed the subject to murder without prior warning to Spring that this would be discussed and without
new Miranda warnings
o D claimed that new topic needed new Miranda warnings

Such additional info could affect only the wisdom of a Miranda waiver, not its essentially voluntary and
knowing nature
o Court refused any extension of the Miranda warnings
Precision required for suspects but not police officers
Duckworth v. Eagan

We have no way of giving you a lawyer but one will be appointed for you, if you wish, if and when you go
to court you have the right to stop answering at any time until youve talked to a lawyer
o Suggests that you cant have a lawyer now, but you can later on when you go to court

Court: have never insisted that Miranda warnings be given in the exact form described in that decision
o Prophylactic Miranda warnings are not themselves rights protected by Constitution, but instead
measures to insure that the right against compulsory self-incrimination is protected; therefore,
courts reviewing need not examine Miranda warnings as if construing a will or defining the terms of
an easement

Not itself required by the constitution; court created

Power only exists until congress acts to change the rules

o Not overrule, but greatly diminish Miranda b/c poor warnings are upheld
Fare v. Michael C.

16 year old waived and did not invoke a Miranda right through dialogue
o After Miranda warnings, officer asked if wanted to have attorney present
o Boy asked for probation officer, but officer said he had a right to cop
o Officer repeats Miranda warning and boy chooses to speak to them

Court: Miranda rules inform police with specificity and what

o Miranda is a standardized approach, apply in same way and has same effect
Berguis v. Thompkins
Davis v. US
Impeachment with silence and with statements obtained in violation of Miranda
Harris v. NY

Custodial interrogation statement not introduced in prosecution

OR v. Hass

Court: Miranda violation but doesnt mean Hass could take the stand and

Dissent: no incentive of police to honor right to counsel

[Can silence be incriminiating?]
Doyle v. OH

At trial, first time he testified he had been framed

Prosecutors: how come you didnt say that police officers if it was true?
o Due process violation
o Been told that silence is a safe harbor, but using it against him violate
Jenkins v. Anderson

Pre-Miranda; pre-arrest situation

Acted in self-defense

No due process violation; in absence of state evidentiary rule, there is no constitutional violation for D using
Fletcher v. Weir

Post-arrest silence without Miranda warnings (simply arrested)

Silence not controlled by Doyle b/c no Miranda warning was given

Due process

Sanchez v. TX
Salinas v. TX

Interrogation not during Miranda custody (D agreed to speak to officers at police station and provide
elimination prints)

Took silence as guilt; silence as affirmative evidence

Court: if had invoked rights affirmatively, it couldnt have been used

o Just remaining silent does not kick in Miranda

Easing the States burden of showing waiver of Miranda rights
CT v. Barrett

State established waiver in case where after D had received Miranda warnings, he stated: he would not
give the police any written statements but he had no problem in talking about the incident.
o Oral statement was admitted against him
o Court: Miranda was not violated even though it seems questionable that suspect understood the
warning that anything you say may be used against you
NC v. Butler

Waiver although D would not allow recording/note taking

Language about heavy burden to show waiver in Miranda did not preclude finding an implied waiver from
consideration of all circumstances without an express statement of the suspect surrendering rights

Court: prosecution does not need to show that a waiver of Miranda rights was express
o Implicit waiver of the right to remain silent is sufficient to admit a suspects statement into
o Butler made clear that a waiver of Miranda rights may be implied through Ds silence, coupled with
understanding of rights and course of conducing ___ waiver
Miranda and State interference with counsel in investigatory phase
Moran v. Burbine

Attorney cannot invoke Miranda rights for the suspect

Events occurring outside of presence of the suspect cannot have bearing on capacity to knowingly relinquish
a constitutional right
o Not knowing or voluntary

Evidence derived from Miranda violations, public safety exception, and survival of diminished Miranda rule
NY v. Quarles

Rapist tracked down by police; asked D where the gun was; D nodded in the direction and said the gun is
over there

Miranda is a court-created prophylactic rule designed to protect against coercion

o PUBLIC SAFETY EXCEPTION: Absent actual coercion, statements in violation of presumed
coercion rule of Miranda are admissible IF prompted by public safety concerns
o If statement is actually coerced, must suppress
April 6, 2015
Ch. 20 Resumed Questioning and Second-Level Miranda Rights
MI v. Mosley

Silence right invoked as to robbery, scrupulously honored by officers who immediately ceased interrogation
o Court upheld subsequent questioning by different officers about different crime (murder) after 2
hours with new warnings

Valid waiver

Interrogation of different subject

Resumed questioning minimum requirements

o Cease interrogation
o Let significant time pass
o Give new warnings
Edwards v. AZ

Officers cease interrogation after counsel right invoked; next morning officers interrogate D about same
crimes with new warnings
o Court: new interrogators, passage of time, and new warnings are NOT enough
o Valid waiver not established merely b/c D responded to police-initiated interrogation

Court creates new per se non-initiation of interrogation rule until counsel has been made
available following invocation of the right to counsel

Miranda was a per se rule as well

Right to counsel = court created rule designed to tell suspect they have the right to an advocate
o Subsidiary right

Primary right = right to remain silent and not making a criminating statement
o Police dont violate Miranda when ceasing interrogation
Violated b/c an attorney was invoked rather than the right to remain silent
o More powerful than the right to remain silent
o Court created rule that police cannot initiate any further interrogation

Initiating is enough to violate Miranda

D can initiate and be used in evidence

AZ v. Roberson

D invokes counsel clearly regarding burglary interrogation (at the scene of the burglary)
o 3 days later while D is in custody, he is interrogated about different burglary by different officer

D wasnt actually given an attorney

Doesnt matter of different crimes; prior invocation, focus whether on D is ___ and not voluntary
[missing slide]
Minnick v. MS

Escaped prison and killed people, finally fleeing to CA

Even after attorney provided, non-initiation rule continues after initial invocation
o Counsel invocation honored by FBI agents; 2 days later, new warnings given and appointed
counsel spoke with D (at least twice) prior to interrogation by MS officer

The non-initiation rule persists; petitioners statement was not admissible at trial

Clarity of Edwards rule desirable and danger of police badgering of D still persists
o Court: when counsel is requested, interrogation must cease and officials may not reinitiate
interrogation without counsel present

Regardless of whether D has consulted with his attorney

Dissent: badgering concern non-existent

o Edwards rule applies until counsel consultation
o After actual consultation, D knows that new invocation of counsel that D knows will be honored will
produce new non-initiation bar

Probabilities change; heightened awareness of right to remain silent after speaking with
o Harder to establish waiver for Minnick type of D than a newly arrested D without counsel
OR v. Bradshaw

D provided alcohol to minor that was later killed as passenger in car wreck
o Invoked right to counsel; D was transferred to jail facility and asked well, whats going to happen to
me now?

Officer: stay with your decision to remain silent and have attorney present, but if you want
to, you can make a statement and help self by taking polygraph test

Officers told him he failed; D then made incriminating statement about driving/wrecking

Plurality: evinced a willingness and desire for generalized discussion about investigation
o No violation of Edwards
o Statements made to polygraph examiner were voluntary and result of knowing waiver of right to
remain silent

Dissent: Edwards defeated only if accused initiates a desire to discuss the subject matter of the investigation

D can change his mind in regards to speaking without attorney present after invoking right to counsel
Davis v. US

MD v. Shatzer

Resumed interrogation 2.5 years after counsel invocation of same offense (sexual child abuse)
o New Miranda warnings

Edwards rule does not perpetually disable law enforcement officers from initiating interrogation
o Because clear guidance is required, 14 days without Miranda custody is sufficient for non-initiation

Sufficient period of time to protect individual who has asserted right to counsel

Can always ask for counsel again when given new Miranda rights

Burden of state to show waiver

o Note: jail or prison confinement is not the same as Miranda custody

April 8, 2015
Ch. 21 Massiah Rediscovered
[Massiah v. US (1964)]

Post-indictment use of wired secret agent (co-defendant) to induce D to make incriminating statements

Miranda warnings are not required b/c D is not in custody; unaware that he is dealing with state agent
o Statement is not presumptively compelled under Miranda and not actually compelled but there is
also a 6th Amendment right
Brewer v. Williams

Facts: mental patient abducted girl; fled to another city and got caught; Miranda rights told and chose to
speak to attorneys; while being transferred police talked about Christian burial for the girl before snow
coming in
o Court: Ds right to counsel was violated

[argued as Miranda]

Miranda argued as 6th Amendment case but decided on 5th Amendment grounds

Williams argued as 5th Amendment case but decided on 6th Amendment grounds


[Analyze under Miranda; makes more sense for this case]:

o Custody? YES
o Interrogation?
o Warnings? YES, 5 times; talked to 2 attorneys

Dissent: how much more effective warning can you get than that?

Problem: when was the last warning given? Sometime right before the Christian burial
speech. If there is gap, then that is a problem without giving Miranda again
o Invocation by counsel and/or by D?

D will talk to police after talking to attorney; very clear

Even had indication by Ds attorney to police to agree to not question

Later in Burbine case, the answer is no

However, this case came before

Police cant initiate questioning

o Waiver?

D invoked the right to counsel; no waiver

Initiated by police

Edwards case; right to not even be asked any questions

State has burden of showing waiver

Dissent: there was waiver; police made a statement and D told them where body was
o D initiated further discussion?

Dissent: D did not respond to Christian burial speech; but later told where to find body
o Public safety exception?
o Derivative evidence?

Talk about interrogations and effectiveness of warnings were in the mode of Miranda
o Same issues dealing in a Miranda case

Purposely illicit statements

6th Amendment [confession] Issues:

Are we in the Adjudicatory Phase?

o Formal court appearances or formal charging instrument

If not in adjudicatory phase, 6th Amendment doesnt apply

o Brewer: there was a courtroom appearance

Deliberate elicitation
o Christian burial speech

Without counsel or waiver of counsel more difficult under 6th Amendment?

o Counsel interference?
o No passenger rule, violated agreement with counsel
Patterson v. IL

[How to waive 6th Amendment rights]

o RULE: cant get statement in adjudicatory phase if not counsel or unless waived

D indicted with others informed that particular gang member was not indicted
o D asked why not, he did everything?
o D had not been appointed counsel; received Miranda warnings and waived then
o Subsequently made a statement
o Never invoked right to counsel

Initiation by D not a point that is stress by Court

o Officers may initiate even in adjudicatory phase

Is Code of Prof Resp forbidding counsel from contacting represented party without notice to
counsel relevant?

Holloway v. TX

Facts: D appointed attorney, but attorney didnt want case; later attorney shows up saying he is Ds attorney
o D did not invoke right to an attorney

More restrictive Texas waiver rule based upon footnotes 3 and 9 of Patterson case

No waiver of 6th Amendment counsel right in absence of notice to counsel prior to any attempt to deliberately
elicit evidence from client
o Ds unilateral waiver was not sufficient

Qualification for Holloway benefit is a different line than adjudicatory phase

o The existence of an attorney-client relationship

Court: once there is an attorney-client relationship,


Requires custody
Requires interrogation
Not applicable to secret agent (Perkins case)
Public safety exception
Attorney cant invoke
Derivative evidence admissible
Applies to custodial interrogation in either


No custody required

Officer must deliberately elicit

Right applies when secret agent elicits

No such public safety exception

Attorney interference

Fruit of poisonous tree rule applies

Only applies in the adjudicatory phase to

specific offense
April 13, 2015

Ch. 22: Scope of Massiah and Comparisons with Miranda

US v. Henry

Gov agent in jail told to listen but not to question D about crime

6th Amendment violated b/c deliberate elicitation standard met by back and forth conversations in close
quarters of jail during continuous association when gov agent compensated on contingent fee basis
o Got paid on usefulness of information
o Passive listening post that does not elicit statements from D might be different

Court: consistent presence with motivation (contingent fee) made it likely that this situation would induce
o Dissent: not deliberately illicit, application not supported by facts b/c agent did not violate b/c did
not interrogate or initiate conversation with D
Kuhlman v. Wilson

Similar facts but different solutions

State court found that state agent was passively listening

o 6th Amendment NOT violated without deliberate elicitation

When D told agent story that he told police, the agent stated that didnt sound too good
o State court affirmed finding that state agent had obeyed instructions only to listen
o Fed habeas denial reversed by Ct of Appeals under Henry
o US Sup Ct: deference to state fact-finding was required

Lack of contingent fee/monetary arrangement

Habeas corpus petitions are not res judicata

o New facts discovered can result in different outcomes
o However, the further away, longer period of time, and number of courts already reviewed, the less
chance you will get different outcome
TX v. Cobb

D indicted for burglary confessed but denied knowledge of residents missing from burglarized house
o D later admits to killing mother and daughter during burglary
o 6th Amendment did not apply to the capital murder

Both offenses arose from the same transaction

o In adjudicatory phase of burglary when found out about murders

Offense-specific 6th Amendment uses the double jeopardy test of Blockburger, which asks whether each
statutory offense requires proof of fact that the other does not
o Look at each statutory offense; does it require proof of fact that the other does not

NOT same day, same time, or factual circumstances

unrelated offenses

closely related = same victim, sets of acts, evidence, or motivation

o Give prosecution leverage

[Application slide]

Under Blockburger; same or different offense?

o Capital murder/murder
All of lesser in greater
o Murder/manslaughter
Higher mental state includes lesser
o Aggravated assault/assault
Greater harm includes lesser harm
Murder/attempted murder
Completed crime includes inchoate
o Robbery/burglary
Different elements even if one transaction
Montejo v. LA

Requires affirmative invocation to counsel

Overrules Michigan v. Jackson, which held that Edwards-type of non-initiation rule applies when D requests
counsel in court hearing or appears with counsel at a court hearing
o Jackson leads to arbitrary responses from State courts
o If want an attorney, all you have to do is say so
o If secret gov agent, dont have to say so b/c you dont know state is trying to illicit something from
you to violate 6th Amendment

B/c request for counsel does not occur when appointment of counsel is automatic, court found Jackson
unworkable given different state procedures and unnecessary b/c Edwards still exists
o If D wants to deal with authorities only through counsel, D needed only to say so

Compare with Holloway case


[ME v. Moulton

Co-D gets D to discuss crimes for which both had been indicted
o D suggested possibility of killing a state witness
o Gov argued that all statements should be admissible b/c police had investigatory purpose for crime
not yet in adjudicatory phase

Court: statements related to witness are admissible but not statements for indicted crimes

6th Amendment rights are offense-specific]

April 15, 2015
Ch. 23: Fruit of poisonous tree
Fruit of Poisonous Tree and Miranda

Exception to usual rule that a constitutional violation requires suppression of both the direct product of the
violation and evidence derived from it
o Auxiliary nature
o Physical evidence derived from the statement

Non-verbal confession subject to suppression

Does the same rule apply when the evidence derived from a Miranda violation is a second confession that
viewed in isolation, complies with Miranda but was influenced by a prior confession?
o Not a fruit of poisonous tree exclusion, but a direct Miranda
MO v. Siebert

Facts: child with cerebral palsy dies naturally, Mom scared of neglect charges and her other sons/friends
burn house down while leaving another mentally ill teenager to die as well
o Officer asked her questions without Miranda warnings, got her to admit
o Later came back and gave Miranda warnings, confronted her with the statements she made prior to
Miranda warning

Police manuals suggesting to get around Miranda

o Dont give Miranda warning but get statement from D; take a short break; come back and give
Miranda warnings + use/recall first statement

Use recording/text of second statement

o D: fruit of poisonous tree, warnings came late

Decided same day as Patane; finds second confession inadmissible but (for plurality) not on fruit of
poisonous tree grounds

Leading case prior to Seibert dealing with consecutive confessions OR v. Elstad .

o If allow second confession preceding by interrogation without warnings, you drain significance of
Miranda practice

Court (plurality)
o Deliberate evasion of Miranda by refraining from giving warnings in first interrogation and then
confronting D with prior statement after giving warnings for 1st time

2nd confession also violates Miranda b/c of ineffectiveness of warnings under circumstances
objectively viewed from Ds perspective
o This analysis avoids creating exception to non-applicability of fruit of poisonous tree to Miranda and
does not overrule Elstad

Even though not fruit of poisonous tree, still violation of Miranda

o Statement = primary evidence

Hypothetical view as single interrogation with a break

o Even if single interrogation, approach

Concurrence: should have good faith requirement; if lack of good faith, should change rules regarding fruit of
poisonous tree

Dissent: second confession admissible even if prior confession did not comply with Miranda
o Elstad controlling but dissenter prefer plurality to good faith approach of the concurrences b/c
plurality preserves the rule that fruit of poisonous tree analysis is inapplicable to Miranda violations
and avoids making determinations of subjective bad motives of officers

Subjective intent of officer should not have anything to do with it

What a reasonable person under that circumstance should do

Fruit tests

Aside from Miranda, the usual rule of fruit of poisonous tree or inadmissibility of derivative evidence prevails
unless the State can show that the fruit is not poisoned in one of these ways:
o Independent source

Fact question

Not directly from police investigation

o Inevitable Discovery
o Attenuated Connection

Used most often when testimonial evidence raises questions of human motivation

Brown and Taylor cases created four factors

Miranda warnings

Temporal proximity

Intervening circumstances

Purpose and flagrancy of police conduct

Due process also violated if keep in custody without probable cause

NY v. Harris

Even though arrested without warrant, the illegality ends once taken from the home

No attenuated connection

Dissent: look at whether the illegality influenced the conduct of the D involved
Brown v. IL

Police broke into home and pointed gun when D entered his apt, arrested him without arrest warrant or
probable cause

Lack of probable cause

Court: Miranda warnings are not enough (see four factors above)
Taylor v. AL

D arrested when received tip from stranger

6 hour time period between time of arrest and later confession;

o Not continuous or intervening factor when spoke with girlfriend and

Nix v. Williams

Christian burial speech

Inevitable discovery

At retrial, Ds statement and actions leading officers to the body not offered but derivative evidence is
o Introduced scientific evidence of autopsy, not that D showed where body was

Fruit is unpoisoned b/c search party would have found body within hours of the actual discovery in the same
o Inevitable discovery doctrine prevents State from being put in worse position than if there had been
no constitutional violation

6th Amendment violation; does not have same subsidiary quality that 5th Amendment Miranda right has

o Resulting that 6th Amendment rule applies

o Apply fruit of poisonous tree test
Inevitable discovery doctrine similar to independent source doctrine
o However it is hypothetical; would the evidence be eventually found?
Concurrence: because investigation actually happening, he concurred; if it had be speculative that they were
going to search for the body, then he would have dissented
o Burden is on the State; preponderance of the evidence

Typical when it is regarding factual issues

o Dont need higher standard, as dissent wants
Dissent: speculative nature; needs clear and convincing evidence (higher standard)

TX Rule

TX has rejected inevitable discovery under 38.23 CCP which requires suppression b/c evidence is derived
from a constitutional violation
o Garcia v. State, 829 SW.2d 796 (1992)

Need to cite 38.23 in TX cases, otherwise, TX court will only use federal

Although Miranda is the exception to the fruit of the poisonous tree rule for derivative evidence, allowing
impeachment use of evidence obtained in violation of Miranda (see Harris and Hass) is the norm for
constitutional violations
o US v. Havens: 4th Amendment illegal search
o Harris v. NY: 5th Amendment Miranda violation
o KS v. Ventris: 6th Amendment Massiah violation

Exception = due process

o Impeachment prohibited
o Exception is the Due Process violation of an involuntary coerced confession which may not be
used for any purpose including impeachment
April 20, 2015
Ch. 24 Identification
Eyewitness Identification

Before 1967 there was no constitutional argument available against admissibility of identification procedures
o Defense could only argue weight

Wade and Stovall create 2 grounds of attack

o Due process concern that unnecessarily suggestive procedures could lead to mistaken
o Wade (6th amendment rule) like Miranda is court-made rule concerning counsel to prevent real evil
of suggestiveness
o Wade : Stovall // Miranda : Due Process coerced confession cases

Problems with eyewitness

o Can easily mistake or remember incorrectly (retrieval or perception)
o Sufficiency of the evidence to prove guilty

US v. Wade

D is arrested and indicted; made to participate in a line-up in which he was required to wear tape on his face
like the robber and speak spoken words
o Adjudicatory phase
o Unprecedented
o Purpose: trying to deal with suggestive procedures during identification; prevent unfairness

Cant stop identification process

Have attorney present

Reason: can have attorney at trial and any critical stage prior to trial

No waiver

5th Amendment claim rejected

o Appearance is non-testimonial like blood in Schmerber case
o No interest in content of words but voice quality
o Dissent: saying words and wearing tape on face like robber violates 5th Amendment rights

6 Amendment rights to counsel and meaningful cross-examination require presence of counsel at

identification proceedings

Unlike scientific testing where techniques are standardized and procedures can be recreated on
cross-examination suggestion in identification procedures may go undetected
o Court: right to have attorney present during identification

Suggestiveness arises inadvertently and is never recreated

Need to have someone present at the id proceeding

Primarily there to observe

Cannot direct the id process; does not waive objection by not voicing complaints

Present evidence on cross-examination regarding suggestive features

Know if witness identified or did not identify client

Or file motion regarding due process to suppress evidence regarding actual
Need for 6th Amendment Protective Rule
o Mistaken id is most common cause of erroneous convictions
o Once id is made, witness rarely will change testimony or know source of id

(possibly the suggestive line-up rather than remember D from scene of crime)
In-court id?
o State should have chance to prove independent source based on factors

Opportunity to observe

Discrepancy of prior description

Incorrect id or failure to id

Time between crime and identification

o Need clear and convincing evidence
o Make sure witness is recalling D from crime scene, not at id process
Waiver of counsel
o Wade mentions waiver of counsel in passing but issue not addressed

No Wade cases discussing waiver in stark contrast to 5th and 6th Amendment confession

Counsel will usually prevent interrogation, but counsel cant prevent line-up that produces
non-testimonial evidence

Wade counsel can help assure fairness but not prohibit the id
o Broad per se rule excluding id evidence when counsel not provided without regard to

o Predicts impossibility of demonstrating independent source by clear and convincing standards

o White: inconsistency of Wade, which wouldnt forbid first id in courtroom (extremely suggestive
Wade diminished in 2 cases
o Ash and Kirby case

IL v. Kirby

Facts: 2 days after crime, show up (photographic id) happens after arrest but BEFORE indictment
o Victim walks through door and sees two men, blaming them (seems to be suggestive)

However, excused b/c it was prompt

o Show ups generally criticized

Wade applies only to id procedures in adjudicatory phase

Court: presence of counsel right attaches only in adjudicatory phase

o Different b/c Wade had been indicted and in adjudicatory phase
o Will not extending in investigatory phase (here)

Dissent: possibility of suggestiveness, inability to reconstruct, and importance of id testimony apply to both
pre and post indictment procedures
o Wade had been indicted, but this fact was barely mentioned
o Risk of misidentification and still need for attorney present whether in investigatory or adjudicatory

Most of the time, identification before indictment

US v. Ash

Photographic id 3 years after crime with no attorney present

o Long after indictment and right before trial
o Wade involved actual body line-up that could not be adequately reconstructed

Could not recreate suggestiveness, easier to manage,

o Here, b/c using pictures, can recreate

Cross-examination can adequately protect against mistaken id

o The accused doesnt have the right to be present; how can his counsel?

Photos preserved
o 5th Circuit requires photos be preserved or evidence of pretrial photo id is not admissible

Stovall v. Denno

Facts: criminal stabbed husband, tried to stab wife; she survived but in critical condition in hospital
o Police brought D to her hospital room, only black person in the room, wife identified D as criminal

Due process claim can be presented regardless when id procedure occurs

o Due process violation applies to any procedure, including photographic, where there is:


That is unnecessary

Causing substantial likelihood of mis-identification

Important to show

If lack showing of substantial likelihood of mis-id, see following Manson case

regarding 5 part test

Single presentation encounter in police custody is suggestive, but not unnecessary b/c of possible
impending death of witness in Stovall
Ch. 25 Identification: Fruit of the Poisonous Tree and State Action
Manson v. Brathwaite

Suggestive and unnecessary to present single photo of accused 2 days after encounter
o Due process only occurs if the unnecessary suggestiveness gives rise to a substantial likelihood of
mistaken id

Only 2 days after sale of drugs, undercover officer had good opportunity to view
April 22, 2015
Perry v. NH

Not police arranged identification, so no 6th amendment due process claim

New TX statute (2012)

Requires law enforcement agencies to develop policy for photographic and live line-ups

No indication if violate or dont have policy

Person who is conducting procedure can unconsciously produce outcome

o Blind procedure encouraged
Sup Ct case decided yesterday

Officer saw person drive on shoulder for a little bit

Had canine in cop car

Driver stayed in car when pulled over by cop, overpowering air freshener, driver appeared nervous, drove to
Omaha, NE to look at for sale Ford Mustang for sale but hadnt seen a picture of it or worried about title

Cop hands warning ticket to driver, asking do you mind if I have dog walk around car

Cop requested back up

Appellate: prolonged encounter for 7-8 minutes; 4 th Amendment problem if dog sniff increases amount of
time for detention
o No serious enough or long enough
o Convicted of 5 years affirmed

Sup Ct: reversed

o Can take time to do traffic related things is okay
o Taking time for dog sniff, etc. that is not traffic related violates

Investigatory criminal purpose

o No reasonable suspicion
o 4th amendment violation = prolonging traffic stop

Rather than use of dog

o Dissent:

29 minutes total was reasonable

Suspicion of drug dealing/weapons made it reasonable to wait for back up cop

Probable cause b/c driving on shoulder


Did not make custodial arrest

Note to tell cops: dont write the ticket yet, and have dog smell
o If smells nothing, just write ticket and youre okay

If smells something, then make arrest


25 MC questions (75 minutes)

Essay starts at the same time for everyone (90 minutes)

o One fact pattern

Hard copy open book

Miranda, Katz, Wade,

Apply law to particular fact pattern


TX 38.22 (confession) and 38.23 (exclusionary) and

Holloway case
o If prosecutor: it should be overruled
o Defense: use Holloway, and might not reflect 6th Amendment law anymore
Constitution creates floor, not ceiling
Open fields doctrine does not apply in Texas
o Hobbes
o Similar to Oliver
o Officers who did that in TX were trespassers

If violate laws or TX Constitution, then evidence not admissible

Will try to answer questions via email